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 Hudson Falls Central School District
Bartlett, Pontiff, Stewart and Rhodes, P.C., attorney for respondent, J. Lawrence Paltrowitz, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which held that respondent's committee on special education (CSE) had adequately evaluated petitioner's son in all of the areas of his suspected disability, and had prepared a generally appropriate individualized education program (IEP) for the boy for the 1997-98 school year. He rejected petitioner's request that her son be found eligible for extended school year (ESY) programming, and he directed the CSE to reconsider the issue of implementing a specific specialized reading program for the boy. The appeal must be sustained in part.
Respondent asks that I accept its answer to the petition in this appeal, notwithstanding the fact that the answer was served upon petitioner on the twenty-first day after petitioner had served her petition (cf. 8 NYCRR 279.5). Respondent's attorney asserts that he had left for a vacation before the petition was served, and did not return until ten days after it was served. Given the size of the record and the absence of any harm to petitioner by respondent's brief delay, I will excuse that delay and accept the answer.
Respondent asserts that the appeal should be dismissed because petitioner initiated the appeal by serving a notice of petition, rather than a notice of intention to seek review (cf. 8 NYCRR 279.2 [a]). The Board of Education acknowledges that the petition was timely served. The notice of intention to seek review is intended to afford a board of education an opportunity to prepare and file a record of hearing with the State Education Department, which respondent has done in this appeal. Therefore, I will not dismiss the petition because petitioner failed to serve a notice of intention to seek review.
In her petition, petitioner refers to a written complaint she filed with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (VESID) regarding a delay in the scheduling of the hearing in this appeal. Although I will consider her claim about the delay, I must point out that I cannot review the actions of any officer or employee of the State Education Department (8 NYCRR 279.1 [c]). Similarly, I note that petitioner asserts that the hearing officer failed to rule upon her claim that respondent had violated her son's rights under Section 504 of the Rehabilitation Act of 1973. Although an impartial hearing pursuant to the Individuals with Disabilities Education Act, 20 USC 1400 et seq.) may be used to resolve Section 504 claims, New York State law makes no provision for an administrative review of hearing officer decisions involving Section 504 claims (Applications of a Child with a Disability, Appeal No. 96-37; Application of a Child with a Disability, Appeal No. 97-80).
Petitioner also asks that I rule upon an alleged denial of access to her son's educational records pursuant to the Family Education Rights and Privacy Act (20 USC 1232-g). I must first note that the regulations promulgated to that statute provide for a separate means of redress. Although the IDEA regulations also accord parents of children with disabilities the right of access to their children's records (34 CFR 300.562), I find that the petition and the record are devoid of sufficient facts to support a finding with regard to the alleged violation.
There is one other preliminary matter to be addressed. Petitioner challenges the hearing officer's determination to limit the scope of this proceeding to the appropriateness of the boy's educational program and placement for the 1997-98 school year. At the hearing, petitioner asked the hearing officer to determine whether her son's IEPs had been appropriate for him since the 1989-90 school year, when the boy was in the third grade. The hearing officer based his determination to limit this proceeding to the 1997-98 school year upon the provisions of 8 NYCRR 200.5 (c) which indicate that a parent or legal guardian of a child with a disability may request an impartial hearing upon receipt of a notice of initial evaluation, review or re-evaluation by a CSE, or when the CSE fails to make a recommendation about a child within the limits prescribed by 8 NYCRR 200.4, or a board of education fails to effectuate a CSE's recommendation within 30 days after its receipt of the recommendation. He noted that petitioner had stipulated that the requisite due process notices had been given to her in the prior school years, and rejected her assertion that her failure to assert claims during the prior years should be excused because she allegedly did not understand her rights until 1995. Petitioner contends that the hearing officer could, and should, have accepted jurisdiction over her claims for the prior school years pursuant to the IDEA regulations, e.g. 34 CFR 300.506. That regulation, when read together with 34 CFR 300.504 (a), indicates that a hearing may be requested when a school district proposes or refuses to initiate or change the identification, evaluation, or educational placement of a child or the provision of a free appropriate public education to a child. It is not open ended, nor does it authorize a hearing years after the actions or inactions which a parent wishes to challenge. Although I have considered the boy's prior schooling in determining the appropriateness of the educational program which respondent provided to the boy during the 1997-98 school year, I must sustain the hearing officer's determination about the scope of this proceeding.
