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 Whitesboro Central School District
Legal Services of Central New York, Inc., attorney for petitioner, Paul F. Kelly, Esq., of counsel
Foley, Frye and Foley, Esqs., attorneys for respondent, Frederick L. Kopff, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's child be placed in a self-contained special education class of the Board of Cooperative Educational Services of Oneida-Madison-Herkimer Counties (BOCES) for the 1993-94 school year. The appeal must be sustained.
Petitioner's child is an eight year old boy, who has been classified as multiply disabled. The child's classification, which is not disputed, is based upon evidence that the child has an attention deficit hyperactivity disorder (ADHD), some evidence that he may be borderline mentally retarded, evidence of delays in the development of his speech/language skills and fine motor skills, and evidence of social and emotional difficulties. In view of the fact that the child's classification is not disputed, I do not reach the issue of whether the child meets the criteria for classification of multiply disabled set forth in 8 NYCRR 200.1 (mm)(8) (Hiller v. Bd. of Ed. Brunswick CSD et al.. 674 F. Supp. 73 [N.D.N.Y., 1987]).
The child did not attend a preschool program, and entered kindergarten in respondent's Deerfield Elementary School, at the age of six, in September, 1992. The child achieved a score of 43 out of 100 on the Early Identification Screening Index which was administered on September 10, 1992. In a speech/language screening performed on September 22, 1992, the child exhibited a two year delay in his articulation skills, and approximately one year delays in his expressive and receptive language skills. On September 30, 1992, the child's kindergarten teacher referred the child to the CSE for an evaluation. The teacher reported that the child had difficulty sitting still and attending to tasks, and had demonstrated aggressive and disruptive behavior. Petitioner declined to consent to the child's evaluation.
On October 8, 1992, the child was suspended from school by the elementary school principal because the child's aggressive behavior reportedly presented a threat to the safety of other children. At the principal's recommendation, a hearing was held by the designee of the superintendent of schools for the purpose of ascertaining whether a long-term suspension should be imposed. The superintendent's designee recommended that the child remain suspended from school until he was classified and placed as a child with a disability or until petitioner's request for an individualized home instruction program was approved in accordance with 8 NYCRR 100.10. The designee further recommended that the child receive one hour per day of tutoring provided by respondent. The superintendent approved his designee's recommendation. Initially the child was tutored at home, but within a few weeks, his tutoring was provided in the elementary school.
Petitioner attended a CSE meeting in November, 1992, when the need for an evaluation was discussed, but she would not consent. A hearing was scheduled to be held on December 23, 1992, for the purpose of obtaining authorization to evaluate the child without petitioner's consent (8 NYCRR 200.4 [a]). However, on December 10, 1992, petitioner consented to having certain evaluations performed. Respondent's school psychologist, who completed her evaluation of the child on January 25, 1993, reported that the child achieved a mental processing composite, i.e., IQ score, of 69. Although such a score would be within the borderline mentally retarded range, the school psychologist did not assess the child's adaptive behavior (cf. 8 NYCRR 200.1 [mm]). The child exhibited relative strength on tests of his general knowledge and verbal conceptualization skills, and relative weakness in tests of his letter recognition and mathematics pre-readiness skills. The school psychologist reported that the child's impulsiveness precluded an accurate assessment of his visual motor skills. Based upon information provided by the child's tutor the school psychologist reported that the child exhibited severe deficits in his social-emotional functioning, including aggression, withdrawal, depression, and inappropriate behavior under normal circumstances. She opined that the child's hyperactivity, impulsiveness and distractibility may have depressed his IQ score, and that he appeared to have ADHD. The school psychologist recommended that the child be evaluated by a psychiatrist, and be placed in a highly structured class.
The child was also evaluated in January, 1993 by respondent's learning disabilities specialist, who also found that the child was highly distractible. She reported that the child talked almost constantly throughout the testing which she performed. The child incorrectly answered 31 of 50 questions in a test of his knowledge of basic concepts. However, the specialist cautioned that it was unclear whether the child even understood the test questions, or could remain focused long enough to answer the questions. She declined to opine whether the child had a learning disability.
