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 Mamaroneck Union Free School District
Shaw and Perelson, LLP, attorney for respondent, Lisa S. Rusk, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision which found that respondent had provided petitioner's son with an appropriate educational program, including the use of an adequate assistive technology device, during the 1998-99 school year. The hearing officer dismissed petitioner's claims under both the Individuals with Disabilities Education Act (IDEA, see 20 USC 1400 et seq.) and Section 504 of the Rehabilitation Act of 1973 (Section 504, see 20 USC 794). Petitioner contends that respondent violated her son's rights under the IDEA and Section 504, and requests that I direct respondent to provide compensatory education to her son. She also seeks an award of "punitive compensatory damages", as well as reimbursement of certain expenditures. The appeal must be dismissed.
Initially, I must point out that the New York State Education Law makes no provision for state-level administrative review of local hearing officer decisions in hearings held pursuant to Section 504 (Application of a Child with a Disability, Appeal No. 96-37). Petitioner's remedy for a review of the hearing officer's determination of her Section 504 claims is to seek judicial review. I do have jurisdiction to determine petitioner's IDEA claims. However, I note that the IDEA does not provide for money damages (Wenger v. Canastota Central School District, 979 F. Supp. 147 [N.D. N.Y., 1997], aff'd ____ F 3d ____ [2d Cir., 2000], 32 IDELR 65). Petitioner seeks reimbursement for certain expenditures which she has made, which can be an appropriate remedy under the IDEA. Petitioner has also asserted some very general claims about respondent's special education program, and the school district's Two-Year Plan. Complaints of that nature should be addressed to the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (34 CFR 300.660; Application of the Board of Education of the Clarkstown Central School District, Appeal No. 99-11).
Petitioner's son is 18 years old. He has been classified as learning disabled by respondent's committee on special education (CSE). When independently evaluated by a psychologist in the spring of 1996, the boy achieved a verbal IQ score of 102, a performance IQ score of 87, and a full scale IQ score of 95 (Exhibit P-1). The evaluator reported that the boy's verbal IQ score was "artificially lowered" because of the low score he had received on the arithmetic subtest. The boy achieved a verbal IQ score of 108 when he was allowed to use a calculator on an alternate version of the arithmetic subtest. The evaluator noted that the boy had previously been found to have an auditory processing disorder, and had been using an auditory trainer. The boy's performance on various IQ subtests indicated that he had difficulty with perceptual motor integration and sequential organization, in addition to trouble putting social knowledge into practice. The psychologist opined that the boy's "most dramatic disturbance" was in arithmetic, which was "so serious that it is almost as if he had a mathematical agnosia [loss of comprehension]". He further opined that petitioner's son should always be allowed to use a calculator, especially one which printed if the boy was required to work with graphs. The boy also had difficulty producing written expressions. The psychologist recommended that the student have the use of a lap top computer to assist him in becoming an independent note-taker. The boy's classification as learning disabled is not disputed in this proceeding.
During the 1996-97 school year, petitioner's son was enrolled in the ninth grade at respondent's high school. The boy's educational program for that school year was the subject of a prior due process proceeding (see Application of a Child with a Disability, Appeal No. 97-46). One of the issues in that proceeding was the scheduling of an assistive technology ("AT") evaluation for petitioner's son. In April, 1997, an AT evaluation was performed at the Westchester County Medical Center (Exhibit D-14). The purpose of the evaluation was to identify instructional software and other AT devices to assist the boy in completing his writing assignments and note-taking, and in processing complex visual information such as maps and graphs for science and mathematics courses. The evaluator noted that petitioner's son was then using a Texas Instruments Model 82 graphical calculator ("T.I. 82") for math. The evaluator reported that it was difficult to assess the effect of graphing and mathematics software on the boy's ability to decipher and read complex charts, graphs and maps because some training and familiarity with the software was necessary in order to use them effectively. She suggested two software programs as aids for the boy in his science and math courses: Scholar and the Geometer's Sketch pad. The evaluator also suggested that image processing software be considered for future use to enhance and adapt maps and graphs. She indicated that the boy should be provided with an appropriate workstation, and he should use earphones to minimize distractions. The evaluator also recommended that staff and family be trained in the use of the boy's software programs.
On February 23, 1997, the boy achieved grade equivalent (and percentile) scores of 11.3 (63) for general knowledge, 12.5 (70) for reading recognition, 12.9 (91) for reading comprehension, 10.0 (55) for math, and 12.9 (68) for spelling on the Peabody Individual Achievement Test - Revised (Exhibit D-12). His scores on that test were all above grade level. The evaluator reported that the boy had used a calculator on the math subtest, and had been able to solve all word problems requiring simple addition, subtraction, multiplication and division of whole numbers. However, the boy had difficulty with two-step word problems, and could not solve problems requiring sophisticated calculator usage. The evaluator noted that petitioner's son had moved from a Regent's level math course in which he was failing to an algebra class where he was successful. He also moved from a regular education global studies class to a self-contained social studies class during the third quarter of the 1996-97 school year.
