The State Education Department
State Review Officer

No. 99-65

 

 

 

Application of the BOARD OF EDUCATION OF THE ARLINGTON CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

Appearances:
Raymond G. Kuntz, P.C., attorney for petitioner, Jeffrey J. Schiro, Esq., of counsel

 

DECISION

        Petitioner, the Board of Education of the Arlington Central School District, appeals from an impartial hearing officer's decision which ordered petitioner to reimburse respondents for the cost of the speech/language therapy which they obtained for their son during the 1997-98 school year, and from the hearing officer's final decision which ordered petitioner to reimburse respondents for the boy's tuition at the private school in which he was unilaterally enrolled by his parents for the 1998-99 school year. The appeal must be sustained in part.

        At the outset, I note that the record reveals that petitioner initiated this appeal by serving its papers upon the boy's father on August 18, 1999, within 40 days after its receipt of the hearing officer's final decision (see 8 NYCRR 279.2 [c]). Respondents have not answered the petition. In accordance with 8 NYCRR 279.3, the factual statements set forth in the petition will be deemed to be true, unless refuted by the facts in the record which is before me.

        Respondents' son is sixteen years old. He reportedly had some attention difficulties while in kindergarten at petitioner's LaGrange Elementary School. The boy was placed in a combination first and second grade class for the next two school years. During the second of those two school years, he was diagnosed by a neurologist as having an Attention Deficit Hyperactivity Disorder (ADHD). The physician suggested that the boy be psychologically evaluated to rule out any learning disability (Exhibit SD-2). In January, 1991, the boy was privately evaluated by a certified social worker, who described the boy as having a moderate attention deficit and a fragile ego. He offered various suggestions for improving the boy's behavior in school, including placing him in a more structured classroom. The boy was reportedly evaluated by a psychologist while in the second grade. He achieved a verbal IQ score of 97, a performance IQ score of 100, and a full-scale IQ score of 99 (Exhibit SD-11). Near the end of the second grade in May, 1991, the boy achieved grade equivalent scores of 1.8 for total reading and 2.2 for total mathematics on the Comprehensive Test of Basic Skills (CTBS).

        Respondents' son was enrolled in the third grade for the 1991-92 school year. In the Spring of 1992, the boy reportedly began taking Ritalin to control his ADHD. He repeated the third grade during the 1992-93 school year. On the CTBS in April, 1993, respondents' son achieved grade equivalent scores of 4.1 for total reading and 4.7 for total mathematics. The boy was promoted to the fourth grade.

        On November 22, 1993, the boy was referred to petitioner's committee on special education (CSE) by his mother, who expressed her concern about his education. By letter dated December 13, 1993, a pediatric neurologist opined that the boy had an Attention Deficit Disorder (ADD), but predicted that he would do well in school because he was taking Ritalin and there was no evidence of a learning disability (Exhibit SD-8).

        Respondents' son was evaluated for the CSE by a speech/language therapist on December 17, 1993. She reported that he had achieved a standard score of 103 on the Peabody Picture Vocabulary Test. On the Clinical Evaluation of Language Fundamentals – Revised (CELF-R), the boy achieved a standard score of 78 for receptive language, and a standard score of 80 for expressive language. His total language score of 77 was one and one-half standard deviations below the mean score for children in his age group. The speech/language therapist opined that the boy exhibited a moderate delay in his language skills, with a specific weakness in his ability to interpret semantic relationships in sentences and discourse. She recommended that he receive 60 minutes of speech/language therapy per week (Exhibit SD-9).

        The boy was evaluated by a school psychologist on December 20-22, 1993. The school psychologist noted that the boy's vision and hearing were reported to be within normal limits. She tested his perceptual organization and visual motor integration skills, which were adequately developed. The boy achieved a verbal IQ score of 100, a performance IQ score of 104, and a full scale IQ score of 101, thereby demonstrating that he was of average intelligence. On one IQ subtest requiring him to arrange puzzle pieces to form familiar objects, the boy scored in the borderline range, but his other subtest scores were in the average or above ranges. The school psychologist observed the boy in class. She reported that he was unable to determine what was relevant to solve a mathematics problem, and needed help from a teaching assistant to complete mathematics problems. During reading, the boy appeared to be following along appropriately with the lesson. On the Woodcock Johnson Tests of Achievement – Revised, the boy achieved grade equivalent scores of 5.4 for letter-word identification, 3.3 for passage comprehension, 1.5 for word attack skills, 5.0 for mathematical calculation, 4.9 for applied (mathematical) problems, 2.0 for dictation (spelling, punctuation and word usage), 5.6 for writing samples, 4.5 for science, 3.7 for social studies and 2.8 for the humanities. When evaluated, respondents' son was approximately half-way through the fourth grade. The school psychologist concurred with the speech/language therapist's recommendation that the boy receive speech/language therapy (Exhibit SD-11).

