The State Education Department
State Review Officer

No. 94-18

Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Eastport Union Free School District

Appearances:
Martin J. Crowley, Esq., attorney for petitioners

Winkler, Kurtz and Winkler, Esqs., attorneys for respondent, Nancy Burner, Esq., of counsel

DECISION

        Petitioners appeal from the decision of an impartial hearing officer which upheld the April 6, 1994 recommendation by respondent's committee on special education (CSE) that for the remainder of the 1993-94 school year petitioners' child no longer be mainstreamed for social studies and science and receive special education instruction in such subjects. They assert that the child should have been mainstreamed for social studies and science, with the assistance of consultant teacher services. They also challenge the hearing officer's finding that the CSE had appropriately evaluated the child, and seek an order requiring respondent to reimburse them for expenditures they incurred for medical, psychological, psychiatric and legal fees with regard to this proceeding. The appeal must be sustained in part.

        The child was born in March, 1985, to a mother who reportedly had psychiatric problems prior to her pregnancy. Approximately five months after the child's birth, physicians reportedly noted the effects upon the child of his mother's use of drugs or alcohol during her pregnancy, including the child's extreme rigidity and allegedly unusual facial features. Petitioners are the child's adoptive parents. His adoptive mother began caring for the child immediately after his birth. The child's initial adoptive father, who was also the child's uncle, died. The child's adoptive mother subsequently remarried. She and her husband are the petitioners in this proceeding.

        The child's adoptive mother had the child evaluated at the Rainbow Preschool in 1989, because she was concerned about his speech/language development. The Rainbow Preschool's speech/language evaluator reported that the child exhibited significant delays in his receptive and expressive language skills, and opined that the child appeared to have auditory processing difficulties. The child was also psychologically evaluated at the preschool. His general cognitive skills were reported to be in the borderline range, i.e., between average and retarded, with no relative strengths or weaknesses. The child reportedly exhibited a 19 month delay in his visual motor integration skills. The preschool's school psychologist recommended that the child receive special education instruction in preschool.

        For the 1989-90 school year, the child was classified as speech impaired and attended the private preschool. The child was a resident of the Hauppauge Union Free School District. The Hauppauge committee on preschool special education (CPSE) recommended to the Hauppauge CSE that the child's classification be changed from speech impaired to learning disabled, and that the child be placed in a special education class for kindergarten during the 1990-91 school year. The child's parents reportedly disagreed with CPSE's recommendation, and the child was placed in a regular education kindergarten in Hauppauge.

        In February, 1991, the child was referred by his kindergarten teacher to the Hauppauge CSE. The teacher reported that the child required 1:1 instruction and exhibited some immature behavior. The child was reportedly classified as learning disabled and placed in a special education class in Hauppauge.

        In February, 1992, at or about the time when the child became a resident of the Eastport Union Free School District, respondent's CSE recommended that the child continue to be classified as learning disabled, and that he be placed in a special education class with a 15:1 child to adult ratio in respondent's Eastport Elementary School. The CSE also recommended that the child receive small group speech/language therapy three times per week. The CSE's recommendation was accepted by the child's parents.

        Respondent's CSE conducted its annual review of the child's IEP on May 13, 1992. At the time of the CSE review, the child was in a ungraded class, but chronologically he was completing the first grade. The CSE reported that the child's mathematical skills and his reading skills were at approximately a mid-first grade level. For the 1992-93 school year, the CSE recommended that the child remain classified as learning disabled, and that he be instructed in all subjects in a special education class with an 8:1+1 adult to child ratio. At the hearing in this proceeding, the CSE chairperson revealed that the CSE had recommended the smaller sized class for all of the younger children who had previously been in this child's 15:1 class in the 1991-92 school year. The CSE further recommended that the child continue to receive speech/language therapy three times per week. Petitioners did not challenge the CSE's recommendation.

        The CSE completed the child's triennial evaluation in October, 1992. Respondent's school psychologist reported that the child's verbal IQ score was 82, his performance IQ score was 77, and his full scale IQ score was 78. The child exhibited strength in word knowledge and abstract reasoning, and weakness in his general fund of knowledge, arithmetic reasoning skills and perception of spatial relationships. He also exhibited delays in visual motor skills. Although the child reportedly showed signs of requiring nurturing and development of his self esteem, the school psychologist opined that the child had no significant emotional problem, and recommended placement of the child in a small, structured class with individualized instruction. In an educational evaluation completed in September, 1992, the child achieved grade equivalent scores ranging from the fourth month of kindergarten (K.4) in ability to solve applied problems to the third month of the second grade (2.3) in letter-word identification skills. The child's speech/language therapist reported that the child exhibited delays in the development of his auditory perceptual skills, picture vocabulary, oral vocabulary and grammatic understanding. A physical examination performed after the child's triennial psychological, educational and speech/language evaluations had been performed revealed that the child might have a vision deficit. His physician referred the child for further evaluation of his vision. The record reveals that the child subsequently received eye glasses. In an update of the child's social history, his mother reported that the child had made a good adjustment and his attitude about school had improved, since entering respondent's schools. On October 28, 1992, the CSE in essence reaffirmed its May 13, 1992 recommendation with respect to the child's classification and placement. Petitioners reportedly agreed with the CSE's recommendation.

