The State Education Department
State Review Officer


No. 95-59


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 Rhinebeck Central School District

RosaLee Charpentier, Esq., attorney for petitioner, Shaw and Perelson, LLP, attorneys for respondent, Garrett L. Silveira, Esq., of counsel


        Petitioner appeals from the decision of an impartial hearing officer which held that respondent had offered an appropriate educational program to petitioner's child for the 1994-95 school year, and which denied petitioner's request for reimbursement for the cost of the related services provided to the child in the private school in which he was placed by petitioner. The appeal must dismissed.

        Petitioner's child is 14 years old. Prior to entering school, the child reportedly had chronic ear infections. He attended a private school in Poughkeepsie, New York for kindergarten and first grade. At the hearing in this proceeding, petitioner testified that the child received speech/language therapy because of a mild speech articulation deficit, while in kindergarten, and had some difficulty with reading while in the first grade. During the first grade, the child transferred to another private school, where he remained through the fourth grade. He reportedly did well academically, while attending the private school. During the fifth grade, the child was enrolled first in the schools of the Garrison Union Free School District, was later instructed by petitioner at home, and finally was enrolled in respondent's Chancellor Livingston Elementary School. During the sixth grade, the child was enrolled in the schools of the Highland Central School District, where he was reportedly provided with copies of class notes because of difficulty he had in writing.

        In October, 1993, petitioner enrolled the child in a regular education seventh grade class in respondent's Buckley Middle School. On November 10, 1993, petitioner referred the child to respondent's committee on special education (CSE) because she was concerned about the child's difficulty with spelling and reading.

        A school psychologist, who evaluated the child in December, 1993, reported that the child had achieved a verbal IQ score of 129, a performance IQ score of 107, and a full scale IQ score of 121. Noting that the child's performance on visual motor tasks was weaker than his performance on verbal tasks, the school psychologist asserted that the child had slowed down while performing the visual motor tasks to assure his accuracy in performing them. She reported that the child exhibited noticeable frustration while having to reproduce symbols, but concluded that the child still had average ability for visual motor tasks. However, he evidenced significantly greater verbal ability, which was at the superior level. Projective testing revealed that the child had a negative perception of his abilities in school, physical appearance, and popularity with his peers. The school psychologist opined that the child might have difficulty in tasks requiring writing or reproducing symbols in sequence. Although writing appeared to be a weakness for the child, the school psychologist reported that the child's writing ability was nevertheless at an appropriate level for his age. She further reported that the child's academic records revealed that his schoolwork had been adequately performed, with extra effort. She reported that the child's ability to acquire information through the auditory and oral modes was significantly greater than that of his peers. The school psychologist recommended that the CSE consider alternate ways of helping the child obtain information in the classroom, such as having him obtain copies of class notes and teaching him alternative ways of recording information. She further suggested that the CSE consider having the child receive remedial help to improve his spelling, and that the child's academic progress be monitored.

        In an educational evaluation which was performed on December 6, 1993, the child achieved grade equivalent scores of 5.8 in letter-word recognition and 8.3 in passage comprehension, which resulted in a grade equivalent score of 6.5 for broad reading. The evaluator also reported that the child's reading comprehension was not significantly impaired by his poor word recognition and decoding skills while reading small written passages, but that the child's comprehension decreased while reading longer written passages. The child's grade equivalent scores of 8.9 in mathematical calculation and 10.1 in applied problems resulted in a grade equivalent score of 9.4 in mathematics. The child achieved grade equivalent scores of 3.1 in dictation (spelling), and 8.9 in writing samples, which resulted in a grade equivalent score of 7.3 for written language. Respondent's educational evaluator reported that the content of the child's writing was excellent, but that his spelling skills were extremely weak.