        On January 12, 1994, petitioner's CSE recommended that respondents' son be classified as learning disabled, and that he receive two hours of consultant teacher services (see 8 NYCRR 200.1 [1]) per week. It also recommended that the boy receive 30 minutes of speech/language therapy in a group twice per week. The individualized education program (IEP) which the CSE prepared for the boy indicated that time limits would be extended for the boy on tests, and that he should be tested in a special location. The IEP included annual goals to improve his study skills, and his receptive and expressive language skills. On January 22, 1994, the boy's mother consented to having her son's IEP implemented. A disagreement about the manner in which the boy's IEP was being implemented was apparently resolved in April, 1994 (Exhibit P-44).

        On a Wechsler Individual Achievement Test which was administered to him in April, 1994, respondents' son earned grade equivalent (and standard) scores of 4.2 (95) for basic reading, 5.2 (102) for reading comprehension, 5.5 (108) for mathematics reasoning, 4.5 (97) for numerical operations, 5.0 (102) for spelling, 7.9 (112) for listening comprehension, 2.8 (90) for oral expression, and 3.9 (93) for written expression (Exhibit P-46). On the CTBS which was administered to him in the same month, he achieved grade equivalent scores of 3.6 for vocabulary, 4.5 for reading comprehension, 4.9 for mathematical computation, and 3.3 for mathematical applications.

        On May 25, 1994, the CSE reconvened at the request of the boy's mother, who was reportedly dissatisfied with petitioner's speech/language evaluation of her son and the speech/language services which were being provided to him. The CSE agreed to have independent speech/language and audiological evaluations performed. It also prepared the boy's IEP for the 1994-95 school year. The CSE recommended that the boy receive two hours of consultant teacher services per week while in the fifth grade, and 30 minutes of speech/language therapy in a group twice per week. The CSE included the testing modifications of extended time and special location on the IEP.

        An audiological evaluation was completed on May 31, 1994. The boy's hearing sensitivity was within normal limits, and his ability to discriminate speech was reported to be excellent. The evaluator reported that there was no basis for performing a central auditory processing evaluation. The independent speech/language evaluation was started on June 6, 1994, and completed on June 10, 1994. The evaluator noted that there was a marked difference in the boy's behavior on the two days, and was advised that he had taken Ritalin on the first day, but had not taken it on the second day. On the Test of Word Knowledge, the boy achieved an age equivalent score of 9 years and 4 months, indicating a delay of slightly more than one year. His scores on the Test of Problem Solving which was administered on the day when he had not taken Ritalin was one to two standard deviations below the mean. The evaluator opined that the boy had a moderate communication disorder which was characterized by inconsistent and widely scattered receptive and expressive language skills, decreased attention span, need for additional processing time, and word finding difficulties. She recommended that he receive individual speech/language therapy twice per week, in addition to the therapy which the CSE had recommended, and that he be placed in a language enriched educational program with a low student to teacher ratio.

        The child's report card for the 1993-94 school year indicates that he got good grades and showed improvement in his work habits during the latter half of the school year. His IEP was amended by the CSE on July 14, 1994 to incorporate the independent speech/language evaluator's recommendation that the child receive two individual sessions of speech/language therapy per week.

        In March, 1995, as respondents' son neared the end of the fifth grade, he achieved grade equivalent (and standard) scores of 8.9 (115) for basic reading, 6.0 (103) for reading comprehension, 5.3 (94) for numerical operations, 6.4 (106) for mathematics reasoning, 6.1 (99) for spelling, 6.9 (101) for written expression, 1.29 (123) for listening comprehension, and 12.9 (122) for oral expression on the WIAT. In April, 1995, he achieved grade equivalent (and percentile) scores of 5.6 (45) for vocabulary, 5.6 (47) reading comprehension, 6.0 (55) for math computation, and 5.0 (35) for math applications on the CTBS. At the end of the school year, the boy's speech/language therapist reported that the boy had made excellent gains during the year.

        The record includes two IEP's for the 1995-96 school year which indicate that the CSE met on July 13 and 14, 1995. Both IEP's provided that the boy would receive two hours of consultant teacher services per week during the 1995-96 school year, and would continue to have the benefit of extended time limits and the use of a separate location for testing. Neither IEP provided for any speech/language therapy, although the IEP from the July 14 meeting included annual goals for improving the boy's receptive and expressive language skills, in addition to an annual goal for improving his study skills (Exhibit SD-33). In any event, the CSE reconvened on November 9, 1995, at which time it recommended that the boy be placed in a special education class with 15:1 child to adult ratio for instruction in English , social studies, science, and study skills. Nevertheless, the IEP prepared at that meeting also indicated that he would participate in regular education programs for all subjects, and that the boy would be re-evaluated for declassification in January, 1996 (Exhibit SD-37). I note that at the hearing the CSE chairperson testified that the boy's instruction was provided in inclusion classes, i.e., the special education teacher instructs in a regular education classroom. The IEP also indicated that the boy had learned to successfully manage his ADHD, and had significantly improved his ability to complete short and long-term assignments.

