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 Pearl River School District
Shaw & Perelson, LLP, attorneys for respondent, Stephen Perelson, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which held that their son's individualized education program (IEP) developed by respondents Committee on Special Education (CSE) for the 1996-97 school year was appropriate. Petitioners request that that the IEP be found deficient. The appeal must be dismissed.
Preliminarily, I will address the procedural issue raised in this appeal. Petitioners assert that their due process rights were violated because a decision was not rendered within 45 days of their request for a hearing. Federal and State regulations require each board of education to ensure that its hearing officers render their decisions within 45 days after the board receives the request for a hearing (34 CFR 300.512[a]; 8 NYCRR 200.5[c]). By petitioners own admission in their petition, their request for a hearing was dated April 9, 1997. There is no indication in the record when respondent received the request. The record shows that the hearing began on May 15, 1997 at which time the 45-day rule was discussed. Although there does not appear to have been an explicit agreement regarding petitioners waiver of the 45-day rule, the record is clear that the parties understood that the hearing itself could not be completed in the required time frame. The hearing lasted nine days and took place over more than four months. All hearing dates were arranged at the mutual convenience of counsel. The hearing officer rendered his decision on October 22, 1997. I find that under the circumstances, it was impossible for the hearing officer to comply with the 45-day rule. I must note that although the record shows that the parties agreed to each hearing date, the better practice would have been for the hearing officer to document the parties' waiver of the 45-day rule on the record.
Petitioners son has been classified as multiply disabled. His classification is not in dispute. Petitioners son was born prematurely and experienced a series of complications early in life. At approximately nine months of age, he was diagnosed with a bilateral sensori-neural hearing loss for which he wears bilateral hearing aids. Additionally, he has been identified as having cerebral palsy. Further, he is on medication to control seizure activity, and he has visual impairments.
In 1986, when their son was 14 months old, petitioners enrolled him in the Jawanio program at the Rockland County Center for the Physically Handicapped, where he remained until 1990. In October, 1988 he suffered a seizure and began taking medication to control seizure activity in 1989. The medication dosage was reduced in 1990 after the childs father reported that his son was exhibiting aggressive behavior and increased activity. After the medication dosage was reduced, staff at Jawanio reported that the childs behavior had improved. For kindergarten in 1990, the child attended a BOCES program at the Jessie Kaplan School, where he remained through most of the 1992-93 school year. The childs father believed that his son was regressing during the 1992-93 school year and attempted to enroll his son in the New York School for the Deaf. The New York School for the Deaf conducted an intake evaluation of the child and determined that because the childs behavior management needs had a more significant impact on his learning than his hearing loss, it did not have a program to meet his educational needs. At the end of the 1992-93 school year, the child was placed in a special education program at the Franklin Avenue School (Franklin) in the Pearl River School district. Petitioners believed that their son was unsuccessful at Franklin. As a result, the boy was placed by respondent at the Margaret Chapman School (Chapman School), a private school in Hawthorne, New York. The child attended the Chapman School from the summer of 1993 through the summer of 1994.
The Chapman School used a behavioral modification program known as CABAS (Comprehensive Application of Behavior Analysis to Schooling) which was described as a system wide approach to education based on the comprehensive application of the science of behavior to all of the participants in the schooling process including students, parents, teachers, therapists and supervisors. Instruction received by students is measured in the form of learn units which are recorded on a daily basis. Data are graphed and analyzed, and provides information not only on how a child is performing within the system, but also how a teacher is performing.
In a semi-annual progress report from the Chapman School completed in February, 1994, it was noted that there was a significant improvement in the childs attending behavior and steady improvement in the childs expressive language skills. He was able to verbalize 79 different words, verbally make choices and use a complete routine sentence. The childs receptive language skills were noted as an area of concern. A transitional plan prepared by the school for the child noted that the child had mastered certain skills in the classroom, but was unable to generalize them to other environmental situations. It was recommended that the child be placed in a program designed to serve both his behavioral and developmental needs, where the behavioral component was an integral part of the program. A self-contained class with no more than a 8:1:2 student to staff ratio that had a consistent daily schedule and a predictable program structure was suggested.
In a classroom observation conducted by the districts school psychologist in April, 1994, it was reported that the child was calm, alert and focused in the highly structured setting. The districts psychologist indicated that the childs teacher believed that the child was dependent upon the environmental structure to maintain his focus and level of productivity. The districts psychologist recommended that the placement at the Chapman School be continued until the child was able to maintain positive behaviors on his own and generalize them to other settings. This recommendation was reportedly confirmed by the childs teacher.
