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The State Education Department
State Review Officer

 

94-22

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

Appearances:

Stein and Schonfeld, Esqs., attorneys for petitioner, Robert L. Schonfeld, Esq., of counsel

Richard F. Lark, Esq., attorney for respondent

DECISION

Petitioner appeals from the decision of an impartial hearing officer which held that respondent had offered the petitioner's child an appropriate educational program during the 1993-94 school year, prior to petitioner's unilateral decision to place the child in a private school. The appeal must be dismissed.

Petitioner's child, who is 11 years old, has been classified as learning disabled since the 1991-92 school year, when he was in the third grade. The child was reportedly born prematurely, and developed his motor skills at a slower rate than did his peers. In a privately obtained psychological evaluation performed in November, 1993, the child's verbal IQ was reported to be 106; his performance IQ was reported to be 90; and his full-scale IQ was 98. The child's performance IQ score was reportedly depressed by the speed with which he could perform tasks, and his limited ability to maintain focused attention and resist distractions. The child exhibited relative strength in subtests measuring his general fund of information, vocabulary and verbal concepts, while he exhibited a significant deficit in the subtest measuring his auditory recall. The evaluator reported that the child showed signs of inattention, impulsivity and an elevated activity level which were symptomatic of a child with a mild to moderate attention deficit disorder. The child reportedly exhibited a deficit in his ability to perform tasks requiring complex motor abilities, especially eye-hand activities such as writing and drawing, as well as a deficit in his ability to process information sequentially. A behavior rating scale based upon information supplied by petitioner and the child's teachers reflected the child's reported hyperactivity in school and some psychosomatic symptoms at home. The child's classification as learning disabled is not in dispute.

The child entered respondent's schools for kindergarten, in 1987-88. Although the child adjusted socially, his acquisition of pre-academic skills was reportedly slow, and his retention in kindergarten was recommended. During the 1988-89 school year, the child was enrolled by petitioner in the kindergarten of St. David's School, a private school in Riverhead, New York. He remained in St. David's School for the first and second grades. In March, 1991, the child was referred to respondent's committee on special education (CSE), which recommended that the child be classified as learning disabled and receive special education. The child returned to respondent's schools in the third grade for the 1991-92 school year. With petitioner's concurrence, the child was placed in a special education class with a 12:1+1 child to adult ratio for instruction in all academic subjects. He was mainstreamed for special subjects such as art, music and library. The child's education program for the fourth grade during the 1992-93 school year was essentially the same as it had been for the third grade, except that he was also mainstreamed for mathematics.

In the Spring of 1993, the child was evaluated by respondent's school psychologist, who tested the child in six sessions over a three month period because of the child's short attention span and poor motivation. The school psychologist reported that the child had difficulty working independently for more than a few minutes and was distractible. On the Woodcock Reading Mastery Tests, the child achieved grade equivalent scores of 2.4 in word identification, 2.9 in word attack skills (ability to sound-out words), 3.7 in word comprehension and 2.8 in passage comprehension. The child's mathematical skills were reported to be at the beginning fourth grade level. The school psychologist described the child's visual motor perceptual skills as age appropriate, but opined that the child's performance was affected by his poor motivation, as well as his manipulative and impulsive behavior. She recommended that the child's reading skills be remediated using a variety of modalities, with an emphasis on developing more effective phonic and structural analysis skills and improving his understanding of vowel sounds and common prefixes and suffixes. The school psychologist further recommended that the child remain in a structured program, with frequent re-enforcement and behavior modification techniques to improve his attention span and ability to work independently.

On May 20, 1993, respondent's committee on special education (CSE) met with petitioner to discuss the child's proposed educational program for the 1993-94 school year. At petitioner's request, the CSE deferred making a recommendation, pending the results of a private evaluation to be obtained by petitioner. On May 26, 1993, the child was evaluated by a private evaluator, who opined that the child had a specific learning disability in reading. The evaluator reported that the child achieved grade level equivalents of 1.5 in word attack skills, 2.3 in total reading and 2.0 in spelling. The child's word attack skills were assessed using the same test which respondent's school psychologist had used in her evaluation, in which the child achieved a grade equivalent score of 2.9.

Petitioners enrolled the child in the Landmark School, a private school in Massachusetts, for the Summer of 1993. The record reveals that the Landmark School provides a program of instruction for children with learning disabilities. The school has been approved by the State of Massachusetts, but is not approved by the New York State Education Department as a school for children with disabilities for purposes of State reimbursement to school districts for tuition costs. The Landmark School assessed the child's reading skills upon entry into its program on June 25, 1993, and upon exit from the program on August 13, 1993. On both dates, different forms of the Woodcock Reading Mastery Test that respondent's school psychologist had used were administered to the child. In June, the child's word attack skills were reported to be at a grade level equivalent of 1.6, and his word identification skills were found to be at a 2.8 grade level equivalent. When retested in August, the child's word attack skills were reported to be at a 2.4 grade level equivalent, while his word identification skills were found to be at a 2.7 grade level. While at the Landmark School, the child used a linguistically controlled reader, which focused upon initial and final consonant blends in closed one-syllable words.