        The CSE reconvened on March 27, 1996 at the request of the boy's mother, who wanted her son's placement changed. The CSE reportedly determined that the boy's sixth grade placement was appropriate. The boy's mother requested that petitioner provide home instruction to her son. The CSE chairperson advised her that petitioner would not provide such instruction without a physician's note. In a note dated April 1, 1996, the child's physician asserted that the child had been incorrectly classified as learning disabled and had developed a phobia about his present placement. The physician also asserted that the boy's primary problem was ADD, for which he was being treated with Ritalin. He recommended that the boy be tutored until another placement could be secured for him. Petitioner agreed to provide home tutoring as of April 17, 1996. I note that after three quarters of the school year, the boy had a 69.75 overall average.

        On April 17 and 18, 1996, the CTBS was administered to the boy. Respondents' son achieved grade equivalent (and percentile) scores of 7.8 (62) for reading decoding, 6.3 (44) for reading comprehension, 6.2 (39) for math computation, and 4.8 (18) for math concepts. When the CSE met on May 22, 1996, it recommended that the boy continue to be tutored at home for the remainder of the school year. The boy received final grades of 69 for modified English, 72 for modified social studies, 65 for modified mathematics, and 74 for modified science.

        Petitioner agreed to the request by the boy's mother that the boy be transferred from the Arlington Middle School to petitioner's Titusville Middle School for the seventh grade. On August 21, 1996, the CSE reclassified the boy as other health impaired, and recommended that he receive one period of resource room services per day at the Titusville Middle School. The IEP which the CSE prepared for him indicated that the time limits on the boy's tests would be extended to one and one-half times the normal limit. It also indicated that he had difficulty organizing and keeping a notebook and planner, and he also had difficulty following directions and keeping "tuned-in" while in class. The IEP had a single goal with eight objectives relating to the boy's study skills (Exhibit P-63).

        The boy's triennial evaluation was conducted in the fall of 1966. On the Wechsler Intelligence Scale for Children – Third Edition (WISC-III), the boy achieved a verbal IQ score of 102, a performance IQ score of 100, and a full scale IQ score of 101. On the Key Math Test – Revised, he achieved grade equivalent scores of 6.2 for basic concepts, 6.0 for operations, and 7.8 for applications. On a Woodcock Reading Test, he achieved grade equivalent scores of 12.9 for letter identification, 6.1 for word identification, 10.1 for word attack, 8.0 for word comprehension, and 6.9 for passage comprehension. At the time of his triennial evaluation, the boy was in the seventh grade. The boy's teachers prepared brief written comments for the CSE in January, 1997. Some described him as a willing participant in class discussions, while others mentioned that his behavior was inappropriate at times. Four of his teachers suggested that his performance could be improved if he completed his homework on time. On February 23, 1997, the CSE reportedly recommended that the boy receive six 30-minute individual counseling sessions.

        In April, 1997, respondents requested that petitioner pay for their son to be independently evaluated by a psychologist. The CSE approved respondents' request on April 23, 1997 (Exhibit SD-59). The private psychologist discussed the results of the boy's prior testing in her report which was dated August 19, 1997 (Exhibit SD-62). She opined that the problem was not a language delay, but a more pervasive delay. The psychologist further opined that the boy exhibited signs of a moderate to severe developmental aphasia, and she recommended that he be evaluated by a speech pathologist with training and experience in childhood aphasic and language disorders. A neurologist who had examined the boy on April 15, 1997 reported that the boy did not exhibit any abnormal symptoms, but that his history reflected an ADD, as evidenced by his difficulty with focusing, concentrating and processing (Exhibit SD-58).

        By the end of the sixth marking period during the 1996-97 school year, the boy's grades for English, social studies, math and science were in the 70's. His science teacher commented that the boy had not completed lab assignments on time. In addition to regular mathematics, the boy was enrolled in a remedial mathematics class. His remedial math teacher reported that the boy was too talkative and inattentive in class (Exhibit P-68).

        On August 21, 1997, the CSE recommended that the boy be enrolled in regular education eighth grade classes with one period per day of resource room service at petitioner's Titusville Middle School during the 1997-98 school year. The CSE meeting minutes indicated that the CSE was waiting for substantive information from the private neuropsychologist, but it had agreed to have the boy's speech/language skills evaluated by a specialist selected by respondents. The minutes also indicated that occupational therapy and assistive technology evaluations would be performed after the CSE had obtained the results of the neuropsychological and speech/language evaluations. The boy's IEP for the 1997-98 school year indicated that he would continue to have one and one-half times the normal amount of time to complete his tests, and that he would be reminded to review his work before turning in his tests. The IEP included one annual goal with eight short-term objectives for improving the boy's study and organizational skills. In September 1997, the boy was enrolled in lower track regular education English, mathematics, and social studies courses, as well as regular education earth science, technology and health courses.