On February 5, 1993, the CSE recommended that the child be classified as multiply disabled, and that he be placed in a BOCES "Adjustment Program," with a 12:1+1 child to adult ratio and that he receive speech/language therapy three times per week. The CSE also recommended psychiatric, occupational and physical therapy evaluations be performed. The minutes of the CSE meeting indicate that an individualized education program (IEP) was not developed at the meeting, although State regulation requires that a CSE report its recommendation in the form of an IEP (8 NYCRR 200.4 [c]). The child's tutor testified that she and respondent's special education director subsequently developed an educational plan on April 27, 1994, which was used to provide instruction during the remainder of the 1992-93 school year.
In March, 1993, the physical therapist and the occupational therapist who evaluated the child in their respective disciplines recommended against providing any therapy to the child because he exhibited approximately age appropriate gross and fine motor skills. They did recommend that he be re-evaluated at the beginning of the 1993-94 school year.
The child was evaluated by a private psychologist, in late March and early April, 1993. The child achieved a verbal IQ score of 60, a performance IQ score of 70, and a full scale IQ score of 62. The psychologist reported that the child exhibited a low tolerance for frustration, oppositional tendencies, deficits in his social skills, difficulty distinguishing fantasy from reality, and evidence of fine motor deficits. He also reported that the child had the characteristics of ADHD to a severe degree. The psychologist opined that the child would most appropriately be classified as other health impaired, and recommended that he receive medication for his ADHD and be neurologically evaluated. He further recommended that the child be instructed in a special education class with a low child to adult ratio.
On May 27, 1993, the child's physician prescribed the drug Ritalin for the child, as treatment for the child's ADHD. Although the physician noted a significant improvement in the child's behavior when he next observed the child in July, 1993, the child's tutor testified at the first hearing in this proceeding that the child was a little less active and impulsive after he began taking Ritalin. The child continued to receive one hour per day of tutoring for the remainder of the 1992-93 school year, because petitioner refused to consent to the child's placement in the BOCES class.
At a meeting held on June 23, 1993, the CSE recommended that the child's placement in BOCES be deferred pending a psychiatric evaluation. The CSE met again on August 10, 1993, when it recommended that an impartial hearing be held. Petitioner also asked for an impartial hearing. On August 23, 1993, an impartial hearing was convened at respondent's request to obtain authorization to place the child in the BOCES class, notwithstanding petitioner's opposition to such placement (8 NYCRR 200.5 [b]).
In a decision dated September 6, 1993, the hearing officer held that respondent had not met its burden of proof that the BOCES class was an appropriate placement for the child during the 1993-94 school year. He premised his holding upon the fact that the child had been in a regular education kindergarten class for only one month during the 1992-93 school year and that his ADHD had not been treated with Ritalin until the last month of the school year. The hearing officer directed respondent to place the child in a regular education first grade class, with resource room assistance and curriculum modifications, for the 1993-94 school year. He further directed respondent to provide the child with speech/language therapy and individual counseling, and to provide family counseling. The hearing officer denied petitioner's request that an individual aide be provided for the child. He ordered respondent to conduct a speech/language evaluation, physical and occupational therapy evaluations, and a neurological evaluation, and to retest the child's vision and hearing.
On September 15, 1993, the CSE prepared an IEP for the child for the child's placement in a regular first grade class, with one period of resource room services and various testing modifications. The child's IEP was amended, effective October 1993, to provide an individual aide for the child. The child's behavior was described in his IEP as periodically interfering with the instructional process, but substantially improved over the behavior he exhibited in the 1992-93 school year.
In September, 1993, the child's vision and hearing were reported to be within normal limits. A neurologist, who evaluated the child on October 5, 1993, noted that the child exhibited evidence of a visual-motor impairment when he attempted to print letters, but concluded that the child did not exhibit sufficient evidence of a neurological impairment to warrant a further evaluation. The neurologist opined that the child probably had a heritable cognitive limitation, and that he should continue to receive medication for his ADHD.
