The State Education Department
State Review Officer
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 Washingtonville Central School District
Michael H. Sussman, 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 denied petitioner's request that respondent be ordered to prospectively pay for her son's education in a private school, notwithstanding the hearing officer's finding that the individualized education programs (IEPs) which respondent's committee on special education (CSE) had prepared for the boy for the 1994-95 and 1995-96 school years were inappropriate. The hearing officer denied the requested relief because he found that petitioner had failed to demonstrate that the private school would offer the boy an appropriate educational program. Respondent cross-appeals from the hearing officer's finding that the boy's IEPs for the 1994-95 and 1995-96 school years did not appropriately address his reading and writing skills deficits. The appeal must be dismissed. The cross-appeal must be sustained.
Petitioner's son is seventeen years old. He was initially classified as learning disabled, when he was enrolled in the first grade in the Cornwall Central School District. He has been classified as learning disabled since his entry into respondent's schools for the fifth grade in 1989. The child's learning disability is manifested by significant delays in his reading and writing skills. He is of average intelligence. When evaluated in November, 1993, the boy achieved a verbal IQ score of 102, a performance IQ score of 90, and a full scale IQ score of 96. He exhibited deficits in language processing, accuracy, and processing speed in performing visual motor tasks. Although the boy exhibited relative strength in verbal comprehension, visual memory, and perceptual organization, the school psychologist who evaluated the child reported that the child's high level of internal distractibility and slow processing speed significantly affected his ability to achieve academic success. The school psychologist also reported that the boy's anxiety and frustration hampered the boy's academic performance. A private evaluator who evaluated the child in November, 1995, reported that the child was unable to use graphic symbols for reading, spelling, and writing, nor could he make the generalizations needed to deal adequately with written language.
Petitioner's son is enrolled in the eleventh grade of the Washingtonville Senior High School. In September, 1995, he achieved standard scores of 64 (grade equivalent of 2.5) in basic reading skills, and 56 (grade equivalent of 2.3) in broad written language. The private evaluator reported that in November, 1995, the child achieved standard scores of 20 (grade equivalent of 2.1) in word identification, 56 (grade equivalent of 1.5) in word attack, 33 (grade equivalent of 1.9) in passage comprehension, 54 (grade equivalent of 1) in spelling, and 94 (grade equivalent of 8) in arithmetic. His performance on a writing test was described as unscorable. The child's classification as learning disabled is not disputed.
Petitioner's son was reportedly educated in special education classes while in the Cornwall Central School District. However, the Cornwall CSE recommended that the boy be placed in a special education fifth grade class of the Board of Cooperative Educational Services of Orange and Ulster Counties (BOCES) for the 1989-90 school year. Prior to, or shortly after, the start of the 1989-90 school year, the boy and his parents moved into respondent's district. Respondent's CSE recommended that the child be educated in the BOCES program. The boy remained in the BOCES program until March, 1991, when respondent's CSE recommended that he be placed in a sixth grade special education class, and be mainstreamed for special subject classes, in respondent's Taft Elementary School. He reportedly received 1:1 reading instruction with the Orton-Gillingham method, and 1:1 instruction in writing. The boy also received counseling and occupational therapy, each once per week. At the end of the 1990-91 school year, the boy's special education teacher reported to the CSE that the boy could not do the reading for the science and social studies portions of her class, but that he could auditorily follow her lessons in class, and could orally answer questions. She also reported that the child had weak mathematical skills. The record indicates that his score on the sixth grade Pupil Evaluation Program test was just above the statewide reference point.
