The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the North Syracuse Central School District
Legal Services of Central New York, Inc., attorney for petitioners, Ronald L. Van Norstrand, Esq., of counsel
Bond, Schoeneck and King, LLP, attorneys for respondent, Donald E. Budmen, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which found that respondent had properly prepared and implemented their son's individualized education programs (IEPs) during the 1994-95 and 1995-96 school years. The appeal must be sustained in part.
Petitioners' son, who is seventeen years old, was medically diagnosed at birth as having Down Syndrome. He reportedly has had an extensive medical history, including open heart surgery at the age of five, perforated eardrums, and dislocated vertebrae. In the child's triennial evaluation by respondent's school psychologist which was performed in February, 1995, the child was described as having had sleep disturbances throughout most of his life. The school psychologist reported that all recent attempts at formal, standardized assessment of petitioners' child had proven to be unsuccessful and unreliable. Using the child's mother as the informant, the school psychologist administered the Vineland Adaptive Behavior Scales. She reported that the child had achieved age equivalent scores of 3.0 for communication skills, 3.2 for daily living skills, and 3.1 for socialization skills, which indicated that the boy was functioning in the mentally retarded range of adaptive behavior. Although the record does not include a report of any assessment of the boy's cognitive skills, his classification as mentally retarded is not disputed in this proceeding.
In a speech/language evaluation which was performed in February, 1995, the child was reported to be able to utter single word requests spontaneously, and to verbally model single words and two-three word phrases. His speech intelligibility was described as good for words in a known context, but only fair when the context was unknown. On the Peabody Picture Vocabulary Test, which measures comprehension of vocabulary, the child achieved an age equivalent score of fourteen years and four months. The speech/language pathologist who evaluated the child reported that the child demonstrated an ability to comprehend concrete and abstract classroom language discourse at or above the level of a six year old child. She noted that the child was able to tell a creative story, which he chose to type with the physical assistance of his teaching assistant. The speech/language pathologist also briefly tested the child's reading comprehension skills. She reported that he adequately responded to questions at the fourth-sixth grade level. The speech/language pathologist noted that although the child required facilitation, i.e., physical assistance by another individual who held the boy's shoulder and/or elbow, to type, he appeared to have the potential to be able to type without physical support. She also suggested various augmentative communication devices for the child, to improve his ability to communicate. It should be noted that in a private augmentative communication assessment which was performed in July, 1994, the child was described as having used sign language for a number of years.
In addition to deficits in his communication skills, petitioners' son also has deficits in his visual-perceptual, motor planning, and functional fine motor skills. The child's occupational therapist reported in April, 1995 that the boy's visual perception and motor planning skills had improved, but that he needed assistance performing tasks which required directionality. The child also needed assistance with some tasks which required eye-hand coordination. His therapist noted that she had also worked on improving the child's ability to sit upright. I note that in the two videotapes which are included in the record before me, the child's hands moved randomly, and he required physical assistance to perform certain tasks with his hands.
The child was reportedly enrolled in two special education preschool programs before entering the public schools of St. Louis, Missouri. He remained in the St. Louis schools until he was eleven years old, except for a portion of the 1984-85 school year, when he was enrolled in respondent's developmental kindergarten program. In September, 1990, the child returned to North Syracuse, and was enrolled in a self-contained special education class in respondent's middle school. Petitioners were reportedly concerned about the appropriateness of their son's placement in the middle school. In February, 1991, the boy was enrolled in respondent's junior high school, where he could attend school with older peers.
The boy remained in special education classes in the junior high school through the 1993-94 school year. He was reportedly successful in school during the years prior to the 1993-94 school year. When he returned to school in September, 1993, petitioners' son reportedly began to exhibit increasingly disruptive behavior. The child was removed from school in January, 1994, and was reportedly educated at home until he returned to school in May, 1994. The child's teaching assistant reportedly worked with the boy while he was at home.
The school district and the boy's parents agreed to have an outside consultant review the child's placement. The consultant recommended that a male teaching assistant be assigned to work with the boy, and that a behavior management program be used with the boy. He also recommended that the child be exposed to age-appropriate behavioral role models. Noting that petitioners had expressed the desire that their son be enrolled in an academically oriented program in as typical a school setting as possible, the consultant indicated that expectations for the child's academic learning needed to be based upon his ability, and that community-based instruction and vocational education should be included in the boy's academic program. However, the consultant supported the parents' desire that the child be educated at least in part in regular education classes. In May, 1994, petitioners' son reportedly began attending a regular education homeroom, and keyboarding, science, physical education and work/study classes. I note that the record reveals that he had followed a parallel mathematics curriculum in an inclusion1 setting during the 1992-93 school year.