For the 1994-95 school year, the child was placed in respondents Lincoln Avenue School in a self-contained class which employed the CABAS program. He remained in that class during the next school year. Petitioners were satisfied with their sons progress during the 1994-95 and 1995-96 school years.
In a neuropsychological evaluation of the child conducted in December, 1995 and January, 1996 as part of a triennial review, a pediatric neuropsychologist noted that during the testing the child was very active and anxious, displayed severe attentional issues, and was impulsive and perseverative. The child scored a 48 on the Leiter International Performance Scale, which indicated that his overall nonverbal intelligence was in the moderately retarded range. The pediatric neuropsychologist opined that because it was difficult to test the child, his score was a conservative assessment of his actual abilities and a good assessment of his current functional level. With respect to the childs language related functions, the pediatric neuropsychologist reported that the child did not consistently point on demand. She observed that he showed understanding of many single words and could follow single-step commands, but responded inconsistently to spoken language. She reported that the childs adaptive functioning was consistent with his linguistic ability. Additionally, the pediatric neuropsychologist found that despite the childs visual impairment, his visual perception of form was a relative strength. She noted that his fine motor skills were poor and his graphomotor ability was deficient. The pediatric neuropsychologist opined that the childs current program was appropriate. She recommended additional goals to develop the childs communicative competence and his ability to carry out multi-step tasks. She also recommended the use of a communication board to encourage the child to supplement his oral expression with gestures. To address the childs receptive language needs, the pediatric neuropsychologist recommended a visually based approach using sign language with special emphasis on helping the child to understand and express his feelings verbally. The use of a touch screen computer also was recommended.
The triennial review also included a speech/language evaluation completed by the childs speech/language therapist in February, 1996. On the Brigance Diagnostic Inventory of Early Development, the child scored in the two to three year age range for general language functioning. The speech/language therapist noted that the childs articulation was poor and inconsistent, his language skills were limited, and his verbal and signing skills were inconsistent. She observed that the childs short attention span, focusing difficulties and behavioral issues interfered with his learning. She did note an improvement in the childs behavior. The speech/language therapist recommended continuation of the speech/language services on an individual and small group basis five times per week for 30 minute sessions.
For the 1996-97 school year, respondents CSE recommended continued placement at the Lincoln Avenue School in a 12-month special class with a student to staff ratio of 6:1:1. Related services included speech/language therapy, hearing impaired services and the services of a behavior analyst. An auditory trainer and a touch screen computer were listed on the IEP as adaptive devices. The IEP also provided that the child would participate in regular education programs for assemblies. The use of sign language in classroom instruction also was included on the IEP. Under the levels of educational achievement and learning rate, the childs test scores on the Brigance Diagnostic Inventory of Early Development (2-3 grade level) and the Leiter International Performance (48 IQ) were listed. The IEP indicated that the child had difficulties in interpreting sounds and visual symbols needed for reading and math, and that his communication skills were weak. The childs speech/ language deficits were described as severe. With respect to social development, the child was described as exhibiting aggressive inappropriate, impulsive, hostile and self- abusive behaviors. Management needs included 1:1 instruction in a firm, structured, classroom environment that employed a behavior management program with consistent supervision. The childs speech/language goals on the IEP were related to improving communication; hearing impaired services focused on improving speech reading skills and sign language skills; and, social and emotional goals focused on improving social skills and behavior. The rationale on the IEP provided that the student required a 12-month program to maintain his progress and prevent regression in learning. The IEP indicated that the CABAS program had proven to be effective and it was recommended that that program be continued.
During the 1996-97 school year, petitioners perceived a deterioration in their sons behavior and skills. Specifically, petitioners believed that the classroom staff was not sufficiently trained to employ the recommended behavior modification program. They also believed that the child's IEP was not implemented properly and did not adequately address his needs.
