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 City School District of the City of New York
Neal H. Rosenberg, Esq., attorney for petitioner
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Leonard Kaplan, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's son be educated in a Modified Instructional Services-Ill (MIS-Ill) class during the 1996-97 school year. The impartial hearing officer denied petitioner's request that respondent be ordered to reimburse petitioner for the cost of his son's tuition in the Stephen Gaynor School (Gaynor) for that school year. The appeal must be dismissed.
When the child was five years old, he was adopted by petitioner and his wife. Prior to the adoption, he had been placed in several different foster homes. In April, 1986, when the child was two years old, he reportedly was evaluated by the Pouch Center for Special People in Staten Island. He was diagnosed as having an attention deficit disorder with hyperactivity (ADHD), and reportedly, was found to exhibit social and cognitive delays often seen among children who had been neglected in infancy and early childhood. He attended the Pouch Center's therapeutic nursery program for one year where he reportedly received speech/language and occupational therapy services.
It was reported that when the child was three years old, a trial on Ritalin was recommended for his continuing problems with attention and impulsivity. He has been treated by a physician for medical management of his ADHD since early 1992. It was also reported that the child had a history of many ear infections, and periods in which his hearing was negatively affected by fluid retention.
The child's parents referred him to the CSE in August, 1989, just prior to his kindergarten year because of apparent speech and language difficulties. He was classified as learning disabled and placed in an MIS-IV class for kindergarten, where he remained for the first and second grades. The child's second grade teacher recommended that he be privately evaluated to determine why he did not retain reading lessons. In December, 1991, the child was evaluated by a private psychologist. On the WISC-R, he achieved a verbal IQ score of 85, a performance IQ score of 84, and a full scale IQ score of 83, placing his cognitive functioning in the low average range. Based on a series of standardized language evaluations, the private psychologist found that three major factors significantly impaired the child's intellectual functioning: difficulties with the regulation of his behavior and attentional processes; major processing difficulties in language and auditory functioning, spatial-analytic reasoning, visual-motor integration, and sequential processing which underlay significant learning problems; and emotional factors related to early experiences of traumatic separation and loss, and present concerns related to living with significant language and learning problems and ADHD. She recommended that the child receive an educational program that used a multisensory linguistic approach to enable the child to learn. Additionally, the private psychologist suggested that the child receive extra-school tutorial support from an Orton-Gillingham (OG) trained educational therapist, if such services were not available in school. The OG program is a structured, sequential, multisensory approach to teach language arts. As the OG method was not available at the public school, the child's parents hired a tutor for their son. He received tutoring twice per week beginning March, 1992.
In June 1992, the child was reevaluated by the CSE and was placed in a less restrictive MIS-I class for third grade in the 1992-93 school year. During that year, the child's behavior declined, and his tutors recommended that he be placed in a private school that employed an OG method. In the fall of 1993, the child was placed by his parents, at their expense, in Gaynor for his fourth grade year. He remained in that school for the next two years, for which petitioner obtained reimbursement from respondent.
A neuropsychological and psychoeducational evaluation of the child was conducted by a private psychologist in the spring of 1995 when the child was in the equivalent of the fifth grade at Gaynor. The private psychologist completed a series of standardized tests and reported that the child performed within the average range on verbal conceptual and abstract visual reasoning tasks, but he was hindered on all verbal tasks by weaknesses in both expressive and receptive language. She noted that his language deficits also affected his skills in mathematics. She also noted that the child had difficulty with visual motor integration skills. The private psychologist reported that while the child demonstrated some awareness of his distractibility and used strategies such as slowing down his performance to control it, his performance on some tasks was hindered by his distractibility. The private psychologist observed that the child was emotionally vulnerable and manifested sadness and anger due to his early experiences. Additionally, she noted that the child's learning disability affected his mood, self-concept and psychological development. The private psychologist recommended that the child continue in an educational program where a multisensory linguistic teaching approach was used, with speech and language therapy five times per week.