For the 1994-95 school year, respondent's committee on special education (CSE) recommended that the child receive instruction on a ten-month basis in an inclusion placement for the child in regular education eighth grade classes, with the assistance of a full-time individual teaching assistant. It also recommended that the child receive speech/language therapy twice per week, and occupational therapy twice per week, as well as consultant physical therapy services once per week. Although the IEP indicated that the child would be expected to learn to operate his own computer system and would complete some English assignments using a laptop computer, the CSE did not recommend that the boy be provided with a computer as an adaptive device (8 NYCRR 200.4 [c][vii]).
The child's IEP indicated that he sometimes engaged in inappropriate interactions, when he was motivated to interact with others, but lacked the necessary social strategies. The boy's IEP annual goals included increasing his interaction with peers, and improving his spoken and written communications skills. He also had annual goals for participating in English, mathematics, social studies, and physical education activities, with appropriate assistance. One annual goal provided that the child would increase his independence in lunch time activities, while another goal provided that he would move from one activity to another in school, with minimal cues from adults. To support an annual goal of having the child actively participate and engage in daily school routines, the boy's IEP indicated that respondent would hire one or more outside consultants to train staff, prepare a "Proactive Management Plan", and prepare a "Curricular Adaptation Plan". The IEP also indicated that regular "team" meetings involving petitioners, their child's teachers, and the consultants would be held throughout the school year to assess the child's progress, and revise the IEP, if appropriate. The record reveals that respondent did hire two outside consultants, and that the team meetings to review the child's progress were held in November, 1994, and March, 1995.
The CSE met on December 15, 1994 to review the child's progress. The minutes of that meeting indicate that improvement had been noted in the boy's ability to communicate, to walk in the school hallways, and to exhibit more independent behavior. The CSE agreed to amend the IEP to include goals for occupational therapy, and it agreed to hire another consultant to advise the parties about the boy's communication needs. There is no indication in the record that other changes in the boy's IEP were requested by petitioners.
On March 30, 1995, the CSE met to review the results of the child's triennial evaluation. The minutes of that meeting indicate that the child's mother urged the CSE to delete certain phrases from the evaluators' reports which she believed did not accurately reflect her child. She also asked that another meeting of the CSE be held to discuss a report about the child's communication skills, and her request that the child receive an instructional program during the summer, as well as to prepare his IEP for the 1995-96 school year. There is a notation in the minutes that the child's parent was offered the opportunity to meet with the CSE on either May 11, or 12, 1995, while a transcription of a recording of that meeting indicates that the CSE chairperson indicated that those issues could be addressed at the next annual review by the CSE.
In a letter to respondent's attorney, which was dated April 19, 1995, petitioners' attorney asked that a CSE meeting be scheduled to deal with the boy's IEP for the 1995-96 school year, including the issue of a summer educational program for him. The attorney also asked that an impartial hearing be held to address the alleged failure to implement portions of the child's IEP for the 1994-95 school year. The seven parts of the IEP which had allegedly not been implemented related to the child's physical therapy and speech/language therapy, and to his annual goals and objectives for language skills, English, social studies, recreation/leisure, and transition. At the hearing in this proceeding, the parties stipulated that they had agreed to try to work out their differences, rather than proceed immediately with a hearing. Consequently, the hearing did not begin until March 5, 1996.
On June 15, 1995, the child's mother met with the child's case manager, the CSE chairperson and the consultants to prepare for a "transition" meeting involving the child's eighth grade teachers during the 1994-95 school year and his ninth grade teachers for the 1995-96 school year. The transition meeting was held on June 21, 1995. On the next day, the CSE conducted its annual review. The child's mother and her attorney attended the CSE meeting. The minutes of that meeting reveal that the child was reported to have improved in his independence and behavior, and that his verbalizations had increased to complete sentences. The child was also reported to have been successful when tested on his modified curriculum. The CSE considered various regular education classes in which the child might be placed for the 1995-96 school year. It also considered whether to recommend that the child receive special education services during the summer. Although the CSE was reportedly inclined to recommend that the child be provided with speech/language therapy with facilitated communication in respondent's special education summer school program, the child's mother reportedly indicated to the CSE that she did not want the boy to receive only the related service of speech/language therapy. The CSE adjourned, without action on the child's IEP for the 1995-96 school year, or the parents' request for a summer program for the boy.
