Application of a CHILD SUSPECTED OF HAVING 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 City School District of the City of Rochester
Louis N. Kash, Esq., attorney for respondent, Donald T. Schmitt, 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 classified as learning disabled and placed in a special education class with a 12:1+1 child to adult ratio. The appeal must be sustained.
Petitioner's child, who is nine years old, was in the second grade in the 1993-94 school year. The child participated in a preschool program, prior to entering kindergarten in respondent's School 16 in September of 1990. His academic performance in Kindergarten was reportedly below kindergarten level, and his teacher reportedly expressed concern about the child's poor self-control and social development. Consequently, he was not considered to be ready for the first grade, and he was enrolled in respondent's pre-first grade program in School 42 during the 1991-92 school year. While in the pre-first grade program, the child received remedial mathematics instruction. The child was in a regular education first grade class for the 1992-93 school year, during which he received both remedial reading and remedial mathematics instruction. His teacher reportedly described him as being a distractible and impulsive student who occasionally had difficulty getting along with his peers.
During the 1993-94 school year, the child was homogeneously grouped for instruction in reading with other children who were having difficulty with reading. He received approximately two and one-half hours of language arts and reading instruction each morning from one second grade teacher, and then returned to his assigned second grade classroom for instruction in other academic subjects. His language arts and reading teacher explained at the hearing in this proceeding that she had emphasized phonics, while having her students read stories which ranged from the primary through second grade level. She testified that petitioner's child had progressed from the pre-primer level to the latter part of the first grade level, during the 1993-94 school year.
The child's language arts and reading teacher further testified that her class of approximately 29 children was divided in half, twice per week, so that she and a remedial reading teacher could provide children such as petitioner's child with more individual attention. She testified that the child performed better in a smaller group, and opined that the child's short-attention span interfered with his academic performance. The child's teacher further testified that the child's writing was at the first grade level, but that the quality of his work varied substantially.
The second grade teacher who provided the child with instruction in all subjects but language arts and reading also testified at the hearing. She testified that the child's performance in mathematics, which she described as "sporadic", was directly affected by the degree of his concentration. She opined that the child would be performing at the second grade level in mathematics by the end of the 1993-94 school year, and indicated in her testimony that the child's performance in social studies and science was generally satisfactory.
The child's language arts and reading teacher testified that the child exhibited a need to be recognized during class discussions which, if not acknowledged, led to some behavioral problems. His second grade teacher testified that the child had difficulty maintaining a good rapport with his peers, and opined that his difficulty processing information led him to become impulsive. She also testified that her concerns about the child's academic performance and its effect upon his feelings about himself and others caused her to refer the child to the CSE on December 21, 1993. That referral, in which the child's language arts and reading teacher joined, described the child's growth in reading skills as minimal, despite the extra help provided to him by the remedial reading teacher and by sixth grade children who tutored children in the second grade. The two teachers also reported that the child needed constant attention by an adult to remain on task, and that the child's difficulty in reading had contributed to his misbehavior and poor self-image.
As part of his evaluation for the CSE, the child was observed in his reading class on January 25, 1994. The observer reported that although the child accurately completed a worksheet as directed by the teacher, his participation in the activities of the class was minimal. During the instructional portion of the class, the child was reported to be frequently off-task and not focused upon the teacher. The observer's report was consistent with the comments which the child's two teachers made in a separate report to the CSE, dated February 7, 1994. The teachers reported that the child displayed high levels of frustration when attempting to do grade level academic work, and needed to be frequently motivated to do academic work and to exhibit appropriate attending skills and cooperative skills with peers.
The child was evaluated by respondent's speech/language pathologist on January 21, 1994. He reported that the child had adequate hearing, and that his speech articulation was age appropriate. However, the child achieved standard scores of 65 in a test of his expressive language skills and 67 in a test of his receptive language skills, both of which were in the first percentile of scores for such tests, i.e., were substantially below the norm for such tests. The child reportedly had difficulty recognizing similarities between words related by semantic class, opposites, temporal and spatial relationships. The speech/language pathologist reported that the child demonstrated weakness in auditory processing and comprehension, auditory memory, organization of auditory information, and organization of semantic expression. His vocabulary skills were described as severely depressed. The speech/language pathologist recommended that the child receive speech/language therapy three times per week if he was enrolled in a special education class, or four times per week if he remained in regular education.
