The State Education Department
State Review Officer

 

No.  98-19

 

Application of the BOARD OF EDUCATION OF THE FLORIDA UNION FREE 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:
Shaw & Perelson, LLP, attorneys for petitioner, David S. Shaw, Esq., of counsel

Michael Sussman, Esq., attorney for respondents

DECISION

 

        Petitioner, the Board of Education of the Florida Union Free School District, appeals from the decision of an impartial hearing officer which ordered it to reimburse respondents for the costs of their daughter’s tuition at a private school for the 1996-97 school year. The appeal must be sustained.

        Petitioner’s daughter was initially referred to respondent’s committee on special education (CSE) in 1989 when she was in kindergarten. The CSE classified the child as learning disabled. The child has also been diagnosed as having an attention deficit disorder (ADD) and a pervasive developmental disorder (PDD), which is a neurobiological condition accompanied by delays in the development of socialization and communication skills. Nevertheless, her classification is not in dispute in this proceeding, and I do not consider its appropriateness (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]). The child’s early education and evaluations are described in a prior decision involving this child (Application of a Child with a Disability, Appeal No. 95-74), and will not be repeated in this decision. I note that the U.S Circuit Court of Appeals for the Second Circuit recently upheld the State Review Officer’s determination that the child would have been appropriately educated in a self-contained special education class of the Board of Cooperative Educational Services (BOCES) of Orange and Ulster Counties during the 1995-96 school year.

        At the time of the hearing, the child was 14 years old and in her second year at Maplebrook School (Maplebrook), a private school for children with learning disorders in Amenia, New York. She had been unilaterally enrolled in that school by respondents. Maplebrook has not been approved by the State Education Department to provide special education, and is therefore not a school with which the Board of Education could have lawfully contracted for the girl’s education (See 20 USC 1412 [6]; Section 4402 [2][b][2] of the Education Law). However, that fact is not dispositive of respondents’ right to seek tuition reimbursement for their daughter’s education at Maplebrook (Florence County School District Four, et al. v. Carter by Carter, 510 U.S. 7 [1983]).

        The child was enrolled at respondents’ expense on a residential basis in Maplebrook for the 1995-96 school year. In the spring of 1996, the CSE began conducting the evaluations for the child’s annual review. A classroom observation was conducted by a district psychologist while the child was in social studies class at Maplebrook on April 17, 1996. The class was comprised of seven students and one teacher. The district’s psychologist observed that the child frequently stared blankly. He indicated that she was unable to answer the teacher’s questions during a lesson in which the students were required to find locations on a map using coordinates. She required assistance from the teacher or another student to perform the work. The district’s psychologist opined that the child did not understand the concepts being taught during the lesson. He described the child’s behavior as good, however, he indicated that she was not able to remain on task as evidenced by her blank stares. The district’s psychologist observed that the child did not interact with her peers and did not volunteer to answer questions or to read. He concluded that the lesson being taught during the observation was not appropriate for the child because it did not appear to meet the child’s learning style or her level of comprehension.

        In an educational evaluation conducted on April 18 and 19, 1996, the child achieved grade equivalent scores of 2.8 in broad reading, K.8 in broad math, and 2.6 in broad written language. She achieved her highest score, a grade equivalent score of 4.8, in writing fluency. The school psychologist reported that the child was permitted to take several breaks between subtests to enable her to regain focus and to prevent her from feeling overwhelmed. He noted that the child remained focused throughout the testing and seemed to be trying her hardest to do well.