Petitioner's son is nineteen years old. He reportedly lived with his grandmother, who shared custody of him with petitioner at the time of the hearing. During the 1997-98 school year, the boy was classified as learning disabled, and he was enrolled in the "BEST" program of the Board of Cooperative Educational Services for Washington-Saratoga-Warren-Hamilton-Essex Counties (BOCES) in Hudson Falls, New York. The boy received special education in an 8:1+1 class for one-half of the school day, and mainstreamed vocational education for the other half of the school day.
The boy entered respondent's schools for kindergarten in the 1985-86 school year. His kindergarten teacher noted that he had poor listening skills, difficulty grasping ideas, and difficulty learning letter sounds. She recommended that he be placed in a pre-first grade class for the 1986-87 school year. However, petitioner's son was placed in a first grade class, where he received remedial reading assistance. His remedial reading teacher reported in April, 1987 that the boy needed to improve his basic reading skills. The boy's first grade teacher described him as a diligent and conscientious worker, but recommended that he be retained in the first grade. The boy repeated first grade during the 1987-88 school year.
In March, 1988, the boy's first grade teacher referred him for a psychological evaluation. She reported that he appeared to require more assistance than a regular education placement with remedial assistance could provide. She noted that he had a short attention span, reversed letters and words when reading, and lacked concept development in mathematics. The boy was evaluated by a school psychologist in May and September, 1988. He achieved a verbal IQ score of 91, a performance IQ score of 114, and a full scale IQ score of 101. The school psychologist reported that the boy evidenced difficulties in his visual receptive and visual motor skills. On the Woodcock-Johnson Psycho-Educational Battery, the boy earned grade equivalent scores of 1.5 for reading, 2.0 for mathematics, and 1.3 for written language. The school psychologist recommended that the CSE review the child.
On October 18, 1988, the CSE recommended that petitioner's son be classified as learning disabled, and that he receive resource room services for one hour per day while in the second grade during the 1988-89 school year. Its recommendations were apparently accepted by petitioner. In April, 1989, the CSE conducted its annual review of the boy, and recommended that he continue to receive resource room services while in the third grade during the 1989-90 school year. I note that on the California Achievement Tests in June, 1988, the boy achieved grade equivalent scores of 1.3 for total reading and 2.5 for total mathematics.
During the 1989-90 school year, the boy was seen by a private psychologist, who diagnosed the child as having an "Overanxious Disorder of Childhood" and "Functional Encopresis." When the CSE conducted its annual review in March, 1990, his resource room teacher reported that petitioner's son had not made much academic progress. She further reported that he had achieved grade equivalent scores of 2.1 for reading composite, 3.3 for mathematics composite, and 1.6 for spelling on the Kaufman Test of Educational Achievement (KTEA). The resource room teacher recommended that the boy be placed in an "Option II" 12:1+1 special education class during the 1990-91 school year. The boy's IEP for the 1990-91 school year (Exhibit P-32) indicated that he would work on improving his reading, mathematics, language arts and spelling skills in the Option II class, and would receive 30 minutes of counseling per week to improve his self-esteem. In April, 1991, the boy achieved grade equivalent scores of 2.7 for reading decoding, 2.6 for reading comprehension, 3.6 for mathematical computation, 3.0 for mathematical application, and 2.2 for spelling on the KTEA.
The boy remained in an Option II class with the related service of counseling for the 1991-92 school year. In November, the CSE recommended that he be mainstreamed for art, physical education, music and library. In March, 1992, the boy achieved grade equivalent scores of 2.2 for reading decoding, 2.3 for reading comprehension, 3.4 for mathematical computation, 3.9 for mathematical application, and 2.1 for spelling on the KTEA. The CSE's annual review took place in April, 1992, when it recommended that the boy remain in the Option II class, but be mainstreamed for art, music, physical education, and library, during the 1992-93 school year. The CSE did not recommend that the boy continue to receive counseling.
In November, 1992, the CSE accepted the recommendation by the boy's Option II teacher to increase the amount of the boy's participation in the regular education sixth grade program for the purpose of improving his socialization skills. The boy was re-evaluated by respondent's school psychologist in December, 1992. The school psychologist noted that the boy lacked a feeling of belonging and appreciated any positive interaction with adults. She reported that petitioner's son had achieved a verbal IQ score of 94, a performance IQ score of 118, and a full scale score of 105. He also obtained grade equivalent scores of 2.1 for reading decoding, 2.8 for reading comprehension, 5.6 for mathematical computation, 3.9 for mathematical application, and 2.3 for spelling on the KTEA. The school psychologist opined that the boy's learning difficulties appeared to be the result of the deficits in his long and short-term auditory memory, as well as his very slow reacting style.