        Because of his weaknesses in reading and spelling, the child was given an additional individual reading and spelling test. The evaluator reported that the child could identify words at the 6th to 7th grade level, by using a combination of phonics and word configuration to decode words. She estimated that the child's independent reading level was at the fifth to sixth grade level. The child was able to correctly spell only 20% of the words which were given to him. The evaluator reported that the child spelled phonetically, but did not use non-phonetic spelling patterns. She recommended that the child's spelling lessons emphasize non-phonetic spelling patterns, and that he be given sight word vocabulary exercises.

        On December 10, 1993, the CSE recommended that the child not be identified as a child with a disability. The CSE chairperson testified at the hearing in this proceeding that, despite his reading and writing deficits, the child did not meet the regulatory criteria for classification as a learning disabled child (8 NYCRR 200.1 [mm] [6]). However, the CSE recommended that the child receive remedial instruction by a special education teacher in reading and spelling, and that he receive the educationally related support service of counseling by respondent's school psychologist. The special education teacher testified that she helped the child to organize his notebook, and monitored the child's homework and performance in class. In addition, she provided individual instruction to him during study periods, and had used an alternative method of word decoding with the child. She also worked with the child to improve his writing and spelling by using a computer. At the hearing, petitioner acknowledged that the child's counseling had been discontinued, at her request, shortly after it had begun.

        On March 22, 1994, the CSE reconvened to review the child's progress. The special education teacher who had been helping the child reported that the boy required more assistance to be successful in the classroom. At the hearing in this proceeding, the teacher testified that the child needed help with note-taking, and developing his study and organizational skills, in addition to the assistance which she had provided to him to improve his reading, spelling and writing skills. The CSE recommended that the child be classified as learning disabled. The CSE chairperson testified that the CSE had relied upon the information provided to it by the special education teacher and that it had found that there was a significant discrepancy between his expected and actual levels of achievement in spelling. Although the test data upon which the CSE relied was the same as was previously reviewed at its December, 1993 meeting, the chairperson testified that the CSE had decided not to classify the child in December because there wasn't a significant discrepancy between the child's expected and actual overall writing skills. In March, 1994, the CSE focused upon the child's spelling, which was one component of his overall writing skills.

        The CSE recommended that the child receive consultant teacher services 10 periods per week, and that the child be permitted to use testing modifications. The modifications included extended time limits, taking tests in alternate locations, and giving oral responses to test questions. The child's individualized education program (IEP) included annual goals for the child to improve his keyboarding, writing, and study skills.

        At petitioner's request, the child was independently evaluated by a private psychologist, in May, 1994. The child's cognitive skills were assessed with a different test than respondent's psychologist had used in the child's December, 1993 evaluation. The private psychologist reported that the child's scores were slightly lower than, but consistent with, the scores which the child had achieved in December, 1993. He achieved a standard score of 109, as a broad measure of his cognitive abilities. The child's standard score of 128 for oral language was well above average. However, the child's standard scores of 86 for long term retrieval, 87 for processing, and 89 for auditory processing revealed that these were areas of relative weakness for the child. The private psychologist reported that the child achieved grade equivalent scores of beginning fourth grade in reading, end of the second grade in spelling, and beginning seventh grade in mathematics, but he cautioned that his testing was not as thorough as that which respondent's school psychologist had performed. The private psychologist reported that the child's reading decoding and spelling skills were impaired by deficits in his auditory processing and memory retrieval skills, but that the child had some very significant areas of strength to help compensate for his deficits. He reported that the child had difficulty internalizing his feelings, and that the child had emotional and behavioral problems, including some anxiety and depression. The private evaluator recommended that the child receive assistance through the use of a combination of remedial and compensatory techniques, involving remedial instruction in reading and spelling and the use of a "spell check" computer program and tape recordings of classes. He also recommended that the child receive counseling.