A draft IEP for the 1995-96 school year was discussed at a CSE meeting which was held on July 13, 1995. The CSE minutes indicate that the child's mother questioned why certain portions of the child's 1994-95 IEP had not been included in the draft IEP for the 1995-96 school year. No resolution was reached on the issue of the child's new IEP. It was agreed that a "subcommittee" consisting of the CSE chairperson, the child's case manager, and the child's mother would be formed to identify the IEP issues which were still unresolved. The child's mother met with the CSE chairperson and the child's case manager on August 14, 1995. At the hearing in this proceeding, the case manager testified that the three participants reviewed a revised version of the draft IEP which she had prepared for the CSE meetings in June and July, and that after further discussion and revision of the IEP, the child's mother agreed to have the revised IEP implemented in September, 1995. The CSE chairperson testified that the child's mother had agreed to allow the IEP to be used, provided that the word "draft" appeared on the IEP, and that the CSE meet to assess the child's progress after ten weeks of school. The child's mother denied that she agreed to allow the draft IEP to be used.
In September, 1995, the child was placed in ninth grade classes, and was provided with instruction in accordance with the "draft" IEP of August 14, 1995. The draft IEP included a description of the child's present levels of performance, and a description of "learning strategies" for the child. It also included annual goals for various subjects, except mathematics, and indicated that the boy would again have the assistance of an individual aide. However, the draft IEP did not include all of the information which is required by State regulation (see 8 NYCRR 200.4 [c]).
The boy's behavior reportedly worsened at home and in school. The CSE chairpersons made arrangements for a behavioral consultant from the local BOCES to observe the child in school on October 10, 1995. However, the boy's mother kept him home from school on October 10, 1995, because she reportedly did not want the BOCES consultant to observe her son. On October 4, 1995, the child reportedly knocked a tray off his case manager's desk. During the morning of October 20, 1995, the child allegedly swung his backpack down on the hand of another student. That afternoon, he allegedly hit his English teacher in the face. On October 23, 1995, petitioners' son allegedly threw his case manager's coffee mug across the room, and slapped her on the left side of her face. On that day, the school principal suspended the boy for five days. Although he was free to return to school after the five-day period, the boy was reportedly withheld from school by his mother, and he had not returned to school as of the last day of the hearing in this proceeding in April, 1996. Respondent reportedly offered to provide the child with two hours of instruction per day at home, with related services, but the child's mother reportedly declined that offer.
On October 26, 1995, respondent's CSE met to determine whether there was a nexus between the boy's disability and the behavior for which he had been suspended (F-1 v. Turlington, 635 F. 2d 342 [5th Cir., 1981]; Prince William County School Board v. Malone, 762 F. 2d 1210 [4th Cir., 1985]). The CSE concluded that there was a nexus between the child's disability and the alleged assault on his English teacher. It also agreed to form a subcommittee to prepare a behavioral management plan for the child.
The CSE did not meet again until December 14, 1995. The child's mother attended the meeting, but reportedly declined to be a participant because her attorney was unable to attend the meeting. The CSE recommended that a behavioral management plan be added to the boy's IEP. The IEP was reportedly forwarded to respondent for approval, but was withdrawn after the child's mother complained to respondent about the fact that the CSE meeting had been conducted without her attorney.
On January 5, 1996, the child's mother met again with the CSE to discuss the child's IEP for the 1995-96 school year. Once again the CSE failed to complete the child's IEP. A final version of the boy's IEP was prepared at the next meeting of the CSE on January 18, 1996. The CSE recommended that the child be instructed in ninth grade regular education classes, with the assistance of a full-time individual teaching assistant and daily push-in resource room services by his case manager. It also recommended that the boy receive speech/language therapy in a group of no more than five children for 30 minutes per day, five days per week, and occupational therapy in a group of no more than two children for no more than 30 minutes twice per week. The CSE also recommended that the child receive consultant physical therapy services once per week. The CSE also recommended that the child have use of a calculator and a computer, and that various modifications be made in the curriculum for him. The IEP which the CSE prepared for the child included a behavioral support plan which had been prepared by an outside behavioral consultant.
