The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York
Neal Howard Rosenberg, Esq., attorney for petitioners
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Bruce Rosenbaum,
Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request for tuition reimbursement for the cost of their daughter's tuition at the Packer Collegiate Institute (Packer) for the 1998-99 school year. The appeal must be dismissed.
At the conclusion of the hearing, the child was thirteen years old. She was classified as hard of hearing. Her classification is not at issue in this proceeding. The child has a history of bilateral sensorineural hearing loss and recruitment. Sensorineural hearing loss is the loss of sound sensitivity produced by abnormalities of the inner ear. Recruitment is a disproportionate increase in loudness as a function of intensity. It is caused by damage to the inner ear. The child had been using hearing aids in both ears since 1989 (Exhibits P-C and P-H). An FM device was originally recommended for classroom use in 1992 (Exhibit P-I). The child was privately evaluated at the age of six by an audiologist in March, 1992. The child's three frequency pure tone average was 48 dB for the right ear and 43 dB for the left ear. Her speech reception threshold was 45 dB for the right ear and 40 dB for the left ear. Her speech discrimination was excellent. The audiologist reported that the child's amplification system was inadequate. The girls mother was advised to return for a hearing aid check and reevaluation, and she was also counseled about the use of an FM unit in the classroom. The audiologist recommended that the child have preferential seating in the classroom, auditory training and speech reading, an FM unit for the classroom, annual audiometric evaluations and hearing aid checks, and a hearing aid reevaluation (Exhibit SD-12). The child's doctor recommended that she be placed in a small class for hearing impaired children (Exhibit P-H).
Petitioners daughter was first referred to the committee on preschool special education (CPSE) during the 1989-90 school year. Upon the recommendation of the CPSE, she was provided services (R. vol. 2, p. 6). The child was referred to the committee on special education (CSE) to recommend an appropriate program for her as a school-age child. In April, 1992, the CSE recommended that the child be classified as hard of hearing, and be placed in a general education program with thirty minutes of hearing education services two times per week in a group with a student-teacher ratio of 3:1 (Exhibits SD-10, SD-15).
The child began kindergarten at P.S. 29 in 1992 (R. vol. 2, p. 6). She reportedly experienced difficulty in the public school because of the noise of the bell ringing and the noise of the large class. The child developed migraine headaches and nausea. She also withdrew from others, was emotionally stressed, and had many absences from school (Exhibit SD-5). The child's physician confirmed that the child suffered from migraines and vomiting during kindergarten. He reported that the child would often be removed from the school at midday, fall asleep in the afternoon, and sleep through the night (Exhibit P-F). The childs kindergarten teacher reported that the large class setting hampered the childs adjustment to school. She indicated that large group activities, such as lunch, recess, auditorium productions and class presentations, and interactive special subject classes, such as art, music and physical education, were particularly disturbing to the child. The teacher reported that the child would appear upset and disturbed, and she was often hesitant to return to school (Exhibit P-G).
Petitioners placed their child in Packer for the first grade. She has remained in that school. The CSE has reportedly conducted annual reviews of the child, and recommended regular education placements with hearing education services for her, but her parents have chosen to have her remain at Packer. Respondent has apparently provided hearing education services to her while she attended the private school. The child has reportedly experienced fewer headaches and no vomiting at Packer (Exhibit P-F).
The girls triennial psychological evaluation was conducted in April, 1995. The evaluator described the child as friendly and outgoing. On the Weschler Intelligence Scale for Children, the child achieved a verbal IQ score in the high average range, a performance IQ score in the superior range, and full-scale IQ score in the superior range (Exhibit SD-6). Her grapho-motor skills were reported to be well developed. The evaluator noted that the results of the childs evaluation had to be interpreted with caution because of the absence of norms and techniques for testing hard of hearing individuals. Projective testing revealed that the child had an optimistic view of situations, and felt a sense of control over her environment (Exhibit SD-6).
An audiological evaluation was also performed in April, 1995. The child's pure tone averages were 45 dB in the right ear, and 43 dB in the left ear. Her speech reception threshold was found to be 40 dB in the right ear, and 35 dB in the left ear. The childs speech discrimination ability was described as being good in the right ear, and excellent in the left ear (Exhibit SD-11).
In a letter dated February 14, 1997, a clinical audiologist from Long Island College Hospital reported that the child still experienced difficulty in large group settings. The audiologist explained that hearing aids work best when the listener is within 3 to 6 feet of the speaker and there is no background noise. If the speaker is more than a few feet away from the listener, the listener hears both the speaker and extraneous noise. The audiologist recommended that the child receive instruction in a small class setting (Exhibit P-C).