During the 1997-98 school year, petitioner's son was enrolled in regular education tenth grade classes in respondent's high school. The boy reportedly received resource room services for four periods per week, as well as one period per week of individual counseling and three periods per week of individual speech/language therapy. I note that his individualized educational program (IEP) for that school year is not part of the record which is before me. On March 5, 1998, the boy's resource room teacher reported that he had improved in all areas of language arts. The resource room teacher indicated that the boy's English and social studies teachers had reported that he was keeping up with his assignments. She further indicated that he had excelled in science, and that IBM had offered the boy a summer internship to continue work on an in-home computer networking design he had begun as an original research project. The boy was reportedly having some conceptual problems in math, but was described as holding his own in geometry (Exhibit D-13).
On March 6, 1998, respondent's CSE prepared the boy's IEP for the 1998-99 school year (Exhibit D-3). The CSE recommended that resource room services be increased to five periods per week, and that the boy continue to receive three periods of individual speech/language therapy per week. It did not recommend that he continue to receive counseling because the school psychologist had reported that the boy was relating well to his peers and adults. The boy's IEP indicated that he would be enrolled in regular education English composition and literature, Math 3A, physical education, U.S. History, Regents Biology, "Internship", and "Original Research I" classes. It further indicated that the boy would be taught to take notes by his speech/language therapist, in coordination with the resource room teacher. In its description of the boy's present levels of performance and individual needs, the IEP indicated that petitioner's son used a calculator for math calculations, and that he was on grade level. It also indicated that he used a Geometer's Sketch pad for instructional purposes in geometry. The IEP included a list of "classroom modifications and accommodations", such as having access to a word processor described as "Alpha Smart", or a computer with a spell checker and a printer for note-taking and written assignments, and having the boy's resource room teacher converse with petitioner on a monthly basis regarding the boy's IEP progress. The IEP also provided for various testing modifications, including flexible scheduling, extended time limits, separate locations in which to take tests, clarification of directions and questions, exemption from copying maps or complicated drawings, and proration of tests as necessary. Of particular significance in this proceeding, the IEP indicated that the boy should have the "Use of a scientific/graphing calculator and cable link to computer". The boy's IEP annual goal for social studies/math/science provided that he would begin to work with maps, complicated drawings and graphing "as it pertains to content areas". The objective for this goal provided for "Continued use of appropriate software that is course appropriate". The IEP indicated that petitioner and her son were participants in the March 6, 1998 CSE meeting.
Petitioner and the special education supervisor at respondent's high school subsequently corresponded about the calculator which the boy should use in his math courses. Petitioner sought to have respondent allow her son to use a Texas Instruments 92 ("T.I. 92") calculator in his math courses because the T.I. 82 which he had been using reportedly lacked the geometry functions which the boy needed (Exhibit P-17). She also challenged the alleged refusal of the school to allow the boy to use the Geometer's Sketch pad on his tests. In her May 4, 1998 letter to the supervisor, petitioner also noted that she had not received a copy of the March 6, 1998 IEP. On May 10, 1998, petitioner met with respondent's Assistant Superintendent for Administration and Personnel and a unit principal. The former's notes from that meeting indicated that it was agreed that the boy's teachers would determine whether it would be appropriate for petitioner's son to use the T.I. 92 during tests (Exhibit D-10).
On or about June 16, 1998, petitioner received her son's IEP for the 1998-99 school year which had been prepared at the March 6, 1998 CSE meeting. She signed a form indicating that she consented to the implementation of the IEP, with the notation that she did so, "under protest regarding study in Biology, and Geometry Sketch pad instruction only". Petitioner did not raise the issue of her son's use of a T.I. 92 in her consent to the implementation of his IEP. She did correspond with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (VESID) about the use of the T.I. 92 for tests. By letter dated June 29, 1998, a VESID representative indicated that a T.I. 92 calculator with a QWERTY keyboard was an acceptable test modification for use in taking a State examination (Exhibit P-5). The VESID representative also indicated that it was unnecessary to specify a certain calculator on a child's IEP, but a CSE could include such information on an IEP. I note that in a subsequent letter dated December 22, 1998, the VESID representative indicated that she would not comment about what calculator might be appropriate for petitioner's son, and that it was the CSE's responsibility to determine appropriate testing accommodations for him (Exhibit P-4).
The resource room teacher to whom petitioner's son was assigned for the 1998-99 school year resigned shortly after the beginning of the school year. Respondent was reportedly unable to obtain a certified special education teacher as a substitute teacher, but it did hire a substitute while it recruited a new resource room teacher. A new resource room teacher began working with petitioner's son on or about November 3, 1998. During the period between the resignation of the first resource room teacher and the hiring of the new teacher, petitioner's son returned to his resource room teacher for the 1997-98 school year to take tests, and to receive some assistance.
