The State Education Department
State Review Officer
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 New York
Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent,
Patricia LeGoff, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer upholding the recommendation by respondent's committee on special education (CSE) that petitioner's child be classified as learning disabled and be enrolled in a special education class for the 1993-94 school year. The appeal must be sustained in part.
Petitioner's child, who is 10 years old, is currently enrolled in a regular education second grade class in respondent's P.S. 154. In September, 1988, at age 5, the child entered kindergarten in P.S. 154. The child encountered academic difficulties early in the school year, and his program was changed from full-day to one-half day kindergarten. Nevertheless, the child was unsuccessful in kindergarten during the 1988-89 school year. He was referred to the CSE, but petitioner did not consent to have the child evaluated. A hearing officer authorized the CSE to evaluate the child, notwithstanding petitioner's opposition. The evaluation was not performed until the 1989-90 school year, during which the child repeated kindergarten and briefly received remedial services in respondent's at-risk resource room program. The CSE recommended that the child be classified as learning disabled and receive resource room services for the remainder of the 1989-90 school year. A hearing was held, in which respondent was authorized by the hearing officer to implement the CSE's recommendation without petitioner's consent. Petitioner appealed to the Commissioner of Education, who annulled the hearing officer's decision, because the CSE failed to prove that its evaluation of the child had included the mandatory physical examination (see 8 NYCRR 200.4 [a][i]). The Commissioner directed the CSE to obtain a physical examination and make its recommendation for the child's classification and placement, which was to be implemented by no later than the commencement of the 1990-91 school year (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 41).
In September, 1990, the child was enrolled, by agreement of the parties, in the second grade of P.S. 261, despite the fact that the child had never been enrolled in the first grade. In January, 1991, the CSE again recommended that the child be classified, but as emotionally disturbed rather than learning disabled, and that he be placed in a special education class. Petitioner declined to consent to the recommended classification and placement, and a hearing to obtain authorization to implement the CSE's recommendation was held at the end of the 1990-91 school year. Pending the outcome of the hearing, the child returned to P.S. 154, where he was enrolled in a regular education first grade class for the 1991-92 school year.
In September, 1991, the hearing officer held that the child should be classified as learning disabled, rather than emotionally disturbed as recommended by the CSE, but the hearing officer upheld the CSE's recommendation that the child should be instructed in a special education class. Petitioner appealed from the hearing officer's determination to the State Review Officer. In Application of a Child with a Handicapping Condition, Appeal No. 91-42, dated December 20, 1991, the State Review Officer annulled the hearing officer's determination, on the ground that respondent had unilaterally replaced the individual selected by petitioner to perform an independent evaluation of the child. The State Review Officer ordered the CSE to afford petitioner the opportunity to obtain an independent psychological evaluation, and further ordered the CSE to recommend the appropriate classification and placement, if any, within 50 days after the State Review Officer's decision. The record does not reveal what action respondent took to comply with the State Review Officer's order.
In September, 1992, the child entered the second grade in the regular education program of P.S. 154. On January 5, 1993, the child's teacher referred the child to the CSE, because the child had reportedly experienced difficulty working independently, remaining focused on tasks, and completing his homework. The teacher reported that the child's reading and spelling skills were deficient. The child's report card for the 1992-93 school year reveals that the child received the grade of unsatisfactory in reading, writing and mathematics, and his personal and social development was described as in need of improvement. The child's score on respondent's annual standardized reading test in May, 1993 was in the 5th percentile, i.e., below 95 percent of the children who took the test, while his score on a nationally standardized mathematics test administered in the Spring of 1993 was in the 13th percentile.
In May, 1993, petitioner consented to having the child evaluated by the CSE. Petitioner reported in the child's social history that the child was in good health and behaved well at home. A physician who examined the child in May, 1993 reported that the child had no physical abnormalities. The school psychologist who evaluated the child on May 29, 1993, reported that the child was well oriented and had coherent thought processes. The child achieved a verbal IQ score of 99, a performance IQ score of 83, and a full scale IQ score of 90, which were comparable to the scores he received when last evaluated in 1990. The school psychologist opined that the 16 point difference between the child's verbal and performance IQ scores was indicative of a visual motor integration delay. In a separate test, the child's visual motor integration skills were found to be delayed by at least one year. The school psychologist reported that the child had a significant weakness in his ability to observe and interpret detail and to process information. He further reported that the results of projective tests revealed that the child felt vulnerable and inadequate, and opined that the child's poor self-esteem and lack of confidence made him anxious and discouraged. The school psychologist recommended that the child's emotional difficulties be addressed through counseling, and that his academic difficulties be addressed through either a part-time or full-time special education program.
