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 Victor Central School District
Matthew R. Fletcher, Esq., attorney for respondent
Petitioner appeals from the decision of an impartial hearing officer which found that respondent's committee on special education (CSE) had adequately evaluated petitioner's son, and that respondent was not obligated to provide him with instruction using the HAILO (Hierarchial Assessment and Intervention for Language Organization), now known as Fast ForWord, methodology. The hearing officer further found that respondent had not met its obligation to hold and conclude an impartial hearing within 45 days after petitioner's request for a hearing, but he concluded that respondent's error did not afford a basis for ordering the school district to provide the testing and the educational program which petitioner sought. The appeal must be dismissed.
Respondent contends that the appeal should be dismissed as untimely. It alleges that petitioner received the hearing officer's decision on or about September 29, 1997, and that petitioner improperly served her notice of intention to seek review, together with her notice of petition and petition, upon a secretary in the district office on October 16, 1997. Respondent asserts that the secretary was not authorized to accept service on its behalf. It acknowledges that petitioner's papers were re-served on November 30 1997, which was 51 days after petitioner had allegedly received the hearing officer's decision. State regulation requires that the parent of a child with a disability initiate an appeal to the State Review Officer by serving a notice of intention to seek review within 30 days after receipt of the hearing officer's decision, and by serving the petition within 40 days after receipt of the decision (8 NYCRR 279.2 [b]). This is the second of two appeals brought by petitioner from the decision of two hearing officers involving petitioner's two sons. In this appeal, as in the other appeal (Application of a Child with a Disability, Appeal No. 97-85), I find that there is no evidence that respondent has been harmed by petitioner's brief delay in properly commencing her appeal. Therefore, I will excuse petitioner's brief delay.
Petitioner's son is eight years old. He was born in Romania, and he spent the first nineteen months of his life in an orphanage there. While in the orphanage, the boy reportedly received little attention or stimulation. Petitioner and her husband adopted the boy in October, 1990, when they brought him to the United States. Although the CSE chairperson briefly referred to the fact that the child initially became known to him through respondent's committee on preschool special education, the record does not reveal whether the child was formally identified as a preschool child with a disability, or whether he received any special education services as a preschool child. The boy has attended respondent's schools since kindergarten. His performance in kindergarten and the first grade is not revealed by the record. However, the child had reportedly received some counseling prior to the 1996-97 school year, but he had not been classified as a child with a disability.
The 1996-97 school year was the child's second year in a multi-age regular education class for children between the ages of six and nine. The boy's report card and his teacher's narrative description of his performance for the first quarter of the school year (Exhibit FF) revealed that petitioner's son was making generally satisfactory academic progress. However, the child was reportedly inattentive in class, and he needed to improve his work habits.
In a letter, which was dated January 22, 1997, to the CSE chairperson, petitioner requested that her son receive HAILO testing and treatment, a central auditory processing evaluation (CAPE), attachment disorder testing, PRAXIS testing by a certified sensory integration occupational therapist, and testing by a behavioral optometrist. HAILO/Fast ForWord is a computer-based program designed for children with central auditory processing disorders. It reportedly uses a specially designed computer algorithm which emphasizes and elongates brief, rapidly changing components within speech sounds, using a video game strategy to encourage the student to pay attention and practice a series of listening and language training exercises (Exhibit C). She also requested that her child receive therapy from appropriately trained individuals. Petitioner's request was deemed to be a referral to the CSE which obtained petitioner's written consent to evaluate her son.