When this proceeding began on March 8, 1996, the parties asked the hearing officer to initially determine what was the appropriate "pendency" placement for the child during the duration of the hearing (see 20 USC 1415 [e]). Petitioners contended that the last mutually agreed upon placement of their son was the placement indicated in the boy's IEP for the 1994-95 school year, while respondent contended that the "draft" IEP of August 14, 1995 had superseded the 1994-95 IEP. The hearing officer noted that there was no written evidence that the child's mother had agreed to the implementation of the "draft" IEP, and he found that the child's pendency placement would be in the eighth grade pursuant to his IEP for the 1994-95 school year. On April 10, 1996, the hearing officer directed that the child be returned to the eighth grade placement. Although the school year and the hearing have ended, I agree with petitioners that the hearing officer erred by directing that the child return to an eighth grade class rather than a ninth grade class (Application of a Child with a Disability, Appeal No. 96-64).
The hearing concluded on April 30, 1996, after sixteen days of hearing. The hearing officer rendered his decision on July 19, 1996. He noted that although petitioners had challenged the adequacy of the educational services which the child had received during the 1994-95 school year, they had agreed to negotiate with respondent about those services after the school year had ended, which he equated with a withdrawal of petitioners' original hearing request. However, he nevertheless considered, and made findings about, the services which had been provided to the boy in that school year, for the purpose of determining whether the child was entitled to receive compensatory education.
With regard to the 1994-95 school year, the hearing officer found that the child's IEP did not include annual goals and objectives with consultant physical therapy services he was to receive, and that respondent failed to provide those services from the beginning of the school year until March 15, 1995. He further found that respondent had failed to provide speech/language therapy from March 7, 1995 until April 3, 1995, but he described that failure as de minimus. He dismissed petitioners' claim that respondent failed to prepare appropriate goals, or provide an appropriate program, for enhancing their son's language skills. The hearing officer found that the boy's IEP did not comply with 8 NYCRR 200.4 (c)(2)(vii) because it did not list the specialized equipment and adaptive devices which he needed, but noted that the IEP had not required the district to provide a computer for petitioners' son because the parties had allegedly agreed that the boy would use a computer provided by his parents. That laptop computer was taken out of service for repair for approximately two months during the school year, during which time the boy reportedly used a school computer when available, and his teaching assistant used various written materials to overcome the loss of the laptop. The hearing officer found that the loss of the laptop computer during this period caused insufficient harm to require a remedy of compensatory education. He also found that the extent to which the child had used computers during the school year was consistent with his IEP.
One of the child's IEP annual goals was that he would be provided with the opportunity to participate in extracurricular activities with his peers. The hearing officer found that respondent had not made any effort to address either of the two objectives for this goal, but he limited petitioners' remedy to order respondent in the future to comply with the child's IEP provisions. He dismissed petitioners' claim that respondent had failed to use a total communication approach with their son, as well as their claim that respondent had failed to provide the child with an opportunity to participate in a school job, which was one of the boy's IEP goals. The hearing officer did find that respondent had not insured compliance with an IEP provision that the child's teachers and teaching assistant prepare monthly reports for "all team members", although regular team meetings were conducted, and a daily notebook was sent between school and home.
The child's IEP indicated that respondent would hire a consultant to prepare a curriculum adaption plan, and provide ongoing technical assistance to respondent's staff. A consultant was hired by respondent in the Fall of 1994, and she met with various staff members during the school year. However, the consultant did not provide a written plan for curriculum adaption until the Fall of 1995. The hearing officer found that respondent should not be blamed for the consultant's failure to provide a timely written plan, and declined to find that the child's IEP had been violated. He agreed with petitioners that the child's IEP should have provided goals and objectives for the child's participation in a music class during the 1994-95 school year.
With regard to the 1995-96 school year, the hearing officer found that respondent had failed to meet its obligation to have an approved IEP in place by the beginning of the school year (see 34 CFR 300.342 [a]). Notwithstanding the fact that the IEP which the CSE had approved on January 18, 1996 was designated as the IEP for the 1995-96 school year, the hearing officer found that "there never was a duly constituted 1995-96 IEP." He determined that petitioners' claim that the IEP had not been properly implemented was moot. The hearing officer also dismissed petitioners' contention that their son's five-day suspension from school was not factually appropriate, on the ground that respondent had employed the correct procedure, and the behavioral plan which was prepared for the child at the direction of the CSE was an appropriate response by the district.