In an educational evaluation completed in early June, 1993, the child reportedly obtained grade equivalent scores of 1.7 in reading decoding, 1.5 in reading comprehension, 2.2 in math applications, 2.8 in mathematical computation, and 1.6 in spelling. The evaluator reported that the child made numerous errors in confusing letters and numbers, in writing and mathematics, many of which he self-corrected. The evaluator further reported that the child exhibited two-year delay in his visual motor integration skills and his short-term auditory memory skills. The evaluator also reported that the child's oral expression skills were adequate, but his handwriting skills were only fair. As had the school psychologist, the educational evaluator described the child as cooperative and attentive. On June 9, 1993, the child was observed in class by a school social worker, who reported that the child was distractible and required assistance from an adult in order to read words aloud successfully.
At a meeting with petitioner held on June 14, 1993, the CSE recommended that the child be classified as learning disabled and placed in a modified instructional services-I (MIS-I) special education class, with a 15:1 child to adult ratio. The CSE further recommended that test modifications such as "flexible setting and flexible scheduling" be used with the child. On June 16, 1993, petitioner was notified of the CSE's recommendation and offered a placement for the child in a MIS-I class in P.S. 58. Petitioner declined to consent to the child's placement in accordance with the CSE's recommendation.
During the 1993-94 school year, the child has been enrolled again in the second grade in P.S. 154. On October 28, 1993, the principal of P.S. 154 requested that a hearing be initiated to authorize respondent to implement the CSE's recommendation without petitioner's consent. Petitioner was notified that a hearing would be held on November 30, 1993, but was approximately two hours late in arriving for the hearing, which had commenced in her absence. Petitioner informed the hearing officer that she could not stay for the hearing, and requested permission to enter some documentary evidence into the record. The CSE's representative objected to the introduction of such evidence because it had not been disclosed to the CSE at least five days before the hearing. State regulation affords either party to a hearing the right to preclude the introduction of evidence the substance of which has not been disclosed to the party at least five days before the hearing (8 NYCRR 200.5 [c]). In response to the CSE representative's objection to the proffered evidence, the hearing officer adjourned the hearing until December 15, 1993. However, the hearing officer subsequently determined to hold a de novo hearing, rather than continue with the hearing which had commenced on November 30 because petitioner had reportedly indicated her wish to attend the hearing. A new hearing was scheduled to take place on January 10, 1994. On that date, the hearing was adjourned by the hearing officer to January 14, 1994, because petitioner was unable to attend the hearing as a result of an injury. The hearing was held on January 14, 1994. Petitioner was not present at the hearing, but authorized her mother to speak on her behalf and to represent the child's interests at the hearing.
In a decision dated February 9, 1994, the hearing officer found that the child met the regulatory criteria for classification of a child with a learning disability, because the child exhibited a discrepancy of 50 percent or more between his expected and actual achievement in reading and mathematics. The hearing officer also found that respondent had met its burden of proof with regard to the appropriateness of the MIS-I class in P.S. 58 which the CSE had recommended. However, the hearing officer directed the CSE to amend the child's individualized education program (IEP) to provide the child with counseling, as respondent's school psychologist had recommended in his evaluation of the child.
Before reaching the issues of the appropriateness of the child's classification and placement, I must first consider petitioner's claim that the hearing officer was biased. Petitioner asserts that the hearing officer's decision which was made after the hearing held on January 14, 1994 is tainted by certain remarks made by the hearing officer at the hearing held on November 30, 1993. Additionally, she asserts that the hearing officer could not render an impartial decision because the hearing officer was allegedly aware of petitioner's request to respondent's Impartial Hearing Office to have the hearing officer replaced before the January 14, 1994 hearing commenced.