The school psychologist who evaluated the child in late January, 1997 reported that the boy had achieved a verbal IQ score of 99, a performance IQ score of 91, and a full scale IQ score of 95, indicating that he was functioning in the average range of intellectual development. She noted that the child's subtest scores were scattered, suggesting that he might have higher intellectual potential than was represented by his IQ scores. His freedom from distractibility index was found to be in the high average range. The boy's perceptual organizational skills were somewhat below those of his age peers, and his visual concentration skills were his area of greatest weakness. However, the school psychologist noted that the child's low score in that area may have been affected by his impulsive nature. The child's visual motor integration skills were found to be age appropriate. On the Woodcock-Johnson Psycho-educational Battery, the child scored above the 90th percentile for all reading subtests. His writing skills were found to be in the average range by the school psychologist, who reported that the child's ability to express ideas in writing was fairly well developed. The boy's mathematics skills were also in the average range. On the Achenbach Behavior Rating Scale, the boy's teacher rated him in the 90th percentile or better for having social, thought, and attention problems, as well as for displaying aggressive behavior. The information provided by the child's parents for the same assessment produced somewhat higher percentile rankings in most areas. The school psychologist, who had observed the child in his classroom late in the school day, reported that the boy was generally on task and attentive to his teacher, but that he called out answers and attended to the business of other children. She suggested that the boy's parents consider obtaining therapy for him to deal with the circumstances of his early life prior to adoption.
In early February, 1997, the boy was evaluated by one of respondent's speech/language therapists. She reported that the boy's speech was intelligible, but that he spoke so quickly that his speech was "cluttered". The boy did not evidence any delay in the development of his receptive language skills. His expressive language skills were found to be in the above average range. Nevertheless, the speech/language therapist recommended that the child receive a CAPE to determine whether he had a processing problem. She further recommended that he receive speech/language therapy to deal with his cluttered speech.
The child was also evaluated by an occupational therapist from the Wayne Finger Lakes BOCES, who reported that the child's fine and gross motor skills were in the average or above range. The child evidenced an approximately one-year delay in his visual motor integration skills, while his visual perception was found to be age appropriate. The occupational therapist noted that the child had some difficulty with detail and spatial awareness, but she opined that occupational therapy did not appear to be necessary for the boy.
The boy's parents provided information for his social history, just prior to meeting with the CSE on March 11, 1997. They indicated that the boy was extremely domineering, and he had extreme mood shifts. The parents also indicated that their son acted out by destroying property. The CSE reviewed the results of the child's evaluations and its chairperson reported on the results of her observation of the child in his class. The chairperson noted that the child exhibited impulsiveness, and off-task behavior in class, but he could be redirected with adult support. The CSE minutes (Exhibit 10) reveal that the child's teacher reported to the CSE that the child was functioning above his age level academically, but the boy was easily distracted and had to be re-directed. He also reported that the child's oral and written language was unfocused. He further reported that the child had no real social bonds with his peers, and that he tended to gravitate towards adults. The boy's parents shared a letter by the child's pediatrician with the CSE, in which the physician opined that the boy had a reactive attachment disorder, and recommended that the boy receive attachment disorder therapy. I note that the pediatrician's letter is not in the record. There is a subsequent letter by the pediatrician, dated July 14, 1997, in which he diagnosed the child as having a reactive attachment disorder. Individuals with the disorder reportedly have difficulty forming lasting and loving relationships. Abnormal speech patterns may be a manifestation of the disorder (Exhibit A). The pediatrician recommended that the child be classified as other health impaired, and he noted that he had advised the child's parents to obtain therapy for him.
The CSE recommended that petitioner's son receive additional speech/language evaluations, prior to a CAPE. It also recommended that he receive PRAXIS testing to measure his sensory integration. The CSE did not approve petitioner's request for HAILO testing and therapy, behavior optometry testing, and attachment disorder therapy. It did agree to review the materials provided by the boy's parents with regard to HAILO and behavioral optometry, but it concluded that the requested attachment disorder therapy was not educationally relevant. The CSE deferred making its recommendation with regard to classification and placement pending the results of further testing.
The boy's parents orally requested that an impartial hearing be held to review the action taken by the CSE. In a letter dated March 18, 1997, petitioner reiterated her request for an impartial hearing, and she asked the CSE chairperson to proceed with the additional testing which the CSE had recommended. On March 24 and 25, 1997, a second speech/language therapist performed an additional evaluation of the child. She reported that the boy had displayed weakness when he was required to develop sentences from a specific word and a visual clue. On the Screening Test for Auditory Processing Disorders, the child achieved a standard score of 104, which was at the 61st percentile. The speech/language therapist noted that the boy had difficulty wearing ear phones during the testing. In her summary, the speech/language therapist reported that the boy had demonstrated many strengths in the area of language development, but had exhibited certain weaknesses when language became abstract. She reported that his auditory/perceptual skills appeared to be good. The speech/language therapist recommended that petitioner's son receive speech/language therapy twice per six-day school cycle.