In a November 13, 1997 progress report, Packer staff indicated that the child did not want to wear her FM device in school, although she admitted that she benefited from using it. The child was using the device in her French class, and the staff thought that she should be using it in other classes as well. She was described as an excellent speech reader. The Packer staff reported that the girl was reading above grade level, and her writing was described as excellent. The child received passing grades in health and physical education, and she earned As and Bs in all other classes (Exhibit SD-9).
In an educational evaluation which was conducted in December, 1997, the child achieved a reading comprehension score at the ninety-fifth percentile on the Kaufman Test of Educational Achievement. Her score was well above average, and at an approximate grade equivalent of the upper eleventh grade. The childs math applications score was at the ninety-eighth percentile, which was well above average. Her math computation score was at the eighty-second percentile, which was in the above-average range. Her math composite score was in the ninety-fifth percentile, which was well above average. The child's approximate grade equivalent in math was in the low to mid ninth grade level. Petitioners daughter was in the sixth grade at the time of the evaluation. The educational evaluator recommended a general education program with preferential seating for the child (Exhibit SD-8).
An audiological evaluation was conducted in December, 1997. Respondents audiologist reported that the child's pure tone averages were 47 dB for the right ear, and 43 dB for the left ear. Her speech recognition thresholds were 35 dB for the right ear, and 30 dB for the left ear. The child's speech discrimination was reported to be excellent, both with the use of aids and unaided. The audiologist recommended that the child continue to use binaural amplification with an FM unit, but recognized that the child was at an age when she might feel self-conscious about the device. She suggested that a "BTE" (behind the ear) device might be more appropriate. The audiologist also recommended that the girl receive auditory training and speech reading, and be instructed in self-help skills for hearing loss. In addition, she recommended that the child receive preferential classroom seating, a hearing aid check, and annual audiological and hearing aid evaluations (Exhibit SD-4). At the hearing in this proceeding, the audiologist testified that the childs hearing aids were set at an uncomfortably high level. She suggested that if the aids were set at a lower level, the girl might not experience as much discomfort in noisy settings like a cafeteria (R. vol. 3, p. 39, 40).
Respondents educational evaluator observed the child in her math class on February 3, 1998. Although most of the rooms at Packer reportedly had carpets at the time of the hearing, the classroom where the observation took place did not have carpeting. The evaluator noted that the child was sitting in the back row of a class of sixteen students. The teacher wore the FM device and walked around the room. The classroom was situated over a playground, and children were playing during the class. The child answered questions and volunteered information. Her teacher reported that the child was in the top twenty percent of her class (Exhibit SD-7).
The CSE conducted its annual review on April 1, 1998. It recommended that the child continue to be classified hard of hearing. The CSE further recommended that she be placed in a public school general education program, and receive 30 minutes of hearing education services two times per week in a group with a student-teacher ratio of 3:1. On her IEP, preferential seating and hearing aids were listed as special alerts. The use of FM amplification was listed as an IEP test modification. The CSE also recommended that the child use a BTE FM device. There were three annual goals on the IEP, relating to improving the girls ability to speechread, use critical listening skills, and use her FM device in classes (Exhibit SD-3).
The childs recommended placement was at P.S. 142, which contains three distinct schools, the Community School, the Harbor School and the Journalism School (R. vol. 5, pp. 61, 63). The Journalism School was the placement recommended for the child. The recommended placement was unacceptable to petitioners, who enrolled their daughter in Packer for the 1998-99 school year.
At petitioners request, an impartial hearing was held to determine the appropriateness of the recommended placement and petitioners request for an award of tuition reimbursement. The hearing began on December 8, 1998, and ended on June 4, 1999. At the hearing, evidence was adduced about the recommended placement at P.S. 142. Although there were three schools in one building, each school had a separate entrance, and started at different times in the morning. The students in the different schools did not co-mingle. The Journalism School had about 100 students (R. vol. 5, p. 63). The students in the Journalism School included students who were hard of hearing, learning disabled, emotionally disturbed, and visually impaired (R. vol. 5, p. 69). The gym teacher indicated that he could function without a whistle, and that he had done so in the past. In addition, children in the Journalism School were allowed to eat lunch in the classroom, instead of in the cafeteria (R. vol. 5, p. 71). These accommodations were not noted on the childs IEP (Exhibit SD-3). About thirty students reportedly chose not to eat in the cafeteria (R. vol. 5, p. 72). P.S. 142 has a nurse on site and has an off site division of Long Island College Hospital in the building (R. vol. 5, p. 75).