        The CSE met again on June 14, 1994, when it prepared part of the child's IEP for the 1994-95 school year (the IEP was dated June 1, 1994). The CSE recommended that the child continue to receive 10 periods per week of consultant teacher services, 1 period per day of 1:1 instruction by his special education teacher in a "language laboratory", and that he be enrolled in a 15:1 special education class for instruction in English. The language laboratory was to be a 1:1 tutorial in reading and social studies, with the child's eighth grade special education teacher. The CSE also relied upon the independent evaluator's report to prepare a "learning plan", which included suggested techniques for the child's teachers to use to instruct him. Petitioner did not attend the CSE meeting on June 14, 1994. At the hearing, the CSE chairperson testified that the CSE did not prepare new IEP annual goals and short-term instructional objectives because petitioner was absent. Instead, the child's special education teacher was to discuss proposed goals with petitioner, who was sent a copy of the incomplete IEP in late June, 1994. The special education teacher testified that the child's progress towards achieving the three annual goals on his 1993-94 IEP was discussed at the CSE meeting. The teacher was reportedly unable to make contact with petitioner to discuss the child's goals and objectives for the 1994-95 school year. A copy of the goals and objectives which the teacher prepared in July, 1994 was reportedly mailed to petitioner at the end of that month.

        The child received the grade of "Unsatisfactory" as a final grade in his seventh grade language arts, social studies, science and mathematics courses. Teacher comments on his report card indicated that the child had difficulty following classroom procedures, and had not completed his assignments. His language arts teacher reported that the child's absences from school had adversely affected his academic performance. The child's report card indicated that the child was absent 29 days during the 1994-95 school year. At the hearing, the child's special education teacher in the seventh grade testified that the child's homework and tests had been modified to accommodate his disability, but that the child had not put forth the effort needed to complete his work. The CSE chairperson, who is also the Principal of the Buckley Middle School, testified that she recommended to petitioner that the child attend summer school.

        Petitioner enrolled the child, at her expense, in the summer program of the Kildonan School, a private school for children with reading disabilities. The Kildonan School has not been approved by the State Education Department as a school for children with disabilities for the purpose of State reimbursement to school districts which place children in the school. Petitioner reportedly asked respondent to pay for the child's tuition for the summer program, but did not receive a response to her request. In a letter dated July 5, 1995, petitioner requested that an impartial hearing be held. However, she agreed to the CSE chairperson's request to participate with respondent in mediation with an independent mediator. Petitioner and her attorney met with the CSE chairperson and respondent's attorney on three occasions, early in September, 1994. By then, petitioner had opted to enroll the child in the Kildonan School for the 1994-95 school year. There is no evidence of a written agreement by the parties, and the parties have differing perceptions about the outcome of the mediation. The CSE chairperson testified that she believed that the parties had agreed that respondent would employ an individual trained to use a multi-sensory methodology to provide the child with 1:1 instruction in reading, and would transport the child to Poughkeepsie, New York to receive that instruction. Petitioner testified that she had agreed to have the multi-sensory reading instructor "screen" the child to determine his needs, and then meet with the CSE to discuss the child's educational program.

        In a letter to respondent's Superintendent of Schools, dated September 1, 1994, petitioner reiterated her request for a hearing, and suggested that she might seek reimbursement for the child's tuition at the Kildonan School during the 1994-95 school year. A hearing was scheduled to begin on September 21, 1994, but was adjourned with the consent of both parties until October 26, 1994.

        On October 4, 1994, petitioner met with the CSE. The minutes of the meeting indicate that the CSE considered a brief report by a psychiatrist who opined that the child had dyslexia secondary to a cerebellar-vestibular dysfunction. The psychiatrist recommended that the child remain at the Kildonan School. The former Director of the Kildonan School, who attended the CSE meeting, discussed the child's summer program at the Kildonan School, and recommended that the child attend that school as a residential student during the 1994-95 school year. The CSE recommended that the child's IEP for the 1994-95 school year be amended by replacing the language laboratory with 1:1 multi-sensory instruction in reading and writing, four days per week, by a Ms. Mabie, the individual whom the parties had reportedly agreed upon at their mediation. The child's IEP was also amended to provide that he would receive 30 minutes per week of counseling by a private psychologist, and that respondent's school psychologist would consult with the private psychologist twice per week. Annual goals relating to the child's performance in American history and keyboarding were deleted from the child's IEP, and new goals relating to mathematics and counseling were added to the IEP. The IEP description of the child's current levels of performance was updated to include the results of tests administered to the child at the Kildonan School in August, 1994.