        The boy's independent speech/language evaluation was completed on September 2, 1997. The evaluator opined that it was less important to determine whether the boy had a language disability in addition to ADD than it was to recognize that the boy was "severely functionally language disordered" (Exhibit SD-65). He acknowledged that he had not administered any of the tests which he typically used in an evaluation. He suggested that the boy's teachers assume that he did not understand, and help him understand what was presented to him. The evaluator recommended that the dosage of the boy's ADD medication be increased, and that he receive language training to improve his ability to process verbal information. He also recommended that the boy receive counseling.

        The neuropsychologist submitted a second report in September 1997, in which she opined that the boy had a "near total incapacity to process continuous language, written or oral" (Exhibit SD-64). The neuropsychologist further asserted that the boy exhibited an overall processing problem, possibly the result of static encephalopathy. She suggested that the boy needed to be in a very small class where he could be challenged to grasp information, and that an alternative school placement should be considered. The neuropsychologist also reported that it was imperative that the boy begin to receive "cognitive-linguistic" therapy from the independent speech/language evaluator. The boy's neurologist reported on September 23, 1997 that he had increased the boy's dosage of Ritalin to 40-milligrams, three times per day, which could help control his distractibility, but it would not address the boy's thought processing difficulties (Exhibit SD-66).

        On October 8, 1997, the CSE reviewed the evaluators' reports, but did not change the boy's IEP. Respondents requested that petitioner pay for private speech/language therapy provided by the private speech pathologist who had independently evaluated the boy. The CSE refused their request because it believed petitioner's staff could provide appropriate services, but it did recommend that petitioner pay for the evaluator to consult with school staff (Exhibit SD-70). The consultation took place on October 16, 1997. In a letter which was received on November 4, 1997, the boy's mother reiterated her request that petitioner pay for private speech/language therapy.

        On November 5, 1997, the CSE reviewed the boy's program. The boy had reportedly begun the eighth grade satisfactorily, but his grades in English and earth science had reportedly slipped by the time of the CSE meeting. At respondents' request, the CSE prepared a draft IEP for the remainder of the 1997-98 school year, which provided that the boy would receive 40 minutes of individual speech/language therapy three times per week. The draft IEP included one annual goal with 28 short-term objectives for speech/language, and two annual goals for study and organizational skills (Exhibit SD-76). The boy's IEP was completed at a CSE meeting which was held on December 3, 1997. The CSE added a transitional activities annual goal to the IEP. The CSE again denied respondents' request that petitioner pay for speech/language therapy by the speech pathologist (Exhibit SD-78).

        I note that in a letter dated December 30, 1997, the boy's neurologist advised respondents that their son's problem was not primarily language oriented, and that he did not believe that speech/language therapy was the answer. He opined that the boy required training by someone who was skilled in dealing with organizational ability and executive processing (Exhibit SD-81). The private speech pathologist, who had been working with the boy for approximately two months, summarized his opinion about the boy's needs in a letter to respondents dated January 2, 1998 (Exhibit P-109). He opined that the boy had an "executive disorder" which was manifested in, but not limited to, the boy's language deficits. The speech pathologist suggested that instruction be provided to the boy in a way which required him to respond frequently and actively to ensure that he had assimilated the information provided by his teachers. He also suggested that the boy be given step-by-step instructions for completing new educational tasks, and he recommended that multiple choice or short answer tests be replaced with essay questions or oral examinations. The speech pathologist reiterated his prior recommendation that the boy be educated in small classes, and suggested that he be individually tutored on a daily basis.

        Respondents' son was tested by the school speech/language therapist who was assigned to serve him. The therapist tested him during a three month period ending in February 1998. On the Test of Written Language-Third Edition, the boy achieved percentile scores of 25 for vocabulary, 9 for spelling, 6 for style, 37 for logical sentences, 9 for sentence combining, 50 for contextual conventions, 91 for contextual language, and 91 for story construction. His overall writing quotient of 95 was described as being in the average range. On the CELF-3, the boy's score was at the 93rd percentile for receptive language, and at the 50th percentile for expressive language. He achieved a standard score of 106, which was at the 66th percentile (high average range), on the Peabody Picture Vocabulary Test. Petitioner's speech/language therapist noted that the boy's test performance had been variable over the years, but he had been consistently unable to perform at a level which was commensurate with his potential. She recommended that he continue to receive individual speech/language therapy three times per week for the remainder of the 1997-98 school year. The therapist indicated that the boy would need daily assistance for organizational and functional language skills by a special education teacher and a speech pathologist during the 1998-99 school year, and suggested that a team approach be used (Exhibit SD-88).

        On March 11, 1998, the CSE reviewed the speech/language therapist's report, and it revised the boy's IEP by deleting nine of his speech/language objectives (Exhibit SD-87). It did not recommend any change in the special education services which were being provided to the boy.