In April, 1993, the CSE prepared the boy's IEP for the 1993-94 school year. It recommended that the boy be enrolled in regular education seventh grade English, social studies, science, mathematics, health and physical education classes, and that he receive supplemental instruction in a resource room for two and one-half periods per day. The IEP indicated that the boy's English program would be coordinated with respondent's special education department. The boy's IEP annual goals included improving his reading, writing and mathematics skills, as well as his self-advocacy skills and self-esteem. In February, 1994, the boy earned grade equivalent scores of 4.8 for reading, 6.4 for mathematics, and 2.6 for spelling on the brief form of the KTEA. His writing skills were reported to be at a third to fourth grade level in February, 1994. The boy's seventh grade report card (Exhibit P-52) indicated that he had earned satisfactory grades during the 1993-94 school year. A teacher comment revealed that the boy was working on a list of sight words, and that he needed to work harder on completing his assignments in a timely manner.
For the eighth grade during the 1994-95 school year, the CSE recommended that petitioner's son continue to receive two and one-half periods of resource room services per day and remedial reading to assist him in meeting the demands of the regular education curriculum. The boy's IEP noted, as had his prior IEPs, that he had difficulty working independently. It also noted that he had poor reading skills, worked extremely slowly, and needed extra processing time. The IEP made provision for various testing modifications, including flexible scheduling and setting, revised test directions, having his answers to test questions written for him, and the use of a spell checker, calculator, and arithmetic charts. On the brief form of the KTEA which was administered to him in January, 1995, the boy achieved grade equivalent scores of 4.8 for reading, 8.6 for mathematics, and 2.8 for spelling. The boy's report card for the 1994-95 school year (Exhibit P-65) indicates that he achieved satisfactory grades in each of his academic subjects.
For the ninth grade during the 1995-96 school year, the CSE recommended that the boy be enrolled in regular education classes, with one and one-half periods of resource room services per day. The boy's IEP provided for various testing modifications, and it included annual goals to improve his reading, writing, mathematics, social, and study skills. The boy's academic performance was assessed using the KTEA in September, 1995. He achieved grade equivalent scores of 2.2 for reading decoding, 3.9 for reading comprehension, 9.0 for mathematical computation, 10.8 for mathematical application, and 2.4 for spelling. On September 27, 1995, the CSE accepted the recommendation by the boy's resource room teacher to transfer the boy from a regular education English class to a special education English class.
On October 20, 1995 petitioner requested that her son be independently evaluated at respondent's expense by the Stern Center for Language and Learning in Winooski, Vermont. Respondent approved petitioner's request, and the boy was evaluated by the Stern Center on November 9, 1995. He achieved a verbal IQ score of 95, a performance IQ score of 98, and a full scale IQ score of 96. I note that the boy's performance IQ score was significantly lower than that which he had achieved using another test in 1992, although the Stern Center evaluator suggested that one of the subtest scores may have been omitted in calculating his performance IQ score in 1992. In any event, the Stern Center evaluator reported that the boy evidenced deficits in his auditory memory and perceptual motor speed. She further reported that the boy's phonological awareness skills were at a beginning third grade level, which was reflected in his poor reading and spelling skills. On the Woodcock Johnson Psychoeducational Battery - Revised, petitioner's son achieved grade equivalent (and standard) scores of 3.8 (75) for word identification, 1.5 (58) for word attack, 6.2 (90) for passage comprehension, 3.1 (64) for dictation, 5.6 (89) for writing samples, 3.1 (73) for proofing, 2.6 (69) for capitalization, 4.0 (80) for usage, 5.9 (80) for calculations, and 6.8 (92) for applied problems. The evaluator noted that the boy had significant gaps in his knowledge of symbol-sound correspondence, and limitations upon his visual memory for words. Nevertheless, he had learned to obtain the meaning of words from the text. The evaluator indicated that the content of the boy's written sentences was good, notwithstanding his spelling and punctuation errors. However, his ability to write a story was significantly below average. The evaluator concluded that the boy had a reading and writing disability, and she offered suggestions to improve his skills. One of her suggestions was that a systematic and sequenced reading program for older students, the Wilson Reading Program, be used to instruct the boy in reading and spelling. The evaluator also suggested that the boy would benefit from a note taker and course outlines in his classes.