The appropriate procedure for raising and resolving questions about a hearing officer's impartiality is a motion for the hearing officer to recuse himself or herself (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 138; Application of a Child Suspected of Having a Handicapping Condition, 29 Ed. Dept. Rep. 138; Application of a Child Suspected of Having a Handicapping Condition, 30 id. 316), except when a hearing officer's failure to disclose pertinent information has precluded a parent from moving for recusal (Application of a Child with a Handicapping Condition, 28 id. 240). There is no indication in the record that petitioner's mother, who appeared on her behalf at the January 14, 1994 hearing, raised the issue of the hearing officer's impartiality, notwithstanding the fact that petitioner's claim of partiality is based upon events of which petitioner was aware before the hearing began. Under the circumstances, I find that petitioner waived her claim with respect to the alleged partiality of the hearing officer. Nevertheless, I have reviewed the transcript of the hearing held on November 30, 1993, and find that there is no basis in fact for petitioner's claim of bias. Petitioner refers, to two statements by the hearing officer. In the first, the hearing officer asked petitioner to explain why she had telephoned the Impartial Hearing Office early on the morning of November 30 to state that she would be present for the hearing at 10:00 a.m., while in fact she arrived two hours later. Under the circumstances, I find that the hearing officer's question was perfectly legitimate. Shortly before the conclusion of the proceedings on November 30, 1993, the hearing officer stated that the hearing would be continued on December 15, 1993, and that:
"I will set it [the hearing] down for twelve noon in the hopes that the mother will be able to attend, since she seems to have trouble with 9:30 hearings, even 10 o'clock she didn't make because she will be notified that the hearing is continuing." (Transcript, page 74, lines 19-23)
A hearing officer must avoid even the appearance of impropriety (Application of a Child with a Handicapping Condition, Appeal No. 91-10), and, like a judge, must be patient, dignified and courteous to the parties and their representatives (Application of a Child with a Handicapping Condition, Appeal No. 91-40). Although the hearing officer's remark may have been ill advised, I find that it does not afford a basis for annulling the hearing officer's decision on the ground of actual or apparent bias. I further find that petitioner has not established that the hearing officer was even aware of petitioner's request that another hearing officer be assigned to conduct the hearing. Petitioner also asserts that the hearing officer afforded respondent's representatives more leeway at the hearing than she did for petitioner's representative at the hearing, i.e., the child's grandmother. My review of the record of the hearing held on January 14, 1994 reveals nothing to substantiate petitioner's assertion. When the child's grandmother, who was not assisted by an attorney or an advocate, attempted to testify during her cross-examination of respondent's witnesses, the hearing officer correctly advised the grandmother that she would have an opportunity to testify later in the hearing. Upon the record before me, I find petitioner's assertions about the hearing officer to be without merit.
The first substantive issue in this appeal is whether the child should be classified as a child with a learning disability. Respondent bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-11; Application of a Child with a Disability, Appeal No. 93-20). State regulation defines a child with a learning disability 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]).
The record reveals that petitioner's child has an imperfect ability to read, write, spell, and do mathematical calculations, as demonstrated by the results of individually administered standardized achievement tests. Although he has average cognitive skills, the child has a significant deficit in his visual motor integration skills, as well as lesser deficits in his processing speed and auditory attention span. However, the child has age appropriate listening comprehension skills. The child's visual motor and auditory attention span deficits, were in the opinion of respondent's school psychologist, directly responsible for the child's inability to decode words at a rate which was consistent with the child's educational experience and cognitive ability. When questioned about the effects of the child's prior education, including his placement in the second grade after completing kindergarten, the school psychologist testified that the child's difficulties, such as the reversal of letters, were not the result of what he had been taught in school, but were a manifestation of his disability.
The results obtained and testimony of the school psychologist were corroborated by the findings and testimony of respondent's educational evaluator. The educational evaluator independently found that the child achieved an age equivalent score of 5 years and 10 months in a test of his visual motor integration skills, although the child was 9 years and 7 months old when he was tested. The educational evaluator reported that the child made numerous letter and number transposition errors during his educational evaluation, which would be unusual for a child of his age unless the child had a learning disability. In addition, the educational evaluator testified that the child had difficulty with the spacing, size and angulation of his written letters, which was indicative of the existence of a learning disability. The educational evaluator also testified that the child had great difficulty with spelling, because he could not recall the sounds of letters in the proper sequence, despite knowing most of the sounds of individual consonants. The child's second grade teacher during the 1992-93 school year testified that the child had significant difficulty reading because he lacked decoding skills and could not rely upon a sight word vocabulary. The teacher further testified that the child had difficulty copying words which had been written on the blackboard and difficulty remembering directions. The child's second grade teacher during the 1993-94 school year testified that the child had trouble decoding words and that he reversed letters, notwithstanding the fact that he tried hard to perform acceptably. Both of the child's second grade teachers testified that the child had received small group instruction in reading with an aide provided pursuant to the Pupils with Compensatory Education Needs Program (see Section 3602  of the Education Law). Although the child's reading and spelling skills were at the first grade level and his mathematics skills were at the second grade level when he was evaluated in May, 1993 while enrolled in the second grade, I find that there is a significant discrepancy between such scores and the scores which could be expected of a child with his cognitive ability and prior instruction. I note that the child's chronological peers were in the fourth grade in May, 1993. I further find that the testimony of the respondent's staff establishes that the child also exhibits a significant discrepancy between his expected achievement and actual achievement in writing. Consequently, I find that respondent has met its burden of proof with respect to the appropriateness of the child's classification as a child with a learning disability.