On January 28, 1994, the child was examined by respondent's school psychologist, who reported that the child achieved a verbal IQ score of 79, a performance IQ score of 63, and a full scale IQ score of 69. The school psychologist further reported that the child's total reading skills were at a mid-first grade level, and that the child demonstrated that he had limited decoding skills and a limited sight vocabulary. The child reportedly could do simple one digit addition and subtraction problems, and could solve word problems at or near grade level, with the use of visual aids and relaxed time limits. The school psychologist reported that the child's mathematic skills were at an end of first grade to a beginning second grade level. Although the child's visual motor integration skills were found to be within normal limits, the school psychologist opined that the child's reversal of letters while reading and writing indicated that he had subtle problems with spatial orientation and directionality. The child was reported to be able to write his own name, but was unable to complete sentences or write sentences on his own when directed to do so by the school psychologist. At the hearing in this proceeding, the school psychologist testified that the child might have a long-term memory deficit, which together with his language, sensory integration and organizational difficulties, affected his ability to decode and to comprehend written material. In his report, the school psychologist opined that the child needed to develop better social and coping skills, and that the child's educational needs would be better met in a small group setting, such as a self-contained class with specialized instruction for children with learning disabilities.
On February 17, 1994, respondent's CSE met with petitioner to discuss the results of the child's evaluation. The CSE recommended that the child be classified as learning disabled, and that he be placed in a 12:1+1 special education class, with speech/language therapy three times per week. The minutes of the CSE meeting reveal that the CSE considered the possibility of providing resource room services in lieu of placement in a self-contained class, but concluded that the additional support and structure of a self-contained class was necessary for the child to benefit from an instructional program. The child's individualized education program (IEP) which encompassed the CSE's recommendation failed to indicate the extent to which the child would participate in regular education (cf. 8 NYCRR 200.4 [c][iv]).
Petitioner was notified of the CSE's recommendation by letter dated February 27, 1994, in which she was asked to respond by either agreeing with the CSE's recommendation or requesting that an impartial hearing be held. After no response was received by the CSE, a second notice of the CSE's recommendation was sent to petitioner on March 29, 1994. In a letter dated March 30, 1994, petitioner requested that an impartial hearing be held. The hearing in this proceeding was held on May 20, 1994.
The hearing officer rendered her decision on June 3, 1994. In her decision, the hearing officer found that the evidence in the record before her established that the child had difficulty with visual sequencing, and processing and organizing spoken information, as well as great deficits in his receptive and expressive language skills. She further found that the child displayed a discrepancy between his current level of functioning and his potential achievement. Her finding was apparently based upon the testimony of respondent's school psychologist. The hearing officer held that the child should be classified as learning disabled, and should be placed in a special education class and receive speech/language therapy, as recommended by the CSE.
Before reaching the substantive issues in this appeal, I must first address certain procedural issues raised by respondent in its answer to the petition. Respondent asserts that the petition is deficient because petitioner has not specifically challenged the decision of the hearing officer, and has merely submitted a copy of the letter which she sent to the CSE on March 30, 1994 for a petition. According to respondent, the petition " ... does not comport with the requirements of Section 4404 (2) of the Education Law and 8 NYCRR 279." However, neither statute nor regulation prescribes the content of a petition to the State Review Officer. In her petition, petitioner has expressed her view that the child should not be placed in a self-contained special education class. Although petitioner appears to concede that the child may have learning problems, I find that her petition may be reasonably construed as challenging the child's identification as a child with a disability. I further find that the assertions made in the petition are sufficient to put respondent on notice that petitioner challenges the classification and placement recommended by the CSE and upheld by the hearing officer. Accordingly, I have accepted the petition.