        The child was evaluated by a private learning disability consultant in May and June, 1996. The child was 13 years old at the time. The consultant indicated that the child’s most serious deficits were social relatedness and social skills development, which she indicated were related to the child’s diagnosis of PDD. On the Woodcock Reading Mastery Test-Revised, the child achieved grade equivalent scores of 2.6 in word identification, 1.7 in word attack, and 2.8 in passage comprehension. The consultant noted that the 1.7 grade equivalent in word attack suggested that the child lacked phonetic decoding skills. On the Spache Diagnostic Reading Scales, the child achieved grade equivalent scores of 3.5 in oral reading accuracy, 4.5 in oral reading comprehension, and 2.8 in silent reading comprehension. The consultant indicated that the child’s oral reading was at the third grade level, and reported that although the child made a number of errors at the fourth grade level, she comprehended the material accurately and easily. The consultant noted that the child had an excellent ability to comprehend a fairly complex passage. She attributed the child’s lower score of 2.8 on silent reading to her inability to remain focused.

        The child’s spelling skills and her performance on a test measuring expressive language were assessed to be at the third grade level. The consultant characterized the child’s printing as immature, but legible. She noted that the child was able to construct a grammatically appropriate sentence. The child’s math skills were described as significantly dysfunctional. She achieved a grade equivalent score of 1.0 on the Wide Range Achievement Test-3 in Arithmetic, and a grade equivalent score of K.9 on the Peabody Individual Achievement Test-Revised, which tests a student’s ability to interpret the steps needed to solve problems. The consultant indicated that the child’s low score indicated that the child did not understand mathematical information. The child’s ability to do simple math addition and subtraction was assessed to be at the first grade level without the use of a calculator. The consultant reported that the child was comfortable with a calculator, and that she could add, subtract and multiply up to a fourth grade level when using one. The child’s visual motor integration skills were judged to be at a 5.6 year old level. Her receptive vocabulary was assessed to be at the level of an 8 year old. The consultant indicated that these scores were reportedly consistent with the child’s profile which showed stronger verbal skills compared to perceptual and visual-motor abilities.

        The consultant administered the Vineland Adaptive Behavior Scale using the child’s teacher, who also served as her dormitory supervisor, as respondent. The consultant compared the scores with those which were obtained from the same test in September, 1995, when the child’s mother was the respondent. In September, 1995, the child’s adaptive level of functioning was equivalent to a 5.2 year old, and in May, 1996, her daily living skills were equivalent to a 9.0 year old. In September, 1995, the child’s socialization skills were assessed to be at less than a 2 year old level, and in May, 1996, she was assessed to be functioning at an 8.2 year old level. The consultant indicated that these scores reflected the child's substantial growth in caring for her own needs, interacting with others, and developing more appropriate daily living skills within the social community. The consultant reported that the child was interacting socially with her peers, consistently making eye contact, participating in social activities, and developing some independent self care skills. She recommended that the child’s placement at Maplebrook be continued to address and reinforce her academic and social adaptive needs. She also recommended that the goals in the Maplebrook individualized education program (IEP) that were designed to reinforce independence and appropriate adaptive behavior be continued.

        The CSE met on May 6, 1996 for the child’s annual review. The meeting minutes reflect that the academic dean at Maplebrook indicated that the child had made social and academic progress throughout the year. She further indicated that while the child asked fewer questions and actively participated in classroom discussions, she needed to be reminded to stay focused. The academic dean also stated that the child participated in sports. Another dean at Maplebook indicated that the child performed best when she was seated close to the instructor and next to someone she liked. The dean indicated that the child’s classes ranged in size from three to eight students. The minutes further reflect that the supervisor at Orange/Ulster BOCES indicated that BOCES had an appropriate program that would meet the child’s academic and social needs. She further indicated that she was not convinced that the child needed a residential placement. The private consultant indicated that the child needed a complete 24-hour routine to make progress in learning living skills. The CSE recommended that the child be placed in a self-contained class for the developmentally delayed with a 12:1+1 child to adult ratio in the Orange/Ulster BOCES. However, it indicated that other available day programs would be explored. The child’s mother indicated that she did not believe that the recommended program was appropriate for her daughter. The child’s father expressed concern about the socialization opportunities that would be available for his daughter after school if she attended the BOCES program.

        The CSE reconvened on May 17, 1996 to review the proposed goals for the child’s 1996-97 IEP. While the child’s father did not object to the proposed goals, he refused to sign the attendance sheet because he disagreed with the recommended placement in the BOCES 12:1+1 class.