The hearing officer deemed the IEP which was prepared by the CSE on January 18, 1996 to be the child's IEP for the 1996-97 school year. He dismissed petitioners' claim that their son's IEP was inadequate because it did not include the specific language which they had proposed, and he found that they had been accorded their right to participate in the development of the IEP. He considered petitioners' claim that the short-term instructional objectives supporting their son's annual goals for speech/language therapy should have specified that the boy would use a computer to express himself, but found that the objectives which were in the IEP were appropriate as written. The hearing officer also found that an addendum to the child's "Behavior Support Plan", to which petitioners objected, and which provided for the child's removal from class when his physical safety or that of other children or respondent's staff were in jeopardy, was appropriate. Although he rejected petitioners' request that the IEP goal relating to the child's participation in extracurricular activities be revised to provide that the child would participate in one activity, the hearing officer directed respondent to offer the child an opportunity to participate in at least one activity. The hearing officer also rejected petitioners' claim that the notice of the CSE's recommendation with respect to the child's IEP should have mentioned petitioners' proposals and the reasons why those proposals were rejected.
With regard to the issue of the CSE's failure to recommend that the child be provided with special education services during the Summer of 1995, the hearing officer found that although the issue had been discussed at the CSE meeting on June 22, 1995, the CSE was not obligated to amend the boy's IEP for the 1994-95 school year to incorporate a summer program for 1995. He noted that the subject of a summer program for 1996 was raised at the January 18, 1996 CSE meeting, but the CSE chairperson had indicated that the CSE would make its decision at its next annual review. He found that the CSE had violated petitioners' rights by failing to make a decision on January 18, 1996, and he directed the CSE to have the appropriate evaluations performed, and to ascertain whether the child met the regulatory criteria for twelve-month programming (see 8 NYCRR 200.6 [j]).
Petitioners seek a determination that respondent denied their son a free appropriate public education (see 20 USC 1401 [a]) during the 1994-95 school year, and they request that respondent be ordered to provide the boy with compensatory services to make up for the deficiencies in the educational services which were provided to him. They contend that their son's IEP was deficient because it did not include annual goals for physical therapy and music, and that the annual goals for speech/language were never approved by the CSE, but simply added on to the IEP at a later date. There would appear to be no dispute that the IEP did not include annual goals or short-term objectives for music, or physical therapy. At the hearing, respondent contended that annual goals had been drafted for physical therapy, but were rejected by the child's mother. However, that fact would not relieve the CSE of its obligation to include annual goals and short-term objectives in the boy's IEP. The minutes of the CSE meeting on August 19, 1994 indicate that no goals were prepared for music because the child would not be attending a music class. Nevertheless, the IEP should have been amended, if the child's course of instruction changed after the IEP had been prepared. Petitioners' assertion with respect to the child's speech/language goals and objective does not appear to have been raised at the hearing. I have reviewed the speech therapist's testimony, and I find that respondent has satisfactorily controverted petitioners' assertion.
Petitioners assert that the child's IEP should have included a written report by Dr. Laura Meyers (Exhibit P-38), and a research article. In the "present levels of performance" portion of the IEP there was a reference to a program which Dr. Meyers had developed and a notation that " ... this program should be further explored with [the child]". The meeting minutes did not indicate that the report and research article would be annexed to the IEP. Nevertheless, petitioners rely upon the testimony of the child's mother at the hearing that those documents were supposed to be attachments to her son's IEP. However, I am not persuaded that the mother's brief comment in her testimony affords a basis for concluding that there was a significant omission in the child's IEP, especially since Dr. Meyers' recommendations were embodied in the boy's IEP as objectives for an IEP annual goal for language skills.
Petitioners contend that respondent did not follow those recommendations, because it did not provide a discrete program of instruction in written language for three hours each week. One of Dr. Meyers' recommendations was that during three one-hour sessions per week, the child would use both visual and auditory prompts to independently write short paragraphs about the topics of his choice on a computer. That recommendation is reflected in the fifth objective of the boy's IEP annual goal for language skill. The record reveals that the child worked on a computer to improve his written expression during the 1994-95 school year, but it does not reveal the amount of time which he spent in pursuing that objective. Although respondent was not obligated to provide Dr. Meyers' specific instructional program, it nevertheless indicated in the fifth objective to the boy's annual goal for language skill that it would provide writing instruction for a total of three hours per week. The boy's writing skills were apparently worked on by his speech/language therapist and by his case manager in a resource room. I note that the boy's teaching assistant also testified that he assisted the boy by providing him with sample sentences. However, the child's case manager indicated at a meeting of the parties and their attorneys on May 26, 1995 that the fifth objective had not been implemented, at least in part because it had been difficult getting the child to make even one-word responses with facilitated communication on a computer. In that case, the appropriate action by the CSE would have been to revise the boy's IEP.