During the 1998-99 school year, petitioner's son was enrolled in a regular education Math 3A course. The curriculum for the course included rational numbers, rational expressions, circles, irrational and real numbers, functions, transformations, complex numbers, statistics and probability, and the binomial theorem (Exhibit D-4). At the hearing in this proceeding, the boy's Math 3A teacher testified that all students were allowed to use scientific calculators in class, but that none were allowed to use the T.I. 92 because a student who used that device would not demonstrate his comprehension of the skills she was teaching. She described various mathematical operations which could be performed with a T.I. 92 but not with a T.I. 82, and which were directly related to the Math 3A curriculum (Transcript, pages 82-84).
The teacher testified that petitioner's son took the last test of the first marking period using a T.I. 92 without her knowledge. Upon discovering that the boy had used the T.I. 92 on the test, the math teacher contacted the high school building and "house" principals, and the mathematics department chairperson. She met with the house principal and the boy's resource room teacher to devise a compromise, in which the boy would take the test again using the T.I. 82 to show his work and the T.I. 92 to check his answer. However, that resolution was reportedly unacceptable to petitioner. The boy received a grade of "Incomplete" in Math 3A for the first marking period (Exhibit P-32).
In a letter dated October 27, 1998, the house principal advised petitioner that her son could not retake his tests using the T.I. 92 to factor because the T.I. 92 would do the factoring, rather than allowing him to demonstrate that he knew how to factor. She asserted that the child's current math teachers, as well as two of his previous math teachers, believed that the boy could learn to factor (Exhibit D-11). Petitioner unsuccessfully appealed to respondent's superintendent to allow her son to use the T.I. 92 in Math 3A. She also communicated with members of the Board of Education, who advised her in a letter dated December 15, 1998, to go back to the CSE or request an impartial hearing (Exhibit D-9). By letter dated December 16, 1998, petitioner requested that an impartial hearing be held to "address enforcement of an IEP" (Exhibit P-1).
On December 18, 1998, the boy and his parents met with the building principal, respondent's Assistant Superintendent for Administration and Personnel, the Assistant Supervisor of Special Education, and the boy's resource room teacher to discuss the procedure to be followed when the boy took tests and quizzes, his use of a laptop computer, his use of a calculator in Math 3A, and the method of grading to be applied to him in Math 3A. The principal summarized the results of that meeting in a letter dated December 18, 1998 (Exhibit P-20). He indicated that the boy would take all major tests and certain quizzes under the supervision of his resource room teacher, and that other quizzes would be taken under the supervision of an individual in the principal's office. Test time limits would be extended to one and one-half times the normal limit, in accordance with the boy's IEP. Arrangements would be made for the boy to use either of two computer labs to print from his laptop. The principal indicated that petitioner's son would not be allowed to use the T.I. 92 either in class or during exams in Math 3A. The boy would be allowed to use the T.I. 82/83 for Math 3A class work, homework, and tests. He would also be allowed to use a paper multiplication table. The principal further indicated that the Math 3A teacher and the boy's resource room teacher would assess the boy's ability to deal with each new topic of the course after it had been introduced to him, and would assist him in solving problems related to the topic. The boy's first marking period grade in Math 3A would not be counted towards his final grade, and he would be given alternative assessments to allow him to demonstrate mastery of the math topics taught prior to December 18, 1998.
After the meeting, petitioner sent letters to the building principal and the superintendent of schools expressing her dissatisfaction with the outcome of the meeting which was held on December 18, 1998, and alleging that her son was being discriminated against on the basis of his disability in violation of Section 504 (Exhibits P-28, 31). On December 18, petitioner also requested an urgent meeting of the CSE for the purpose of having her son's IEP amended to specify his use of a T.I. 92 (Exhibit D-5). On December 21, 1998, the CSE chairperson responded to petitioner's request by noting that petitioner had previously requested an impartial hearing to consider the same issue, and suggesting that the matter be left to the hearing (Exhibit D-6). The CSE chairperson reiterated her position in a subsequent letter dated January 8, 1999 (Exhibit D-7).
In a letter dated December 23, 1998, petitioner outlined her reasons for requesting a hearing (Exhibit D-2). She alleged that her son's IEP providing for the use of "scientific graphing calculator with cable link for tests and classroom work" had been violated, and that her son had been penalized with lower test scores for using the T.I. 92, which she asserted he had been given permission to use. Petitioner also objected to that fact that her son had allegedly not been allowed to take the math tests and quizzes which his classmates had taken in Math 3A, and as a result, had received an incomplete for a first marking period grade. She further objected to an alternative assessment program which the Math 3A teacher had implemented to grade her son's work. Petitioner alleged that respondent had stopped providing a quiet, separate location for her son to take his test after she had complained about the boy's IEP. She contended that her son's resource room teacher had not instructed him in math with the use of any calculator. Petitioner challenged the adequacy of her son's IEP for the 1998-99 school year because it did not include "calculator technology instruction goals", or math goals. Petitioner also claimed that various Federal and State regulations had been violated by respondent's actions and inaction.