        On May 23, 1996, the private consultant observed a BOCES class taught by the instructor who was scheduled to teach the class in which the child was to be placed for the 1996-97 school year. The private consultant reported that there were nine or ten students of approximately junior high school age in the class, none of whom exhibited marked behavioral problems during the course of the observation. The students were in a pre-vocational room which contained several stations where they performed what the consultant characterized as "the most elementary, redundant task, " such as, folding a piece of paper in half and stapling it, cutting pages of stickers into units and placing the stickers in a box, and bundling two packages of chopsticks together with a rubber band. She indicated that the classroom aide was critical of the students, and "somewhat scolding." The consultant noted that there was no interaction between the children. She reported that the children transitioned into a science lesson which she characterized as not being on a par with the expectations for learning at Maplebrook. The consultant characterized the environment at BOCES as sterile, and indicated that there was no common goal or purpose, no strategies for changing behaviors, and no environmental or social stimulation. She further indicated that there was nothing in the program that would move the child forward in her social development.

        The CSE met again on June 18, 1996 to review possible alternative placements for the child. The meeting minutes reflect that the child’s father indicated that the Maplebrook setting was perfect for his daughter. He stated that his daughter did not have any anxiety attacks while attending Maplebrook, was accepted by her peers, was happy and had made friends. He stated that his daughter needed a structured environment in order to function, and had made academic and social gains while at Maplebrook. He asserted that when his daughter was at BOCES during the 1994-95 school year, she needed outside intervention and did not meet any of her socialization goals set forth in her IEP for that year. However, the special education teacher member of the CSE opined that she had not seen the child’s tremendous growth at Maplebrook as had been claimed, and she expressed concern about Maplebrook’s ability to meet the child’s IEP goals. The CSE continued to recommend the BOCES 12:1+1 class for the child for the 1996-97 school year.

        The child attended the summer session at Maplebrook in 1996. In a progress report, her mathematics teacher indicated that the child continued to have difficulty focusing on the steps of a problem, and that she became distracted with such things as pencil erasing. However, the teacher noted improvement when the child’s attention was directed back to the task. The child was able to use a calculator effectively, and had learned its special functions. The child’s interpersonal psychology teacher indicated that the child had worked hard to improve her social skills. She participated more actively in class discussions and role playing situations. The interpersonal psychology teacher indicated that the child made steady progress in learning to listen and paraphrase in order to understand what information was being given to her. The child’s English teacher indicated that the child had read a paragraph that she had written in front of all the students at an assembly, which the teacher described as being a big accomplishment for the child. The child’s academic/residential advisor reported that the child’s social skills had improved, as had the care of her room and her personal hygiene. The advisor also reported that the child was able to read cues from staff who helped her recognize inappropriate behaviors. However, the child needed frequent reminders to stop perseverating, because such behavior was frustrating to other students.

        The CSE met again at Maplebrook on August 14, 1996 to review the child’s levels of functioning with the Maplebrook staff so that the CSE could finalize the child’s IEP goals. The CSE chairperson reported that nearby school districts had been canvassed about an alternative to an Orange/Ulster BOCES day placement, and that no alternative had been discovered, except two placements in the Dutchess and Rockland BOCES. However, the child’s father rejected those placements as being too far away. Maplebrook staff indicated that the child had made academic progress, that she made progress learning how to handle herself and how to deal with teasing, and that she was less reliant upon adults. The CSE continued to recommend the BOCES 12:1+1 class for the child for the 1996-97 school year. It met on August 22, 1996, to revise the child’s goals in accordance with the information provided by the Maplebrook staff.