        Soon after the IEP was completed, Ms. Mabie notified the CSE chairperson that she would not be available to provide services to petitioner's son. Just prior to the commencement of a hearing on October 26, 1994, the parties' attorneys reached an agreement which obviated the need for a hearing. They agreed that respondent would pay for the child's tuition at the Kildonan School, until respondent could obtain the services of another instructor trained to use the multi-sensory method of teaching reading and writing. The parties asked the hearing officer to retain jurisdiction in the matter, in the event that there was a subsequent disagreement.

        On November 3, 1994, the CSE chairperson orally informed petitioner that she had located another multi-sensory reading and writing instructor (Ms. Moore). The CSE chairperson also revised the child's class schedule so that he could meet in school with Ms. Moore during the eighth period of the school day. On November 7, 1994, Ms. Moore began working for respondent by reviewing the child's records and planning the instruction which she was to begin on November 14, 1994. The CSE chairperson testified that shortly thereafter petitioner informed her that she had spoken with Ms. Moore, and she had concluded that the latter was not qualified to provide the instruction her child required.

        In a letter to the Kildonan School, dated December 5, 1994, the CSE chairperson indicated that respondent would no longer be responsible for paying the child's tuition at the private school. In a letter to the CSE chairperson, dated November 13, 1994, petitioner requested another meeting of the CSE. A CSE meeting was scheduled to take place on January 10, 1995, but was rescheduled for January 19, 1995, at petitioner's request. In a letter to respondent, dated January 4, 1995, petitioner asked for an impartial hearing.

        At the CSE meeting on January 19, 1995, the CSE amended the child's IEP to provide that the child would receive five periods of forty minutes of multi-sensory reading and writing instruction per week, rather than four periods of sixty minutes of such instruction. It also deleted Ms. Mabie's name and added Ms. Moore's name as the child's instructor. The rest of the child's IEP was not changed. On February 14, 1995, respondent approved the amended IEP. Respondent agreed to continue paying the child's tuition at the Kildonan School, until the hearing officer rendered his decision. Therefore, the child's tuition for the 1994-95 school year is not an issue to be decided in this appeal.

        The hearing in this proceeding began on February 8, 1995. There were ten additional days of hearings over a four-month period. The hearing concluded on June 6, 1995. In his decision, which was dated July 10, 1995, the hearing officer found that the CSE had complied with the procedural requirements for preparing the child's IEP for the 1994-95 school year. He further found that the child's IEP was appropriate, because it was reasonably calculated to provide educational benefit to the child. In addition, he found that the Kildonan School was not the least restrictive environment for the child. The hearing officer denied petitioner's claim for payment of the cost of related services provided to the child during the 1994-95 school year. For the 1995-96 school year, he ordered the CSE to put in place a program similar to that which it had offered in October, 1994.

        Petitioner asserts that her due process rights were violated by respondent, because it failed to ensure that the hearing officer's decision was rendered within 45 days after respondent received her letter of July 5, 1994 requesting a hearing (cf. 34 CFR 300.512 [a]; 8 NYCRR 200.5 [c] [11]). Respondent argues that petitioner waived her right to receive a written decision of the hearing officer within the prescribed 45-day period, by entering into mediation of her dispute with respondent. Respondent has offered no factual basis, or legal authority, for its argument. Although voluntary mediation is to be encouraged, it may not be done at the expense of rights guaranteed by Federal and State regulations. In 1979, the United States Department of Education opined that the purported waiver of appeal procedures, even within restricted timelines, was not permitted under Federal law (EHLR 211:168). It should be noted that a hearing officer may grant specific extension of the 45- day time limit, at the request of either party (34 CFR 300.512 [c]). While I do not excuse respondent from its failure to promptly schedule a hearing, I must note that both parties bear responsibility for the protracted proceeding which has occurred. In the future, respondent must ensure that hearings are commenced promptly after it receives hearing requests.