On May 17, 1997, the boy's CAPE was performed by a private audiologist in Penfield, New York. The audiologist reported that the child's auditory acuity was better than that of most children, which she suspected could be contributing to his inattentiveness. She readministered the Screening Test for Auditory Processing Disorders to the boy. His relatively poor performance on dichotic listening tasks was reported to be evidence of a delay in his auditory maturation. The audiologist further reported that the child's auditory attention was only slightly below his age level. The audiologist found that the boy was auditorily functioning at about the first grade level, but noted that there was a wide spread between his strengths and weaknesses. She recommended that petitioner's son be educated in an environment which would minimize adverse listening conditions, and maximize the reception of his teacher's voice. Referring to an attached description of the characteristics of a central auditory processing disorder and/or an attention deficit hyperactivity disorder, the audiologist stated that petitioner's child demonstrated many of the characteristics of both a central auditory processing disorder and an attention deficit hyperactivity disorder.
On May 23, 1997, petitioner met with a second chairperson of the CSE and three other staff members. In a written account of the meeting which he sent to petitioner, the new CSE chairperson asserted that it was his understanding that petitioner had orally advised a school psychologist that she would withdraw her request for an impartial hearing, provided that certain tests were administered to the boy and a new school psychologist was assigned to the boy's case. He contended that respondent had met petitioner's conditions, but that petitioner had refused to withdraw her hearing request. In a letter dated May 26, 1997, petitioner again requested that an impartial hearing be held.
On June 3, 1997, the child was observed in his classroom by the new school psychologist assigned to his case. She discussed her observation at the next CSE meeting with petitioner, which was held on June 18, 1997. The audiologist who had performed the boy's CAPE also attended the CSE meeting, and reportedly advised the CSE that she knew of a therapy program which could be incorporated into the boy's current speech support service. Although the boy's PRAXIS testing had been completed, the results were not available to the CSE. The child's teacher reported that the boy's impulsivity had interfered with his peer relations, and that non-verbal cues and physical contact had been used to control the boy's impulsivity. The CSE recommended that petitioner's son be classified as emotionally disturbed, based upon the psychiatric diagnosis provided by his pediatrician. Although the CSE apparently began to prepare an individualized education program (IEP) for the boy, it did not finish the document. The CSE did agree that school staff should contact a particular psychologist who was knowledgeable about HAILO to obtain additional information about testing for that program, and that the CSE should reconvene later.
On July 15, 1997, petitioner and her husband met with respondent's superintendent of schools, who summarized the results of the meeting in a letter to the parents (Exhibit 14). The superintendent stated that the board of education would pay for the child's behavioral optometry testing, notwithstanding the CSE's belief that such testing was unwarranted. He further stated that the level of the occupational therapy to be provided to the child would reflect the results of the child's PRAXIS testing, but he cautioned that the CSE was not bound to adopt each of the evaluator's recommendations. The superintendent informed the parents that the school district would not provide HAILO testing or programming because it believed that the boy's needs could be adequately met by the district's speech/language therapy services. He agreed that respondent would assume financial responsibility for the cost of 30 minutes per week of attachment disorder therapy from the child's private therapist.
The CSE met again on August 7, 1997, when it recommended that the child's classification be changed from emotionally disturbed to other health impaired. The CSE completed the boy's IEP (Exhibit 17). The CSE recommended that the boy receive individual counseling once per week, and occupational therapy in a group three times per week. The counseling which the CSE recommended was to be provided by the woman who had been providing attachment disorder therapy to the boy since February, 1997. The CSE, which did not recommend that the boy receive speech/language therapy, noted on the boy's IEP that "Informal speech/language services are provided on the building level 2 times out of a 6 day cycle for 30 minutes". The CSE also indicated on the IEP that the behavioral optometry evaluation was to be performed, and that the child should receive up to twelve sessions of services if the evaluator recommended those services.