In December, 1995, a school psychologist assessed the boy's academic achievement using the Wechsler Individual Achievement Test. He reported that the boy achieved grade equivalent (and standard) scores of 3.0 (64) for basic reading, 5.2 (85) for reading comprehension, 8.6 (97) for numerical operations, 7.7 (94) for mathematics reasoning, 3.0 (74) for written expression, and 4.3 (71) for spelling. In January and February, 1996, one of respondent's speech/language therapists evaluated petitioner's son. She used the Test of Adolescent and Adult Language (TOAL-3). The boy's scores were below average for listening vocabulary, reading vocabulary, writing vocabulary, and writing/grammar. His general language quotient on the TOAL-3 was nevertheless in the average range. The speech/language therapist opined that petitioner's son did not need speech/language therapy because his language needs were being addressed by his special education English and remedial reading instruction (Exhibit P-91).
At petitioner's request, the boy was evaluated by a pediatrician, who reported that he had performed a "focused neurodevelopmental" evaluation. He opined that the boy had a mild to moderate attention deficit, notwithstanding the fact that the boy did not display any of the neurological soft signs commonly associated with an attention deficit. The pediatrician indicated that the boy would take Cylert to control his alleged attention deficit. He also made a number of suggestions regarding the child's educational program, although the record does not reveal his qualifications for making the recommendations. Petitioner asked respondent to pay for the cost of her son's evaluation by the pediatrician, which respondent declined to do. She renewed her request for payment in September, 1996. In November, 1996, respondent agreed to pay the sum of $373 for the evaluation (Exhibit P-129).
In February, 1996, petitioner asked the CSE to obtain a learning style profile of her son and a "computer evaluation". She also requested that the CSE consider whether her son should receive compensatory education and ESY at its next review of the boy. A vocational assessment was performed by the BOCES in March, 1996. In a report dated April 9, 1996, the BOCES evaluator suggested that the boy be enrolled in a BOCES Vo-Tech program for training in auto technology or conservation/heavy equipment during the 1996-97 school year.
In April, 1996, respondent's school psychologist prepared a learning style profile which indicated that the boy's strengths were in verbal conceptualization/abstract reasoning, verbal reasoning, spatial relations, visual perception, and visual organization, while his weaknesses were in memory, visual-motor speed, sequential processing, and freedom from distractibility. The boy was described as a visual, hands-on learner.
The CSE conducted its annual review on April 12, 1996. After discussing the results of the boy's evaluations and his academic performance, the CSE recommended that the boy receive one period of resource room services per day, and remedial reading two or three times per week while in the tenth grade during the 1996-97 school year. It also recommended that he be enrolled in regular education classes for all subjects except English, which he would receive in a 12:1+1 special education class. The CSE further recommended that the boy receive a central auditory processing evaluation (CAPE). The IEP (Exhibit P-107) which the CSE prepared for the boy indicated that he would be enrolled in the Vo-Tech program of the BOCES.
The boy's CAPE was performed on June 16, 1996. The evaluator reported that the boy's hearing sensitivity was within normal limits, and his basic central processing-listening skills were intact and age appropriate. He did evidence some signs of a possible organizational-sequential disability typical of students having a learning disability.
By the end of the 1995-96 school year, petitioner's son had earned five and one-half units of high school credit, and had passed the Regents Competency Tests in mathematics and science. The CSE reconvened on June 20, 1996 to consider changes to the boy's IEP. It revised the IEP to provide that the boy would attend a BOCES 8:1+1 class to receive academic instruction for one-half of the school day, and be enrolled in the BOCES Vo-Tech program for the remainder of the school day. The CSE did not recommend any resource room service or related services for the boy. The boy's annual goals included successfully completing tenth grade courses, improving work habits, study skills, and self-esteem. An attachment to the IEP indicated that the boy would be taught reading using chapter books, as well as the Wilson Reading Program. The CSE amended the IEP again on October 16, 1996 by adding one and one-half units of individual counseling per week. I note that a unit equals 30 minutes.
The boy's report card for the 1996-97 school year indicated that he received final grades of 85 for reading, 69 for English 10, 87 for applied mathematics-I, 79 for global studies 10, and 82 for conservation (Exhibit P-136). He earned four units of high school credit during the 1996-97 school year. The report card indicated that the boy passed the Regents Competency Test in global studies in June, 1997, and achieved a grade equivalent score of 10.0 on the brief form of the KTEA reading test during the last quarter of the school year.
