The State Education Department
State Review Officer

No. 97-45

 

Application of the BOARD OF EDUCATION OF THE ARLINGTON CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

Appearances:
Raymond G. Kuntz, P.C., attorney for petitioner, Wendy K. Brandenburg, Esq., of counsel

Family Advocates, Inc., attorney for respondent, RosaLee Charpentier, Esq., of counsel

 

DECISION

        Petitioner, the Board of Education of the Arlington Central School District, appeals from the decision by an impartial hearing officer which ordered the board of education to reimburse respondent for the costs which she incurred in unilaterally placing her son in a private school for the 1995-96 and 1996-97 school years. Although the hearing officer also denied respondent's request for reimbursement of the cost of an independent evaluation of her son, respondent has not cross-appealed from that portion of the hearing officer's decision. Therefore, I will not review that part of the hearing officer's decision. Petitioner's appeal must be dismissed.

        Respondent's son is fourteen years old. He was reportedly born eight weeks prematurely. The boy may have suffered intraventricular bleeding associated with communicating hydrocephalus, approximately two weeks after his birth. He reportedly had chronic ear infections when he was two years old. The child reportedly achieved most of his developmental milestones slowly. He spoke his first word at the age of eighteen months. In 1991, the boy's neurologist reported that the boy had a neurological impairment consisting of an attention deficit disorder (ADD), coordination difficulties, and "some tendency toward mild dyslexia" (Exhibit 42). The boy has reportedly taken medication to treat his ADD since he was in the first grade. His coordination difficulties reportedly involve his gross and fine motor skills.

        Respondent's son attended the St. Francis Communication Disorders preschool program prior to entering petitioner's kindergarten in September, 1989. In April, 1989, respondent referred her son to petitioner's committee on special education (CSE). The CSE classified the boy as learning disabled, and recommended that he be placed in a regular kindergarten class in petitioner's Beekman Elementary School. The CSE also recommended that respondent's son receive speech/language therapy twice per week, occupational therapy twice per week, and physical therapy twice per week. Later in the 1989-90 school year, the CSE recommended that the boy also receive 45 minutes of resource room services each day because his readiness skills were reportedly very limited, and he was reportedly distractible.

        For the 1990-91 school year, the CSE initially recommended that respondent's son be placed in a self-contained special education class. However, it reconvened at respondent's request, and changed its recommendation to placement in a regular education first grade class, with five hours of resource room services per week, occupational therapy twice per week, and consultant physical therapy once per month. At its review of the child's progress near the end of the first grade, the CSE determined that the boy required more extensive special education. It recommended that he be placed in a 12:1+1 special education class for the second grade during the 1991-92 school year. The CSE also recommended that respondent's son receive occupational therapy twice per week, and consultant physical therapy once per month. Once again, the CSE met again at respondent's request and altered its recommendation for a special class placement. The CSE ultimately recommended that the boy be placed in a regular education second grade class with five hours of resource room services per week.

        In May, 1992, respondent's son received grade equivalent scores of 1.0 for total reading and 2.3 for total mathematics on the Comprehensive Test of Basic Skills (CTBS). The CSE noted that although the boy had kept up with the second grade mathematics curriculum, his reading and writing skills were weak. It recommended that he be placed in a 12:1+1 special education class, and that he continue to receive occupational therapy twice per week and consultant physical therapy once per month while in the third grade during the 1992-93 school year (Exhibit 3). At the hearing in this proceeding, petitioner's CSE chairperson testified that the CSE had in fact recommended an "inclusion" placement, which she described as a regular education third grade class with no more than 12 children with disabilities. The third grade teacher was assisted by an aide, and a special education teacher reportedly instructed the children with disabilities in their regular education classroom during certain portions of the school day (Transcript, page 82-84).