        On the CTBS in May 1998, the boy achieved grade equivalent (and percentile) scores of 8.7 (49) for vocabulary, 7.3 (39) for reading comprehension, 7.5 (27) for math computation, and 8.0 (41) for math concepts and applications (Exhibit SD-90).

        In preparation for the CSE's annual review of the boy's educational program which was held on May 13, 1998, the man who had performed the boy's independent speech/language evaluation wrote a brief statement asserting that the boy was at "high risk" both academically and emotionally (Exhibit SD-92). He recommended that the boy be placed in a residential school for language impaired students. The CSE reviewed the boy's progress, and discussed program options for the 1998-99 school year. It deferred making a specific program recommendation, pending its receipt of the results of additional academic testing (Exhibit SD-105).

        The boy's resource room teacher administered the WIAT to him in May, 1998. Respondents' son achieved grade equivalent (and standard) scores of 8.9 (102) for basic reading, 11.3 (103) for reading comprehension, 6.9 (88) for numerical operations, 12.0 (108) for math reasoning, 8.1 (101) for spelling, 4.9 (87) for listening comprehension, 12.9 (112) for oral expression, and 12.9 (109) for written expression (Exhibit SD-95). On the Woodcock-Johnson-Revised, which was also administered to him in May, 1998, the boy achieved grade equivalent (and standard) scores of 8.9 (99) for letter-word identification, 13.0 (117) for passage comprehension, 9.4 (101) for calculation, 10.8 (106) for applied problems, 6.9 (91) for dictation, 14.9 (118) for writing samples, 11.6 (108) for science, 7.4 (94) for social studies, and 7.5 (95) for the humanities (Exhibit SD-97).

        The record reveals that respondents took their son to be evaluated at the Kildonan School in May, 1998. Kildonan is a private school for learning disabled students and is located in Amenia, New York. On the WRAT-3, which is a standardized academic achievement test, the boy earned grade equivalent (and percentile) scores of 10.5 (61) for word identification, 7.5 (37) for spelling, and 11.5 (79) for arithmetic. On the Gates-McGinitie Reading Test, the boy earned grade equivalent (and percentile) scores of 7.0 (23) for vocabulary and 7.1 (30) for comprehension (Exhibit P-127).

        On June 2, 1998, the Woodcock Reading Mastery Tests – Revised were administered to the boy. He earned grade equivalent (and standard) scores of 7.5 (94) for word identification, 16.9 (124) for word attack, 5.9 (89) for word comprehension, and 6.5 (91) for passage comprehension. His scores were in the average or above average ranges in all areas except word comprehension. The boy's report card for the 1997-98 school year indicates that he achieved final averages of 70 for English, 69 for social studies, 68 for mathematics, 70 for earth science, 68 for health, 58 for technology, and 81 for computer (Exhibit SD-100). Although the report card appears to indicate that the boy was legally absent on 27 days and illegally absent on 20 days, petitioner's attorney indicated on the record at the hearing that the boy was absent from school for a total of 27 days (Transcript, page 216).

        The CSE was scheduled to reconvene on June 22, 1998, but the meeting was apparently postponed on one or more occasions thereafter until July 30, 1998. By letter dated July 9, 1998, the boy's mother advised the CSE chairperson that she was placing her son in the Kildonan School, which has not been approved by the State Education Department to provide instruction to children with disabilities (Exhibit SD-101). On July 30, 1998, the CSE recommended that respondents' son continue to be classified as other health impaired and that he attend the Arlington High School during the 1998-99 school year. The IEP which the CSE prepared for the boy indicated that he would be in a departmentalized special education program for English, global studies, mathematics, physical science, and study skills (Exhibit SD-106). It further indicated that he would participate in the regular education program for his elective subjects and physical education. The CSE recommended that the boy receive three 40-minute sessions of individual speech/language therapy per week, which were to include push-in and pull-out services. On the IEP, the CSE indicated that the boy had difficulty catching up when he missed assignments due to absence, and alluded to his alleged 47 absences during the 1997-98 school year. It concluded that he required a more restrictive placement than simply receiving resource room services, but that he did not require a special class placement throughout the school day. The boy's IEP included annual goals for English, written language, mathematics, social studies, science, study skills, speech/language, and transitional activities.

        The boy's parents rejected the CSE's recommended placement at the July 30, 1998 meeting. By letter dated September 3, 1998, they requested that an impartial hearing be held for the purpose of obtaining an award of tuition reimbursement for the 1998-99 school year, and reimbursement for their expenditures for services provided by the independent speech/language evaluator who had worked with their son subsequent to his evaluation. They asserted that they believed that the CSE had agreed to pay for the latter expenditures in return for their agreement to allow petitioner's speech/language therapist to provide services to their son during the 1997-98 school year (Exhibit SD-108).