On August 12, 1993, the CSE met with petitioner and recommended that for the 1993-94 school year the child continue to be instructed in a 12:1+1 special education class for reading, mathematics, spelling, and social studies. The CSE recommended that the child be mainstreamed for fifth grade English, science and special subject classes in respondent's Cutchogue East Elementary School. The CSE further recommended that the child receive counseling once per week, although the child's individualized education program did not initially include any annual goals for such counseling (cf. 8 NYCRR 200.4 [c][2][iii]). A speech evaluation of the child was also recommended by the CSE. The CSE recommended testing modifications for the child, including extended time limits, having test questions read to the child, and having his answers recorded for him. In addition, the CSE recommended that the child have the use of a computer in his special education class. His IEP included annual goals to develop his writing skills and improve his grammar usage, as well as goals to improve his reading comprehension skills and to develop his decoding skills.

On August 16, petitioner met with the teacher of the special education class recommended by the CSE and with respondent's special education director. Although petitioner expressed her preference for a completely mainstreamed program, except for reading, she accepted the CSE's recommendation, and did not contest any portion of the child's IEP. Respondent approved the CSE's recommendation on September 16, 1993.

The speech/language pathologist who evaluated the child in September, 1993, found that the child did not require speech/language therapy. On September 27, 1993, petitioner met with the special education class teacher and the child's English and science teacher to discuss the amount of the homework which had been assigned to the child. She was reportedly satisfied with the child's program. In early October, 1993, petitioner requested that the child no longer be mainstreamed for English. Respondent's staff acceded to petitioner's request, apparently without referring the request to the CSE. In a subsequent meeting with the teachers on October 25, 1993, petitioner expressed concern about her child's conflicting relationship with a classmate and with the child's educational program in general. Although a meeting of the CSE was scheduled to be held on November 8, 1993, it was deferred because petitioner wanted to obtain an additional psychological evaluation of the child.

In the private psychological evaluation completed on November 27, 1993, the child, who was in the fifth grade, was reported to have exhibited word attack skills at the beginning of the second grade level and letter-word identification skills at the mid-second grade level. The licensed psychologist who conducted the evaluation reported that the child's passage comprehension skills were at the beginning fourth grade level, thereby demonstrating that the child had the ability to use contextual clues while reading to comprehend the meaning of what he read. The psychologist opined that the child knew how to perform the basic arithmetic operations, but confused the operations or ignored the signs while computing. The child was described as having a severe deficit in the elements of writing (punctuation, grammar, syntax and spelling), and in his ability to organize his thoughts on paper.

The private psychologist opined that the child was not being sufficiently challenged by his assigned work in science and social studies, which did not appear to address the child's written language needs or his reading deficit. The psychologist recommended the use of low reading level-high interest level instructional materials, computer assisted instruction, and a multimodal approach to learning for the child. He also recommended that verbal instruction be combined with visual aids whenever possible, that the instructor make frequent eye contact with the child, and that the child use a tape recorder to record his assignments. With regard to reading, the private psychologist recommended that the child be taught sight words most frequently used in reading materials, and that he be taught phonics skills using a highly structured program with a tactile-kinesthetic component.

The child received generally satisfactory marks in his special and regular education classes for the first marking period of the 1993-94 school year, although a number of his work habits, such as completing assignments on time, paying attention, exhibiting self-control and working independently, were described as needing improvement. In her written comments on the child's report card, the child's special education teacher reported that his reading comprehension was quite good, but that his reading vocabulary was limited because of his poor decoding skills. The teacher further reported that she had used the Orton-Gillingham method to teach the child short vowels and initial blends. The teacher noted that her main goal for the next marking period would be to try to keep the child on task, using stronger behavior modification techniques and incentives.

The child was reportedly unhappy in school, and told his special education teacher that he wanted to attend the Landmark School. The teacher discussed the child's unhappiness at a meeting with petitioner on December 2, 1993, at which time they agreed that the child should be mainstreamed for social studies. In early December, 1993, petitioner became dissatisfied with the counseling provided to the child, and requested that it be discontinued.

In a meeting with the child's special education teacher on January 3, 1994, petitioner reported that two of the child's classmates had teased him about his stuttering during the Christmas vacation, and indicated that she would withdraw the child from school. On or about January 18, 1994 the child entered the Landmark School, in which he stayed for the remainder of the 1993-94 school year.

