The State Education Department
State Review Officer

No. 98-45

 

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 Ramapo Central School District

 

Appearances:
Neal H. Rosenberg, Esq., attorney for petitioners

Greenberg, Wanderman & Fromson, attorneys for respondent, Carl L. Wanderman, Esq., of counsel

 

DECISION

        Petitioners appeal from the decision of an impartial hearing officer which found that the placement recommended by respondent’s committee on special education (CSE) was the least restrictive environment for the child, and which denied petitioners’ request that respondent be ordered to reimburse petitioners for the cost of their son’s tuition at the Windward School (Windward), a private school for children with learning disabilities in White Plains, New York for the 1997-98 school year. The appeal must be sustained in part.

        Petitioners had their son evaluated by a neuropsychologist on December 4, 1995, when he was ten years old and in the fifth grade at Reuben Gittelman Hebrew Day School (Reuben) to determine the presence of an attention deficit hyperactivity disorder (ADHD) and/or a specific learning disability. On the WISC-R, the child achieved a verbal IQ score of 111, a performance IQ score of 115, and a full scale IQ score of 114, placing him in the above average range of intellectual functioning. The neuropsychologist reported that the child had an average fund of acquired general information and a superior fund of acquired English vocabulary. She also reported that the child had difficulty with mental visualization, and holding information in short term storage and processing it. The neuropsychologist noted that it was difficult for the child to sustain effort on the more challenging and lengthier problems. On the Wide Range Achievement Test -3, the child scored in the borderline range in spelling. The child’s reading skills were in the average range, and his mathematics skills were found to be in the "bright normal" range (84th percentile). The neuropsychologist indicated that the child had graphomotor control difficulties, visual motor integration difficulties, and impaired phonemic discrimination, all of which "contributed to his reduced acquisition of grapheme-phoneme correspondence and his poor spelling skills." She also indicated that the child exhibited behaviors which were consistent with ADHD, such as initiation difficulties, organization difficulties, planning difficulties, rapid boredom and frustration, and distractibility in reading. She opined that the child’s inattention and visual-spatial difficulties could contribute to ongoing difficulties in higher level mathematics problems that require multi-step solutions either on paper or mentally. The neuropsychologist recommended various compensation and accommodation strategies for the child within the academic setting, such as untimed tests, modified reading assignments with the use of a tape recorder, the use of a computer with a spell check function, the use of a calculator, and a notetaker or teachers’ notes provided. She further recommended that the child be placed in an academic environment with a high teacher to student ratio, and a high degree of one-on-one supervision. She indicated that the child required structure, clear and concise directions, and tasks broken down into short manageable units.

        Petitioners’ son was first referred to respondent’s CSE in January, 1996. In a classroom observation conducted on February 21, 1996 by the district’s psychologist, the child was observed for one half hour while in math class at Reuben. The district’s psychologist noted that the child readily complied with directions, and remained quiet and on task while other students were talking noisily. She observed that the child’s interaction with other students was limited, but generally appropriate. The district’s psychologist noted that the child appeared uncomfortable when interacting socially. She reported that his demeanor was unusually quiet for a child his age, and differed noticeably from that of most of the other students in the class. The district’s psychologist was advised by the psychologist at Reuben that the child had made satisfactory academic progress, that he did not present any behavioral concerns, and that he had several friends.

        An educational evaluation was conducted by a learning consultant for the CSE on February 28, 1996. The learning consultant reviewed the child’s fifth grade report card and noted that the child’s teachers expressed concern about the child’s completion of assignments, spelling, math problem solving skills, and organization of his time and work. On the Woodcock Johnson Psycho-Educational Battery -Revised (WJ-R), the child achieved a grade equivalent score of 6.9 in broad reading, placing him in the high average range in reading skills. He achieved a grade equivalent score of 4.2 in broad written language, indicating functioning in the low average range. The learning consultant reported that the child’s skills were limited in spelling, word usage, punctuation and capitalization, but that his original sentences displayed an acceptable quality of expression. The child achieved a grade equivalent score of 8.1 in broad math, placing him within the superior range in mathematical functioning. The learning consultant noted that on the Test of Written Spelling, the boy’s scores suggested that he was more accurate with the spelling of words that followed rules, and had difficulty visually memorizing words that did not follow specific patterns. She further noted that the child’s good phonics skills helped with spelling, only if the word followed phonetic rules. The child was cooperative and stayed on task with no difficulty throughout the testing. The learning consultant indicated that the discrepancies in the child’s test results indicated a significant difference between performance in written language and other academic areas justifying some supplemental instruction in a small group setting. She recommended that the child improve the mechanics of written language, written content and visual-motor skills.