        The hearing in this proceeding began on October 28, 1998. Respondents were assisted at the hearing by a non-lawyer representative. After five days of hearings, the Board of Education rested its case. On the sixth day of the hearing, the parents' representative made a motion for a "directed verdict". She asserted that petitioner had failed to demonstrate that the boy's IEP for the 1998-99 school year could have been successfully implemented in the recommended placement at the Arlington High School, and she raised a number of other objections to that placement. The representative also sought a determination that the Board of Education had failed to provide appropriate speech/language therapy to the boy during the first few months of the 1997-98 school year. Petitioner's attorney opposed the motion. The hearing officer reserved decision on the motion, and invited the representative and the attorney to submit written argument upon the motion.

        In a decision dated February 26, 1999, the hearing officer found that the concept of a directed verdict was inapplicable to a proceeding of this nature, but that he could render a "partial determination" upon the available evidence. He held that the boy's recommended placement in the Arlington High School for the 1998-99 school year was not reasonably calculated to allow the boy to receive educational benefit in the least restrictive environment (see Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982], and 34 CFR 300.550[b]). In essence, he found that the placement would not meet the boy's academic and social needs because it did not address his alleged executive dysfunction. However, he held that the hearing must continue with regard to the parents' claim for tuition reimbursement during the 1998-99 school year because there was insufficient evidence to determine whether the Kildonan School was meeting the boy's special education needs. The hearing officer granted the parents' motion with respect to their request for reimbursement in the amount of $990 for the speech/language therapy provided to their son by the independent speech/language evaluator from October 15, 1997 until December 31, 1997.

        The hearing resumed on April 12, 1999. The hearing officer rendered his final decision on July 7, 1999. He found that the boy had a neurological dysfunction which adversely affected the boy's ability to process language. He accepted the independent speech/language evaluator's opinion that the boy had a deficit in his "executive functioning" which was manifested by his organizational and attention difficulties, and that the boy also had "discourse deficiencies" which were indicated by the boy's difficulty in listening to and understanding connected language. The hearing officer also accepted the testimony by the Associate Head of the Kildonan School that the school's instructional methods addressed learning problems arising from executive functioning deficits. He noted that there was little objective evidence of the boy's improved academic performance while at the Kildonan School during the 1998-99 school year, but he nevertheless found that the Kildonan School had offered an educational program which met the boy's special educational needs. The last issue which the hearing officer addressed was whether the parents' claim for an award of tuition reimbursement was supported by equitable considerations. He found that the boy's mother had cooperated with the CSE at all times, and concluded that the parents' claim was supported by equitable considerations.

        The Board of Education challenges the hearing officer's February 26, 1999 decision on procedural and substantive grounds. It asserts that there was no authority for the hearing officer to consider respondents' motion for a "directed verdict", and that the hearing officer erred by making findings of fact and conclusions of law based upon an incomplete record. By relying upon the written reports of the independent evaluators, the hearing officer allegedly deprived petitioner of its right to confront and cross-examine witnesses (see 34 CFR 300.508 [a][2]). In the alternative, the Board of Education argues that the hearing officer applied the wrong legal standard by failing to presume the truth of all of the evidence presented by the Board of Education when he decided to grant the parents' motion.

        An impartial hearing officer must provide all parties with an opportunity to present evidence and testimony (8 NYCRR 200.5 [c][4], including the opportunity to confront and cross-examine witnesses. The impartial hearing officer's decision must be based solely upon the record of the proceeding before the hearing officer (8 NYCRR 200.5 [c][11]). The issue before the hearing officer in this proceeding was whether respondents should be reimbursed for their expenditures for the services provided to their son during the fall of 1997 by the private speech pathologist, and their expenditures for their son's tuition at the Kildonan School during the 1998-99 school year. A board of education may be required to pay for educational services which parents have obtained for their child, 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, 471 U.S. 359 [1985]). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of a Handicapped Child, 22 Ed. Dept. Rep. 487; Matter of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Chill with a Disability, Appeal No. 93-9). If a board of education cannot meet its burden of proof on the appropriateness of its services, the burden of proof shifts to the parents to demonstrate the appropriateness of the services which they obtained for their child.

        The Board of Education had rested, i.e., presented its case, when respondents made their motion. Respondents were not required to present evidence to demonstrate that the services offered by the Board of Education were inappropriate. While the hearing officer may have considered some of respondents' written documents, I cannot agree with the Board of Education's argument that it was denied the opportunity to confront and cross examine respondents' witnesses with regard to the appropriateness of the Board's educational services. I must note that the use of such motions should be discouraged since they delay the final decisions in hearings, as was the case in this proceeding. As noted above, there is a three-part test to determine whether a parent is entitled to an award of reimbursement. In his February 26, 1999 decision, the hearing officer purported to make findings with respect to all three parts of the test in determining that respondents should be reimbursed for the cost of the private speech pathologist's services. However, I find that the hearing officer erred because there was no evidence about those services, except for a list of dates on which they were provided (Exhibit P-115), when the hearing officer rendered his decision. Therefore, I must annul that portion of his February 26, 1999 decision.