For the 1991-92 school year, during which the boy was enrolled in the seventh grade of the Washingtonville Junior High School, the CSE recommended that the boy receive primary instruction for English, mathematics, science, and social studies in a special education class with a 15:1 child to adult ratio. It recommended that he be mainstreamed for special subjects, e.g., music, art and physical education. To support his academic instruction, the CSE recommended that the boy receive one period per day of resource room services, with an additional period of resource room each day for instruction in reading with the Orton-Gillingham method. The CSE also recommended that the child receive speech/language therapy, occupational therapy, and counseling. At the beginning of the school year, the CSE agreed to petitioner's request to delete counseling from the boy's IEP because he was receiving private counseling. In January, 1992, the CSE agreed to petitioner's request that her son be mainstreamed for seventh grade social studies. However, he remained in the regular education class for approximately one month. In March, 1992, the boy's speech/language therapist recommended that the boy's speech/language therapy be discontinued because he had achieved his IEP goals and objectives and had achieved satisfactory scores on tests.
The child's report card reveals that he received satisfactory grades in the seventh grade. However, his performance on a standardized achievement test in May, 1992 revealed that he continued to have significant deficits in his academic skills. He achieved standard scores of 51 (grade equivalent of 1.8) in broad reading, 73 (grade equivalent of 2.8) in writing samples, and 87 (grade equivalent of 6.0) in mathematics. His special education teacher reported to the CSE that the boy required constant attention, attempted very little on his own, and needed 1:1 help at all times. She also reported that the boy could understand almost everything which was orally presented to him. The boy had behavioral problems during the 1991-92 school year. He was suspended from school for fighting, on at least three occasions. He was also psychiatrically hospitalized in the late Winter of 1992. The boy returned to school, but he was reportedly disruptive on occasion, and allegedly verbally abusive to his occupational therapist.
In June, 1992, the CSE recommended that the boy be placed in a 6:1+1 BOCES special education class for the 1992-93 school year, because it believed that the boy required a more structured setting. It also recommended that the boy receive individual and group counseling, and that he receive occupational therapy on a consultation basis.
Petitioner disagreed with the CSE'S recommendation, and requested that an impartial hearing be held to review the CSE's recommendation. The hearing began in July, and continued into August and September, 1992. It could not continue thereafter, because petitioner was incapacitated by illness. In April, 1994, petitioner asked that the hearing be resumed. However, the hearing officer declined to resume the hearing. In May, 1995, petitioner initiated an appeal to review the hearing officer's decision. Her appeal was dismissed because it was untimely (Application of a Child with a Disability, Appeal No. 95-21).
The boy remained in the Washingtonville Junior High School for the eighth grade, during the 1992-93 school year. He was initially maintained in that placement pursuant to the "pendency" provisions of Federal and State law (20 USC 1415 [e][A]; Section 4404  of the Education Law). In December, 1992, the CSE recommended that the child continue to be educated in the Junior High School, because his behavior had improved. It also recommended that the boy's occupational therapy be discontinued. The boy was in a special education class for English/language arts, mathematics, and science. He was mainstreamed in regular education classes for social studies and special subjects. His IEP indicated that he was to receive speech/language therapy.
In April, 1993, the child achieved standardized scores of 54 (grade equivalent of 2.0) in broad reading, 64 (grade equivalent of 2.0) in writing samples, and 88 (grade equivalent of 6.4) in mathematics, as he neared the end of the eighth grade. The boy's special education teacher reported to the CSE that the boy achieved approximately two months growth in reading decoding, comprehension and mathematical calculations. She also reported that the boy had extreme difficulty blending letter sounds into words and expressing ideas in writing. She recommended that the boy's written assignments be dictated, and that all his assignments and tests be read for him. The teacher noted that the boy's determination and excellent auditory memory had enabled him to be successful in regular education social studies. She recommended that the boy continue to be enrolled in a resource room program and a special reading class, and that he receive counseling. The boy received passing grades in each of his courses during the 1992-93 school year, including his regular education social studies course.
In May, 1993, the CSE recommended that the child receive special education instruction in reading and English/language arts, and be enrolled in regular education ninth grade mathematics, social studies, and science classes, in the Washington Senior High School during the 1993-94 school year. It accepted the speech therapist's recommendation to discontinue the boy's speech/language therapy. At the hearing in this proceeding, the CSE chairperson testified that the CSE had recommended that the child receive regular education instruction in mathematics, social studies, and science because of the high school's tracking system which provided non-Regents level classes in those subjects which were appropriate for the boy. She further testified that the boy's special education reading teacher had been trained to use the multisensory Orton-Gillingham method to address reading decoding and spelling skills.