        On the CTBS which was administered to him in April, 1993, the boy achieved grade equivalent scores of 1.4 for total reading and 2.5 for total mathematics. He scored well below the statewide reference point on the third grade pupil evaluation program (PEP) reading test, and just above the statewide reference point on the third grade PEP mathematics test. For the fourth grade, the boy remained in an inclusion class, and he continued to receive occupational therapy. However, his physical therapy was discontinued.

        In April, 1994, as the boy was nearing the end of fourth grade, he achieved grade equivalent scores of 1.9 for total reading and 3.6 for total mathematics on the CTBS. Although respondent's son had improved some of his muscle coordination and visual motor skills, his occupational therapist reported that the boy's visual motor integration skills were still two to three years below his age expectancy. The CSE recommended that the boy continue to be educated in an inclusion class for the 1994-95 school year, and that he receive occupational therapy twice per week. The individualized education program (IEP) which the CSE prepared for respondent's son indicated that on the "Woodcock Johnson" (a standardized achievement test) which he took in March, 1994, the boy had achieved grade equivalent scores of 2.0 for reading decoding, 2.4 for reading comprehension, and 2.2 for total reading. His corresponding percentile scores were 2, 7, and 2. He earned grade equivalent scores of 3.5 for mathematical computation, 4.3 for mathematical concepts, and 3.9 for total math. His corresponding percentile scores were 16, 47 and 28. On the written language portion of the Woodcock Johnson, the boy had earned grade equivalent scores of 1.5 for dictation (spelling), 2.2 for writing samples, and 1.7 for total writing (1st percentile). The IEP for the boy included annual goals for improving his language arts and mathematical skills, as well as two goals for his occupational therapy.

        Petitioner's physiatrist, who evaluated the boy at the end of the 1993-94 school year, noted that the boy's gross motor coordination was normal, and that his fine motor coordination had improved. The physiatrist indicated that writing continued to be difficult for the boy, and she recommended that he receive occupational therapy to improve his writing ability. In January, 1995, the boy's occupational therapist reported that the boy had made slight improvement in improving his speed and dexterity in manipulating materials used in the classroom, and that he was able to form letters efficiently and accurately.

        In March and April, 1995, the boy's triennial evaluation was performed. He obtained a verbal IQ score of 95, a performance IQ score of 83, and a full scale score of 89. Those scores were comparable to the scores he had achieved in 1989 and 1992. On the Wechsler Individual Achievement Test, the boy earned grade equivalent scores and standard scores, respectively, of 1.9 and 69 for reading, 4.5 and 90 for mathematics, 9.4 and 113 for language, and 1.7 and 68 for writing. The boy's report card for the 1994-95 school year indicated that he had earned satisfactory grades in each of his subjects, but that his reading was below grade level.

        The boy's annual review was conducted by the CSE on May 10, 1995. Since the boy was completing the fifth grade, he would have to go to one of petitioner's middle schools for the sixth grade during the 1995-96 school year. Instruction in the middle schools is departmentalized, i.e., pupils move from classroom to classroom for instruction in specific subjects. The CSE recommended that respondent's son be enrolled in inclusion classes for English, mathematics, social studies, and science, and be mainstreamed for remedial reading, remedial mathematics, and special subjects, in petitioner's Titusville Middle School. It further recommended that the boy receive resource room services for five periods per week. The CSE did not recommend that the boy continue to receive occupational therapy. The boy's IEP for the 1995-96 school year included annual goals for English, mathematics, social studies, and science, as well as annual goals to improve his organizational and study skills.