In April, 1997, petitioners requested an impartial hearing. In addressing the issues raised by petitioners at the hearing, the hearing officer found that the childs teacher was appropriately licensed and qualified as a special education teacher and as a CABAS teacher. Additionally, the hearing officer found that the IEP provided the essentials of an appropriate program and placement in the least restrictive environment. He further found that the IEP incorporated most of the recommendations of the neuropsychological evaluation and that a speech/language assessment was conducted as part of the triennial review. With respect to the childs hearing impaired services, the hearing officer found that the speech/language therapist was properly certified and capable of testing the child's auditory equipment. He also found that there was an error in the IEP description of the childs vision as normal, and that the record was unclear about whether occupational therapy should have been included on the IEP. He recommended that the child be evaluated by an occupational therapist. The hearing officer found that the CABAS methodology and the IEPs goals and objectives were calculated to improve the childs social skills. He noted that a degree of hostility had developed between the parties, and he urged them to work together for the benefit of the child.
Petitioners challenge the hearing officers decision on a number of grounds. In addition to challenging the training and experience of the classroom staff, petitioners claim that the IEP is not appropriate because it was not developed in accordance with law and regulations in that it did not include the neuropsychologist's recommendations for developing the child's communication skills and his ability to perform multi-step tasks; its goals and objectives for hearing impaired services were not based on the results of a triennial assessment; it failed to address the childs visual impairment needs and occupational therapy needs; and, the management needs for social skills were not met by the goals and objectives and were not based on the results of the triennial assessment.
Initially, I note that petitioners argue that the hearing officer erred in identifying the major issue in this matter as the appropriateness of the CABAS program. Although the hearing officer indicated that the CABAS program was the central issue, he also acknowledged petitioners position that neither the program itself nor the placement was at issue. I find that despite the mischaracterization of the issue, the hearing officer addressed all of the issues identified by petitioners at the hearing, which involved the adequacy of their son's IEP and the qualifications of the child's teacher to instruct him.
Petitioners question the training and ability of the staff assigned to their sons classroom and question its ability to provide the recommended special education services. The record shows that during the 1996-97 school year, the child was placed in a classroom with three other students. The class was taught by a teacher who held a dual certification in special education and elementary education. The teacher also worked at the Chapman School, a CABAS model school, for two years where she received special training as a CABAS teacher and had achieved a rank of 3 which enabled her to run CABAS programs fairly independently with infrequent monitoring. At the beginning of the 1996-97 school year, there was one assistant in the childs classroom. She reportedly had some CABAS training. Another assistant was added in December who reportedly also had received some CABAS training. In January, 1997, a third assistant was added to the childs class.
The designer of the CABAS program testified that the childs special education teacher had substantial training and considerable expertise in the CABAS program. In a progress summary of the child prepared in April, 1997, the designer of the CABAS program noted that the professionals had worked well with the child. He reported that the teaching staff had been productive and that the data he analyzed showed that the teacher had been accurate and productive in her instruction. The designer of the CABAS program noted that the child made progress during the 1996-97 school year in that he was able to move beyond matching skills to pointing skills. Based on the record before me, I find that the staff had the necessary training and experience to provide the recommended special education services.
Petitioners remaining claims center on the 1996-97 IEP. Section 200.4[c] of the Regulations of the Commissioner of Education sets forth the requirements that must be met when developing an IEP. One requirement is that the report must present levels of performance and indicate the individual needs of the student in the areas of academic or educational achievement and learning characteristics, social development, physical development and management needs. An IEP must also list annual goals that are consistent with the students needs and abilities and short-term instructional objectives and evaluative criteria, evaluation procedures and schedules to be followed. Further, the IEP must describe any specialized equipment and adaptive devices needed for the student to benefit from education.
Although petitioners do not specify which laws and regulations were not followed in the development of the IEP, they assert that the IEP does not include the recommendations of the neuropsychologist. There is no provision of New York law or regulation which requires that each of the recommendations by an evaluator be included in an IEP. Contrary to petitioners' claim, however, the record shows that the neuropsychologists evaluation was relied on by respondents CSE in presenting the levels of performance of the child because the results of the test administered by the neuropsychologist were set forth on the IEP. Petitioners focused on the failure of the IEP to include the neuropsychologist's recommendation of a communication board. However, the record shows that the child did not have consistent pointing skills established at the time the 1996-97 IEP was developed. With respect to the neuropsychologist's recommendation regarding the performance of multi-step tasks, the record also shows that the child was not performing one-step tasks consistently at the time the 1996-97 IEP was developed. I note that the IEP included an objective for single-step tasks, which I find to be appropriate, given the childs then current level of performance.