        On December 15, 1992, the CSE met at petitioners' request to revise the child's individual education program (IEP) to mainstream him for art and music instruction. The CSE reconvened on February 26, 1993, at which meeting the CSE recommended that the child be transferred to another special education class with a 12:1 child to adult ratio, and that he be mainstreamed for physical education. The change from the 8:1+1 to the 12:1 class was reportedly recommended because the CSE believed that the younger children in the 8:1+1 class had different needs. The CSE also recommended that the child receive an occupational therapy evaluation. In her testimony at the hearing, the CSE chairperson revealed that the evaluation was recommended because the child's special education teacher had expressed concern about the child's fine motor skills. At petitioners' request, the CSE met again on March 16, 1993, to determine whether the child should be mainstreamed for instruction in additional subjects. The CSE recommended that a review of the mainstreaming issue be deferred until the child's annual review, but did withdraw its prior recommendation for an occupational therapy evaluation, because its occupational therapist had opined that a formal evaluation was not necessary.

        The child's annual IEP review as conducted on May 17, 1993. For the 1993-94 school year, the CSE recommended that the child remain classified as learning disabled, and that his placement be changed from a 12:1 special class to a 12:1+1 special class for instruction in language arts and mathematics. However, the CSE further recommended that the child be mainstreamed for all other third grade subjects, including science and social studies, and that he continue to receive speech/language therapy three times per week.

        Petitioners asked the CSE to reconsider its recommendation. On June 15, 1993, the CSE amended its recommendation to provide that the child be mainstreamed for instruction in all subjects in the third grade, purportedly on a trial basis, and to provide indirect consultant teacher services twice per week and small group counseling once per week.

        On November 3, 1993, the CSE met to review the child's progress in his mainstreamed placement. His regular education teacher reportedly expressed concern about the child's ability to learn in a fully mainstreamed program. The CSE recommended that the child's IEP be revised to provide the child with special education instruction for mathematics and language arts, while continuing to mainstream the child for all other instruction. The CSE also recommended that the child no longer receive indirect consultant teacher services. In describing the child's social development, the child's IEP indicated that the child had some problems relating to adults and peers. The IEP also indicated that the child required carefully presented, sequential materials and frequent reinforcement by a teacher, in order to reduce his frustration with regard to his academic achievement. The IEP further indicated that the child had not made appropriate educational gains in his regular education program, and would benefit from a part-time placement in a special education class. Petitioners did not seek review of the CSE's recommendation.

        In February, 1994, petitioners obtained a private psychological evaluation of the child. The private psychologist reported the child's verbal IQ score as 79, his performance IQ score as 94 and his full scale IQ score as 84. He opined that the child's significantly higher performance IQ score than that reported by respondent's school psychologist could have been because the latter had not administered an object assembly subtest to the child, or because the child's visual encoding and visual sequencing skills had improved. Contrasting the results of the October 1992 IQ test performed by the school psychologist with those which had been obtained in the February, 1994 test, the private psychologist reported that the child had demonstrated improvement in abstract visual reasoning and verbal quantitative problem solving skills, but that his performance on subtests requiring him to define vocabulary words and categorize concepts had declined in the February, 1994 test. He opined that the child might have difficulty structuring and sequencing his verbal responses.

        The private psychologist further reported that the child's performance on academic achievement tests in writing and spelling was better than would be expected for a child with a typical learning disability, because the child was proficient with phonetics, and did not exhibit signs of visual processing deficit in his writing. The child's performance in an arithmetic test was reportedly improved when he was given visual clues. The private psychologist, who observed the child in his special education class and in a regular education class, reported that the child appeared to be more comfortable in the special education class. He opined that the child had a limited tolerance for unstructured activity, and a moderately high level of distractibility, and recommended that a physician be consulted for possible treatment of the child's attention deficit disorder. The private psychologist also recommended that the child receive counseling to deal with the sources of the child's anger or anxiety, and that he be placed in either a small, self-contained special education class or a regular education class with consultant teacher services, if the child's ability to attend and concentrate did not significantly improve.