        Respondent did not attend the CSE meeting. At the hearing, she testified that she met with her son's teachers before the CSE meeting and was told that the CSE would recommend an inclusion program for the 1995-96 school year. She agreed with the proposed recommendation. A subsequent letter from the CSE chairperson to respondent implied that the boy was to be placed in separate "special academic classes" for the 1995-96 school year (Exhibit 13). Respondent informed the CSE chairperson that she would not accept a more restrictive placement than the inclusion program which her son had in elementary school. I note that the CSE chairperson testified that Exhibit 13 had been intended to alert the parents of children scheduled to be enrolled in the inclusion program at the Titusville Middle School that the program would not be available in that school because petitioner had determined that there would not be enough children there to warrant the staffing required for the program. In any event, respondent met with the CSE again on July 14, 1996. Although the CSE discussed the possibility of having the boy attend either regular education classes with increased resource room services at the Titusville Middle School, or inclusion classes in petitioner's Arlington Middle School, it did not reach a conclusion. The CSE agreed to respondent's request to have her son independently evaluated.

        On July 18 and 19, 1995, respondent's son was evaluated by Dr. Miriam Lacher, who is a psychologist. Dr. Lacher reported that the boy appeared to have some difficulty maintaining his attention and being organized during testing. She further reported that he had difficulty formulating and expressing ideas. Dr. Lacher reported that the boy's lowest performance on the Wechsler Intelligence Scale for Children-III was on tasks which required immediate memory for sequences of information, mental arithmetic, performing digit-symbol substitution tasks, and finding missing details in pictured objects. On the Wide Range Achievement Test (WRAT), the boy's reading decoding skills were found to be at the 2nd percentile, and his spelling skills were found to be at the 1st percentile. However, his mathematics skills were at the 34th percentile. Dr. Lacher noted that the boy's WRAT scores were comparable to his scores on the WIAT in the spring of 1995. On the Gray Oral Reading Test (GORT), the boy's percentile scores were .1 for rate of reading, .4 for accuracy, and 2.5 for comprehension. The boy adequately structured a paragraph which he wrote for Dr. Lacher, but he omitted most punctuation and capitalization. Dr. Lacher opined that the boy's educational performance was impaired by his dyslexia and ADD. She reported that he processed information in language slowly and had difficulty learning phonetics. He also had trouble keeping information in sequence and understanding complex syntax. Dr. Lacher indicated that the boy could be easily "overloaded" with information presented to him at the normal rate of speed. She recommended that he be educated in a disciplined, structured environment. Dr. Lacher suggested that the boy could benefit from instruction by teachers who were experienced in remediating severe reading problems and were familiar with ADD. She recommended that his speech/language skills be re-evaluated, and that he receive help in problem solving and organizational skills.

        On August 31, 1995, the CSE reconvened to recommend a new placement for the boy. The CSE recommended that respondent's son be placed in inclusion classes for English, mathematics, social studies, and science at the Arlington Middle School. As it had previously recommended in May, the CSE also recommended that the child be mainstreamed for other subjects, including remedial reading and remedial mathematics. The CSE also recommended that the boy receive five periods per week of resource room services. The CSE also added annual goals for reading and study skills to the boy's CSE for the 1995-96 school year. Respondent informed the CSE that she was placing her son in the Kildonan School for the 1995-96 school year, and she requested that the board of education pay for his tuition in that private school. The CSE denied respondent's request for tuition assistance. By letter dated August 31, 1995, respondent asked the Arlington Central School District to transport her son to the Kildonan School, which is located in Amenia, New York.

        The boy attended the Kildonan School at respondent's expense during the 1995-96 school year. He was enrolled in a combined fifth/sixth grade class. He received "language training" to improve his reading, writing, and spelling skills. The boy was reported to be successful in his private school placement during the 1995-96 school year (Exhibit 55). When tested by the Kildonan School in April, 1996, the boy's scores for word identification skills and word attack skills were in the 2nd and 3rd percentiles, respectively, on the Woodcock Johnson, while his score for comprehension on the GORT was at the 16th percentile.