        The child was privately evaluated by a neuropsychiatrist in September, 1996. The neuropsychiarist reported that when first seen by him when she was six years old, the child had exhibited symptoms of a minimal brain dysfunction with an ADD, a developmental language disorder and an obsessive compulsive disorder, which he noted was common in children with PDD. The neuropsychiatrist noted that the child had "done quite well" in the last year, but he indicated that she continued to exhibit many symptoms which interfered with her development, including social impairments, narrow interests, repetitive routines, speech and language peculiarities, and non-verbal communication problems. The child also had difficulties interacting with peers, lacked an appreciation for social cues, lacked social discretion, did not appreciate personal space, could not sense the feelings of others, tended to be a loner, and lacked the modesty typical of children her age. The neuropsychiatrist observed that although the child was alert, she was somewhat indifferent to the environment. He reported that the child’s attention span in social situations was short, and she was easily distracted and socially disinhibited. The child’s speech was immature. Her mood appeared mildly anxious and her thinking showed perseveration and some poverty of thought. The child’s insight and social judgment was impaired. The neuropsychiatrist noted that while the child had made academic progress, she continued to show serious difficulties, and her social adaptive skills continued to be quite deficient despite some improvement over the last year. He opined that the child met the diagnostic criteria for PDD, ADD, an obsessive compulsive disorder and a developmental language disorder. The neuropsychiatrist concluded that the severity and multiplicity of the child’s social and educational deficits required repetition and consistency, and that she needed to be placed in a program that would effectively address her behavioral and social difficulties as well as her language and cognitive problems. He recommended a residential school that provided a behavior management plan which would be followed in the classroom as well as in after-school activities. He further suggested that the child’s program include prevocational and dormitory activities. The neuropsychiatrist stated that Maplebrook seemed to be ideal for the child, and suggested that she should remain there. I note that the record does not reveal whether the neuropsychiatrist was familiar with Maplebrook's program.

        The child remained at Maplebrook for the 1996-97 school year. In a November, 1996 progress report, the child’s reading teacher indicated the that child needed to improve her organizational skills and comprehension of reading passages. The child’s world history teacher reported that the child’s attention span was very limited, and that she had the habit of interrupting the class at inopportune times. The world history teacher indicated that the slightest distraction caused the child to disrupt the class, but that if she was kept busy and not distracted, she was able to complete her work well with few interruptions. The child’s academic/residential advisor reported that the child had shown steady progress. She was able to sustain an appropriate conversation for at least three minutes, however, she needed to learn how to end a conversation appropriately and speak in complete sentences. The child’s teachers were consistent in their opinions that the child was well-motivated and capable of doing her work when she was able to remain focused.

        The child was administered the Stanford Achievement Test in March, 1997. She achieved grade equivalent scores of 2.4 in total reading, 2.5 in total math, 1.5 in language, and 3.0 in spelling. Her basic battery score was a 2.3 grade equivalent and her complete battery score was a 2.2 grade equivalent. In March, 1996, she had achieved grade equivalent scores of 2.3 in total reading, total math and spelling. She achieved a grade equivalent score of 1.6 in language. Her basic battery score was a 2.0 grade equivalent and her complete battery score was a 1.9 grade equivalent.

        The district’s psychologist observed the child on May 5, 1997. He observed the child for three and one-half hours using a time-interval observation schedule during which he recorded the child’s behavior every 60 seconds. He observed the child in three classes, as well as at lunch and in the hallways between classes. Of the 196 intervals, the child’s behaviors were appropriate 144 times and not appropriate 52 times. Inappropriate behaviors included off-task behavior, distractibility, staring into space, and repetitive routines such as tapping her upper lip with a pencil. During structured classroom activities, inappropriate behaviors were reportedly infrequent. The child was attentive and could easily be redirected if she went off task. The largest number of inappropriate behaviors occurred during lunch, and were reportedly due to the child’s lack of interpersonal contacts with students seated at her table. At lunch, the child accepted an invitation to sit with other students, but did not participate in conversation. She spoke with tablemates on two "brief" occasions, and once asked an irrelevant question which was ignored by others. The irrelevant question was the only reported instance when the child initiated communication with her peers. The district’s psychologist indicated that the child’s relationship with her peers was a major concern.