In November, 1993, the CSE met to consider petitioner's request that her son be given speech/language therapy to improve his auditory processing skills. The CSE did not recommend that the boy receive speech/language therapy because the boy had age appropriate auditory processing skills when last assessed. However, the CSE did recommend that the boy receive resource room services for three hours per week to assist him in developing organizational skills, and to facilitate his testing and assignment modifications.
At the request of the boy's parents, the CSE met again on February 1, 1994. The boy's father asked the CSE to recommend that the child be removed from his special education English/language arts and reading classes, and be enrolled in a regular education ninth grade English class because he was reportedly not doing well in his special education classes due to motivational problems. The CSE agreed to reassign the child to a regular education English class, but denied the father's request that the boy's special education reading class be discontinued. On February 21, 1994, petitioner reported that the child was "in over his head" in the regular education English class, and asked that he be reassigned to his special education English/language arts class. On March 2, 1994, the CSE recommended that the child be reassigned to his special education class.
Although the record does not reveal the boy's final grades for the 1993-94 school year, it does indicate that his grades for the first three marking periods were lower than for the comparable period of time in the 1992-93 school year. Notwithstanding the CSE chairperson's testimony about the appropriateness of non-Regents level courses for the boy, I note that he was enrolled in Regents level global studies and earth science courses. He was reassigned from earth science to a general science course, at the end of the first semester. The boy's special education English teacher reported that he had made minimal progress in her class, and that he had a difficult time with tests. His mathematical teacher reported that the child's skills and attitude had improved. He did pass the Regents competency test in mathematics, in April, 1994.
On April 20, 1994, the CSE recommended that the child continue to receive special education instruction in English/language arts in the tenth grade, during the 1994-95 school year. However, it did not recommend that he receive any special education in reading, but it indicated on the boy's IEP that he would receive "informal" resource room, every other day. The CSE chairperson testified that the CSE agreed not to recommend a reading program for the boy to accommodate his parents' desire that he attend a BOCES vocational program for a portion of the school day. The CSE also recommended that the boy receive mainstreamed mathematics and social studies instruction.
Shortly after the CSE meeting, petitioner asked the CSE to reconvene to add an Orton-Gillingham reading program to the boy's IEP. She suggested that the boy receive after-school instruction in reading, and that respondent place the child in the Kildonan School for the Summer of 1994. Petitioner also objected to the child being enrolled in the BOCES vocational program. In response to petitioner's request, the CSE met again on May 31, 1994. The CSE recommended that the child be enrolled in a special education reading class, in addition to a special education English/language arts class. The revised IEP indicated that the boy would receive "informal" resource room services.
During the Summer of 1994, the boy received twelve hours of instruction in reading with the Orton-Gillingham technique. One of respondent's teachers provided the instruction. The teacher reported that the child was acutely aware of his basic skill deficits, and was angry and frustrated by his continuing difficulties with reading and writing. She indicated that the boy could recognize certain words in a reading exercise, but could not recognize those words when reading connected passages. The teacher also reported that the child could not accurately reproduce six letters of the alphabet when she began working with him. She opined that basic reading and writing tasks had to become more automatic for the child in order for him to be able to read and write fluently.
The boy was evaluated by a pediatric neurologist, in August, 1994. The neurologist opined that the child appeared to have a mild static encephalopathy in association with significant learning disability and attention deficit disorder, as well as a significant sleep disturbance. The physician suggested that the boy's educational needs might need to be defined by a psychologist.
The boy was also evaluated by a speech/language therapist in August, 1994. The therapist reported that the boy's scores were within normal limits in all areas of speech and language, but noted that he had a weakness in memory functions. She did not recommend that he receive speech/language therapy. Nevertheless, she noted that the child appeared to be frustrated and to have low self-esteem. The therapist suggested that the boy's teachers speak slowly, and repeat, as well as re-word, directions to him. She also suggested that the teachers provide visual clues with the child's lessons.