On April 8, 1997, the CSE recommended that the boy continue in the half-day BOCES 8:1+1 class and half-day BOCES Vo-Tech program for the 1997-98 school year. It further recommended that he receive one and one-half units of individual counseling and one unit of group counseling per week, and that he have the use of a spellchecker and a calculator for doing his school work. The boy's IEP included various testing modifications, such as flexible scheduling and settings and the use of revised test directions. It also included a transition plan for post-school employment.
Petitioner did not object to the proposed IEP until August 22, 1997, when she asked the CSE chairperson to reconvene the CSE to revise the IEP. Before that meeting occurred in September, 1997, the boy achieved grade equivalent (and standard) scores of 4.5 (67) for reading decoding, 6.7 (79) for reading comprehension, 2.6 (54) for spelling, 9.0 (88) for mathematics computation, and 11.8 (101) for mathematics applications on the KTEA. In a note dated September 16, 1997, the boy's BOCES reading teacher indicated that the Wilson Reading Program was not suitable for the boy's needs and was difficult to use (Exhibit P-143). On September 19, 1997, petitioner sent a list of her questions and concerns about the boy's IEP to the CSE chairperson.
The CSE met with petitioner on September 23, 1997, at petitioner's request. At that meeting, the BOCES reading teacher indicated that he was not trained to use the Wilson Reading Program, and suggested that the Glass Analysis methodology be used for the boy's reading instruction. The minutes of the meeting do not reveal whether the CSE resolved that issue. However, it agreed to recommend that the boy receive additional resource room instruction for reading, and agreed to petitioner's request for speech/language and psychiatric (for sleep study) evaluations at respondent's expense. Petitioner had also requested an assistive technology evaluation, which was reportedly deferred by agreement. Petitioner did not challenge the amended IEP prior to its approval by respondent on October 14, 1997.
The boy's speech/language evaluation took place on October 30, 1997 at the BOCES. He achieved an age equivalent score of 15.6 on the Adolescent Word Test, which measured his vocabulary and semantic skills. He was 17.1 months old when the test was administered. On the Adolescent Test of Problem Solving, which assessed his critical thinking skills, the boy's score was below normal. On the Test of Language Competence-Expanded Edition, he achieved a composite standard score of 86, and an age equivalent score of 12.8 years. The evaluator opined that the boy had a moderate to severe language deficit, but exhibited relative strength in pragmatic language and the functional use of language. She recommended that he receive consultant speech/language services once per month, rather than direct service, because he was passing his BOCES courses (Exhibit P-153).
Petitioner's son was evaluated by a BOCES psychiatrist on December 3, 1997. The psychiatrist noted that the boy had been previously diagnosed as having an anxiety disorder, but reported that she saw no sign of anxiety. She also reported that there was no evidence of a sleep disorder, and recommended that he exercise regularly and go to bed at routine times (Exhibit P-143).
On December 23, 1997, an educational diagnostician at the Stern Center for Language and Learning reviewed the boy's educational records, at petitioner's request. She reported that the boy had made good progress in mathematics, but only minimal progress in reading comprehension. She opined that his spelling skills were significantly weaker than those of his peers in 1997 than in 1992. However, she acknowledged that his grade equivalent score for spelling had improved slightly during that period. She opined that the boy required multisensory instruction in structured language and phonological processing to improve his reading, spelling, and writing skills, and that the Glass Analysis methodology would not be adequate to meet his need for sequential multisensory instruction. The diagnostician offered a number of suggestions, including the use of the Orton-Gillingham methodology and the Wilson Language System, as well as the use of a word processor for written assignments (Exhibit P-162).
At petitioner's request, the CSE reconvened on January 29, 1998 to consider whether the boy should receive speech/language therapy. The BOCES speech/language therapist reported that the boy was passing his courses and was functioning appropriately within his environment. Petitioner also questioned the BOCES decision not to use the Wilson Reading Program during the 1997-98 school year. The boy's BOCES case manager indicated that the BOCES was not capable of providing such instruction (Exhibit P-167). The CSE meeting was adjourned until February 11, 1998, when the CSE recommended that the boy receive speech/language therapy twice per week to improve his auditory processing and written language skills. At the hearing, the CSE chairperson testified that the CSE did not agree with petitioner's claim that the boy needed direct speech/language therapy, but had recommended it to accommodate petitioner.