Petitioners testified about their June 3, 1998 visit to P.S. 142. When they arrived, they were reportedly directed to hurry to avoid the noise that occurred during class changes (R. vol. 6, pp. 5, 6). The class the parents observed had thirty-one students (R. vol. 6, p. 6 and vol. 7, p. 11). It was subsequently stipulated by the parties that the seventh grade class which petitioners daughter would have attended during the 1998-99 school year also had 31 students. The classroom had an area rug, but was not completely carpeted. The parents were informed that only one other classroom had an area rug. The hallway was not carpeted (R. vol. 6, pp. 6, 7). No bells were used to indicate the change of classes (R. vol. 5, p. 75; vol. 6 p. 6). Although the parents were not present for the change of classes, the mother testified that she was concerned about the level of noise in the hallways during change of classes because the hallway was not carpeted. She had been informed that her child would be allowed to leave class five minutes early to avoid the noise of the changing of classes. The mother expressed concern that such an accommodation would make the child feel different and isolated (R. vol. 5, p. 142). The father testified that Packers program was appropriate for the child because the nature of the environment is such that unusual accommodations need not be made for the child (R. vol. 6, p. 21).
The hearing officer rendered her decision on June 11, 1999. She rejected petitioners claim that the CSEs recommendation should be annulled because it was based upon an April, 1995 psychological evaluation. She found that there was no dispute that the child belonged in a regular education program, and should receive hearing education services. The hearing officer noted that the hearing had focused upon the physical environment in which the child should be educated, in light of her recruitment problem which could cause the child to experience pain or discomfort with certain sounds. The hearing officer found that the proposed placement at P.S. 142, with certain accommodations, would have been appropriate for petitioners daughter. She denied petitioners request for an award of tuition reimbursement.
Petitioners contend that the hearing officers decision should be annulled. They assert that the CSE should have had a more current psychological evaluation, and they allude to the possibility of their child having secondary emotional problems based upon her negative reaction to noisy environments. A CSE must arrange for the reevaluation of each child with a disability at least every three years (8 NYCRR 200.4 [e] ). A reevaluation need not include a psychological evaluation unless the latter is required to determine the childs individual needs, educational progress and achievement, the childs ability to participate in regular education instructional programs, and his or her continuing eligibility for special education. Upon the record before me, I find that there is no reason to believe that a psychological evaluation would have provided additional useful information to the CSE.
Petitioners assert that the placement which the CSE recommended for their child would not have been appropriate for her because of her heightened sensitivity to noise. 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]).
As was noted by the hearing officer, there is no dispute that the child could be educated in regular education classes, and that she should receive hearing education services. Petitioners do not challenge the amount of hearing education services which the CSE recommended. The issue to be determined is whether the environment of the specific placement at P.S. 142 would have addressed the childs special education needs resulting from her disability. The child has a sensorineural hearing loss and recruitment. Her hearing loss was described as mild to moderate by witnesses for both parties. While the witnesses appeared to agree that the settings on the childs hearing aids should be adjusted to prevent her from hearing sounds which would be uncomfortably loud for her, they had somewhat different opinions about how to address her recruitment problem. A private audiologist who had evaluated her in December, 1998 testified that the child had an extreme intolerance to loud sounds in the 2000-4000 hertz range, and began to be uncomfortable with such sounds at the 85 dB level. He indicated that a harsh, screechy voice could produce sounds within that range. The audiologist acknowledged that the use of an appropriate FM device could reduce the childs level of discomfort, but he urged that she be educated in a small, quiet classroom. He conceded that he had no basis in fact for judging the noise levels at P.S. 142.
Respondents audiologist, who had examined the child in December, 1997, testified that the child had a heightened sensitivity to sound in one frequency range, but her sensitivity to sounds in other frequency ranges was within normal limits. She opined that the child should turn off her hearing aids and use an FM device in class. The audiologist who had examined the child in February, 1997 at the Long Island College Hospital testified that the controls on the childs hearing aids should be set at a level which would prevent her from hearing sounds which would be uncomfortable for her. She also testified that children with recruitment problems could be appropriately educated in regular education classes of 20 pupils, if they were provided with a BTE hearing aid/FM device. She indicated that a child using an FM device could still hear what other students were saying, and would be better able to hear what the teacher said.
Upon the record before me, I am not persuaded that the child would have been exposed to unacceptably high levels of noise in her class at P.S. 142. I have considered her experience in a public school kindergarten, but I do not find it to be indicative of what would have happened to her in the seventh grade. I find that the CSE addressed the difficulty caused by the childs recruitment by specifying that she be provided with a BTE FM unit, and that she be instructed so that she could independently use that assistive technology in each of her classes. Respondent has an obligation to provide each of its children with disabilities with an education in the least restrictive environment. I find that the CSEs recommended placement was consistent with that requirement.
THE APPEAL IS DISMISSED.
Albany, New York
September 8, 2000
ROBERT G. BENTLEY