On September 13, 1994, the CSE met to review the results of the child's evaluations. It did not alter the child's IEP for the 1994-95 school year. The CSE did agree with petitioner's request to have the child independently evaluated by an occupational therapist. The boy was independently evaluated on October 21, 1994. The evaluator reported that the child's fine motor skills were appropriate for handwriting and other school related tasks. However, his visual motor skills were significantly below expected age level. The therapist reported that the boy's formation of letters was slow and labored, and recommended that he be provided with a more functional means of written communication, such as word processing.
In December, 1994, the CSE reviewed the occupational therapist's report. It noted that the child had acquired keyboarding skills when he received occupational therapy in the Junior High School. The CSE found that there was no need to provide occupational therapy to the child.
An education consultant reported that the boy's reading decoding skills were at a 1.9 grade level and his spelling skills were at a 2.1 grade level. The consultant indicated that the child knew all consonant and vowel sounds, and most consonant digraphs, but only a few vowel digraphs. She reported that the child's comprehension of information he read was seriously impaired by his limited decoding skills. She attributed his reading deficits to his extraordinary profound dyslexia. She opined that the child could perhaps learn to read under ideal conditions, but required a program of greater intensity. However, she further opined that the boy's reading difficulties could not be addressed during the regular school year, because of his need to concentrate on learning the material presented in his courses. She recommended that he be enrolled in a summer program, in which she would provide the child with one hour of instruction per day. She recommended that someone should read aloud to the child, and that he not be required to copy material such as notes. She also recommended that the boy be trained in keyboarding. Although the consultant indicated in her report that she had evaluated the child in January, 1994, the CSE chairperson testified that the evaluation had occurred in 1995.
On March 2, 1995, the CSE met at the request of the child's parents, who were concerned that certain testing modifications in the boy's IEP were not being implemented by respondent's teachers. The CSE chairperson testified that the boy's tests were to be read to him, and his answers to test questions were to be recorded for him. Although not on his IEP as a test modification, the boy's teachers had been directed to make recordings of all written material available to the child, because he could not read. The CSE recommended that the child receive two hours per day of resource room services, with an emphasis on keyboarding, oral reading, and independent reading and writing activities. On March 15, 1995, petitioner and respondent reached an agreement in the pending impartial hearing about the child's reading program that the child would receive instruction in keyboarding and independent handwriting and reading during one period of resource room, and silent reading and academic reinforcement during the second period of resource room.
In March, 1995, the boy's reading, mathematics, and writing skills were assessed by one of respondent's employees. The boy achieved a standard score of 46 (grade equivalent of 1.9) in broad reading, a standard score of 89 (grade equivalent of 7.3) in broad mathematics, and a standard score of 52 (grade equivalent of 2.0) in broad writing. Certain portions of the standardized achievement test were readministered auditorily to the child to eliminate his need to read the material. When the test was auditorily administered to him, the boy achieved a standard score of 72 (grade equivalent of 4.2) in broad reading, a standard score of 89 (a grade equivalent of 7.3) in broad mathematics, and a standard score of 58 (a grade equivalent of 2.4) in broad writing.
On April 7, 1995, the CSE met with petitioner to prepare the child's IEP for the 1995-96 school year. The CSE recommended that the boy continue to receive special education in reading while in the eleventh grade. It also recommended that the boy receive ten hours per week of resource room services. Petitioner's request that the child's reading class include no more than three students was denied by the CSE. The CSE also denied petitioner's request that the child be provided with a 12-month program, reportedly on the ground that there was no evidence that the child needed to be educated during the summer in order to prevent substantial regression of his skills (see 8 NYCRR 200.6 [j][v]). Petitioner submitted a list of goals and objectives for the boy's reading program. The CSE reconvened on June 20, 1995 to complete the boy's IEP. However, petitioner was reportedly unable to attend the CSE meeting because of illness. The record reveals that on June 14, 1995, she had requested that the meeting be deferred until after the boy had been tutored by Ms. King, the educational consultant who had evaluated the child in January, 1995. Ms. King provided reading decoding instruction to the child for a total of fifteen hours during the Summer of 1995.