        I have considered petitioner's argument that in his February 26, 1999 decision the hearing officer applied the wrong evidentiary standard in finding that the Board of Education had not met its burden of proof with respect to the appropriateness of the educational program which it had offered to provide to respondents' son during the 1998-99 school year. Petitioner asserts that respondents' motion was similar to a motion for judgment during trial pursuant to Rule 4401 of the Civil Practice Law and Rules, which would require a showing that the moving party is entitled to judgment as a matter of law. Petitioner contends that the standard which the hearing officer should have applied would have required him to find that there was no rational process by which he could have held in favor of petitioner, i.e., upheld the CSE's recommended program. I disagree with the Board of Education. As noted above, the Board of Education had presented its case with respect to the departmentalized special education program which the CSE had recommended. The applicable standard is that which was articulated in Bd. of Ed. Hendrick Hudson CSD v. Rowley, supra. In applying that standard, the hearing officer was required to consider all of the evidence before him, including the documentary evidence upon which he apparently relied, to ascertain what were the boy's special education needs and whether the educational program which the CSE had proposed for him was reasonably calculated to allow the boy to receive educational benefit in the least restrictive environment.

        Although the parties in this proceeding did not dispute the appropriateness of the boy's classification as other health impaired (see 8 NYCRR 200.1 [mm] [10]) at the hearing, they did disagree about the nature of his disability. The CSE chairperson testified that the boy's primary disability was ADD, while the speech pathologist testifying on behalf of respondents asserted that the disability was a deficit in the boy's executive functioning ability. The speech pathologist testified that the disability was manifested by difficulty gaining much information from what the boy heard or read, and a deficit is his "discourse", which the speech pathologist defined as the ability to put words together for meaning. I note that the speech pathologist also opined that an executive dysfunction was not a language disorder, but that respondents' son was functionally language disabled as a result of his executive disorder. The record does not reveal a basis in either training or licensure for the speech pathologist to offer expert testimony about what is apparently a neurological disorder. However, the etiology of the boy's disability is less important in this proceeding than the manifestations of the disability as they affect his education.

        The record includes numerous standardized achievement test results which are reasonably consistent despite occasional sub-test scatter, and indicate that the boy has appropriate, or at worst mildly delayed, academic skills. Despite the speech pathologist's testimony suggesting that standardized tests might not be useful in identifying the boy's unique needs, he offered no other valid procedure for identifying and measuring those needs, so that objective annual goals and short-term instructional objectives could be prepared for the boy's IEP. Although the boy's standardized test results are generally satisfactory, his academic performance in class has been uneven, and generally below what would be expected of a student with his ability. On his IEP, the CSE indicated that neurological irregularities affect the way the boy "takes in, processes and outputs information". The CSE further noted that the boy had difficulty organizing and using a notebook and planner, and organizing daily and long-term assignments. The record reveals that the boy was often unprepared for class and did not complete all of his homework assignments. I find that the IEP accurately identified his needs.

        The annual goals and short-term objectives which the CSE included on the boy's IEP for the 1998-99 school year were, in my opinion, reasonably related to his identified special education needs. An appropriate IEP must also provide for the use of special education services which will address a student's special education needs and afford him a reasonable opportunity to achieve his IEP annual goals during the period covered by the IEP. The CSE concluded, in light of the boy's relatively poor performance during the 1997-98 school year, that he required a more intensive level of special education service than could be provided in a part-time resource room program. It therefore recommended that he be placed in petitioner's secondary level departmentalized special education program, where the boy would have received primary special education instruction in each of his academic subjects. I must note that the CSE's recommendation appears to have been based primarily on its perception of the boy's management needs. In any event, the recommended program would have provided him with much more individualized instruction and attention than he would have received in a regular education placement.

        The hearing officer found that the recommended educational program would not have been appropriate for respondents' son, for a number of reasons. Petitioner challenges his findings that the departmentalized program would have been distracting, and "far removed from the one-on-one tutoring indicated to deal with his executive functioning deficit." It also objects to his finding that petitioner's program would have been inappropriate because petitioner's staff lacked experience teaching a student with an executive functioning deficit or similar disabilities. I agree with petitioner that the record does not support the hearing officer's determination about the program being distracting or inappropriate because it did not include one-on-one tutoring. With respect to the alleged inexperience of petitioner's staff, I must point out that under the Individuals with Disabilities Education Act, each state educational agency determines the qualifications which are necessary for individuals to instruct children with disabilities (20 USC 1413 [a] [14]). Only one of the two special education teachers who would have been assigned to the recommended class testified at the hearing. That individual testified that he was provisionally certified by the State Education Department to teach special education. There is no separate certification for teachers of other health impaired children, or for those with executive dysfunction. Therefore, I find that the teacher must be presumed to be competent to instruct respondents' son.