I agree with petitioners that their son's IEP should have specified that the child be provided with the use of a computer, in view of the fact that he was required to use a computer to achieve some of his short-term instructional objectives (8 NYCRR 200.4 [c][vii]). While respondent was obligated to insure that the appropriate assistive technology devices were available to the child (34 CFR 300.308), neither Federal nor State law precludes a school district from using a computer with a child with a disability which has been voluntarily provided by the child's parents. The record reveals that petitioners provided a suitable computer, which their son used for much of the 1994-95 school year. When they advised respondent's staff late in the school year that the computer would no longer be available, respondent provided a similar computer to the child. I note that the child's mother briefly testified that it was her "understanding" that no laptop computer would have been available to the child in September, 1994. However, the record does not reveal the basis for her belief.
Petitioners also contend that their son did not use the computer in school to the extent which was contemplated when his IEP was prepared. They rely in part upon the testimony of two outside consultants who observed the child on various dates when he was not using a computer in school. The child's mother also testified that she had not observed the child using a computer in school, and that the computer's hard disk drive on which the child's work in school was stored indicated a minimal use of the device. The record reveals that the child used a laptop computer, with the assistance of his teaching assistant, in support of his academic program. It does not reveal the extent to which the device was used. I have reviewed the child's IEP, and I find that it did not specify that facilitated communication with a computer was intended to be the boy's exclusive, or even primary, method of communication. While I find that respondent should have kept a better record of the boy's output on the computer, as one means of measuring his progress toward achieving his written language objectives, I do not find that his educational program was inadequate because of the boy's alleged under-utilization of the laptop computer.
Petitioners contend that respondent should be held responsible for failing to add the curricular adaption plan, which the outside consultant was to prepare, to the child's IEP. As indicated above, that plan was not completed until after the end of the 1994-95 school year. In any event, I must note that the child's IEP did not specify a time frame for the preparation of the plan, nor did it indicate that the plan would be annexed to the IEP. More importantly, the record reveals that the curriculum consultant observed the child in school, and offered the school staff suggestions about adapting the curriculum. She also attended a number of team meetings at which the boy's progress and his needs were discussed. Consequently, I find that there is no merit to petitioners' contention.
Petitioners rightly observe that respondent failed to implement their son's IEP, to the extent that it did not provide any consultant physical therapy service for more than one half of the school year, or any speech/language therapy for approximately two months in the Spring of 1995. In both instances, the child's service providers had to take leaves of absence for health reasons, and respondent reportedly had difficulty finding qualified substitute providers. Nevertheless, staffing problems do not relieve respondent of its obligation to provide a child with the services which he or she is entitled to receive pursuant to an IEP. It is not possible for me to determine the extent of the deficiency which was created by respondent's failure to provide those services approximately two years ago. I shall direct the CSE to evaluate the child's speech/language and physical therapy needs, and to recommend additional amounts of service to correct the deficiency caused by the failure to provide services (Application of a Child with a Handicapping Condition, Appeal No. 91-12; Application of a Child with a Disability, Appeal No. 93-34). Although I have considered petitioners' other assertions in support of their contention that the hearing officer failed to require respondent to provide an adequate amount of compensatory services to their son for various errors or omissions, I am not persuaded by the record that any additional services are called for with regard to the 1994-95 school year.
With regard to petitioners' request that their son receive special education services during the summer of 1995, I note that State regulations require that a child's IEP indicate whether the child is eligible for a twelve-month special service and/or program (8 NYCRR 200.4 [c]  [vi]). A CSE must determine whether a twelve-month service or program is required in order to prevent substantial regression in a child's skills (8 NYCRR 200.6 [j]). The record reveals that although respondent's CSE discussed the issue of summer programming for the child at the annual review which it conducted on June 22, 1995, it did not make a specific recommendation with respect to the child's eligibility or ineligibility for that programming. That recommendation should have been made as one of the CSE's recommendations for the child's educational program for the 1995-96 school year. When the CSE finally made its recommendations in the form of the child's IEP for the 1995-96 school year, which it prepared on January 18, 1996, the CSE recommended that he receive special education services on a ten-month basis. The CSE's recommendation was clearly untimely. In addition, I must find that there is inadequate information in the record to ascertain whether the child would have been eligible to receive twelve-month programming. The issue of the child's possible regression was only briefly discussed at the annual review on June 22, 1995, and neither party has presented evidence which would resolve the issue. I note that the child's entitlement, if any, to receive services in July and August, 1996 is not before me because it would involve the child's IEP for the 1996-97 school year. I agree with the petitioners that the IEP which was prepared on January 18, 1996 was not the boy's IEP for the 1996-97 school year, rather it was his 1995-96 IEP.