In a letter dated July 10, 1995, petitioner asked that an impartial hearing be held because the CSE had convened on June 20, 1995 despite her request that the meeting be adjourned. A hearing was held on August 17, 1995. The hearing officer orally remanded the matter to the CSE to meet with petitioner in September, 1995, to draft the boy's IEP annual goals and objectives. The hearing officer retained jurisdiction over the matter.
In a letter to the CSE chairperson, dated August 28, 1995, Ms. King opined that the accommodations and test modifications in the boy's IEP for the 1995-96 school year were appropriate. She questioned the appropriateness of some of the IEP annual goals and objectives because of the severity of the child's disability, and suggested that emphasis should be given to developing greater accuracy and fluency in the child's oral reading, and encouraging him to write. She also suggested that the child's reading and writing skills be assessed again in the Fall of 1995.
The CSE met again on September 22, 1995, to consider the consultant's recommendations, and the results of an educational assessment which was performed on September 6, 1995. The boy achieved standard scores of 59 (grade equivalent of 2.4) in letter-word identification, 64 (grade equivalent of 2.6) in word attack skills and 90 (grade equivalent of 7.6) in passage comprehension. Noting that the passage comprehension portion of the test had been read to the boy when he was tested in March, 1995, the CSE chairperson testified that the boy's score for that portion of the test in September, 1995 was not an accurate reflection of his comprehension skills. The CSE chairperson further testified that the boy's standard score of 69 (grade equivalent of 3.7) in broad reading had been inflated by the results of the comprehension subtest. She estimated that the boy's broad reading skills were between the second and third grade level. The CSE chairperson testified that the child's standard scores of 64 (grade equivalent of 2.5) in basic reading skills, and 56 (grade equivalent of 2.3) in broad written language were accurate reflections of his skills.
At its meeting of September 22, 1995, the CSE reduced the amount of resource room services from ten hours per week to seven hours per week to accommodate petitioner's request that her son take physical education. The CSE also recommended that the boy take regular education social studies, rather than regular education mathematics which it had recommended previously. As amended, the boy's IEP provided that he would receive one period per day of special education reading, seven hours per week of resource room services, and 30 minutes per week of individual counseling, during the 1995-96 school year. He would be enrolled in regular education English, social studies and science classes. Although Ms. King had suggested that IEP annual goals relating to improving the child's visual discrimination and reading comprehension skills were unnecessary, the CSE retained those goals. However, it did add an annual goal for oral reading, as Ms. King had suggested.
Petitioner was dissatisfied with the IEP which the CSE completed on September 22, 1995. At her request, the hearing in this proceeding reconvened on October 3, 1995. Her attorney identified the issue to be determined as whether the child's IEP appropriately addressed the child's reading, writing, and spelling needs. He argued that the hearing officer should find that the child's IEP was inappropriate, and should order respondent to place the child, at its expense, in the Kildonan School. The Kildonan School is a private school which reportedly serves children who have reading problems. It has not been approved by the State Education Department as a school for children with disabilities. Absent that approval, respondent could not contract with the private school (Section 4402 [b] of the Education Law). The hearing concluded on November 27, 1995.
In his decision which was rendered on February 8, 1996, the hearing officer noted that the child's IEP had been revised nine times between 1991 and 1995. He further noted that the changes often reflected an alternating emphasis of either addressing the child's reading needs, or addressing his need to complete the high school curriculum so that he could obtain sufficient credit to receive a high school diploma. He suggested that choosing one of those alternatives might have resulted in greater educational success for the child. From that supposition, he reasoned that the consistent changes in the educational emphasis of the boy's IEP's precluded him finding that respondent had offered an appropriate educational program for the child which would meet the child's individual needs. In addition, he found the respondent had not complied with the State regulatory requirement to include a statement of necessary transition services for the boy in IEP (cf. 8 NYCRR 200.4[c][v]). Although only the IEP for 1995-96 school year was at issue, the hearing officer nonetheless found that the boy's IEPs for both the 1994-95 and 1995-96 school years presented a "helter skelter" approach to his education and were inappropriate. The hearing officer denied petitioner's request that he direct respondent to place the child, at its expense in the Kildonan School, upon the ground that he was unable to determine from the record before him whether the school could provide an educational program which was appropriate to address all of the child's needs. He further found that the private school, which reportedly serves only children with disabilities, would be an unduly restrictive placement for petitioner's son.