The child's speech/language development was assessed in late September, 1993. He reportedly exhibited a delay of more than three years in articulation, and almost three years in his expressive language skills. His receptive language skills were reportedly delayed by slightly more than one year. The child's occupational therapy needs were evaluated in mid-October, 1993. The evaluator noted that the child displayed a delay in the ability to isolate his finger movements, and deficits in his eye tracking skills. The therapist opined that the nearly two year delay in the child's visual perceptual skills made it difficult for the child to recognize letters and numbers, while his nearly three year delay in visual motor skills contributed to his difficulty in forming letters and numbers.
In mid-October and early November, 1993, the child was re-evaluated by respondent's school psychologist, who reported that the child achieved a verbal IQ score of 59, a performance IQ score of 78, and a full scale IQ score of 66. However, the school psychologist once again failed to assess the child's adaptive behavior. She did report that on a behavioral checklist completed by the child's teacher, the child was functioning two standard deviations below the mean with regard to exhibiting inappropriate behavior under normal circumstances and three standard deviations below the mean with regard to interpersonal relations. The school psychologist recommended that the child continue to be classified as multiply disabled, but questioned whether the child's needs were being met in his current placement. The child's academic skills were assessed by respondent's learning disabilities specialist. In a report dated November 12, 1993, the specialist indicated that the child's overall reading skills were equivalent to those of a child in the second month of kindergarten. She reported that the child could not recognize all letters of the alphabet, or associate any sounds with letters. The child's mathematical skills were equivalent to those of children in the fourth month of kindergarten. The specialist reported that the child lacked the ability to count with one to one correspondence beyond three. She further reported that the child had difficulty understanding spatial concepts, and expressed her concern about the child's ability to benefit from instruction in the regular education program.
The CSE met on November 17, 1993, reportedly at the request of the child's first grade teacher. It recommended that the child be placed in a 12:1+1 BOCES Adjustment Program class located in a BOCES facility in New Hartford, New York. The CSE also recommended that the child continue to receive speech/language three times per week and occupational therapy twice per week, as well as individual and small group counseling once per week. The child's IEP included annual goals to develop or increase reading concepts, basic concepts, categorization skills, pattern replication skills, math skills, and social skills. Petitioner disagreed with the CSE's recommendation.
The CSE met again on December 8, 1993, at which time it adhered to its prior recommendation. Respondent approved the CSE's recommendation on January 18, 1994. An impartial hearing began on January 25, 1994, when the parties agreed to have an independent educational evaluation performed. The hearing resumed on March 30, 1994, and continued for three additional days, ending on May 13, 1994.
In his decision rendered on August 1, 1994, the hearing officer framed the issue as whether the child should remain in a regular education class, or should be enrolled in the BOCES class for the 1994-95 school year. It should be noted that there was no IEP for the 1994-95 school year before the hearing officer, who lacked the jurisdiction to determine the child's placement for that school year (Application of Bd. of Ed. City Sch. Dist. City of New York, Appeal No. 94-11). The issue before the hearing officer was whether the CSE recommended an appropriate program for the 1993-94 school year. The hearing officer held that the educational program which the CSE had recommended on November 17, 1993 was appropriate to meet the child's needs. He based his decision, in part, upon a finding that respondent's regular education program plus resource room services was no longer appropriate because of the child's management needs. The hearing officer also expressed the concern that the child might be emotionally disturbed, and he directed that the child be evaluated by a psychiatrist.
Petitioner challenges the hearing officer's finding that the BOCES Special Adjustment Program recommended by the CSE was appropriate to meet her child's needs. Respondent bears the burden of demonstrating the appropriateness of the program recommended by its CSE (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. 93-9). To meet its burden, respondent must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSE 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]). An appropriate program begins with an IEP which accurately reflects the results of the 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).