The hearing in this proceeding began on January 25, 1999. At that time, petitioner asserted additional claims, such as the CSE's failure to promptly mail a copy of her son's March 6, 1998 IEP to her, and a request for reimbursement for the cost of the T.I. 92 which she had purchased for her son and for an assistive technology tutor and a special education tutor who were working with the boy during the 1998-99 school year. Petitioner also challenged respondent's alleged failure to provide resource room services to her son from September until November 3, 1998, and the failure of the resource room teacher who began working on the latter date to provide study notes to her son. She also challenged the CSE's failure or refusal to meet with her to discuss the inclusion of the T.I. 92 on her son's IEP. Petitioner requested that the hearing officer consider her claims under both the IDEA and Section 504. Respondent initially opposed petitioner's request, but subsequently agreed to it.
On the opening day of the hearing, respondent asked the hearing officer to direct that an assistive technology evaluation with reference to the requirements for Math 3A be performed. Petitioner ultimately agreed with respondent's request. Respondent selected Technology Resources for Education (TRE) to perform the evaluation. On March 8, 1999, David Grapka, the TRE coordinator, performed the assistive technology evaluation, consisting of an assessment of the boy's ability to use the school's available technology, interviews with teachers, and a review with the boy of his Math 3A mid-term exam. Mr. Grapka also reviewed the boy's IEP. He reported that the boy no longer used the Alpha Smart for note taking because the screen was too small, and he had someone take notes on his personal Crosspad, in addition to taking his own notes and receiving notes from his teachers. The boy also advised Mr. Grapka that he no longer used the Inspiration Software listed on his IEP to organize his writing assignments because he did not believe it was good to use in class and had erased it from the memory of the school's laptop when he reformatted its hard drive. He further advised Mr. Grapka that he no longer used the Geometer Sketchpad listed on his IEP because it didn't fit in the curriculum.
Mr. Grapka asked petitioner's son to demonstrate how he had worked through some of the problems on his mid-term exam in Math 3A. The boy was able to achieve correct answers without the use of any calculator for some of the problems which he had gotten wrong on the exam. On one problem, he used the T.I. 92 and explained the steps which he had taken to obtain the correct answer, while noting that it only demonstrated that he knew how "to press buttons". The boy got incorrect answers on two questions using the T.I. 92 because he incorrectly entered data.
Mr. Grapka reported that the boy was able to demonstrate that he could solve problems on the exam and explain the steps he had taken, notwithstanding his learning disability. He noted that the boy had made careless data entry errors while using both the T.I. 82 and T.I. 92, and had evidenced a difficulty with number reversals. Mr. Grapka opined that the boy had done well when he took time to think through the problems on the exam and explain his work. He further opined in view of the boy's ability to do the work and the fact that the T.I. 92 did not require its user to demonstrate knowledge of the problem-solving steps, that it was not necessary for the boy to use the T.I. 92 to actually solve problems and copy the answer. He recommended that the boy continue to use the T.I. 82 as a tool to solve problems, and the T.I. 92 to check his problem solving "as needed".
Mr. Grapka made several recommendations for the boy's teachers to follow in providing assistance to the boy. He suggested that the number of test questions the boy was asked to solve be reduced, and that the boy not be required to copy problems to eliminate his difficulty with number reversals. Mr. Grapka recommended that the number of items on each page of a test be reduced to minimize his distractibility, and that the boy be given more time in which to complete his tests. He also recommended that the boy take his tests in a quiet, non-distracting environment. Mr. Grapka suggested that teachers continue to provide the boy with number fact charts and lists of perfect squares, and that they be consistent in their expectations for him and supportive of his efforts (Exhibit P-35).
After receiving Mr. Grapka's report, petitioner asked the hearing officer for an independent assistive technology evaluation. The hearing officer indicated that petitioner should discuss the report with the CSE which was to meet with her on March 19, 1999. The CSE reviewed Mr. Grapka's report on that date. Mr. Grapka participated by telephone in the CSE meeting. The boy's math teacher and his resource room teacher concurred with Mr. Grapka's recommendation that petitioner's son use the T.I. 82 to solve math problems, and the T.I. 92 to check his work. The CSE recommended that the boy's educational program and testing modification remain unchanged. The CSE revised the boy's IEP goals. It added a goal that he would "demonstrate an ability to attain math computations, skills/concepts and apply them to problem solving situations." In the comments section of the IEP which the CSE prepared on March 19, 1999, the CSE indicated the student "may use the T.I. 92 in order to check his work only" (Exhibit P-48). Petitioner objected to Mr. Grapka's report (Exhibit P-50), and to the CSE's recommendations (Exhibit P-51, P-56).