Respondent also bears the burden of establishing 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 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), 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 individualized education program (IEP) which accurately reflects the results of the child's 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). I find that the child's IEP accurately reflects the results of his evaluations, and identifies his special education needs.
The IEP provides that the child will receive primary instruction in special education for all subjects. I find that such instruction would be appropriate to address the child's academic needs in reading, writing, spelling and mathematics, because the child's learning disability has directly affected his ability to acquire skills in these subjects and because the child requires specialized instruction to remediate his deficits and to acquire compensatory strategies to deal with such deficits. I further find that respondent's MIS-I program would be appropriate to provide such specialized primary instruction. However, the record does not reveal a sufficient basis for providing the child with primary instruction in special education for science, social studies, music and art. The child's report card for the 1992-93 school year reveals that he received generally satisfactory grades in these subjects, while in a regular education class. His IEP annual goals for social studies and science provide that the child will "develop and improve ... skills that are grade appropriate." Absent evidence that such goals cannot be achieved in the less restrictive environment of a regular education class, or that the child cannot perform satisfactorily in regular education art or music, I find that the child may not be excluded from the less restrictive environment of a regular education class for instruction in social studies, science, music and art. With regard to physical education, I note that a special education site supervisor testified at the hearing that the children in the MIS-I program are mainstreamed for physical education.
Although the CSE identified the child's emotional needs and set forth an annual goal related to such needs in his IEP, it did not provide for the child to receive the professional intervention which respondent's school psychologist had recommended in his evaluation of the child. I find that the hearing officer correctly ordered the CSE to revise the child's IEP to include counseling as a related service. In view of the fact that the child has been separated in school from his age appropriate peers and will now interact with such peers, the counseling which he is to receive should also address any concerns which may arise from such interaction.
I find that the child's IEP annual goals, such as the child "will develop his decoding skills" and the child "will develop his spelling skills", are far too general to be of use. Annual goals are intended to be statements which describe what a child with a disability can reasonably be expected to accomplish within a 12-month period (34 CFR Part 300, Appendix C, Question 38). However, the child's short-term instructional objectives provide sufficient detail to set the general direction to be taken by those who will implement the IEP and to afford a basis for developing a detailed instructional plan for the child. Therefore, I will not invalidate the IEP solely because of its imprecise annual goals (Application of a Child with a Disability, Appeal No. 93-40; Application of a Child with a Disability, Appeal No. 93-48). I will require the CSE to revise the child's annual goals to provide more precision. The CSE must also prepare additional short-term objectives to provide a complete description of the intermediate steps between the child's present levels of performance and the achievement of his annual goals, rather than just the objectives to be achieved during the first few months of the school year.
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]). At the hearing, respondent introduced into evidence a profile of the children in the recommended class in P.S. 58. Additional information about the children was provided by the testimony of the special education site supervisor for P.S. 58. Upon the record before me, I find that petitioner's child would be appropriately placed in the recommended class for instruction in reading, writing, spelling and mathematics.
Finally, I must note my concern about the protracted struggle between the parties, during which the child has repeated the second grade. It is imperative that respondent offer the child an appropriate program without further delay. I shall refer this matter to the State Education Department's Office of Special Education Services, so that respondent can obtain technical assistance in preparing IEPs and in providing appropriate services to enable the child to be educated with chronologically appropriate peers.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the hearing officer, to the extent that it found that petitioner's child should receive all of his instruction in the recommended MIS-I class, is annulled, and;
IT IS FURTHER ORDERED that within 30 days after the date of this decision, respondent's CSE shall revise the child's IEP to provide for his instruction in regular education classes with his chronological peers in all subjects, except reading, writing, spelling and mathematics, which shall be provided in the recommended class, and shall prepare new annual goals and short-term instructional objectives in accordance with the tenor of this decision.
New York _________________________
April 28, 1994 CLAUDIO R. PRIETO