        On February 28, 1994, the CSE met with petitioners to review the child's educational program. Although the child's mother reportedly alluded to the child's private psychological evaluation, petitioners did not provide the CSE with the private psychologist's report. The CSE recommended that the child's placement be changed to a 12:1+1 special education class for instruction in all subjects, except art, music and physical education. The CSE's recommendation was based upon reports from the child's regular and special education teachers, who were concerned about the high level anxiety that the child had exhibited. The CSE also recommended that the child be psychiatrically evaluated. Although petitioners reportedly disagreed with the CSE's recommendation, they did not request that an impartial hearing be held.

        On April 6 1994, the CSE again reviewed the child's educational program, as well as the results of the private psychological evaluation which petitioners had provided. Petitioners advised the CSE that a physician had prescribed Ritalin for the child, to address his attention deficit. Although petitioners asked the CSE to recommend that the child be mainstreamed for social studies and science, the CSE adhered to its prior recommendation that the child receive special education instruction in all subjects, except physical education, art and music. The child was to be mainstreamed for lunch and school activities, such as assemblies. The IEP prepared at the April 6, 1994 CSE meeting was intended to detail the child's educational program for the remainder of the 1993-94 school year. The record does not reveal what program the CSE has recommended for the 1994-95 school year.

        In a letter to respondent, dated April 13, 1994, petitioners' attorney requested that an impartial hearing be held to review the CSE's April 6, 1994 recommendation. The hearing in this proceeding was held on May 5, 1994. At the hearing, petitioners challenged the results of respondent's evaluation of the child, as well as the appropriateness of the CSE's recommendation that the child receive special education instruction in all academic subjects.

        In a decision dated May 23, 1994, the hearing officer found that the tests and procedures used by the CSE to evaluate petitioners' child were within the standards set by the Regulations of the Commissioner of Education. The hearing officer upheld the appropriateness of the special educational program which the CSE had recommended for the balance of the 1993-94 school year. Nevertheless, the hearing officer issued a purported interim order requiring the CSE to re-evaluate the child psychologically in September, 1994, to chart the effect of the medication taken by the child upon his behavior, and to provide the child with comprehensive counseling. The hearing officer further ordered the CSE to review the child's academic performance after the first quarter of the 1994-95 school year to ascertain if he could function in a less restrictive environment than respondent's special education class.

        In this appeal, petitioners do not challenge the validity of the child's classification as learning disabled, so I do not reach the issue of the appropriateness of such classification (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]). The two issues in this appeal are whether the CSE's evaluations of the child were adequate, and whether the CSE's recommendation to end the child's mainstreaming for social studies and science was consistent with the Federal and State requirement that each child be educated in the least restrictive environment (34 CFR 300.550; 8 NYCRR 200.6 [a][1]).

        Petitioners have not identified in their petition any specific area of disagreement with the CSE's evaluations, but they have requested reimbursement for psychological and psychiatric evaluations of the child. Federal and State regulations provide that the parents of a child with a disability are entitled to obtain an independent educational evaluation at public expense, if they disagree with the school district's evaluation. However, their right to an independent evaluation is subject to the right of the school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If a hearing officer finds that the school district's evaluation is appropriate, the parents may have an independent evaluation, but not at public expense (34 CFR 300.503; 8 NYCRR 200.5 [a][1][vi][a]).

        The initial question is whether respondent's evaluations were adequate to support the CSE's recommendation that the child no longer be mainstreamed for social studies and science. The record identifies only four academic subjects for the child. Language arts and mathematics were taught to the child in a special education class, and social studies and science were taught to the child in a regular education class. The Federal regulations implementing section 504 of the Rehabilitation Act of 1973 require that a child be evaluated before there is any significant change in the child's placement (34 CFR 104.35 [a]). I find that a change from regular education to special education for one-half of this child's academic subjects is a significant change in his placement (Application of a Child with a Disability, Appeal No. 93-15). There is no evidence in the record that respondent's CSE re-evaluated the child prior to recommending a change of placement on April 6, 1994. Therefore, I find that respondent's evaluations were inadequate.

        Reimbursement for the cost of an independent evaluation is an appropriate remedy when such evaluation provides necessary information about a child to enable a CSE to plan the child's educational program (Application of a Child with a Handicapping Condition, Appeal No. 92-1). I find that the private psychological evaluation provided the CSE with additional useful information, including the possibility that the child may have an attention deficit disorder, the child's need for a teaching approach which uses visual and concrete, step by step instruction, and his need for counseling. In view of the useful information and results provided in the private psychological evaluation and considered by the CSE, as well as the CSE's failure to re-evaluate the child prior to recommending a significant change in his placement, I find that it would be equitable to require respondent to reimburse petitioners for the private psychological evaluation obtained by petitioners (Application of the Board of Education of the Fayetteville-Manlius Central School District, Appeal No. 92-4).