On January 13, 1994, petitioner requested that an impartial hearing be held. Petitioner sought the hearing in order to obtain reimbursement for her expenditures for the child's placement in the Landmark School. The hearing commenced on March 10, 1994, almost two months after petitioner's request for a hearing. However, both parties waived the 30 day time limit for the hearing officer's decision (34 CFR 300.512 [c]). The hearing continued for nine additional days, ending on May 24, 1994.

A board of education may be required to pay for educational services which a child's parents obtained for the child, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parent's claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hiller v. Brunswick CSD, 687 F. Supp. 735 [N.D.N.Y., 1988]). The parties agreed that the hearing in this proceeding would be limited to the first of the three Burlington criteria, i.e., whether the educational program offered by respondent was inappropriate or inadequate.

At the outset of the hearing, petitioner, through her attorney, asserted that the appropriateness of the child's IEP was not at issue. Instead, she asserted that respondent had not provided the IEP services in an appropriate manner, by failing to use appropriate techniques to teach the child to read and spell, and that respondent had failed to place the child in a class with children having similar abilities and needs, as required by 8 NYCRR 200.6 (a)(3). In his decision dated July 8, 1994, the hearing officer held that the child had been appropriately grouped with children of similar needs. With regard to the appropriateness of respondent's instructional program, the hearing officer held that respondent had met its burden of proving that it had addressed the child's special educational needs.

Respondent bears the burden of establishing the appropriateness of the recommended program (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-43). To meet its burden, respondent must demonstrate that the 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 [1982]), 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 objectives. Although petitioner's attorney asserted at the hearing that petitioner did not challenge the contents of the child's IEP, during the course of the hearing petitioner nonetheless questioned the adequacy of the child's annual goal for reading because it was not accompanied by specific short-term instructional objectives for improving the child's reading decoding skills. Relevant here is testimony from the child's special education teacher for reading, who testified that she provided instruction to improve the child's decoding skills, notwithstanding the absence of specific objectives for decoding on his IEP. Further, respondent's director of special education testified that at a meeting with petitioner on October 25, 1993, she agreed to have another CSE meeting in November to add reading decoding objectives to the child's IEP. However, the meeting was deferred, at petitioner's request, pending a private evaluation of the child. Accordingly, under the circumstances reflected in the record, I find that the absence of reading decoding objectives from the child's IEP does not afford a basis for concluding that the child's educational program was inappropriate.

Petitioner challenges the appropriateness of the child's educational program on two grounds. First, she asserts that the special education class in which the child spent portions of the school day was inappropriate because the abilities and needs of the other children in the class were not similar to those of her child. Secondly, she asserts that the special education instruction in reading provided by respondent was inappropriate to meet his needs.

State regulation requires that children in special education classes be appropriately grouped, using the criteria of levels of academic achievement and learning characteristics, levels of social development, levels of physical development, and the management needs of the children (8 NYCRR 200.6 [a][3]). Although information about the abilities and needs of other children is frequently presented at an impartial hearing in the form of a profile, i.e., a chart listing their abilities and needs, no profile was introduced into evidence at the hearing in this proceeding. However, the absence of a profile is not dispositive, provided that other evidence of abilities and needs is introduced (Application of a Child with a Handicapping Condition, Appeal No. 90-10; Application of a Child with a Disability, Appeal No. 93-40). In this proceeding, evidence about the abilities and needs of the other children in the child's special education class was presented through the testimony of the child's teacher and the testimony of the school psychologist member of the CSE.

The child's special education class consisted of eight children including petitioner's child. Most of the students were considered to be in the sixth grade, while petitioner's child was in the fifth grade. Each child was classified as learning disabled, as was petitioner's child. The children's cognitive ability ranged from low to high average, while petitioner's child was described as having cognitive skills in the average range. All but two had a learning disability in reading. One of the two children without a reading deficit was mainstreamed for reading.

Petitioner asserts that the child's reading needs were unique for instructional purposes. However, I find no basis in the record for reaching that conclusion. Petitioner's child has a visual perceptual problem. The child's teacher testified that one other child had even greater visual perceptual problems than petitioner's child. Although four of the five children with deficits in reading were reportedly not dyslexic, while petitioner's child and the sixth child were described as dyslexic, I find that this alleged distinction is of questionable significance because of the lack of precision inherent in the term dyslexic. One of respondent's school psychologists, as well as an educational consultant who testified on petitioner's behalf, testified that it is an umbrella, or generic, term used to describe someone with language problems. Indeed, the child's special education teacher testified that the one other child in the class whom she referred to as dyslexic did not have the same reading problem as did petitioner's child. The teacher testified that as of September, 1993, the grade level reading equivalents of the children in the class ranged from 2.1 (petitioner's child) to fifth grade. In December, 1993, each child was at a fourth or fifth grade level, except for petitioner's child. Although the child had not been formally tested, his teacher opined that he was at or near the end of the second grade in reading. In any event, the achievement range in reading within the class was within three years (see 8 NYCRR 200.6 [g][7]). In addition, the teacher testified that petitioner's child received individual instruction in reading and spelling, which is consistent with the regulatory requirement that the academic or achievement range be limited to assure that each student has appropriate opportunities to achieve his or her annual goals (8 NYCRR 200.6 [a][3][i]). The teacher also testified that during cooperative learning exercises involving the class as a whole, books were orally read, so that petitioner's child could benefit.