Finding that respondent had been remiss in allowing the child's reading and writing deficits to continue for an extended period of time without providing appropriate remedial services, the hearing officer directed respondent to reimburse petitioner for the cost of any tutoring which she had obtained for the boy in reading, writing, or help in academic areas. He also directed the CSE to prepare an IEP with an intensive integrated reading and writing program with 1:1 instruction for no less than two hours per day. He also directed the CSE to recommend that the child receive a 12-month program, with petitioner's consent, until such time as "appropriate professionals had determined that any further reading instruction will not result in [the child's] increasing his ability to read."
Petitioner challenges the hearing officer's determination that the record which was before him did not afford a basis for finding that the educational program of the Kildonan School would meet all of her son's educational needs. She asserts that she presented evidence that the Kildonan School " ... is dedicated to teaching dyslexics" and that the record substantially establishes that her son is like other students who attend Kildonan, in that " ... he is of at least average intelligence and severely dyslexic." However, in her reply brief, she concedes that she did not present evidence of the specific program her son would be offered in the Kildonan School. Petitioner asserts that:
" ... proof of appropriateness must come from the SRO's more general knowledge and understanding as to the fit between the school's mission and the disabling condition which [the child] suffers."
However, I must make my decision upon the evidence which is in the record before me, just as an impartial hearing officer must do with his or her decision (8 NYCRR 279.10; Application of a Child Suspected of Having a Disability, Appeal No. 95-52). No witness from the Kildonan School testified at the hearing, and there is no written description of the school's program in the record. Dr. Liss, who evaluated the child in November, 1995, testified that the Kildonan School focused upon dyslexic students, and speculated that the teachers of the private school were more experienced in the use of the Orton-Gillingham methodology than respondent's teachers. There is, however, an inherent lack of precision in the term "dyslexic" (Application of a Child with a Disability, Appeal No. 94-22). Absent adequate proof of the nature of the private school's program, neither the hearing officer nor I could find that the private school's program would be appropriate for petitioner's son (cf. Application of a Child with a Disability, Appeal No 94-26).
There are other reasons, involving respondent's cross-appeal, why petitioner's appeal must be dismissed. Respondent asserts that the hearing officer erred in finding that the child's IEPs for the 1994-95 and 1995-96 school years were inappropriate. As noted above, the sole issue to be determined by the hearing officer was the appropriateness of the boy's IEP for the 1995-96 school year. I find that he exceeded his jurisdiction by purporting to rule upon the appropriateness of the child's IEP for the 1994-95 school year (Application of the Board of Education of the Enlarged City School District of the City of Saratoga Springs, Appeal No. 96-9).
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 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 IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
The boy's 1995-96 IEP addressed the child's special education needs from the perspective of his academic, social/emotional, and management needs. There is no evidence that he has any special physical needs. The IEP reflected the results of the boy's September, 1995 evaluation, and described the boy's learning style, rates of learning and progress, and his social development. It indicated that he could not express ideas on paper. I find that the boy's IEP adequately described his levels of performance and individual needs (8 NYCRR 200.4 [c]  [i]).