Petitioners also argue that the IEP was defective because it was not based upon a hearing impaired evaluation of their son, and it did not include any hearing services for him. They contend that the CSE erroneously relied upon the results of the child's triennial speech/language evaluation to ascertain his hearing acuity. Their argument is premised upon the classifications of disabilities set forth in the Regulations of the Commissioner of Education which include deaf, hard of hearing and speech impaired. These classifications, however, are used to determine eligibility for special education. A portion of the speech/language evaluation (Exhibit 7) described the results of audiometric testing, and indicated that the child had a bilateral hearing loss and wore hearing aids. The IEP description of the child's physical development indicated that he wore hearing aids.
Further, petitioners assert that the hearing officer did not differentiate between speech/language services and hearing impaired services. Petitioners contend that the hearing impaired services should be provided by a teacher of the deaf. This contention, however, is not supported by either the record or the law. In an end of service report prepared in June, 1994 by a teacher of the deaf after the child had received individual services of five 30 minute sessions each week for eight weeks, the teacher of the deaf indicated that the childs hearing impairment had a minimal impact on his learning, and opined that he would not benefit from direct intervention by a teacher of the deaf. She believed that the child needs would be better served by a special education teacher, with a teacher of the deaf available for consultation to provide support with the amplification equipment, and as a general resource.
Section 200.6(b)(3) of the Regulations of the Commissioner of Education sets forth the standards for providers of related services to students with disabilities as follows:
"Related services shall be provided by individuals with appropriate
certification or license in each area of related service."
The record reveals that the childs speech/language therapist also provided hearing impaired services to the child. A copy of her permanent certificate is in the record and indicates that she is certified to teach the speech and hearing handicapped. I find that the speech/language therapist satisfies the requirements of Section 200.6(b)(3) of the Regulations of the Commissioner of Education. Therefore, she could provide the hearing impaired related services to the child.
Petitioners also assert that the IEP listed the childs vision as normal when in fact the child has visual impairments. They argue that a visual assessment should have been conducted and that the IEP should have included recommendations with respect to their sons visual impairment. I agree with the hearing officer that the IEP erroneously indicated that the childs vision as normal. However, I also agree that this error is not sufficient to deem the IEP inappropriate. There is nothing in the record to indicate that this child, who received one-to-one instruction, was inadequately educated as a result of this omission on his IEP.
Additionally, petitioners argue that the IEP failed to address the occupational therapy needs of the child. Again, this argument is unsupported by the record. The occupational therapy evaluation, which was completed in February 1996, found that the child was functioning within normal limits. The evaluator recommended that occupational therapy be provided to the child only on an as needed basis. Although the hearing officer recommended that a current occupational assessment be conducted, he found that its omission did not render the IEP defective. I concur with the hearing officer.
Petitioner also argues that the childs "management needs for social skills" were not met by the goals and objectives listed on the IEP, and were not based on results of the triennial assessment. I must first note that management needs and social skills are distinct concepts, and are to be separately addressed on a child's IEP (8 NYCRR 200.4 [c][i]). The child's social skills development was assessed by the neurologist, who used the Vineland Adaptive Behavior Scales. The child achieved age equivalent scores of approximately one and one half years for interpersonal, play and coping skills. In the "Levels of Social Development" section of the IEP, the child was described as exhibiting inappropriate, impulsive, hostile and self-abusive and perseverative behaviors, as well as frustration, aggressive behavior in interactions with peers and adults and provocative behavior in student/peer interaction. Petitioners have not alleged that the IEP description was inaccurate. Having reviewed the child's IEP annual goal for improving his social skills and behavior, as well as its three objectives, I find that the goal and objectives were appropriate for this child.
The management needs listed on the IEP indicated that the child required a firm structured classroom environment, highly intensive supervision, and a student to teacher ratio of 1:1 in a behavior management program. Those needs were addressed by placing him in the special education class at the Lincoln Avenue School, where the CABAS program was an integral part of the child's educational program. As noted above, petitioners do not object to the CABAS program.
Petitioners also argue that respondent's CSE failed to conduct an adequate triennial evaluation prior to preparing their son's IEP for the 1996-97 school year. They argue that only three of the seven reports listed on the IEP were less than one year old. Section 200.4(e) of the Regulations of the Commissioner of Education sets forth the requirements for annual and triennial reviews. The regulation provides, in part, that the annual review shall be based upon a review of the students IEP and other current information pertaining to the childs performance. Additionally, the regulation provides that the review shall consider the educational progress and achievement of the student. The regulation does not require that evaluations be less than one year old, nor does it specify which evaluations must be conducted. The regulation also provides, in pertinent part, that the triennial evaluation " shall be sufficient to determine the students individual needs, educational progress and achievement, the student's ability to participate in instructional programs in regular education and the student's continuing eligibility for special education" (8 NYCRR 200.4[e]).