Respondent's CSE conducted a triennial review in the spring of 1996. A social history in connection with the triennial review was completed on March 16, 1996 based on an interview with petitioner. Petitioner reported that his son had made progress at Gaynor. He noted that after two and one half years at Gaynor, his son was reading at the third to fourth grade level, but that mathematics continued to be a struggle for him. Petitioner also reported that his son's behavior was dependent on his medication level. Petitioner stated that his son had made progress in that he now required less Ritalin.
In an educational evaluation conducted by the district's education evaluator on March 16, 1996, the child achieved a grade equivalent score of 5.9 in math computation. The education evaluator reported that the child demonstrated a poor ability to apply math to solve word problems. The child achieved a mid-second to early third grade level in reading skills. The education evaluator noted that the child displayed an articulation problem and some word finding and vocabulary weaknesses. She indicated that though the child was progressing in academic areas, he required extra processing time, structured learning situations and over-learning to enhance mastery. She recommended opportunities for hands-on learning through use of a globe, maps, graphs and pictorial supports to help the child make sense of language as he learned.
A speech language evaluation was completed on March 16, 1996. The speech/language evaluator noted that the child's overall speech articulation and auditory retention of salient features was good. The child's expressive language skills were age appropriate and his receptive language skills were slightly delayed. His language processing skills were delayed by approximately three years. The speech/language evaluator recommended that the child continue speech/language therapy to remediate auditory processing delays and receptive and expressive delays in spontaneous speech.
The classroom observation was conducted on April 10, 1996 when the child was in his writing and social studies classes. It was reported that the child entered his writing class in a "boisterous" manner and was asked by his teacher to calm down and get ready to work, to which he immediately responded. It was noted that the teacher had to constantly refocus the child, but that during quiet work he tried to work hard alone. During the child's social studies class, it was reported that he participated better than in writing class, but that he shouted out answers a few times and had difficulty refraining from talking to his neighbor.
The CSE developed the child's 1996-97 IEP at a meeting on May 16, 1996. Based on a review of the above information, the CSE changed the child's classification from learning disabled to speech impaired, and recommended that the child be placed in an MIS-Ill class with a student to staff ratio of 12:1:1 in respondent's Middle School 88. The IEP included the related services of counseling once per week for 30 minute sessions, and individual speech/language therapy three times per week for 30 minute sessions. The testing modifications of having time limits waived, taking exams in a special location, and having directions read and reread aloud also were included on the IEP. Petitioner requested an impartial hearing to review the CSE's recommendation.
The hearing was held on November 18, 1996, and January 7, and June 10, 1997. The hearing officer rendered his decision on July 31, 1997. He found that the proposed class would have been appropriate for the child, and that the teacher was qualified and able to address the child's needs. He further found that there was substantial evidence that the students in the class had similar needs and functioned on a level similar to that of the child. Based on those findings, the hearing officer did not consider the appropriateness of petitioner's unilateral placement of his child at Gaynor, nor did the hearing officer determine whether equitable considerations favored petitioner. Accordingly, the hearing officer found that petitioner was not entitled to tuition reimbursement for the 1996-97 school year.
Petitioner challenges the hearing officer's decision on a number of grounds. He questions the appropriateness of the change in the child's classification from learning disabled to speech impaired. He further contends that the MIS-Ill class recommended by respondent's CSE was not appropriate to meet the child's educational needs.
Petitioner asserts his son is primarily learning disabled, and is secondarily speech and language impaired. He contends that the child should remain classified as learning disabled. Respondent argues that petitioner failed to raise the child's classification as an issue at the hearing, and is therefore precluded from raising it in this appeal (see Application of a Child with a Disability, Appeal No. 94-12). Upon review of the record, I note that petitioner's attorney cross-examined the CSE's school psychologist member about the basis for changing the boy's classification. The hearing officer asked the attorney whether the boy's classification was in dispute. Petitioner's attorney responded by stating that " ... I don't think that is a major dispute." (November 18, 1996 Transcript, page 210). When the hearing officer raised the issue on the last day of the hearing, petitioner's attorney stated that, "There is a question as to the child having both a learning disability and a speech impairment." (June 10, 1997 Transcript, pages 3-4). Although petitioner may not have raised the issue as directly as he could have, I find that he did in fact raise the issue of the child's classification.