        Petitioner also asserts that respondent improperly attempted to change the child's placement from the Kildonan School back to respondent's schools, by directing the child's bus driver to deliver the child to respondent's high school and by interrupting its tuition payments to the private school. She contends that respondent was precluded from doing what it did without notifying petitioner, and without holding a CSE meeting. In essence, petitioner is contending that the child's "pendency" or "status quo" placement (see 20 USC 1415 [e][3][A]; Section 4404 [4] of the Education Law) was at the Kildonan School. I disagree. The child's last mutually agreed upon placement was in respondent's schools pursuant to the March 22, 1994 IEP, as petitioner acknowledged at the hearing (Transcript page 722). While the attorneys for the two parties apparently agreed that respondent would temporarily pay the child's private school tuition, there was no IEP developed or approved by the CSE to reflect the agreement, which was a necessary step (Application of a Child with a Handicapping Condition, Appeal No. 92-15).

        The board of education 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, the board of education 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 [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 the evaluation 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).

        Petitioner challenges the child's IEP for the 1994-95 school year on both procedural and substantive grounds. It must be noted that the IEP was initially prepared at the CSE's meeting of June 14, 1994, and was amended on October 4, 1994 and January 19, 1995. With regard to the June 14, 1994 CSE meeting, petitioner notes that she did not attend the meeting, and asserts that IEP annual goals and short-term instructional objectives were developed by the special education teacher assigned to work with the child during the 1994- 95 school year, without any involvement by the CSE or petitioner. Federal regulation encourages, but does not require parental attendance at CSE meetings. However, when a parent does not attend a CSE meeting, the CSE must have a record of its attempts to arrange a mutually agreed upon time and place (34 CFR 300.345 [d]). In this instance, petitioner testified that she had intended to come to the June 14, 1994 CSE meeting, but had been unable to do so. She further testified that she had not disclosed her change of plans to any representative of the CSE. There is no evidence that she asked to have the CSE meet again.

        The CSE chairperson testified that the appropriateness of the child's educational program and his educational progress was reviewed by the CSE on June 14, 1994. The child's special education consultant teacher testified that she had discussed the child's progress towards achieving his IEP goals with the CSE. The CSE chairperson also testified that the IEP goals for the 1994-95 school year were not added to the IEP at the June 14, 1994 CSE meeting in order to afford petitioner the opportunity to discuss them with the child's proposed special education teacher, and were added after the teacher had been unable to make contact with petitioner. In addition, petitioner acknowledged at the hearing that she and everyone at the October 4, 1994 CSE meeting was afforded the opportunity to speak to the CSE about the child's needs. I find that petitioner's claim that the child's IEP was defective because of procedural irregularities is without merit.

        Petitioner does not dispute the adequacy of her child's evaluation. However, she asserts that the child's IEP did not accurately describe the child's educational deficits, nor did it disclose his current level of functioning. The child's IEP which the CSE prepared on October 4, 1994 listed the IQ test scores, as well as his broad reading, broad mathematics, broad written language, and general knowledge scores, from evaluations performed by the CSE in December, 1993. In addition, it included the child's comprehension and vocabulary test scores from a reading test administered to him at the Kildonan School in August, 1994. The revised IEP which the CSE prepared on January 19, 1995 set forth the same information.

        At the hearing, petitioner contended that the IEP should have described the child's word attack (decoding) and spelling (encoding) skills. A CSE is required by Federal and State regulations to identify a child's special education needs in an IEP to assist the CSE in selecting appropriate programs or services for the child. The information provided in this child's IEP identified the child as a student with strong cognitive skills, but weak reading and writing skills. That information, together with other information in the IEP regarding the child's social/emotional, and management needs, afforded a basis for the CSE to select a program of instruction which included a special education class for English, a tutor for specially designed instruction in reading and writing, and individual counseling. I find that the IEP adequately described the child's special education needs.