The CSE also amended the boy's IEP goals for English, and it agreed that the boy should have an assistive technology evaluation. I note that the evaluation was performed at the BOCES on April 28, 1998. The evaluators noted that petitioner's son had access to a variety of assistive technology devices at the BOCES, although he reportedly did not use some of them, such as books on tape. He reportedly demonstrated a number of functional computer skills. The BOCES evaluators offered a number of suggestions for appropriate computer software, but recommended that the CSE review the boy's academic program before revising his IEP to include assistive technology (Exhibit P-24). The CSE considered petitioner's contention that it had failed to implement the recommendations by the Stern Center about her son's reading program. The BOCES staff at the meeting refuted this Stern Center diagnostician's claim that the Glass Analysis methodology was inappropriate for the boy. However, petitioner insisted that it had not worked for her son, and asked that the BOCES use a different methodology. The CSE did not agree to specify the use of a particular teaching methodology in the boy's IEP.
On March 5, 1998, petitioner requested an emergency meeting with the CSE because she believed that her son was confused and frustrated by his class schedule resulting from the February CSE meeting. The CSE met with her on March 17, 1998, at which time it deleted resource room for reading from the boy's IEP, at petitioner's request (Exhibit P-192-A).
By letter dated February 15, 1998, petitioner requested that an impartial hearing be held because she and the CSE were "... still not in complete agreement" (Exhibits P.-176). Respondent appointed a hearing officer on or about February 27, 1998. A pre-hearing conference was scheduled to take place on April 9, 1998, which was reportedly the earliest date the hearing officer could meet with the parties (cf. 34 CFR 300.512 [a]). Shortly before that date, the hearing officer rescheduled the pre-hearing conference to take place on May 5, 1998. However, he advised the parties on April 30, 1998 that illness precluded him from proceeding with the matter (Joint Exhibit 3). A second hearing officer was appointed, and held a pre-hearing conference on May 5, 1998. The hearing began on May 26, 1998, and continued for four more days ending on July 13, 1998. The hearing officer and the parties agreed to review the voluminous exhibits before closing the record. The review took place on October 5, 1998, when it was agreed that the parties would exchange post-hearing briefs by October 30, 1998. That date was thereafter extended to November 13, 1998.
The hearing officer rendered his decision on December 31, 1998. He issued an amended decision on January 2, 1999. The amended decision is the subject of this appeal. The hearing officer noted that petitioner had raised seven issues in her post-hearing brief. One of her issues was that the hearing officer should rule upon the appropriateness of her son's IEPs since the third grade. The hearing officer reiterated his determination that this proceeding was limited to the boy's IEP for the 1997-98 school year. He dismissed petitioner's claim for reimbursement for the cost of her lay advocate and educational consultant, as well as other expenditures totaling $32,764.90, finding that he was not authorized by statute or regulation to compel respondent to pay for those expenditures.
The third issue which he addressed was whether petitioner's son was entitled to receive ESY services. The hearing officer found that the boy did not evidence substantial regression in his performance from June to September, and was therefore ineligible for ESY services. The next issue he addressed was whether petitioner's son had been evaluated in all areas of his suspected disability in a timely manner. The hearing officer noted that the boy had been extensively evaluated at respondent's expense, and found that he had been appropriately evaluated in a timely manner.
Addressing petitioner's claim that respondent had not provided specially designed instruction to meet the needs of her son, the hearing officer noted that petitioner agreed with much of her son's IEP for the 1997-98 school year, and he found that the CSE had correctly identified the boy's disability as being in the areas of reading and written language. The hearing officer noted that the 1997 amendments to the Individuals with Disabilities Education Act (IDEA) prescribed the use of more detailed short-term objectives and benchmarks than were in this boy's IEP, but pointed out that the new requirement did not apply to the boy's IEP because it was prepared before July 1, 1998. With regard to petitioner's contention that the CSE should have insisted that the BOCES use the Wilson Reading Program during the 1997-98 school year, the hearing officer found that the testimony by petitioner's consultant about the improvement in the boy's reading skills when the Wilson Reading Program was used in the 1996-97 school year was essentially unrebutted. He directed the CSE to meet within 45 days after his decision to reconsider the implementation of the Wilson Reading Program, and retained jurisdiction of any issue arising from his directive.