Upon review of the child's IEP of November 17, 1993, I find that the CSE failed to adequately describe the child's needs. The child is described in the IEP as mildly retarded. However, there is no basis for describing the child as mildly retarded, absent an assessment of his adaptive behavior. The CSE's failure to completely assess the child's cognitive skills is especially significant in determining his ability to understand and follow directions. The child's IEP indicates that he sometimes follows directions, with the notation that "This is not always related to behavior but sometimes lack of understanding". The child's evaluators and those who have worked with him in school have stressed the significance of the child's ADHD, and the ways in which he manifests that disorder. However, I find that the IEP does not describe the child's distractibility, impulsiveness, excessive verbalizations, or perseverative behavior, all of which may impact upon his ability to learn. In the area of the child's social development, I find that the IEP fails to adequately describe the child's interaction with peers. It does not refer to his obsessive-compulsive behavior with some peers, his difficulty taking turns in activities, and his parallel play activities. The IEP's cursory description of the child's ability to react appropriately to teacher requests does not provide sufficient information to determine an appropriate placement. In addition to describing a child's needs, an IEP must adequately describe the child's present levels of performance (8 NYCRR 200.4 [c][i]). Without an adequate description of the child's present levels of performance, it would be impossible to determine the child's progress on some of his IEP goals, such as making and replicating patterns, increasing his awareness of others, and various speech goals. I find that the CSE failed to present such information adequately in the child's IEP.
The child's IEP is also defective because it does not include short-term instructional objectives which are consistent with the Federal requirement that such objectives be " ... measurable, intermediate steps between the present levels of educational performance of a child with a disability and the annual goals that are established for the child" (34 CFR Part 300 Appendix C, Question 39). There is only one objective for each annual goal in the child's IEP. Federal regulation requires that a child's IEP include appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether the short-term instructional objectives are being achieved (34 CFR 300.346 [a]). This child's IEP does not include any evaluation schedule, and provides that achievement of his IEP goals, and objectives will be determined by teacher evaluation. Petitioner asserts that the IEP should also have included annual goals and short-term objectives for the child's individual aide. I find that petitioner's assertion is without merit. The child's IEP goals and objectives should refer to the assistance to be provided by the aide, but there is no legal requirement to draft goals and objectives for the aide.
At the hearing in this proceeding, several of respondent's witnesses testified in favor of the proposed BOCES placement because it would provide a comprehensive behavior management program for the child. However, the child's IEP makes no reference to a behavior management program, nor does it specifically address his distractibility and impulsiveness. The omissions are especially significant because the central issue in this appeal is whether the proposed BOCES placement is the least restrictive environment for the child.
The relevant Federal regulation provides:
"That special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when the nature or 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 [a]).
In determining whether a child can be educated in regular classes, it is not necessary to establish that the child will learn at the same rate, or master as much of the regular education curriculum as his or her disabled peers (Daniel R. v. El Paso Indep. School Dist., 874 F. 2d 1036 [5th Cir., 1989]), the relevant question is whether the child can achieve the goals of his or her IEP within a regular education program, with the assistance of supplementary aids or services (Mavis v. Sobol and Bd. of Ed. South Lewis CSD, 839 F. Supp. 968 [N.D.N.Y., 1994]; Application of Bd. of Ed. of Schalmont CSD, Appeal No. 90-19; Application of a Child with a Disability, Appeal No. 93-4). The fact that a child with a disability might make greater academic progress in a special education class may not warrant excluding the child from a regular education program (Oberti v. Borough of Clementon Sch. Dist., 995 F. 2d 1204 [3rd Cir.]). The CSE must also consider the unique benefits, academic and otherwise, which the child may receive by remaining in regular classes, e.g., language and role modeling with non-disabled peers (Greer v. Rome City Sch. Dist., 950 F. 2d 688 [11th Cir., 1991]).
Respondent asserts that the child's progress towards achieving his IEP goals and objectives has been minimal, despite having received substantial supportive services. Petitioner asserts that the child made progress in developing his mathematics, writing and socialization skills during the 1993-94 school year. Most of the information about the child's achievement of his September 15, 1993 IEP goals was provided at the hearing by the child's first grade teacher. The teacher testified that the child had learned to recognize all of the letters of the alphabet, in both upper and lower case, which was the instructional objective for the child's annual goal to build reading concepts. She testified that the child had not developed the ability to recognize certain sight words, which was the objective for the second annual goal for reading. In mathematics, the teacher testified that the child could only count to three at the beginning of the school year, but by the time the hearing was held, he could count to at least ten, which represented some progress towards one of the objectives for his annual goals in mathematics. A second objective in mathematics involved making patterns after demonstration. The child's teacher testified that the child could make a two-color pattern, if the pattern were demonstrated.