Although petitioner also asserted at the hearing that her child's mathematical deficits were unique, I find that the record does not support that assertion. The record shows that the child had difficulty with word problems, and was working to develop his multiplication and division skills. The special education teacher testified that petitioner's child used the same fifth grade mathematics textbook as two other children in the class, but that each child received individual instruction. The remaining children in the class were taught using sixth grade materials.

The record includes a limited amount of information about the social development of the children in the class, most of which related to the reportedly provocative behavior of the children, including petitioner's child. In addition to petitioner's child, two other children received counseling. One of the two children was reportedly involved in an incident with petitioner's child while in the fourth grade, and hit petitioner's child over the head with a book and kicked or otherwise struck the legs of petitioner's child while in the fifth grade. Nevertheless, the school psychologist opined at the hearing that petitioner's child was appropriately placed with the other child. Nothing in the special education teacher's testimony indicated that any child in the class had significant social needs. There is no basis in the record for believing that any child had significant physical needs.

The child's special education teacher testified extensively about the management needs of the children in her class. Three of the children were reported to have no management problems. The remaining four children were reported to act out on occasion. However, the teacher testified that each child could be refocused within a brief period of time, by either the teacher or her classroom aide. Although petitioner's child has been described as distractible, his special education teacher testified that two other children in he class were also distractible. The teacher further testified that she employed a behavior management plan in her classroom. Upon the record before me, I find that respondent, through its employees' testimony, provided sufficient information about the needs and abilities of the child's classmates to afford a basis for determining that the child was appropriately grouped for instructional purposes with the children in his special education class.

With regard to the appropriateness of respondent's instructional program, petitioner argues that the record demonstrates that her child requires a highly structured sequential, phonetically based reading program with reinforcement, and that respondent failed to provide such a program. The private psychologist, who evaluated the child in November, 1993, testified that the child needed a good strategy, such as phonics, for dealing with unfamiliar words. He further testified that the child should be taught using multi-sensory techniques. The psychologist also testified that the child's instructional program should be highly structured, which he defined as a program having very clear cut goals and methods to address the child's specific learning deficits, not necessarily limited to any specific instructional technique. Although the child's private tutor and two representatives from the Landmark School advocated the use of a specific technique such as the Orton-Gillingham method, they both nonetheless conceded that there are multiple ways to teach reading. In his testimony, the private psychologist acknowledged that the child's IEP had addressed most of the issues which he had raised as recommendations in his evaluation. He testified that the differences between what he had recommended, and what respondent offered, were more a matter of emphasis, rather than appropriate versus inappropriate. For example, he noted that respondent's program, as reflected in the child's IEP and the testimony of the child's special education teacher, placed more emphasis on reading comprehension than reading decoding skills. While he recommended more emphasis on the child's reading decoding skills, it is noteworthy that he did not opine that respondent's program was inappropriate.

The extensive testimony of the child's special education teacher established that she had provided specialized instruction consistent with the goals and objectives on the child's IEP, most of which related to the child's reading comprehension skills. A comparison of the child's reading comprehension scores in tests performed by respondent's school psychologist in May, 1993 and the private psychologist in November, 1993, shows that the child had progressed from the third grade level to the fourth grade level. The child's teacher testified that she had instructed the child in phonics, although she had not used the strictly sequential technique favored by the adherents of the Orton-Gillingham method. She testified that she had concentrated on teaching the child short-vowel sounds and certain blends, and that the child knew those sounds by the time he was withdrawn from her class. The teacher's testimony in this regard is unrebutted by the record. The teacher further testified that in addition to phonics, she attempted to develop the child's ability to sequence, to perceive the main idea of a paragraph or of a story, and his ability to draw inferences while reading, which either were the instructional objectives on his IEP or closely related to those objectives. The teacher's testimony that the child had made progress in each of these areas is also unrebutted.

Although petitioner would prefer that the child be instructed in a class with more emphasis on reading decoding skills, I find that the instructional program provided by respondent addressed the child's needs as identified in his IEP. Accordingly, I find that respondent has met its burden of proving that it provided the child with an appropriate instructional program. Since respondent has prevailed concerning the first of the three Burlington criteria, petitioner's request for an order remanding this case for a hearing on the second and third Burlington criteria must be denied.

THE APPEAL IS DISMISSED.

Dated: Albany, New York                                                                    ____________________________
             September 9, 1994                                                                                     FRANK MUÑOZ