        A speech/language evaluation was conducted on February 28, 1996. On the Test of Language Development II- Intermediate, the child achieved scores which placed him in the above average range of functioning. On the Peabody Picture Vocabulary Test-Revised Form L, the child achieved a receptive language age of 11, a high average score in receptive vocabulary development. The speech language therapist reported that throughout the testing, the child demonstrated a slight articulation distortion characterized by a mild degree of lisping. She noted that the results of the evaluation were indicative of average/above average receptive and expressive language skills, with a mild articulation impairment.

        In a social history based upon an interview with the child’s mother, the district’s psychologist reported that in December, 1995, the child began taking Ritalin to address inattentiveness. The child’ s mother indicated that in the recent months preceding the social history interview, there had been a dramatic improvement in the child’s ability to concentrate, but that he was still unable to work independently. The district’s psychologist reported that the child attended Adolph Schreiber Hebrew Academy of Rockland for three years, then completed grades one through four at Yeshiva of Rockland. The child entered Reuben for fifth grade in the 1996-97 school year. The child’s mother advised the district’s psychologist that the classes at Yeshiva were smaller and the curriculum was less demanding than at Reuben. The child’s mother indicated that her son felt less capable than his classmates and was reluctant to ask questions in class. She believed that his reading comprehension and written expression were poor. The district’s psychologist reported that the child described himself as having a poor memory.

        In a letter dated March 18, 1996, the child’s psychiatrist indicated that the child had difficulty academically and in completing homework assignments because of initiating and focused attention problems. She opined that the child was unable to learn in a regular school setting because of the severity of his developmental disabilities and ADHD. She indicated that the child required a class size of approximately six students with considerable one-on-one tutoring by a teacher trained in working with visual-motor integration difficulties and attention problems. She also indicated that that child required untimed tests and printed notes from teachers because of his difficulties with cursive writing.

        The CSE met on March 20, 1996 and recommended that the child be classified as learning disabled, and that he receive resource room services for a minimum of 180 minutes per week with a student to teacher ratio of 5:1. The child completed the fifth grade at Reuben. He was enrolled by his parents in Windward for sixth grade during the 1996-97 school year, where he reportedly made satisfactory academic progress (Exhibit 6).

        An educational evaluation was conducted on July 30, 1997 in connection with the child’s annual review by the CSE. Respondent’s educational evaluator noted that the child took Ritalin to address his inattentiveness, and his inability to focus and concentrate during the school year. Since the child did not take Ritalin during the summer, the test results reflected the child’s best efforts without medication. The educational evaluator reported that the child’s inattentiveness was very subtle, and could be overlooked. The child advised the educational evaluator that he had difficulty reading. He explained that he had to refer back to reading selections to find answers, and that he did not always understand the questions. The educational evaluator noted that the child appeared to need extra time because he continually looked away from the task, which resulted in loss of place when reading, interrupted fluency of thought when reading and writing, and loss of direction at times. The evaluation lasted three hours, at which time the child announced that he could not continue. The educational evaluator reported that the child could not put his thoughts in order during a writing task which required that he write a story about a picture. On the reading and written language sections of the Woodcock Johnson Test of Achievement Form A, the child’s scores were in the average range. His lowest score was a grade equivalent of 6.2 for basic written skills, which was at the 40th percentile. On the Formal Reading Inventory, the child achieved a ceiling at a grade level one year above his then current grade. The child demonstrated weaknesses in the areas of drawing conclusions and applying information. His score indicated that he knew many of the rules of punctuation and usage, and had average ability to write in compliance with accepted standards of the English language. While the child used his strong sound symbol relationship skills for spelling, he could not spell unpredictable words, i.e., words which are not spelled phonetically. On the fluency subtest, the only timed subtest, the child scored below average because he wrote slowly and did not produce many sentences. Mathematics was an area of strength for the child. Although he was able to calculate at a level higher than he could solve word problems, his mathematical applied problem solving skills were nevertheless above grade level. The educational evaluator recommended that the child continue to review techniques for revising his written work, review spelling rules, and increase his reading comprehension ability to include reading to critique and infer.