On March 24, 1999, a private psychologist reviewed the psychological evaluation which the boy had received in the spring of 1996. She reported that the boy had a two-fold learning disability consisting of a right hemisphere learning disability affecting his perceptual processing, and a linguistic processing deficit affecting his comprehension of auditory language and written expression. She opined that the boy required the unlimited use of a scientific graphing calculator with symbolic manipulation and printing capacity (Exhibit P-45).
When the hearing resumed on March 22, 1999, petitioner objected to the assistive technology evaluator's report, claiming that Mr. Grapka was biased and had failed to do what he had been expected to do. She reiterated her request that respondent be required to fund an evaluation by a teacher who conducts workshops for the makers of the T.I. calculators. Respondent agreed to have the hearing officer determine whether the March 8, 1999 assistive technology evaluation was adequate, which would resolve the issue of petitioner's request for an independent evaluation at public expense (34 CFR 300.502 [b]; 8 NYCRR 200.5 [a] [vi] [a]). Petitioner indicated that she would obtain an independent evaluation, but she requested that respondent provide her evaluator with information about what skills were required for the various topics in the Math 3A curriculum. The hearing officer suggested that petitioner's evaluator look at the boy's textbook and consult with his 3A teacher (Transcript, page 1236). Petitioner renewed her request for an educational evaluation to ascertain her son's current functioning level in math without the assistance of a calculator. The hearing officer noted that the boy's triennial evaluation was about to be performed, and he suggested that petitioner consent to having an educational evaluation performed (Transcript, page 1243).
After eight days of hearings, the hearing concluded on April 19, 1999. The hearing officer rendered his decision on June 2, 1999. With regard to the timeliness of the hearing process, the hearing officer noted that two hearing dates had been cancelled because of inclement weather, and another date was cancelled because of his unavailability. He also noted that there were approximately 2000 pages of transcript, and found that there was an adequate basis for extending the 45-day time limit for the conclusion of the proceeding. The hearing officer found that petitioner had been an equal participant in the development of her son's IEP for the 1998-99 school year, and that the IEP was not deficient because it did not include specific goals for mathematics. He noted that the boy's mathematics skills had been found to be at the tenth grade level with the assistance of a calculator when he was tested in February, 1997. However, he directed the CSE to assess the boy's mathematics skills without a calculator during its about to be performed triennial evaluation of the boy. The hearing officer agreed with petitioner that her son's social history should be updated, and he directed the CSE to do so as part of its triennial evaluation.
The hearing officer rejected petitioner's contention that her son should have been allowed to use a T.I. 92 for his Math 3A course during the 1998-99 school year. He credited the testimony by respondent's staff that the boy could meet the requirements of the Math 3A course with the assistance of a T.I. 82 and the use of a printed multiplication table, and found that there was nothing inappropriate in requiring the boy to use those devices in the Math 3A course. In reaching that conclusion, the hearing officer also relied upon the assistive technology evaluation report by Mr. Grapka.
The hearing officer found that respondent had provided an appropriate educational program to the boy, notwithstanding the poor grades which the boy achieved in Math 3A, which the hearing officer attributed to the boy unwillingness to perform required tasks so that his teachers could properly evaluate his understanding of the course work. The hearing officer further found that it was appropriate for the boy to be given an alternative assessment of his math skills during the second quarter of the 1998-99 school year.
The hearing officer dismissed petitioner's contentions that she had not received a copy of her son's IEP in a timely manner, and that the IEP had not been implemented properly because he had allegedly not received resource room services during the fall of 1998. He noted that she had received a copy of the IEP 76 days before the start of school for the 1998-99 school year, and that petitioner's son had received services from his previous year's resource room teacher during the interval between the abrupt resignation of his assigned resource room teacher and the hiring of a replacement teacher. The hearing officer also dismissed petitioner's complaint that respondent had violated her rights and those of her son under Section 504.
Petitioner challenges the hearing officer's decision on procedural and substantive grounds. I will first consider her procedural objections. Petitioner asserts that the hearing officer's decision of June 2, 1999 was untimely because it was rendered months after her December 16, 1998 request for a hearing. Federal and State regulations require hearing officers to render their decisions within 45 days after the request for a hearing has been received by a board of education (former 34 CFR 300.512 [a], now 34 CFR 300.511 [a]; 8 NYCRR 200.5 [c] ). However, a hearing officer may extend the 45-day period for a specific period of time at the request of either party (former 34 CFR 300.512 [c], now 34 CFR 300.511 [c]). In his decision, the hearing officer indicated that he had exercised his authority to extend the time limit for his decision beyond the 45-day limit. The record reveals that respondent appointed the hearing officer approximately three weeks after receiving petitioner's hearing request. Thereafter, the parties were reportedly unable to agree upon a convenient date for the hearing to be held before January 25, 1999. Although petitioner urged the hearing officer to conclude the hearing promptly by scheduling successive hearing dates, the parties were apparently unable to arrive at mutually convenient dates for the remaining eight days of hearings. The record also reveals that the hearing was prolonged by repetitious, and at times, irrelevant testimony. The hearing officer required extra time at the conclusion of the hearing because of the length of the transcript, and the numerous issues which were raised. In any event, the hearing officer's delay does not afford a basis for annulling his decision (Application of a Child with a Handicapping Condition, Appeal No. 92-32; Application of a Child with a Disability, Appeal No. 93-38).