Respondent also asserts that the appeal should be dismissed as untimely. State regulation requires that the petition in an appeal to the State Review Officer must be served upon the board of education, the district clerk or the chief school officer within 40 days after receipt of the hearing officer's decision (8 NYCRR 279.2 [a]). The hearing officer's decision was dated June 3, 1994. Respondent asserts that petitioner received the hearing officer's decision on June 6, 1994, but has not revealed when it was served with a copy of the petition. Although petitioner has not filed a reply to respondent's affirmative defense, as she had the right to do (8 NYCRR 279.6), I note that she is not represented by an attorney in this proceeding, and I will deem respondent's assertion about the date on which petitioner allegedly received the hearing officer's decision to be controverted. Petitioner did not file an affidavit of service with the petition, which was verified on September 27, 1994. It was received by the State Education Department on October 5, 1994. In support of its assertion that the appeal is untimely, respondent offers a letter to petitioner, dated August 29, 1994, from a member of the State Education Department's Rochester Field Service Team, who advised petitioner that he had reviewed her child's records in respondent's offices and alluded to petitioner's appeal from the hearing officer's decision. However, the letter in question does not establish the date on which petitioner received the petition. Respondent bears the burden of proving its affirmative defense that the appeal is untimely (Application of a Child with a Disability, Appeal No. 93-38). In the absence of evidence of when petitioner received the hearing officer's decision or when she served the petition upon respondent, I must find that respondent has failed to meet its burden of proof on the issue of untimeliness (Hyde Park CSD V. Peter C., Sharon C and the State Review Officer, 93 Civ. 0250, [S.D.N.Y., 1994]; Application of a Child with a Disability, Appeal No. 93-23).
Respondent bears the burden of establishing the appropriateness of the classification and program recommended by its CSE (Application of a Child with a Disability, Appeal No. 92-2; Application of a Child with a Disability, Appeal No. 93-20). With regard to the proposed classification of the child as learning disabled, I find that respondent has not met its burden of proof. State regulation defines a learning disabled child as:
" A student with a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell or to do mathematical calculations. The term includes such conditions as perceptual handicaps, brain injury, neurological impairment, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include students who have learning problems which are primarily the result of visual, hearing or motor handicaps, of mental retardation, of emotional disturbance, or of environmental, cultural or economic disadvantage. A student who exhibits a discrepancy of 50 percent or more between expected achievement and actual achievement determined on an individual basis shall be deemed to have a learning disability." (8 NYCRR 200.1 [mm])
Although the State definition expressly refers to a 50 percent discrepancy between expected achievement and actual achievement, it is well established that the State discrepancy standard is the functional equivalent of the Federal "severe" discrepancy standard, and should be viewed as a qualitative, rather than a strictly quantitative, standard (Riley v. Ambach, 668 F. 2nd 635 ; Application of a Handicapped Child, 23 Ed. Dept. Rep. 452; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-15). In view of the child's reported IQ score of 69, there is no basis in the record for concluding that his reported grade equivalent of 1.5 in reading presents a significant discrepancy between his actual achievement and his expected achievement. Indeed, the child's reported standard score of 72 in reading on the test administered by the school psychologist is consistent with the child's full scale IQ score. Despite the school psychologist's statement in his report that the child was estimated to have low average potential, I find that his statement is not supported by the child's standard scores on the IQ test, reading test and the tests administered by the speech/language therapist.
Although I find that there is inadequate support in the record for the child's classification as learning disabled, I further find that there is substantial support in the record for the child's classification as speech-impaired. State regulation defines a speech-impaired child as:
" A student with a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, which adversely affects a student's educational performance" (8 NYCRR 200.1 [mm]).
In his speech/language evaluation, the child demonstrated poor ability to recall and repeat sentences spoken to him. He had difficulty answering questions which were based upon a brief story which had been read to him. The speech/language evaluator, as well as the child's teachers, reported that the child had difficulty following oral directions. The child's processing difficulties observed by the speech/language therapist were consistent with those reported by his teachers. The evaluation report by the speech/language therapist demonstrated the effect of the child's language deficits upon his learning style, management needs, and potential for academic success. Upon the record before me, I find that the child should be classified as speech-impaired.