Petitioners challenge their son's IEP for the 1995-96 school year on both procedural and substantive grounds. They contend that they were denied an equal role in planning their son's educational program, choosing the appropriate methodology by which he was to be instructed, and assessing the effectiveness of the boy's educational program. Petitioners also contend that the CSE failed to schedule its meetings at times which were mutually convenient for them, and that it denied them an opportunity to be heard during its meetings. In addition, they assert that the CSE and respondent each failed to provide them with adequate notice of the CSE's recommendations and respondent's approval of those recommendations.
The Individuals with Disabilities Education Act (20 USC 1400 et seq) emphasizes the participation of parents in the development of their children's IEPs (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ). Federal and State regulations accord parents the role of participants, not merely attendees, at meetings which are held to develop IEPs. Although a CSE is not required to accept each recommendation which a parent makes when the CSE drafts a child's IEP, it must provide the parent with a meaningful opportunity to interact with members of the CSE (Application of a Child with a Handicapping Condition, Appeal No. 90-13; Application of a Child with a Disability, Appeal No. 93-41). My review of the record reveals that the child's mother has been extensively involved in the planning and implementation of her son's educational program. Although the CSE did not accept each of the mother's recommendations, it clearly afforded her the opportunity to participate in planning her child's educational program. Ultimately, it is the CSE's responsibility to prepare a child's IEP. I find that petitioners have not presented any factual or legal support for their contention that they were denied the right to participate in planning their son's educational program.
A CSE meeting should be scheduled to take place at a time and place which is mutually agreeable to the CSE and the parents (34 CFR 300.345 [a] ). At the hearing in this proceeding, the child's mother raised the issue of scheduling CSE meetings with regard to the CSE meeting which was held on December 14, 1995. Although she attended that meeting, the child's mother asserted that she was unable to participate in the meeting because her attorney was unable to attend the meeting. However, she conceded that she was generally contacted in advance of CSE meetings about scheduling. At the time of the December meeting, the child had been out of school for more than one month, and the parties had not agreed to his IEP for the 1995-96 school year. There was clearly an urgent need to proceed with the December CSE meeting.
Federal regulation requires that a notice to a parent:
" A description of the action proposed or refused by the agency, an explanation of why the agency proposes or refuses to take the action, and a description of any options which the agency considered and the reasons why those options were rejected;" (34 CFR 300.505 [a])
State regulation provides that whenever the CSE proposes a change in, or continuation of, a child's classification, educational program or placement, the CSE:
" ... shall give written notice to the parent of its recommendation to the board of education or trustees including a description of the program and placement options considered and a rationale for rejecting those options not selected." (8 NYCRR 200.5 [a][I])
Petitioners contend that the notice of recommendation which they received after the CSE had prepared the child's IEP for the 1995-96 school year did not comply with either Federal or State regulation because it did not list each of the IEP provisions which they had proposed, but the CSE had not adopted. Having examined the notice which petitioners reportedly received (Exhibit P-82), I find that it lacked any of the requisite information about the options which the CSE considered, but did not accept (Application of a Child with a Disability, Appeal No. 95-85). However, I must caution that my finding should not be construed as requiring a CSE and a board of education to provide an extensive analysis of each item about which there is any disagreement between the parent and the CSE. Nevertheless, the notices which are given to parents should indicate in general why major program options proposed by the parents were not accepted. Respondent should provide more detailed information in the notices which it and its CSE give to parents in the future.
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).
Petitioners do not challenge the description of their son's present levels of performance (see 8 NYCRR 200.4 [c][I]). They challenge the appropriateness of his speech/language annual goal and its supporting short-term objectives because they do not reflect the recommendations which Dr. Laura Myers made in her evaluation of the child in May, 1994. In particular, her recommendation for a program of three one-hour sessions of writing instruction, which was included in the child's IEP for the 1994-95 school year, did not appear in the 1995-96 IEP. Respondent was not obligated to adopt a particular teaching methodology or instructional program, but it was required to provide petitioners' son with an appropriate program of instruction. I have considered Dr. Meyers' hearing testimony, as well as her written report. Dr. Meyers acknowledged that she had not fully evaluated the child, and that she was relying in part upon the information provided in the school district's speech/language evaluation of the child. Upon the record before me, I find that there is no proof that the program which Dr. Meyers advocated was the only program which would have provided the child with a meaningful opportunity to improve his language skills.