        The CSE met on August 14, 1997 to develop the child’s individualized education program (IEP) for the 1997-98 school year. The CSE classified the child as learning disabled. The child’s classification is not disputed in this proceeding, and I make no determination of its appropriateness (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]). The CSE also recommended that the child receive resource room services for a minimum of 180 minutes per week with a student to teacher ratio of 5:1, and testing modifications of extended time for essays and a special location. The IEP indicated that the child needed to improve written language skills, reading comprehension and study/organization skills.

        On August 18, 1997, respondent advised petitioners to either register the child at Suffern Middle School or advise the district of the school which their son would attend. On August 22, 1998, petitioners advised respondent that because they were unable to determine the appropriateness of the recommended program, they had enrolled their son at Windward. On August 27, 1997, respondent advised petitioner that it had approved the CSE’s recommendation. On September 9, 1997, petitioners, through their attorney, requested an impartial hearing.

        The hearing was held on April 24 and May 20, 1998. The hearing officer rendered his decision on July 2, 1998. He found that respondent demonstrated that the child’s IEP had been completed as prescribed by law, and that the IEP identified the child’s specific academic needs for the 1997-98 school year. He further found that the recommended educational program for the child was the least restrictive environment, and that petitioners failed to show that Windward was the least restrictive environment. Accordingly, he denied petitioners’ request for tuition reimbursement.

        Petitioners appeal from the hearing officer’s decision on a number of grounds. They claim that respondent’s CSE failed to observe their son in his current educational setting, that the CSE was improperly constituted because the child’s teacher was not included at the meeting, and that the child’s annual review was not held in a timely manner. With respect to the classroom observation, Section 200.4 (b)(4)(viii) of the Regulations of the Commissioner of Education require a board of education’s CSE to conduct a classroom observation of the student in his current educational setting as part of its initial evaluation. However, the Regulations of the Commissioner of Education do not require a CSE to conduct a classroom observation as part of its annual review of a child.

        Petitioners’ assertion that the CSE was improperly constituted because the child’s teacher was not included at the meeting is incorrect. Federal regulation (34 CFR 300.344 [a][2]) and New York State Education Law Section 4402 (1)(b)(10) require that a child’s teacher be a member of the CSE which conducts a review, or makes a recommendation for services to be provided to the child. When, as here, the child is not enrolled in the public schools, the school district may designate the individual to serve as the child’s teacher member of the CSE. The record shows that the district’s educational evaluator, who is certified to teach special education in New York State, was designated as the child’s teacher member of the CSE.

        Petitioners also claim that the CSE failed to conduct a timely annual review. Section 200.4 (e) of the Regulations of the Commissioner of Education require that the IEP of each student with a disability be reviewed not less than annually. The child’s IEP was initially developed at a CSE meeting held in March, 1996. The annual review was held in August, 1997, but it was initially scheduled for June, 1997. While I do not condone respondent’s delay in conducting the annual review, I must note that the review was completed prior to the start of the 1997-98 school year. Under the circumstances, I am unable to find that such delay affords a basis for annulling the hearing officer’s decision.

        The central dispute in this proceeding is whether petitioners are entitled to reimbursement for the cost of their son’s tuition at Windward. 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 [1985]). 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[1993]). 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]).