The board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Handicapping Condition, Appeal No. 91-11; Application of a Child with a Handicapping Condition, Appeal No. 92-37; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 94-16).
The record reveals, and both parties agree, that the child has language deficits and a learning disability which is manifested by an imperfect ability to read. It is well settled that when a child exhibits the characteristics of more than one handicapping condition, the CSE may determine which disability is primarily impeding the child's educational progress and provide an educational program which addresses that disability (Matter of a Handicapped Child, 18 Ed. Dept. Rep. 617; Matter of a Handicapped Child 20 id. 557; Matter of a Handicapped Child, 23 id. 191). At the hearing, respondent's school psychologist testified that the CSE believed that the child's learning disability was being addressed, but that his speech/language disorder underlay his learning disorder. She referred to an evaluation report by the private psychologist dated February 29, 1996 (Exhibit B), in which the private psychologist reported that the boy's "...language learning disorder is continuing to undermine his progress more than would be expected ... " and that his "... intellectual functioning, in the low average range, is affected by his speech and language disorder which underlies a serious learning disorder." The private psychologist, who had apparently written her report to support an increase in the amount of speech/language therapy which the boy was to receive at Gaynor, insisted at the hearing that the child's learning disability, i.e., his reading deficiency, could not be addressed by simply dealing with his language deficits, and that she had not intended to imply in her evaluation report that the child's reading difficulties were secondary to his language deficits (June 10, 1997 Transcript, page 20).
My review of the child's evaluations, including his most recent speech/language evaluation, leads me to conclude that petitioner's son has significant difficulty processing language. Having considered the regulatory definitions of speech-impaired and learning disabled (NYCRR 200.1 [mm]  and  respectively), I find that the child would more appropriately be classified as learning disabled. That classification includes children who have a disorder in one or more of the basic psychological processes involved in understanding or using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The record indicates that this child's language disability has been manifested in those areas.
Having determined the child's classification, it must now be determined whether petitioner is entitled to tuition reimbursement. A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education. Massachusetts, 471 U.S. 359 ). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7). 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).
Petitioner has not challenged his son's IEP, in terms of its description of the child's needs. I have nevertheless reviewed the IEP, and I find that it does accurately reflect the results of the child's evaluations. Notwithstanding the IEP's designation of the child as speech-impaired, it nevertheless identifies his special education needs. I have also reviewed the child's IEP annual goals and short-term instructional objectives because it is important to establish that the goals and objectives are appropriate, before determining what special educational services are required in order to afford the boy a reasonable chance of achieving his goals and objectives. Although the boy's letter-word identification skills were found to be at the second grade level and his passage comprehension skills were found to be at the third grade level (Exhibit 3), his IEP does not include a specific goal for improving his reading skills. Instead, the IEP includes a goal for "communication arts'', which has four short-term objectives related to specific reading skills. The first three relate to reading decoding, and appear exceedingly modest in scope, given his present level of performance. The fourth objective is that the boy read two passages fluently after preparation, but it fails to specify any level of difficulty, or provide any objective measurement of his achievement. Accordingly, I find that the child's IEP reading goal is deficient.