        On March 25, 1996, respondent submitted a written request for tuition reimbursement to petitioner's CSE chairperson. By letter dated April 24, 1996, the CSE chairperson denied respondent's request, and advised her that she could request that an impartial hearing be held to review the appropriateness of the CSE's August 31, 1995 recommendation. Respondent was invited to attend the CSE's annual review of her son on May 20, 1996. In a letter dated May 13, 1996, respondent requested an impartial hearing with regard to the CSE's recommendation for her son's placement during the 1995-96 school year, and she informed the CSE chairperson that she could not attend the annual review meeting on May 26, 1996. She suggested that she would wait for the outcome of the due process proceeding before dealing with the boy's placement for the 1996-97 school year (Exhibits 30 and 40). However, the CSE was obligated to go forward, which it did at the May 20, 1996 annual review. It recommended that the boy receive consultant teacher services for four periods per day, and that he be enrolled in a "special class study skills" for one period per day, while in the seventh grade of the Arlington Middle School. The consultant teacher services were to be provided for English, science, social studies, and mathematics (Exhibit 68).

        On June 20, 1996, the boy was privately tested by another psychologist, Dr. Salvatore Massa. Dr. Massa administered the WIAT, the same test which was used by petitioner in its triennial evaluation of the boy in March, 1995. The boy earned grade equivalent scores of 3.6 for basic reading, 5.6 for reading comprehension, 6.6 for numerical operations (mathematical computations), 5.5 for mathematical reasoning, 2.9 for spelling, and 2.1 for written expression. Dr. Massa noted that the boy had demonstrated over two years' improvement in his basic reading skills and three years of improvement in his reading comprehension skills in the 15 months since his triennial evaluation. Similar improvement was noted in the boy's mathematics skills. The boy's smallest gain had been an eight-month improvement in his spelling skills. Dr. Massa opined that the improvement in the boy's academic skills could be attributed to his placement in the Kildonan School. Respondent re-enrolled her son, at her expense, in the Kildonan School for the 1996-97 school year.

        The hearing in this proceeding began on July 30, 1996 and continued over five additional days ending on January 23, 1997. On the last day of the hearing, the parties stipulated that the hearing officer should assume jurisdiction over the issues arising from respondent's unilateral placement of her son in the Kildonan School for both the 1995-96 and 1996-97 school years. In his decision which was dated June 4, 1997, the hearing officer found that the IEP which the CSE had prepared for the 1995-96 school year was inappropriate because it was essentially similar to the boy's prior IEPs for school years in which he had made little objective progress. The hearing officer noted that the boy had passed to a higher grade each school year while he attended petitioner's Beekman Elementary School, but he found that the objective data from the boy's educational testing belied his ostensible academic progress in elementary school. The hearing officer reached the same conclusion with respect to the boy's IEP for the 1996-97 school year, which the CSE had prepared on May 20, 1996. Noting that respondent bore the burden of proving that the services of the Kildonan School were appropriate for her son, the hearing officer held that respondent had met her burden because of the grades the boy received in the private school and the standardized test results which Dr. Massa had reported. He further found that equitable considerations supported respondent's claim for tuition reimbursement. However, he denied her request for additional reimbursement to Dr. Lacher for the cost of her independent evaluation on the ground that the latter's evaluation exceeded the scope and the cost of the independent evaluation to which the board of education had agreed.

        The board of education challenges the hearing officer's determination that it failed to demonstrate that it had offered an appropriate educational program to respondent's son for either of the two school years in question. 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 [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 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 child's IEP for the 1995-96 school year (Exhibit 32) generally reflected the results of his triennial evaluation in March, 1995. However, it did not include the results of Dr. Lacher's independent evaluation which was performed in August, 1995. I note that the CSE chairperson testified that Dr. Lacher's report was available to the CSE when it met to prepare the boy's IEP on August 31, 1995, but she could not recall if the report was specifically discussed at the CSE meeting (Transcript, pages 110-111). She offered no explanation why the results of the independent evaluation were not addressed at the CSE meeting, nor included on the boy's IEP. While some of the data which Dr. Lacher obtained was similar to that which the CSE had obtained from its own evaluation of the boy, Dr. Lacher's report provided far more detail about the nature of the boy's disability and its effect upon his ability to learn. That information would have been useful in planning meaningful annual goals and short-term instructional objectives. For example, Dr. Lacher reported that the boy had not yet mastered the rules which relate English sounds to letters printed on the page. However, the boy's IEP included a short-term instructional objective to have the boy successfully decode multisyllabic words. Dr. Lacher reported that the boy used his fingers to count when solving mathematical computation problems, yet his IEP had as an objective that he would understand the concept of place value to the millions.