        Respondent's educational evaluator tested the child on May 6, 1997, at the end of her second year at Maplebrook. On the Woodcock-Johnson Test of Achievement-Revised, the child achieved grade equivalent scores of 2.8 in broad reading, K.7 in broad math, and 2.8 in broad written language, which indicated that there had been little academic growth in the twelve months since the evaluator had previously tested the child. However, I note that the evaluator acknowledged that she had not used the child's IEP testing modifications when testing the child in 1997.

        On May 28, 1997, the district’s psychologist observed a BOCES class to determine whether it would have been an appropriate placement for the child during the 1996-97 school year. He indicated that the promotion of the child’s socialization and communication skills were of particular importance. The district’s psychologist observed the class engaged in a group activity the emphasis of which was cooperative play. He noted that there was a high level of interstudent communication and that during the activity, students were observed assisting classmates who needed help. At the first sign of inappropriate behavior, the teacher and/or aide would direct the student back on task and the student would comply.

        The hearing in this proceeding was held on various days from May, 1997 through September, 1997. The hearing officer rendered his decision on February 25, 1998. He found that the child’s IEP was inappropriate in that it did not address the child’s socialization needs and its impact upon her education. He further found that the recommended placement would not sufficiently address the child’s socialization needs. Additionally, he found that the Maplebrook program had a profound and educationally beneficial effect upon the child and was consistent with the least restrictive environment. The impartial hearing officer also found that the equities supported the parents claim. Accordingly, he granted the parents' request for an award of tuition reimbursement for the 1996-97 school year.

        Petitioner appeals from the decision of the impartial hearing officer. It asserts that the hearing officer erred in finding that the IEP did not describe the child's specific language performance or needs. It also argues that the impartial hearing officer erred in finding that the IEP did not sufficiently address the child’s socialization needs. Petitioner further contends that the impartial hearing officer erred in determining that it failed to meet its burden of proving that it had offered the child an appropriate placement and that Maplebrook was an appropriate placement.

        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 parties stipulated that the academic goals and short-term objectives set forth in the child’s 1996-97 IEP were appropriate. Consequently, I do not review those goals and objectives.

        I cannot concur with the hearing officer's finding that the child's IEP did not describe her level of performance or specific language needs. The current functional levels section of the child’s IEP included a speech/language skills section which set forth the child’s level of functioning with respect to her articulation skills and her receptive and expressive language skills. A comment was included on the child’s IEP indicating that the child had severe deficits in the comprehension and expression of language, that she had difficulty with word retrieval and abstract language usage, and that she perseverated on words. The IEP included five goals and numerous objectives to address the child’s speech/language deficits. The IEP also included goals to assist the child to become a more effective communicator, to improve her thinking and reasoning skills, and to maintain an appropriate rate of speech. I find that the IEP accurately reflected the child’s speech/language needs, and established annual goals and short-term instructional objectives which were related to the child's speech/language deficits.

        The hearing officer also found that the IEP did not sufficiently address the child’s socialization needs and their impact upon her educational needs. Again, I disagree. While the description of the child’s social skills in the current functional level section of the IEP could have been more specific, I find that it is adequate when read in conjunction with the annual goals and short-term instructional objectives established to address her deficits in that area. I note that the IEP described the child's relationship with peers and adults and her self-concept as "adequate", but it indicated that the description was based upon reports from Maplebrook. The IEP included five goals and over 25 objectives to address the child’s social skills, most of which were adopted from an IEP developed by Maplebrook for the 1995-96 school year, and which she had not mastered. Those goals included developing effective interpersonal skills, increasing her self-awareness and self-concept, demonstrating socially acceptable behavior, and increasing her problem solving skills. In addition to these specific goals, the IEP also included objectives for other goals which related to her social development, e.g., an English objective to demonstrate the appropriateness of specific language used in different social situations, and a physical education goal to demonstrate appropriate social behavior in dance activities. Based upon the information before me, I find that the IEP accurately reflected the child’s socialization needs and established annual goals and short-term instructional objectives which were related to the child's educational deficits in that area.