The pivotal issue in this appeal is whether the special education services recommended by the CSE, i.e., instruction in an MIS-Ill classroom would have afforded petitioner's son a reasonable chance of achieving his IEP annual goals and short-term objectives. A written description of respondent's MIS-Ill program (January 2, 1997 hearing, Exhibit 2) indicates that it is intended for students who "...require intensive management systems for their combined communication and academic needs and demonstrate serious communication difficulties that significantly interfere with their performance in the classroom and the school environment." The description also indicates that the MIS-Ill program provides intensive instruction in language and communication skills, as well as in academic and cognitive skills, in addition to intensive instruction in learning skills and strategies. Respondent's entry criteria for the program include significant to severe difficulties in both language and communication skills and reading skills. The CSE representative testified that the MIS-Ill program would be appropriate for the child because it is a language based program. The teacher of the child's proposed MIS-Ill class also testified. However, her direct and cross-examination focused largely on irrelevant issues. The teacher had not seen the child's IEP, and was therefore unable to opine that the child's needs could have been met in her classroom. Although the teacher testified that she used multisensory teaching techniques whenever she could, she did not otherwise indicate how this child's needs would have been met in her classroom. Upon the record which is before me, I find that respondent did not meet its burden of proving that it had offered an appropriate special education to petitioner's son for the 1996-97 school year.
Respondent asserts that if I determine, as I have, that it failed to offer an appropriate educational program to the child, then I should remand the matter to the hearing officer because he did not make findings with respect to the second and third Burlington criteria for an award of tuition reimbursement, i.e., whether the services which petitioner obtained for the child at Gaynor were appropriate, and whether equitable considerations support his claim for reimbursement. I disagree. The record includes evidence about the services provided to the child at Gaynor. While respondent had the opportunity to raise the issue of equitable considerations at the hearing, it did not do so. The purposes of the Individuals with Disabilities Education Act and Article 89 of the Education Law would not be served by fragmenting this proceeding into multiple hearings.
With respect to the second Burlington criterion, 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 Gaynor 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).
As noted above, the record reveals that petitioner's son has significant language processing difficulties which impair his ability to read, write and do mathematical word problems. In the child's most recent psychological evaluation (June 10, 1997 hearing, Exhibit A), his greatest deficit among language related skills was reported to be in his short-term memory skills. The private psychologist who performed the evaluation reported that the child's expressive language skills had improved, but were still significantly below age expectation. Although the child was described as having solid visual organization skills, his short-term memory for abstract forms was a serious weakness. His visual motor integration skills were also below age expectation. Despite receiving medication for his attention deficit disorder, the child continued to have attentional difficulties which affected his academic performance. The psychologist opined that the boy required a quiet, small, structured class, with an intensive individualized program, individual reading remediation, and intensive speech/language therapy.
One of the child's teachers at Gaynor testified at the hearing about the instruction which the child was receiving in the private school. She testified that there were eight students in her classroom, and that the child was taught reading on an individual basis. He also received speech/language therapy on an individual basis. In addition, the speech/language therapist worked in the classroom during writing instruction, and was also involved in social studies instruction. The teacher testified that the child hears her directions while reading them, and that she gives examples and demonstrations to enhance his understanding. She further testified that manipulatives were used in mathematics and social studies, i.e., a multisensory approach was used. The teacher also testified that the child was placed with children who were at his functional level for instructional purposes. She further testified that the boy had made progress during the 1996-97 school year.
I note that the record includes standardized achievement test results from March, 1997 toward the end of the child's fourth year at Gaynor when he was 12 years old and in the equivalent of the seventh grade. The test results showed that in reading comprehension, an area of relative strength for the child, he achieved a grade equivalent score of 1.5 on the Gates-MacGinitie Reading Test, placing him in the first percentile. Additionally, the child scored in the second percentile in Basic Reading on the Wechsler Individual Achievement Test and in the fifth percentile on the Word Attack subtest of the Woodcock Tests of Reading Mastery. These test results fail to show any measurable improvement in the child's reading. There is no other evidence in the record to support a claim that despite the child's performance on the standardized tests, he received educational benefits at Gaynor. Based on the record before me, I am unable to find that the program at Gaynor met the child's special education needs. Accordingly, petitioner has not met his burden with respect the second Burlington criterion. As petitioner has not prevailed on the second criterion for an award of tuition reimbursement, it is not necessary to address the third criterion. Based on the above, petitioner's request for tuition reimbursement must be denied.
THE APPEAL IS DISMISSED.
|Dated:||Albany, New York||__________________________|
|July 9, 1998||ROBERT G. BENTLEY|