        With respect to the first criterion for an award of tuition reimbursement, whether the services offered by the board of education are adequate or appropriate, 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). In the educational achievement and learning rate section, the child’s IEP listed the results of various standardized tests. It included the child’s IQ scores, which were in the above average range. It also included the child’s scores on the WJ-R, which demonstrated functioning at or above grade level in reading and writing. The IEP further revealed that the child scored in the above average range on a test of oral language development. The IEP referenced the 1995 neuropsychological evaluation which reported that the child’s spelling fell within the borderline range, and which described the child’s "developmental disabilities" and "behavioral profile congruent with ADHD." It also referenced the child’s report card from Windward, and the classroom observation conducted in 1996.

        The academic functioning section of the IEP indicated that reading comprehension and written language were the child’s areas of weakness, and the academic needs section included improving the child’s written language skills, reading comprehension skills and study/organization skills. However, the IEP failed to identify any specific needs with respect to the child’s spelling difficulties. The record shows that the child achieved scores at or above grade level in reading and writing, but that he achieved a spelling score in the borderline range. The 1995 neuropsychological evaluation report described the child’s spelling skills as poor. The 1996 educational evaluation report indicated that the child’s spelling skills were limited. The 1997 educational evaluation report indicated that the child could not spell unpredictable words, and that spelling was a skill he had not mastered. Despite the fact that the evaluations were consistent with respect to the child’s poor spelling skills, respondent failed to identify spelling as one of his special education needs. Additionally, as petitioners note, the IEP failed to include a specific annual goal to address the child’s spelling needs. Accordingly, I find that respondent has failed to meet its burden of demonstrating that the recommended program was appropriate, and that petitioners have prevailed with respect to the first criterion for an award of tuition reimbursement.

        With respect to the second criterion for an award of tuition reimbursement, the child's parents bear the burden of proof with regard to the appropriateness of the services which the parents obtained for the child at the Windward during the 1997-98 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 parents 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).

        The parties agree that petitioners’ son had a language based learning disability which was manifested by the child’s relative weakness in reading comprehension and written expression. The issue that must be determined is whether the child required full-time primary special education instruction as provided at Windward to obtain an educational benefit from his instructional program. The district’s educational evaluator testified that the child had difficulty spelling words that did not follow rules. She further testified that the child had a mild Attention Deficit Disorder (ADD). She stated that the child’s academic deficits were not so severe that he couldn’t be accommodated in a regular class with resource room services. The learning consultant who completed the 1996 educational evaluation indicated that the discrepancy between the child’s performance in written language and other academic areas could justify some supplemental instruction in a small group setting. By definition, resource room instruction is supplemental instruction (8 NYCRR 200.1[hh]). The CSE recommended that the boy receive instruction in a group of no more than five children.

        While the child’s psychiatrist testified that the child required a small class setting with a great deal of one-to-one assistance for his language disability, she also testified that the child would benefit and learn something in a class with over 20 students. I note that while she testified about the inappropriateness of a language arts class of 28 children which she had observed in respondent’s middle school, the recommended program was for resource room services. Although the psychiatrist opined about the need for specialized instruction, she did not test the child or establish an independent basis for her opinion. I have also considered the testimony of the child’s reading and writing teacher at Windward. She testified that the child would tend to get lost in a large class and would learn better in a small class. As noted above, with the exception of spelling, the child consistently scored in the average to above average range on standardized tests. Given the child’s level of functioning, I am unable to find that he required primary instruction in a full-time special education setting to obtain an educational benefit. Accordingly, I find that petitioners failed to meet their burden with respect to the second criterion for an award of tuition reimbursement.

 

        I have considered petitioners’ other arguments, which I find to be without merit.

 

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

        IT IS ORDERED that the decision of the hearing officer is hereby annulled to the extent that he found that the child’s IEP had adequately identified the child’s specific academic needs for the 1997-98 school year.

 

Dated: Albany, New York __________________________
January 8, 1999 FRANK MUŅOZ