        Respondent's son is reportedly an auditory learner, yet his IEP included little, if any, description of his learning style (cf. 8 NYCRR 200.1 [kk][2][a] and 200.4 [c][2][I]). Respondent's son has a significant weakness in writing and spelling. However, his IEP did not report the results of the March, 1995 WIAT testing with regard to either his spelling or writing. At the hearing, Dr. Massa testified that in March, 1995 respondent's son had achieved grade equivalent scores of 2.1 for spelling and K.2 for written expression (Transcript, page 358). He further testified that the IEP short-term objective of having the boy write several paragraphs which included a topic sentence and supporting details was "light years away from what he could do" (Transcript, page 361). An IEP is meant to be a useful document for the child's teachers to understand the nature and extent of the child's disability, and the CSE's expectation of the child's achievement during the next twelve months. I am not persuaded that this boy's IEP would have materially assisted his new teachers in the middle school.

        An IEP must also identify the special education and related services which are to be provided to the student during the period covered by the IEP. Those services must be reasonably calculated to allow the student to receive educational benefit. Having reviewed this boy's progress while in an educational program in the elementary school which was similar to the educational program which the CSE recommended for the boy in the middle school, the hearing officer determined that the recommended program was not reasonably calculated to enable the boy to receive educational benefit. The board of education challenges his determination that its program was inadequate because the boy had failed to make progress in reading during the 1994-95 school year. It contends that the hearing officer erred by comparing the results on the Woodcock Johnson which was administered to the boy in March, 1994 with the results of the WIAT which was administered in March, 1995 because two different tests were used. Petitioner further contends that the hearing officer ignored the results of the CTBS which was administered in April, 1995, which showed an increase in the boy's reading skills over the CTBS results from 1994.

        The record reveals that the boy achieved grade equivalent scores for total reading of 1.0 in the second grade, 1.4 in the third grade and 1.9 in the fourth grade on the group administered CTBS. He also achieved a grade equivalent score of 2.2 on the individually administered Woodcock Johnson while in the fourth grade. In the fifth grade, he achieved a grade equivalent score of 1.9 on the individually administered WIAT. Dr. Lacher, who independently evaluated the boy immediately after he had completed the fifth grade, reported that the boy's reading scores on the WRAT were comparable to the results which the boy had obtained on the WIAT. The results of the GORT test which Dr. Lacher also administered would also appear to be comparable to the WIAT results. Although the boy's reading comprehension skills improved while in petitioner's program, he appears to have made little progress in improving his reading decoding skills. Furthermore, there was little improvement in his spelling and writing skills. I note that after nearly six years in petitioner's school, the boy's writing and spelling skills were still at or about the first grade level (Exhibits 10 and 18, Transcript, page 498; cf. Transcript, page 358). I have considered the testimony of the child's special education teacher in petitioner's elementary school, but I am not persuaded that it successfully refuted the testing data which indicate that there had been little progress in several of the child's basic academic skills. Petitioner does not contend that the special education services which its CSE recommended for the 1995-96 and the 1996-97 school years were materially different from the services which the boy had received in the last two years of elementary school. Under the circumstances, including the defects in the boy's 1995-96 IEP noted above, I concur with the hearing officer's determination that petitioner failed to meet its burden of proof in demonstrating that its educational programs for both school years would have adequately addressed this boy's special education needs.