Petitioner's sixth issue was whether respondent had complied with all applicable Federal and State regulations. The hearing officer found that respondent had complied "... except to the extent indicated." On the last issue of whether the boy was entitled to compensatory education, the hearing officer remanded the matter to the CSE to consider in connection with his directive about the Wilson Reading Program.
Petitioner challenges the hearing officer's decision on a number of grounds, the first of which is that he reportedly failed to rule upon her objection to respondent's request for an extension of the 45-day time limit for the hearing officer to render his decision in this proceeding (see 34 CFR 300.512 [a]; 8 NYCRR 200.5). I have accepted respondent's answer, despite its failure to respond to petitioner's specific allegations (cf. 8 NYCRR 275.12 and 279.5), which would have been most helpful. However, I find that the hearing officer did rule upon petitioner's claim by finding that respondent had complied with all applicable State and Federal regulations with certain exceptions which are not relevant to this issue. Moreover, I must note that the parties did agree to the time limits for the post-hearing meeting and submission of briefs, which were well beyond the 45-day limit, and that the record reveals that respondent acted promptly to appoint a hearing officer after its receipt of petitioner's hearing request. Therefore, I find that petitioner's claim is without merit.
Petitioner's next claim is that the hearing officer did not rule upon each of the issues which she wished him to address pursuant to the IDEA regulations and Section 504 of the Rehabilitation Act of 1973. As noted above, I do not review claims brought pursuant to Section 504, and I agree with the hearing officer's determination not to determine the appropriateness of the boy's IEPs for the school years prior to 1997-98. Petitioner did raise a number of IDEA issues with regard to her son's educational program for the 1997-98 school year in her post-hearing brief. I am concerned that some of the issues appear to have been raised after the record was closed, thereby precluding the introduction of relevant evidence. However, I will address the issues for which there is adequate evidentiary support in the record.
Petitioner contended in her post-hearing brief that she had been denied procedural due process of law because the notices about proposed CSE meetings which she received did not specify the names and titles of the people expected to attend those meetings, as required by 8 NYCRR 200.5 (a)(3). Having examined Exhibits P-130, 141, 164, 167 and 187, I must agree with petitioner. I do not agree with her further contentions that the notices of recommendation which she received should have explained why the CSE opted for a different reading methodology in the 1997-98 school year (Application of a Child with a Disability, Appeal No. 93-43), or that the CSE's explanation of its actions did not comply with the requirements of 34 CFR 300.505 (a)(2) and 8 NYCRR 200.5 (a)(4)(i)(c). The IEPs sent to petitioner described the other program and placement options considered, and why they were not accepted by the CSE.
Petitioner challenges the appropriateness of her son's educational program on a number of grounds. The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 ), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
Petitioner contends that her son's IEP for the 1997-98 school year did not adequately identify his needs. She asserts that the CSE failed to conduct a classroom observation since 1988. I must point out that a classroom evaluation is required for an initial evaluation, but is not required for subsequent evaluations (8 NYCRR 200.4 [b][viii]; 8 NYCRR 200.4 [e]). This is also true with respect to the CSE's alleged failure to obtain a new social history of the child. Petitioner also contends that the CSE failed to obtain current information about her son from any of his physicians. Having reviewed the boy's IEP, which includes a comment by the boy's physician about the boy's mild to moderate attention deficits, I find that petitioner's contention is without merit. I further find that the boy's IEP adequately describes the boy's academic achievement and learning characteristics, social development, physical development, and management needs, as required by 8 NYCRR 200.4 (c)(2)(i).
The hearing officer found that the boy's IEP annual goals and short-term objectives complied with the requirements of Federal and State law which were in effect when the IEP was prepared and amended. Petitioner challenges that finding, and asserts that her son's annual goals and objectives did not meet the Federal requirement because they were not based upon the boy's special education needs (see 34 CFR Part 300, Appendix C, Question 40). I agree with petitioner that her son's IEP goal that he "... will successfully complete the objectives of the English II course" and similar goals for his U.S. history and applied mathematics courses did not specifically address his special education needs, or indicate how his teachers were to either remediate his educational deficits or teach him compensatory skills. I will therefore annul that portion of the hearing officer's decision which dismissed petitioner's challenge to her son's IEP goals and objectives.