The hearing in this proceeding began on August 11, 1997. At the outset, the child's parents indicated that they were challenging the CSE's failure to make a recommendation for classification and placement within 30 school days after petitioner consented to his evaluation by the CSE (cf. 8 NYCRR 200.4 [c]), as well as the recommendations which the CSE did make. The hearing concluded on August 18, 1997.
In the decision which he rendered on September 23, 1997, the hearing officer found that respondent had not adhered to the requirement that a hearing officer's decision be rendered within 45 days after a hearing has been requested (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c] ). Although the hearing officer found that respondent was unjustified in relying upon its interpretation of a telephone conversation between petitioner and a school psychologist about withdrawing petitioner's hearing request, he concluded that respondent's procedural violation did not warrant an order requiring the board of education to pay for the child's HAILO testing and services. He rejected petitioner's claim that respondent had violated the regulatory requirement that it inform the parents of children with disabilities where they might obtain free or low-cost legal services in connection with due process proceedings (8 NYCRR 200.5 [a]  [x]). With regard to petitioner's request that respondent be ordered to pay for HAILO testing and programming, the hearing officer found that petitioner's son was doing well academically, and was therefore receiving an educational benefit from his academic program without the specialized program sought by petitioner. The hearing officer declined to require respondent to provide HAILO testing and programming. He also denied petitioner's request for reimbursement for various expenses she had incurred in "educating" respondent about her child's condition and preferred program.
Petitioner challenges the hearing officer's determination that there was insufficient evidence to support petitioner's claim that respondent had violated the State regulation which required the school district to provide petitioner with a list of possible free or low-cost legal service providers. 8 NYCRR 200.5 (a) (1) (x) requires the board of education to notify the parents of a child with a disability that they " may be able to obtain free or low-cost legal and other relevant services at no expense to the school district, and include the names, addresses and telephone numbers of appropriate agencies and other professional resources where such services may be obtained." Although the notice which was given to petitioner is not part of the record which is before me, it is my understanding that petitioner does not contend that respondent failed to provide her with a list of possible legal service providers. Instead, she asserts that no person or organization on respondent's list was available to represent her at the hearing in this proceeding. At the hearing, she indicated that she was unable to obtain the services of an attorney, even after a representative of the State Education Department had given her additional names of attorneys or advocacy groups. Although petitioner notified the hearing officer that she had been unable to obtain the services of an attorney, she did not seek an adjournment of the hearing to afford her additional time to locate an attorney. While I fully appreciate petitioner's concern about not having an attorney at the hearing, I must point out that neither Federal nor State law guarantees that a parent will have the free or low-cost services of an attorney at a hearing.
I have also considered petitioner's assertion that she was treated unfairly at the hearing with regard to evidentiary matters, especially the manner in which she was allowed to present her case about the nature of her son's medical condition, and the appropriateness of HAILO/Fast ForWord for him. In essence, she complains that she was not permitted to read from various written documents which were already admitted into evidence during her testimony. However, testimony of that nature would be redundant. Petitioner did have the opportunity to direct the hearing officer's attention to various documents in evidence, and she did explain the significance of those documents. Petitioner also challenges the introduction of her son's IEP into evidence. As petitioner knows, either party in a hearing may prohibit the introduction of evidence the substance of which was not disclosed to such party at least five days before the hearing (8 NYCRR 200.5 [c] ). On the second day of the hearing, respondent introduced the IEP which resulted from the August 7, 1997 CSE meeting. When asked by the hearing officer if she had any objection to the introduction of the IEP into evidence, petitioner said she had no objection (Transcript, page 409). I have also considered petitioner's argument that the hearing officer should not have relied upon the IEP because it allegedly had not been approved by the board of education. The CSE chairperson testified that respondent had approved the IEP at its meeting on August 14, 1997. Petitioner offers nothing to refute the chairperson's testimony.