        A board of education may be required to pay for the educational services obtained for a student by the student's parents, if the services offered by the board of education were inadequate or inappropriate, the services obtained by the parents were appropriate, and equitable considerations favor the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The fact that the Kildonan School has not been approved by the State Education Department to provide special education to children with disabilities is not dispositive of respondent's claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]). I have found that respondent has prevailed with respect to the first of the three Burlington criteria for tuition reimbursement. The child's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at the Kildonan School during the 1996-97 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parent must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20).

        Petitioner contends that the hearing officer erred in deciding that the services provided by the Kildonan School were appropriate. The board of education asserts that the hearing officer premised his decision in part upon a finding that the boy had achieved satisfactory grades in Kildonan, while simultaneously noting that the private school's grading system was "not particularly revealing". Petitioners argues that the boy's grades in Kildonan are subjective, and therefore not probative of his progress in the private school. While I agree that the boy's progress reports from the Kildonan School dated February 22, 1996, April 22, 1996, and June 3, 1996 (Exhibits 56, 57, and 55) were narrative accounts of the boy's performance in the various subjects of his curriculum in the private school, that fact alone does not make them unworthy of belief. The reports provide useful information, as did the "profile", or report of the standardized testing which was done at the Kildonan School during the 1995-96 school year (Exhibit 54). I have compared the results of that testing with the results of the testing done by Dr. Massa at the close of the 1995-96 school year (Exhibit 53). Although Dr. Massa used a different standardized test than those which the private school had used, I find that the results are comparable. When the results which the boy obtained on the WIAT which Dr. Massa administered to him in June, 1996 are contrasted with the boy's results on the WIAT which was administered to him in March, 1995 when he was still in petitioner's elementary school, it is apparent that the boy had made significant progress in reading and mathematics. The boy's written expression skills had improved by approximately 24 months during the fifteen-month interval between the WIAT testings. Although his spelling skills had only improved by eight months during the same period of time, I find that this was nevertheless significant growth, in light of his previous achievement in spelling while in petitioner's school. I have considered petitioner's analysis of the boy's standardized test results, but I do not agree with petitioner's conclusions.

        Petitioner also challenges the appropriateness of the boy's placement in the Kildonan School on the ground that it was inconsistent with the requirement that children with disabilities be educated in the least restrictive environment. The Academic Dean of the Kildonan School testified that each of the school's students is learning disabled. The school's teaching staff are trained to use the Orton-Gillingham methodology for teaching reading. In addition to his academic subjects, the boy also received 45 minutes per day of language training to develop his reading and writing skills. The size of the boy's other classes ranged from five to seven. He was placed in a fifth grade class at Kildonan for the 1995-96 school year because he reportedly lacked the maturity to be placed in a higher grade (Transcript, page 541). The Academic Dean testified that the boy had progressed nicely in terms of developing his own individuality and self-esteem, as well as his academic skills. She further testified that the sixth grade program in which the boy was enrolled for the 1996-97 school year was similar to the fifth grade program. I note that respondent did submit a March 3, 1997 progress report from the Kildonan School to the hearing officer after the hearing ended. That report indicated that he was continuing to make satisfactory progress.

        The requirement that children with disabilities be placed in the least restrictive environment must be balanced against the requirement that they receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 887 F. 2d 688 [2d Cir., 1989]). In view of this boy's minimal progress while in a less restrictive setting in petitioner's elementary school, I find that his placement in the more restrictive setting of the Kildonan School was consistent with the least restrictive environment requirement. Therefore, I find that respondent has also prevailed on the second Burlington criterion for reimbursement.

        The third criterion for an award of tuition reimbursement is whether equitable considerations support the parent's claim for tuition. Petitioner argues that equitable considerations do not support respondent's claim for tuition because respondent was opposed to the location of her son's program during the 1995-96 school year, rather than to the program itself. I find that petitioner's argument is without merit.

 

        THE APPEAL IS DISMISSED.

 

 

 

Dated: Albany, New York __________________________
March 20, 1998 FRANK MUŅOZ