Petitioners assert that their son should have received evaluations for his visual and hearing impairments, as well as an occupational therapy evaluation and assessments for his need for assistive technology devices and transition services. As noted above, the hearing officer recommended that the child receive an occupational therapy evaluation, although neither he nor I found that the CSE's failure to do so had made the child's IEP inappropriate. The child's speech/language evaluation reported the results of audiometric (hearing) testing, and his bilateral hearing loss is noted on his IEP. Although there is no evidence that the CSE obtained a separate vision test for the boy, I must note that the neuropsychologist discussed the child's vision, and she suggested the manner in which visual information should be presented to the boy.
Regarding petitioners request for an assistive technology assessment, the record shows that the parties were in agreement as to the use of assistive technology, and that the child was using an auditory trainer and a touch screen computer. While it may have been helpful to have an assistive technology assessment, lack of such assessment does not render the IEP defective.
Petitioners also request an assessment for transition services. Transition Services are defined in section 200.1(ss) of the Regulations of the Commissioner of Education as:
a coordinated set of activities for a student with a disability, designed within an outcome-oriented process, that promotes movement from school to post-school activities, including, but not limited to, postsecondary education, vocational training, integrated competitive employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. The coordinated set of activities must be based on the individual student's needs, taking into account the student's preferences and interests, and shall include needed activities in the following:
(2) community experiences;
(3) The development of employment and other post-school adult living objectives; and
(4) if appropriate, acquisition of daily living skills and functional vocational evaluation."
Section 200.4(c)(2)(v) of the Regulations of the Commissioner of Education provide that if a student has been determined to be eligible for special education services, the recommendation shall indicate, for those students age 15 (and at a younger age, if deemed appropriate) a statement of the needed transition services. As the child was only 11 when the 1996-97 IEP was developed, there was no requirement that a transitional assessment be conducted. The IEP indicates that when the student attends secondary school, transitional activities will be developed for post secondary school plans.
The neuropsychological evaluation was completed in February 1996. It contained information regarding the childs then current level of functioning and his cognitive strengths and weaknesses. It also contained information with respect to the childs visual impairment, motor skills and adaptive functioning. Additionally, the neuropsychological evaluation included a school visit. The speech/language report was also conducted in February 1996. I find that the reports reviewed by respondents CSE in developing the childs 1996-97 IEP were sufficient to determine the childs individual needs, educational progress and achievement, and, therefore, met the requirements of the relevant Regulations of the Commissioner of Education.
Additionally, petitioners argue that American Sign Language should have been listed on the IEP to provide the consistency of language that their son needed. The special notations section of the 1996-97 IEP does include a reference to the use of sign language in classroom instruction . However, the particular system of sign language is not specified. The record shows that petitioners became aware that the childs teachers were using two different systems of sign language during the 1996-97 school year, after the 1996-97 IEP had been developed. Petitioners desire to have American Sign Language specified on the IEP would more appropriately be addressed in the development of the 1997-98 IEP.
Further, petitioners assert that an appropriate IEP would include a notation that the child has a seizure disorder and would indicate the medication the child was taking. I agree with petitioners that the IEP should have included information regarding the childs seizure disorder. However, the record shows that information regarding the childs seizure disorder was on the nurses health, and alert list and as a general practice such information is conveyed to the teachers.
Petitioners have raised a number of issues which they claim render the 1996-97 IEP defective. Although I agree with petitioners that there was an error in the IEP regarding the childs vision impairment, and there were some omissions in the IEP, I nevertheless find that the IEP indicated the child's present levels of performance and his individual needs. I also find that the annual goals were consistent with the childs needs and abilities, and the short-term instructional objectives were appropriate to meet those goals in light of the childs disabilities. Additionally, I find that the IEP described the specialized equipment and adaptive devices needed for the child to benefit from education. Further, I find that the child has benefited from the special education program recommended by respondent's CSE. Accordingly, I find that the IEP is appropriate.
I have considered the other arguments raised by petitioners which I find to be without merit.
THE APPEAL IS DISMISSED.
|Dated:||Albany, New York||__________________________|
|May 29, 1998||FRANK MUŅOZ|