Petitioner complains that the hearing officer refused to accommodate her request that the hearing begin before 10:00 a.m., and she asserts that his refusal to do so violated her rights pursuant to the former 34 CFR 300.512 (d), now 34 CFR 300.511 (d). The Federal regulation to which petitioner refers indicates that hearings are to be conducted at a time and place which is reasonably convenient to the parent and child. Petitioner reportedly preferred that the hearing begin at 8:00 a.m. I find that the record does not demonstrate a substantial infringement upon petitioner's rights.
Petitioner contends that the hearing officer should have issued a subpoena compelling respondent to indicate how the pages of her son's Math 3A textbook correlated to the Math 3A curriculum. Her request was denied by the hearing officer, who suggested that it would be more appropriate for petitioner to discuss the matter with the Math 3A teacher (Transcript, page 1825). I agree with the hearing officer. Petitioner was not requesting that respondent produce an existing document. Respondent was not obligated to prepare a document for petitioner.
I have considered petitioner's assertion that the hearing officer should have allowed her to introduce her written evidence prior to her cross-examination of respondent's witnesses, and that he failed to sequester the witnesses despite her request that the witnesses be sequestered. The hearing officer indicated at the outset of the hearing that respondent would present its case first, and that petitioner would then have the opportunity to present her case. Since respondent has the burden of proving that the educational program which it offered was appropriate, I find that the hearing officer correctly determined that the Board of Education should go first. Shortly after beginning the presentation of her case, petitioner requested that all of her written evidence be admitted together in the sequence in which she had prepared it. Her request was denied. I must again concur with the hearing officer's determination. While the strict rules of evidence need not be followed in an impartial hearing, respondent had the right to insist that exhibits be introduced through witnesses having personal knowledge of them. It was also the hearing officer's responsibility to rule upon respondent's objections to individual exhibits, and to exclude irrelevant and unduly repetitious evidence (Application of a Child with a Disability, Appeal No. 96-51; Application of a Child with a Disability, Appeal No. 96-71). Petitioner's claim regarding the sequestration of witnesses does not appear to be founded upon fact (see Transcript, pages 419-421).
Petitioner also challenges the hearing officer's denial of her requests for independent psychoeducational and assistive technology evaluations during the hearing. In view of petitioner's statement on the record that she was withdrawing her request for an independent assistive technology evaluation (Transcript, pages 1569-1571), I find that the issue with respect to that evaluation is moot.
Petitioner appears to have initially requested an independent "psychoeducational" evaluation at the hearing on February 3, 1999 (Transcript, pages 301-302). The hearing officer noted that petitioner's son was due for a triennial evaluation in May, 1999. Federal and State regulations provide that the parents of a child with a disability are entitled to obtain an independent evaluation at public expense, if they disagree with the school district's evaluation of the child, subject to the district's right to initiate a hearing for the purpose of determining if the district's evaluation is appropriate (former 34 CFR 300.503, now 34 CFR 300.502; 8 NYCRR 200.5 [a]  [vi] [a]). The boy's most recent psychological evaluation when petitioner requested an independent evaluation was an independent evaluation performed by Dr. Melvin Crosby in the spring of 1996. At the hearing on February 3, petitioner indicated that she respected "Dr. Crosby and his evaluation" (Transcript, page 304). It is unclear what, if any, part of Dr. Crosby's evaluation petitioner disagreed with for the purpose of seeking a new independent evaluation. By letter dated March 12, 1999, petitioner advised the CSE chairperson that she had given her consent for a psychological evaluation to be performed by respondent's psychologist, and she sought a consent form for her son's educational evaluation by his resource room teacher (Exhibit P-53).
Petitioner requested an independent educational evaluation at the hearing on March 22, 1999 because an educational evaluation by the boy's resource room teacher in 1997 had not determined the boy's level of math skills when he did not use a calculator. The hearing officer again noted that the boy's triennial evaluation would be performed in May, and suggested that the triennial evaluation be completed (Transcript, pages 1240-1244). By letter dated March 29, 1999, petitioner withdrew her consent to have respondent's school psychologist evaluate her son. She also indicated that she would not consent to having her son's resource room teacher perform an educational evaluation, and that she had contacted Dr. Crosby about re-evaluating her son. Petitioner also requested that respondent reimburse her for the cost charged by a second private psychologist on March 24, 1999 to review Dr. Crosby's report. I find that there is no basis in law or equity for petitioner's claim for reimbursement of the second psychologist's report. Petitioner had previously indicated that she did not object to Dr. Crosby's report, and the second psychologist provided no new information about that report.