The child's IEP of September 15, 1993 also included an annual goal for increasing the child's awareness of others, the objective for which was to interact appropriately with adults and peers. His first grade teacher testified that the child had initially interacted only with adults, but that he had begun to interact with his peers. The child's resource room teacher testified that the child played with one other child, and that he related to others as a younger child would do. Respondent's school social worker, who provided the child with individual and small group counseling during the 1993-94 school year, testified that the child's social skills were at the prekindergarten level, but the child had demonstrated progress in learning to play simple games with other children.
Upon the record before me, I find that the child made at least some progress towards achieving his IEP annual goals and objectives while in a regular education class with supportive services during the 1993-94 school year. In assessing the child's rate of progress, I have considered the fact that the 1993-94 school year was the first year he actually attended classes. I have also considered the fact that, in some instances, measurement of the child's achievement of his goals and objectives is necessarily subjective, because his IEP lacks precise, objective criteria. I further find that there is a sufficient nexus between the child's IEP goals and the regular education curriculum to warrant continued curriculum modification and placement with the child's chronological peers.
In addition to determining the benefit to the child in being placed in a regular education class, the CSE must also consider what effect the child's presence in a regular education class would have on the other children in that classroom (Daniel R. v. El Paso Indep. Sch. Dist., supra; Greer v. Rome City Sch. Dist., 950 F. 2d 688 [11th Cir., 1991]). The record reveals that the child was occasionally verbally disruptive in the classroom. His first grade teacher testified that the child was less disruptive after she and the classroom aide began to use certain behavior management techniques, such as sending the child to a "time-out" room. The teacher estimated that the child had been sent to the time-out room approximately twice per week. The anecdotal records of the child's behavior reveal that his behavior varied from day to day. Although the disruptive behavior of any child detracts from the learning experience of the other children in the classroom, I find that respondent has not established that this child's behavior significantly impaired the education of his classmates (Daniel R. v. El Paso Indep. Sch. Dist., supra).
At the hearing, respondent's witnesses testified that the recommended BOCES class would be appropriate for the child because it has a "time-out" area in the classroom and a behavior management plan by which children earn tokens for good behavior, and because it has a socialization program. Although the witnesses expressed doubt about respondent's ability to provide comparable services, I am not persuaded that such services could not have been provided in a less restrictive setting than the BOCES facility, which is located outside respondent's district and which does not provide an opportunity for inclusion or mainstreaming. Similarly, I find that there is no reason to believe that respondent could not have provided the child with a multisensory instructional program using manipulative materials, in one of respondent's regular education classes, or in one of respondent's special education classes about which respondent failed to provide adequate information in the record.
Upon review of the entire record, I find that respondent has not met its burden of proving the appropriateness of the CSE's recommendation that the child be enrolled in the BOCES class for the remainder of the 1993-94 school year. In view of the fact that the 1993-94 school year has ended, I will not require the CSE to draft a new IEP for such school year. However, I will require the CSE to review the child's IEP for the 1994-95 school year to ensure that it is consistent with the terms of this decision. This decision should not be construed as requiring that the child permanently remain in a regular education class. The child's program and placement must be reviewed at least annually. The CSE must carefully consider the child's needs and determine where his needs can be appropriately met, consistent with the least restrictive environment requirement.
Petitioner also challenges the hearing officer's decision requiring the child to be evaluated by a psychiatrist. The hearing officer did so in the apparent belief that the child might appropriately be classified as emotionally disturbed. However, neither party disputed the child's classification. In any event, a psychiatric evaluation is not a prerequisite for classifying the child as emotionally disturbed. I am not aware of any basis in the record for requiring such an evaluation to plan the child's educational program. Therefore, I must also sustain petitioner's appeal with regard to the proposed psychiatric evaluation.
Finally, I note that the record demonstrates a breakdown in the relationship between petitioner's family and respondent's staff. Both the family and school staff are obligated to work together for the benefit of the child (School Committee Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ).
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing officer is hereby annulled, and;
IT IS FURTHER ORDERED that within 30 days after the date of this decision the CSE shall review its recommendation for the child's placement during the 1994-95 school year to ensure that it is consistent with the terms of this decision.
New York ____________________________
October 21, 1994 ROBERT G. BENTLEY