    Having found that the IEP did accurately reflect the child's speech/language and socialization needs, I must now determine whether the services offered by the board to address those needs were adequate. The CSE recommended that the child be placed in a 12-month special education program at Orange/Ulster BOCES in a special class with a student to staff ratio of 12:1+1 with the related services of group counseling and individual and group speech/language therapy. The program supervisor at the Orange/Ulster BOCES testified that the focus of the BOCES program was to make the students as socially appropriate as possible. She further testified that the instructor of the proposed class was very conscientious about socialization skills. Additionally, she stated that the proposed program included a prevocational class twice per week where the children learned work attitudes, work behaviors and work skills. She opined that the child's IEP goals and objectives could be met in the recommended BOCES class. I note that the May 28, 1997 classroom observation report indicated that the BOCES instructor’s teaching technique encouraged socialization skills.

        The hearing officer appeared to premise his determination that the BOCES placement would have been inappropriate for the child upon a finding that petitioner had failed to refute the testimony of the learning disabilities consultant who had opined that the BOCES placement would not meet this child's needs and would "work against her" (Hearing Officer's decision, page 16). The consultant's opinion was based, in part, upon her observation of the BOCES twice weekly prevocational class, which she described as having a sterile environment. She asserted that such a class would reinforce the child's tendency to isolate herself and be obsessive and repetitive. The consultant also expressed concern about the fact that the children in the recommended BOCES class were grouped together for instruction all day, and had little opportunity to interact with other children, especially with higher functioning children. I must note that the objective evidence presented by petitioner's school psychologist who observed her behavior at Maplebrook on May 5, 1997 (Exhibit 25D) indicated that respondents' daughter did not significantly interact with her reportedly higher functioning classmates in the private school. Another school psychologist had reported a similar lack of interaction when he observed the child at Maplebrook in April, 1996 (Exhibit 17D). The BOCES program supervisor and petitioner's school psychologist credibly testified about the appropriateness of the recommended BOCES placement, which would have addressed the child's academic and social needs, in addition to her prevocational needs. As noted by the neuropsychiatrist, this child needs to develop appropriate vocational skills.

        Implicit in the consultant's criticism of the BOCES placement is a belief that the child would have been inappropriately grouped for instructional purposes (cf. 8 NYCRR 200.6 [g][2]). Having reviewed the testimony of the BOCES program supervisor and the profile of the BOCES class (Exhibit 19D), I find that the child would have been suitably grouped for instructional purposes, in terms of her cognitive ability, academic achievement, social and physical development, and management needs. I further find that petitioner has offered convincing proof of the appropriateness of the placement which the CSE had recommended for the child.

        I have considered respondents' contention that their child requires a residential placement. As noted above, each child with a disability must be placed in the least restrictive environment (34 CFR 300.500; 8 NYCRR 200.6 [a][1]). A board of education may place a child in a residential facility, if the placement is necessary to provide special education and related services to the child (34 CFR 300.302). In essence, a residential placement is appropriate under Federal and State law, only if it is required for the child to benefit from his or her educational program (Abrahamson v. Hershman, 701 F. 2d 223 [1st Cir., 1980]; Burke County Bd. of Ed. v. Denton, 895 F. 2d 973 [4th Cir., 1990]; Kerkam v. Superintendent D.C. Public Schools, 931 F. 2d 84 [D.C. Cir., 1991]; Applications of Bd. of Ed. Hoosic Valley CSD and a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 129; Application of a Child with a Disability, Appeal No. 95-33). The evidence in this case indicates that the child can make appropriate academic and social progress in a day program, as she did when enrolled in the BOCES prior to entering Maplebrook. Under the circumstances, I must find that the child did not require a residential placement in order to receive a free appropriate public education during the 1996-97 school year.

 

        THE APPEAL IS SUSTAINED.

 

        IT IS ORDERED that the decision of the hearing officer is hereby annulled.

 

Dated: Albany, New York __________________________
February 24, 1999 FRANK MUNOZ