The central issue in this proceeding is whether petitioner's son required HAILO/Fast ForWord testing and programming in order to receive the free appropriate public education respondent was obligated to provide to him. Petitioner asserts that as a result of her son's early life in the Romanian orphanage the boy's brain did not develop in the normal manner, which has impaired his speech/language skills. At the hearing, she testified that her son never made baby sounds, and she asserted that his brain still did not recognize those sounds. Therefore, he could not learn to talk in the traditional manner. Instead, he learned language through the songs which she sang to him. Petitioner asserts that her child has an auditory processing problem, which must be remediated through the HAILO/Fast ForWord program. That program would reportedly introduce him to the sounds which he missed in his early childhood. She disputes the testimony by respondent's CSE chairperson, school psychologist, and speech/language therapist, as well as that of the independent audiologist who performed the child's CAPE, about whether her son requires HAILO/Fast ForWord. Petitioner argues that the hearing officer wrongly relied upon the testimony of those individuals. She alleges that she and her husband offered the only expert testimony worthy of belief, because only they know about the nature of a reactive association disorder.
Respondent's witnesses, as well as the audiologist who appeared as petitioner's witness, acknowledged that they were not experts with regard to the condition of a reactive attachment disorder. However, it does not follow that their testimony should have been disregarded by the hearing officer. The issue was not whether the child had a medical condition, but whether and to what extent that condition presently affected this child's educational performance. Respondent's witnesses were clearly competent to testify about those matters. In addition, I must note that the boy's report card and his teacher's quarterly narratives support the testimony of respondent's witnesses and the private audiologist about the minimal effect of the child's mild language delay upon his academic performance.
The school psychologist testified that the tests which are used to determine whether HAILO/Fast ForWord might be appropriate for a child had already been performed. She further testified that the HAILO/Fast ForWord program was intended for children with far more severe language problems than those exhibited by petitioner's son. The school psychologist also testified that the child's primary deficit was in conversational speech, which could be remedied by respondent's own speech/language programs. Respondent's speech/language therapist testified that the child's receptive language was an area of strength, and that the child's score in the first percentile on the formulated sentence subtest of the Clinical Evaluation of Language Fundamentals-Revised was not of great significance because it measured a skill which is not generally taught. She explained that the child had a very mild expressive language delay, and she opined that the child's mild delay could be satisfactorily addressed in respondent's "non-CSE" speech/language services program provided twice per six-day cycle, as noted on the boy's IEP. She also testified that HAILO/Fast ForWord would not be appropriate for the child because it was intended for children with deficient receptive language skills, while this boy's deficit was in conversational speech. The boy's speech deficit was further described by the audiologist, who testified that the child's impulsivity was a problem when he conversed with people. She testified that the boy " has a command of language, however, he runs off the topic to the point where it is hard to get him back." (Transcript, page 214). The audiologist further testified that she did not know whether the HAILO/Fast ForWord program could improve the child's conversational competence. Upon the record which is before me, I concur with the hearing officer's determination that petitioner's son did not need to be tested for, or receive, the HAILO/Fast ForWord program in order to receive a free appropriate public education.
Finally, I note that petitioner disputes the hearing officer's statement that "the District may not have moved with the speed the parents desired, but it has acceded to the majority of their requests." She asserts that respondent has been unwilling to do anything for the child unless she and her husband forced it to act. As I noted in petitioner's other appeal, I do not find this to be a productive area of inquiry. However, I want to make it clear that I do not condone the CSE's failure to make a recommendation within 30 days after receipt of petitioner's written consent to evaluate the child, or 40 days after receipt of her referral of the child to the CSE, whichever period was shorter (cf. 8 NYCRR 200.4 [c]). Neither do I condone respondent's delay in scheduling an impartial hearing after its receipt of petitioner's written request for a hearing. Although the record reveals that respondent continued to address many of petitioner's concerns after it had received her hearing request, the fact remains that the hearing did not commence until approximately five months after the hearing request had been received. I admonish respondent to comply with the requirements of 8 NYCRR 200.5 9 (c) (11) in the future.
THE APPEAL IS DISMISSED.
|Dated:||Albany, New York||__________________________|
|February 4, 1998||FRANK MUŅOZ|