On April 13, 1999, petitioner advised the hearing officer that she would still seek an independent psychoeducational evaluation (Transcript, page 1569). I note that she also urged the hearing officer not to delay his decision by waiting for an independent evaluation (Transcript, 1566). In any event, petitioner's entitlement to an independent psychoeducational evaluation at public expense was not subject to a ruling by this hearing officer, since no such evaluation had been performed by the time the hearing concluded. In her petition, petitioner asserts that Dr. Crosby has since re-evaluated her son, and she requests that she be reimbursed for the cost of his evaluation. As noted above, petitioner is entitled to an independent evaluation at public expense if she disagrees with the district's re-evaluation of her son, subject to respondent's right to initiate a hearing to defend the appropriateness of its evaluation.
An impartial hearing officer may also order that a child be evaluated at public expense (8 NYCRR 200.5 [c] ). Given the fact that the educational and psychological data in the record before him were reasonably current, I find that the hearing officer did not abuse his discretion in declining to order an evaluation during the hearing. I note that petitioner's son was evaluated by the chairperson of the special education department at respondent's high school on June 29, 1999 and July 2, 1999. At petitioner's request, I have considered the report of that evaluation, which was conducted after the hearing officer had rendered his decision.
Petitioner challenges the adequacy of her son's IEP for the 1998-99 school year, notwithstanding the fact that she consented to its implementation, with certain objections, on or about June 16, 1998 (Exhibit P-14). She asserts that the CSE failed to perform an assistive technology evaluation prior to preparing the boy's IEP. However, the CSE had previously received a report of the assistive technology evaluation which had been performed at the Westchester Medical Center in April, 1997 (Exhibit D-14). The fact that respondent subsequently agreed to have a second assistive technology evaluation performed by Mr. Grapka in March, 1999 does not, in my judgment, afford a basis for concluding that the CSE lacked adequate information about the boy's assistive technology needs when it prepared his IEP for the 1998-99 school year.
Petitioner asserts that the IEP failed to describe her son's present levels of performance. I disagree. The IEP lists the results of the Peabody Individual Achievement Test which was administered to the boy in February, 1997, and it includes a narrative description of his current performance which reflects the report prepared by his resource room teacher for the CSE meeting at which the IEP was prepared. The IEP described not only the boy's performance, but also his learning style.
I have considered petitioner's claim that she and her son were not present when the boy's IEP was developed. I find that her claim is not supported by the record. Petitioner and her son attended the March 6, 1998 CSE meeting at which the IEP was prepared (Exhibit D-3). After that meeting, petitioner and her son's resource room teacher for the 1997-98 school year reviewed the draft IEP which had been prepared at the meeting (Transcript, page 1128). The IEP was reportedly revised before it was finally printed, approved by the Board of Education, and mailed to petitioner on or about June 16, 1998. The record does not reveal whether any substantive changes requiring the participation of the CSE were made in the IEP. The delay in sending a final copy of the IEP to petitioner may have been attributable at least in part to respondent's attempt to work with petitioner. In any event, I concur with the hearing officer's determination that petitioner received the IEP well in advance of its implementation date.
The central issue in this appeal is whether petitioner's son should have been allowed to use the T.I. 92 in class and on exams in his Math 3D course. As noted above, the boy's IEP indicated that he could use "a scientific/graphing calculator and cable link to computer." The IEP did not specify what calculator the boy could use in his math class. An assistive technology device is defined by Federal regulation as "an item, piece of equipment, or product system ... that is used to increase, maintain, or improve the functional capabilities of a child with a disability" (34 CFR 300.5). A board of education must provide assistive technology devices to a child with a disability if the devices are required for the special education, related services, or supplementary services to be provided as part of the child's free appropriate public education (34 CFR 300.308). State regulation requires that an IEP describe any specialized equipment and adaptive device which a child needs to benefit from education (8 NYCRR 200.4 [c][xii]).
It is a CSE's responsibility to determine whether a child requires the use of an assistive technology device and the purpose for which the device is to be used (Application of a Child with a Disability, Appeal 94-24). Although there appears to have been a general understanding that petitioner's son would use a calculator in his Math 3A class, I find that respondent's CSE failed to specify the purpose for which the boy could use a calculator in his math class. In view of the many ongoing changes in technology, it may not be necessary for a CSE to specify the model number of each assistive technology device it recommends for a child. However, a specific description of the purpose for which the device is to be used is necessary to provide sufficient guidance to the individuals who must implement a child's IEP. I further find that the CSE should have agreed to meet with petitioner after her December 18, 1998 request for a meeting to discuss her son's assistive technology needs.