Respondent must show that the program recommended by its CSE 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 evaluations to identify the child's needs, provides for the use of 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). I find that the child's IEP accurately reflects the results of his evaluation in describing his needs, except for the designation of his disability as learning disabled and the description of his cognitive functioning as "Estimate of low average". Although the CSE had various standardized test score results, it chose to include only teacher estimates of the child's reading and mathematics skills on his IEP. In the future, the CSE should add the child's standardized test scores (Exhibit 4-B) to his IEP. The child's annual goals are set forth in his IEP with appropriate short-term instructional objectives, evaluation methods, and evaluation criteria.
In order to find that the CSE recommended appropriate special education services for the child, I must first ascertain the extent to which he required primary special education academic instruction. Upon the record before me, I find that the child required such instruction for language arts and reading, in addition to the speech/language therapy recommended by the CSE. However, I find that the record does not support the CSE's recommendation that the child receive such instruction for other subjects. Respondent has not offered sufficient evidence to establish that the child had significant problems, or performed poorly in those areas. His second grade teacher testified that the science and social studies programs involved much hands-on and group activities, during which the child was able to follow her directions. The child's report card for the 1993-94 school year, through February, 1994, is part of the record. However, it is of limited evidentiary value, because a symbol which was used to denote that a particular skill was "not yet mastered" by the child, could according to his teacher's testimony also mean that the skill had not yet been addressed in class. Respondent offered no evidence of the child's academic performance in his other subjects.
The CSE's recommendation that the child be placed in a self-contained special education class was premised, in part, upon its estimation of his management needs. His second grade teacher testified that the child required additional supervision to be prepared for activities and to remain on-task during activities. Both of the child's teachers described the child's typical off-task behavior as quietly drawing pictures, rather than disturbing other children. His language arts and reading teachers testified that the child was occasionally disruptive, by speaking out in class. However, she further testified that such disruptions occurred approximately every other day, and that the child could be redirected by teacher comments. I find that nothing in the evidence presented by respondent with regard to the child's management needs would afford a basis for concluding that the child cannot learn without more adult supervision than could be provided in a less restrictive "Option I" (15:1) class, under respondent's own criterion for placement in an "Option II" (12:1+1) class (page 15 of the record). The testimony of the child's teachers and that of respondent's speech/language therapist strongly suggest that the child's off-task behavior results from his frustration about his language deficits which hinder his ability to learn. With appropriate special education in language arts and reading, as well as speech/language therapy, to address his disability, there is no reason to believe that the child would have significant management needs while receiving instruction in other academic and special subjects, particularly if the CSE prepares an appropriate behavior management plan for the child. Accordingly, I find that the child's placement in a self-contained special education class must be limited to placement in an "Option I" (15:1) class only for language arts and reading, in order to comply with the Federal and State requirement that children with disabilities be educated in the least restrictive environment.
In view of my determination that the child does not require full-time placement in a self-contained class and the fact that the 1993-94 school year is now over, I need not reach the issue of the appropriateness of the particular class which respondent selected for the child. The CSE will be required to revise the child's IEP, which would otherwise not be reviewed until February, 1995, in a manner which is consistent with the tenor of this decision. However, one additional issue must be addressed. Respondent has disclosed in its answer that the child's placement was changed from a regular education class to a 12:1+1 special education class. Federal and State laws provide that a child shall remain in his or her then current placement during the pendency of any proceeding conducted under such laws, unless the child's parents and the school district agree to another placement (20 USC 1415 [e]; Education Law Section 4404 ). In asserting that this appeal was untimely, respondent relied in part upon the August 29, 1994 letter by the State Education Department employee which referred to petitioner's pending appeal, yet respondent inexplicably changed the child's placement. I will not direct respondent to immediately return the child to a full-time regular education class pending the CSE's prompt preparation of a revised IEP, because that action would be unduly disruptive of the child's education. However, I caution respondent to comply with the "status quo" provisions of Federal and State law in the future.
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 revise the child's IEP in a manner which is consistent with the terms of this decision.
New York ____________________________
November 4, 1994 ROBERT G. BENTLEY