The boy's IEP included annual goals to improve his visual discrimination, handwriting, basic reading, oral reading, reading comprehension, spelling, keyboarding, written expression, and problem-solving skills. It also had separate goals for writing a written report, and completing a book report. An annual goal pertaining to the boy's social development and emotional growth was also included on his IEP. At the hearing, Dr. Liss opined that the goals for writing a written report and completing a book report were unrealistic, in view of the boy's severely limited reading and writing skills. She suggested that the IEP goal and objectives for written expression needed to be more closely linked to the annual goals and objectives for reading, to provide a more consistent multisensory approach to reading and writing. However, she conceded that she had no actual knowledge of the manner in which respondent would provide instruction pursuant to this IEP. Dr. Liss also suggested that it would be inappropriate to have the boy read books at his level of decoding, i.e., at the second grade level. However, I note that she did not hold herself as an expert in reading, and that her opinion appears to be inconsistent with that of Ms. King, who reportedly is a reading specialist. Although there are a number of goals, and an even larger number of objectives, the goals and objectives are related and they focus upon his primary needs for basic reading and writing skills. The highly focused instructional objectives are a reflection of the multi-sensory instructional program which the CSE recommended be provided. The fact that many of these goals and objectives appeared on prior IEPs does not in any way detract from their appropriateness. I find that the boy's IEP goals and objectives are appropriate.
The primary point of contention is whether the CSE recommended an appropriate program of special education services to meet the boy's needs. In essence, petitioner argues that the services which the CSE recommended are inappropriate because he has not progressed at a suitable rate with similar services in prior school years. At the hearing, petitioner testified that she had no objection to the CSE's recommendation that her son receive special education instruction in reading, and regular education instruction in other subjects. She also testified that the CSE had offered to provide more than one period per day of reading instruction, but that it was not possible to provide such instruction without conflicting with other courses, such as the vocational courses, which her son wished to take. Petitioner does not challenge the appropriateness of the counseling which is being provided pursuant to the boy's IEP.
Petitioner contends that respondent's CSE has recommended the same special education services as the boy has received in prior years. She asserts that these services have been inadequate in the past, and that the CSE should have taken a new approach to dealing with boy's inability to read at a rate commensurate with his age and cognitive ability. Although the child has made limited progress in reading, as demonstrated by his performance on standardized tests, I note that both Ms. King and Dr. Liss found that the boy had a severe disability in acquiring reading skills. Ms. King noted that there was evidence that the child had been well taught, particularly with regard to vowel sounds and the cursive alphabet. The record reveals that the boy knows the rules for reading decoding, but continues to have difficulty applying the rules. As Ms. King noted, the child has made very limited progress in reading and writing. However, he has continued to progress academically with his peers in respondent's regular education program. Indeed, the boy's IEP indicates that he has passed the Regents Competency Tests in mathematics, science, and global studies. As noted by the hearing officer, the IEP lacked a transition plan (cf. 8 NYCRR 200.4 [c]  [v]). The CSE should revise the IEP to include a transition plan. However, the absence of a transition plan does not directly bear upon the issue of the appropriateness of the services and placement recommended by the CSE.
The CSE proposed a program of primary special education instruction in reading to address the boy's severe deficit in that area, and resource room services to support him in regular education courses. The CSE chairperson testified that both the child's reading and resource room teachers are veteran special education teachers who have been specifically trained in using the Orton-Gillingham technique, which petitioner favors for the boy, and which respondent has used to teach him to read in prior years. Although Dr. Liss opined that the child should receive more than one period per day of reading instruction, she did not explain the basis for her opinion, and conceded that she was not qualified to teach reading, and that she had no knowledge of how instruction was provided in respondent's high school.
I find that respondent has offered a program of special and regular education which includes specialized services to enable the child to make reasonable progress towards his IEP goals, while simultaneously enabling him to pursue the goal of obtaining a high school diploma, in the least restrictive environment. Therefore, I find that the hearing officer's determination must be annulled. I must note that while respondent has requested that I overturn the hearing officer's finding that the boy's IEP was inappropriate, it has not asked that I set aside his directive that it reimburse petitioner for the cost of her son's private tutoring. I have not reviewed that issue.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer's determination that the child's IEPs for the 1994-95 and 1995-96 school years were inappropriate, and his order that the CSE prepare a new IEP for the 1995-96 school year are hereby annulled.
|Dated:||Albany, New York||__________________________|
|May 24, 1996||FRANK MUŅOZ|