        Although petitioners also seek reimbursement for medical and psychiatric fees incurred in connection with this proceeding, they have not offered any evidence of medical and psychiatric examinations, or the fees which they paid for such examinations. The record does reveal that the child's physician prescribed Ritalin for the child, which may have had an effect upon the child's ability to attend, and that the child has apparently received private counseling, which may or may not involve the services of a psychiatrist. However, the absence of sufficient information in the record about the child's medical and psychiatric examinations, as well as his private counseling, precludes any consideration of petitioners' claim for reimbursement for such examinations and services.

        The central issue in this appeal is whether respondent has met its burden of proof with regard to the appropriateness of the educational program recommended by its CSE. To meet its burden of proof, respondent must demonstrate that its recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a] [1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child With a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        The IEP prepared at the CSE's April 6, 1994 meeting indicates that the CSE considered the private psychological evaluation, but did not make use of the results of such evaluation. Indeed, the IEP does not identify the child's special education needs, and includes annual goals and short-term objectives only for social studies and science. A more complete explanation of the child's needs was set forth in the child's prior IEP, which the CSE prepared at its November 3, 1993 meeting. However, the prior IEP did not provide annual goals to address the child's social and academic needs, as they were described on pages 4,5, and 6 of the IEP. For example, the IEP revealed that the child functions best when a behavior modification system is used to ensure that he completes his academic work, but the IEP did not include specific annual goals or objectives for the implementation of such a plan.

        The failure of the child's IEP of November 3, 1993 to address his management needs, especially with regard to his regular education instruction in social studies and science, is especially significant in light of the CSE's April 6, 1994 recommendation that the child be placed in a more restrictive environment for instruction in those subjects. Federal regulation permits a child to be removed from the regular educational environment:

"... only when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." (34 CFR 300.550 [b][2])

        Upon the record before me, I must find that the respondent has not established that a special education class for instruction in social studies and science is the least restrictive environment for the child. Placement in a special education class implies a need for primary instruction in special education. The record does not convincingly demonstrate that the child requires special education for primary instruction in social studies and science. Although the child's regular education teacher expressed some doubt about the child's ability to remain in regular education social studies and science because of the child's low reading level, the individually administered standardized test results in the record do not demonstrate that he has a significantly lower reading level that his peers. The child's score on the Third Grade Pupil Evaluation Program Reading Test in May, 1994 was below the Statewide reference point. However, the record does not reveal the extent of his off-task behavior during the test. His regular education teacher testified that the child had failed to master even fifty percent of the third grade social studies and science curricula, but her testimony described a child who had difficulty concentrating, and who frequently refused to work on matters which he did not like. Her brief, anecdotal account of the child's behavior did not provide sufficient information about the frequency of his off-task behavior, or his ability to be refocused, to afford a basis to determine whether supplementary assistance, such as an aide to redirect the child, would be efficacious. Although the child's special education teacher testified that the child had also exhibited off-task and resistant behavior in her class, she further testified that a behavior modification program had helped to motivate the child to complete his work in her class. However, there is no evidence that a behavior modification program was employed in the child's regular education program, or that an aide had been assigned to assist the child in the regular education classes.

        The child's regular education teacher opined that the child's high level of anxiety seriously interfered with his ability to do his work. Notwithstanding the CSE's recommendation, in February, 1994, that the child be evaluated by a psychiatrist, the record does not reveal if it obtained such an evaluation, nor does it reveal a basis for the CSE's inexplicable recommendation to continue with small group counseling only once per week for the child.

        While I have found that respondent has not met its burden of proof with respect to the child's educational program for the remainder of the 1993-94 school year, that school year is now over, and the CSE's recommendation for the 1994-95 school year is not before me. However, the CSE must have an adequate basis for placing the child in a more restrictive environment in the future. A new psychological evaluation is not necessary (Healey v. Ambach, 103 AD 2d 565), but the CSE should have, as a minimum, a current educational evaluation and a more formal analysis of the child's behavior in all of his classes and the effect of such behavior upon his ability to learn. That analysis should contain an appraisal of the effectiveness of the child's medication, as well as an appropriate behavior modification program, in controlling his behavior.

        Petitioners' request for attorney's fees must be denied. Only a court could award attorney's fees to petitioners pursuant to the provisions of the Individuals with Disabilities Education Act (Application of a Child with a Handicapping Condition, Appeal No. 90-18; Application of a child with a Disability, Appeal No. 93-33).

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

        IT IS ORDERED that the decision of the hearing officer is hereby annulled.

Dated: Albany, New York __________________________
August 12, 1994  FRANK MUŅOZ