An appropriate IEP was also include suitable special educational services. Petitioner did not challenge her son's BOCES placement, but did challenge the use of a particular reading program in the BOCES placement. The hearing officer agreed with her in part. Respondent has not cross-appealed, and I do not review that part of the hearing officer's decision. Petitioner also challenged her son's educational program on the ground that it should have included ESY services. She contends that the hearing officer applied an incorrect standard in determining that her son was ineligible to receive ESY services. The hearing officer relied upon the provisions of 8 NYCRR 200.6 (j), which require that the CSE determine whether petitioner's son required a 12-month program in order to prevent "substantial regression." That term is defined by 8 NYCRR 200.1 (nn) to mean:
" ... a student's inability to maintain developmental levels due to a loss of skills or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the school year."
Respondent's CSE chairperson testified at the hearing that petitioner's son did not meet the substantial regression criterion. I find that there is nothing in the record which would refute the chairperson's testimony. While I have considered petitioner's claim that her son did meet the criteria for ESY services because he was "regressing" in his reading, writing and spelling skills in relation to his peers, I do not agree that her son was eligible for ESY services under an alleged Federal definition of regression.
I have also considered petitioner's claims about the appropriateness of the IEP description of her son's transition services (see 8 NYCRR 200.1[ss]), and the CSE's alleged delay in obtaining an assistive technology evaluation for her son. I find that neither claim has merit, and I note that the latter evaluation offered some helpful suggestions, but did not indicate that the boy had any unmet needs as a result of his 1997-98 IEP. Petitioner also contended before the hearing officer that her son's IEP had not been implemented as written. I have examined the five exhibits which petitioner relied upon (Exhibits P-145, 191, 229, 230, and 231), and find that there is no merit to her claim.
Petitioner challenges the hearing officer's order remanding the matter to the CSE to reconsider the use of the Wilson Reading Program. She asserts that the CSE met on February 4, 1999, and that she "... received the same response from the CSE as prior to the hearing a year ago." I note that in its answer, respondent asserts that the boy began being tutored using the Wilson Reading Program for one hour a day on January 11, 1999. I further note that the hearing officer retained jurisdiction to settle any dispute regarding the implementation of his order, and respondent alleges in its answer that it was in the process of reappointing the hearing officer to review its compliance with his remand order. The record does not reveal the outcome of that proceeding. While I understand petitioner's desire to resolve this issue as quickly as possible, I cannot review what the hearing officer did or did not do in that subsequent proceeding. I also lack an adequate factual basis for determining what services have been provided to the child during the ensuing school year and how they may have addressed his special education needs. In essence, the hearing officer found that the CSE may not have been fully informed about the merits of the Wilson Reading Program, so he remanded the matter to the CSE. He did not find, nor can I on this record find, that an educational program which did not include the Wilson Reading Program would not meet the standard for a free appropriate public education which respondent was obliged to provide. Under the circumstances, I must disagree with petitioner's assertion that her son, who was then in the eleventh grade, was entitled to an award of compensatory education (Burr by Burr v. Ambach, 863 F. 2d 1071 [2d Cir., 1988]; Application of a Child with a Disability, Appeal No. 98-33), and I dismiss her challenge to his order.
Petitioner asks that I order respondent to reimburse her for the sum of $300 which she reportedly paid to the Stern Center for its review of the child's educational records in December, 1997. However, I find that her claim was not among the issues set forth in her post-hearing brief, and it is therefore not properly before me. She also seeks reimbursement for the cost of the services provided by her lay advocate and her educational consultant, as well as various expenditures which she made in connection with this proceeding. Petitioner's request for reimbursement appears to be premised upon the provisions of 20 USC 1415 (e), now USC 1415 (i)(3)(B). That statute provides that "the court" may award attorney's fees and related costs. As I indicated in Applications of a Child with a Disability and the Board of Education of the Morrisville-Eaton Central School District, Appeal Nos. 96-21 and 96-23, a parent's entitlement if any, to costs must be determined by a court of competent jurisdiction.
I have considered petitioner's other contentions which I find to be without merit. While I have sustained her appeal with respect to the notices of the CSE meetings which were sent to her and the appropriateness of the boy's IEP goals and objectives, I find that there is no point in remanding the matter to the CSE to revise an IEP for a school year which ended before the hearing in this proceeding was completed.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is hereby annulled, to the extent that it found that respondent's CSE had provided adequate notices of its meetings to petitioner with regard to her son's IEP for the 1997-98 school year, and that it found that the boy's 1997-98 annual goals and objectives were appropriate.
|Dated:||Albany, New York||__________________________|
|October 15, 1999||FRANK MUŅOZ|