Nevertheless, respondent has the burden of showing that the child's 1995-96 IEP language annual goal and short-term instructional objectives were appropriate, i.e., that the goal is a statement of what the child could reasonably be expected to accomplish within a twelve-month period, and that the objectives are intermediate steps between the child's present levels of performance and the levels which are anticipated in the annual goal. Unfortunately, despite the more than 2200 pages of hearing transcript and the almost 200 hearing exhibits, I must find that there is very little meaningful information in the record about the child's actual performance during the 1994-95 school year. Without that information, it is impossible to determine whether the child's language goal and instructional objectives were appropriate. Therefore, I find that respondent did not meet its burden of proof.
Petitioners also argue that the CSE should not have included a "behavior management" addendum to the "behavior support plan" in their son's IEP. Petitioners, and their expert witness, Dr. Robert Lehr, contended at the hearing that the child required the behavior support plan, which reflected the recommendations by the behavioral consultant whom respondent had employed during the 1994-95 school year. The behavior management addendum was prepared at the CSE's behest after the behavioral incidents which had occurred in October, 1995. The addendum provided in part that the child's teaching assistant would quietly remove him from class, if the child's behavior became a disruptive factor for the instruction of other children, and that he would be taken to a "time-out room", if his behavior constituted a danger to students or staff. Having considered that the addendum lacked precision in defining the circumstances in which their son could be removed from class, as well as their argument about the appropriateness in general of removing him from class, I find that the addendum was an appropriate component of this child's IEP. It would not in any way have hindered the development of appropriate behavior by means of the behavior support plan.
Petitioners contend that respondent failed to implement their son's IEP during the brief period when the child attended school in the 1995-96 school year. I must note that during that period of time, the parties could not agree upon what was the child's pendency IEP, much less the services which were supposed to be provided pursuant to that IEP. In evaluating petitioners' contention, I have relied upon the provisions of the child's IEP for the 1994-95 school year (Exhibit 5-8). My findings with regard to the implementation of that IEP during the 1994-95 school year are equally applicable to the months of September and October, 1995, and will not be repeated in this decision. I will consider one other issue with regard to the 1995-96 school year.
Petitioners assert that their son's suspension from school as of October 24, 1995 for a five-day period violated the child's right to receive a free appropriate public education. The child was suspended by the junior high school principal, pursuant to the provisions of Section 3214 (3) (b) of the Education Law. On October 25, 1995, one day after the beginning of the child's suspension, the CSE met with the child's mother to ascertain whether the child's behavior was related to his disability. The CSE found that there was such a relationship. I note that at the hearing in this proceeding, the child's teaching assistant testified that it was his belief that the child could have returned to school immediately after the CSE made its determination. There is, however, nothing in the record to support that belief. In any event, I find that petitioners' argument is without merit, in light of the short length of the suspension (Honig v. Doe, 484 U.S. 305 ; Appeal of Cellini, 30 Ed. Dept. Rep. 473; Appeal of a Student with a Disability, 34 id. 634).
I must express my concern about the apparent lack of educational services for the child since October, 1995. While not attempting to apportion blame for the absence of an educational program for the child, I urge the parties to resolve their difficulties, and to work together for the child's best interests.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondent's CSE shall promptly evaluate petitioners' son to determine the boy's present special education and vocational needs; and
IT IS ORDERED that in recommending an appropriate educational program for the child, the CSE shall recommend such additional speech/language therapy and physical therapy as will make up for the related services which I have found respondent failed to provide during the 1994-95 school year.
|Dated:||Albany, New York||__________________________|
|January 21, 1997||FRANK MUŅOZ|
1Although not defined by Federal or State regulation, the term "inclusion" is generally recognized to mean the placement of a child with a disability with the child's age-appropriate peers in a regular education class, in which the child receives appropriate special education services. The child is expected to achieve at a level commensurate with the child's ability, rather than at the level of achievement of his or her non-disabled peers, as would be expected if the child were mainstreamed.