        Petitioner also contends that the child's IEP annual goals and short-term instructional objectives did not address the child's areas of educational need. The child's October 4, 1994 IEP annual goal for reading had three objectives which were directly related to improving the child's word recognition skills, and one objective for improving his reading comprehension. The IEP annual goal for writing included objectives relating to the child's use of appropriate grammar, punctuation, spelling, and sentence structure, as well as improving his handwriting and keyboarding skills. The IEP also included an annual goal for improving the child's self-esteem, a need which was identified by both respondent's school psychologist and the independent psychologist. I find that the child's IEP annual goals and short-term instructional objectives adequately addressed his special education needs.

        Petitioner challenges the adequacy of the programs and services which the CSE recommended for the child. She asserts that the child required the use of a sequential, multi-sensory approach to reading and language throughout the school day, in classes of no more than eight children. Respondent was required to offer the child an appropriate program, i.e., one that would address the child's special education needs in the least restrictive environment. Placement of the child in classes of no more than eight children in all of his instruction would not be justified, unless the child had severe educational, social/emotional, or management needs which precluded him from benefiting from instruction in a less restrictive environment. I find that there is no support on the record for making such a restrictive placement. The program proposed by the CSE included intensive assistance to the child in reading, writing, and English, which were the areas of his most significant academic need. The child was to have been mainstreamed for his other academic subjects, with the assistance of a consultative teacher in science and mathematics. The CSE also included a learning management plan in the child's IEP. That plan, which reflected the recommendations of the child's independent evaluator, was designed to address the child's reading and writing skill deficits, while emphasizing his ability to learn by reasoning and understanding concepts, in his regular educational classes. I find that the program proposed by the CSE was appropriate to meet the child's needs in the least restrictive environment.

        The program which a CSE recommends for a child must be appropriate, and it must be available. In this instance, there is no dispute that the program which the CSE recommended on October 4, 1994 could not have been implemented by respondent, because the multi-sensory language tutor (Ms. Mabie) who was to provide 1:1 tutoring was unable to provide her services. Respondent arranged for Ms. Moore to replace Ms. Mabie as the child's tutor as of November 14, 1994. While a change in a child's service provider is not normally considered to be a change in a child's program (Application of a Child with a Disability, Appeal No. 93-43), respondent also intended to change the amount of the direct service to be provided by the tutor from 4 periods of 60 minutes per week to 5 periods of 40 minutes per week. I find that respondent could not change the amount of service to be provided without an amendment of the child's IEP by the CSE (Application of the Board of Education of the Ellenville Central School District, Appeal No. 92-22). The CSE did not amend the child's IEP until January 19, 1995. Therefore, I find that it did not offer an appropriate program until that date.

        In view of my finding that respondent had an appropriate program for the child as of January 19, 1995, petitioner's request for an order directing respondent to place the child at the Kildonan School until the CSE prepares an appropriate IEP must be denied. At the hearing, petitioner requested that respondent be required to reimburse her for the expenses she incurred in paying for counseling for the child during the 1994-95 school year (the child's tuition and transportation were provided by respondent).

        A board of education may be required to pay for educational services obtained for a child by the child's parents, 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 parents' claim (School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 [1985]). Since respondent did not offer an appropriate program until January 19, 1995 and the child's IEP provided that he receive individual counseling as a related service, I find that petitioner has met the first Burlington criterion. The records reveals that the child was being counseled by someone in Connecticut during the 1994-95 school. However, petitioner failed to provide any information about the qualifications of the counselor, the nature of the counseling, the amount of the counseling, or the amount of her expenditures for counseling. I am constrained to find that petitioner did not meet her burden of proof with respect to the second Burlington criterion, i.e., the appropriateness of the services which she obtained (Application of a Child with a Disability, Appeal No. 95-17).




Dated: Albany, New York __________________________
September 29, 1995 FRANK MUŅOZ