Although I disagree with the procedure used by respondent's CSE, it does not necessarily follow that petitioner's son was deprived of a free appropriate public education because he was not allowed to use a T.I. 92 in his Math 3A course. The boy's April, 1996 independent psychological evaluation indicated that he had deficits in his ability to process language and complex visual information and to perform mathematical calculations. The use of a scientific graphing calculator was recommended by the independent evaluator as a compensatory measure, i.e., to compensate for the boy's specific weaknesses. With the use of a less sophisticated calculator than the T.I. 92, petitioner's son had been able to demonstrate that he had grade appropriate skills in mathematics prior to the 1998-99 school year. In the ninth grade, he had achieved tenth grade math skills. When tested in June, 1999, petitioner's son achieved grade equivalent scores of 3.5 for calculation without a calculator and 8.0 with a calculator, and 8.0 for applied problems without a calculator and 14.6 with a calculator, on the Woodcock-Johnson-R. The evaluator reported that the boy had good use of a calculator and a confident awareness of how to proceed with solving most of the test problems. During the 1997-98 school year, he successfully completed a tenth grade geometry course, achieving a final grade of 77.
The Math 3A course included a number of new and presumably more difficult mathematical concepts. At the hearing, the boy's eighth grade math (algebra) teacher opined that the boy had the ability to learn and use new concepts for operations which could not be performed on the T.I. 82, but which could be performed on the T.I. 92 (Transcript, pages 332-336). She opined that it was perfectly appropriate to use a T.I. 82 for the "little steps," while requiring petitioner's son to demonstrate his understanding of the "big concepts" in the Math 3A course (Transcript, page 357). The boy's Math 3A teacher testified that if petitioner's son used a T.I. 92, he would not be able to demonstrate that he understood the concepts of the Math 3A course, because it would not reveal the steps which he had taken to solve math problems in the course (Transcript, page 138). She explained how the boy could show his work in solving a problem such as factoring using the T.I. 82, even though the T.I. 82 does not do factoring in a single step (Transcript, page 122). I note that the boy's resource room teacher for the 1998-99 school year testified that petitioner's son had shown her how to ascertain the factors of a number using the T.I. 82 on two occasions (Transcript, page 537). In any event, she also testified that she had helped the boy with his Math 3A homework on a few occasions, and that he had demonstrated his understanding of a number of concepts, such as the division of square roots and the quadratic formula, while using the T.I. 82 (Transcript, pages 515-516). The unit principal testified that the T.I. 82 would enable petitioner's son to answer all parts of a math question in the Math 3A curriculum, notwithstanding the fact that the manufacturer of the calculator had indicated that it could not perform certain operations (Transcript, pages 1513, 1522). The unit principal opined that the boy had the ability to demonstrate that he knew the steps involved in doing a math problem, and therefore he did not require a T.I. 92 which would perform those steps for him.
Petitioner and her son vigorously disputed the testimony by respondent's staff that the boy did not require the use of a T.I. 92 in order to meet the requirements of the Math 3A course. They relied primarily upon literature from the Texas Instrument Company describing what functions the T.I. 82 and T.I. 92 could perform (Exhibits P-37, P-47, P-57). The documents do not specifically address the Math 3A curriculum. I am not persuaded that those documents refute the testimony by respondent's staff that the boy could meet the Math 3A requirements with the assistance of a T.I. 82. I find on the record which is before me that respondent did not deny petitioner's son a free appropriate public education by requiring that he use a T.I. 82, rather than a T.I. 92, in his Math 3A course.
Petitioner has also asserted a number of claims regarding respondent's failure to properly implement her son's IEP, which I have considered, but which I find to be without merit. She requests that I direct respondent to reimburse her for the cost of the private tutoring which she obtained for the boy during the 1998-99 school year. 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 ).
One of the boy's tutors reportedly instructed him in the use of calculators. However, the boy's teachers testified that the boy was proficient in the use of the T.I. 82, and I have found that the T.I. 92 was not required. Therefore, petitioner's claim for reimbursement for the cost of that tutor's services must be denied. The second tutor reportedly tutored the boy in mathematics. I am aware that the boy did not do well in his Math 3A course during the 1998-99 school year. However, the hearing officer found that the boy's difficulties in the course were not the result of inadequate instruction, or the use of inappropriate assistive technology. Instead, he credited the testimony of the boy's teachers that the boy was not putting forth the requisite effort. I note that although petitioner's son indicated on the mid-year exam that he was unable to solve certain problems without the use of the T.I. 92, Mr. Grapka reported in March, 1999 that the boy had demonstrated to him that he could solve at least some of the problems on the mid-year exam without a T.I. 92. It is unfortunate that the boy and his parents were locked in a bitter dispute with respondent regarding the use of the T.I. 92. However, I cannot conclude that respondent failed to provide proper instruction in mathematics to petitioner's son during the 1998-99 school year. Therefore, I must dismiss petitioner's request for reimbursement.
I have also considered petitioner's many other requests for relief, but I find that there is no factual or legal predicate for the relief which she seeks.
THE APPEAL IS DISMISSED.
|Dated:||Albany, New York||__________________________|
|June 21, 2000||FRANK MUŅOZ|