        There are, however, other issues about the recommended program which were raised at the hearing. The teacher of the recommended class testified that there were learning disabled, other health impaired, multiply disabled and emotionally disturbed students in the class, only one of whom was receiving speech/language therapy. One of petitioner's responsibilities was to ensure that the student would have been grouped with other students having similar needs (8 NYCRR 200.6 [g][3]). Typically, this part of a board of education's affirmative case is established by either having a staff member testify about the levels of academic, social, and physical development, and the management needs, of the students in the class, or by offering a "profile" containing that information (Application of a Child with a Disability, Appeal No. 97-67). I find that the record before me does not include the information which would be necessary to establish that respondents' son would have suitably grouped for instructional purposes in the recommended class. In addition, I must note that no one testified that the boy's IEP annual goals and objectives were achievable in the recommended class. Accordingly, I must sustain the hearing officer's determination that petitioner did not meet its burden of proof with respect to the program recommended by the CSE, although I do so for different reasons.

        The Board of Education also challenges the hearing officer's July 7, 1999 determination that respondents had met their burden of proof that the services which their son received at the Kildonan School met his special education needs, and that their claim for tuition reimbursement was supported by equitable considerations. The record reveals that the Kildonan School serves children who are learning disabled or who have a learning disability and ADD. Ms. Katherine Shantz, the "Associate Head" of the Kildonan School, testified that respondents' son was grouped for instructional purposes with students of at least high average intelligence and similar age. The boy received instruction in small classes, which appear to have been comparable in size to the special classes he would have attended for academic instruction if he had been enrolled in the educational program which petitioner's CSE had recommended for him. The Kildonan teachers are trained to use the Orton-Gillingham teaching methodology, which is a technique used to teach dyslexic children to read. Although respondents' son is not dyslexic, Ms. Shantz testified that the boy had benefited from the use of the Orton-Gillingham technique because students with ADD required a very structured sequential approach to learning which the technique provides. She further testified that the Kildonan teachers broke down student assignments into small, manageable components, and helped their students to generalize from the information which was presented to them. She acknowledged that respondents' son did not require sound/symbol relationship instruction which is an important part of the Orton-Gillingham methodology, but she asserted that he had benefited from the emphasis on reading comprehension and writing which that methodology also provided. I note that the private speech pathologist testified that at least some of the techniques used at Kildonan may have been inappropriate for respondents' son, but he insisted that the boy was nevertheless appropriately placed there.

        In view of the boy's history of inconsistent academic achievement and his not particularly successful eighth grade year while enrolled in regular education classes, I find that the boy required a learning environment which afforded him more individualized attention and specialized instruction than he had received during the 1997-98 school year. The Kildonan School program, as described by Ms. Shantz, would appear to have been appropriate for him, and consistent with the requirement that he be placed in the least restrictive environment (see P.J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1972]; Application of a Child with a Handicapping Condition, Appeal No. 92-7, decision sustained sub. nom., Lord v. Bd. of Ed. Fairport CSD et al., 92-CV-6286 [W.D. N.Y., 1994]). However, petitioner argues that the boy's academic performance, as measured by his standardized test results and report grades during the 1998-99 school year, demonstrates the inappropriateness of the Kildonan School placement.

        At the hearing officer's request, the Kildonan School provided copies of the boy's progress reports, an attendance report, and certain standardized test results. In the boy's initial Kildonan progress report dated October 16, 1998 (Exhibit P-129), his teachers indicated that the boy's absences from school were affecting his performance, and that he was having some difficulty adjusting to his classes. In the next report dated November 23, 1998 (Exhibit IHO-2), the teachers indicated that he was not completing assignments or doing them poorly. The next report was dated January 22, 1999 (Exhibit IHO-3). The boy's teachers expressed concern about his absences and uncompleted work. Similar comments were expressed in the boy's March 5, 1997 term report (Exhibit IHO-4). The boy had earned grades of F in Algebra I, C- in Global Studies, C- in Earth Science, and D in World Literature. He was removed from Algebra I and assigned to a Pre-Algebra class. The boy's interim report dated April 28, 1999 (Exhibit IHO-5) indicated that his work was satisfactory in literature, but below average in his other subjects. The boy's language training teacher, who had provided individual tutoring during the school year, reported on June 9, 1999 that respondents' son had made "fine gains in his language skills" (Exhibit IHO-6). He earned final grades of C- in Earth Science, D+ in Global Studies, D- in Pre-Algebra, and C in World Literature. Teacher comments indicated that he had not completed all of his assignments (Ibid).

        On the WRAT-3 achievement test which was administered to him in May, 1999, the boy achieved a grade equivalent score of 12.2 for word identification, a gain of almost two years over the 10.5 grade equivalent score he had achieved in May 1998 (Exhibit IHO-1). On the Gates-McGinitie Reading Test, the boy achieved a grade equivalent score of 7.1 in September, 1998 and 6.6 in May, 1999 for reading comprehension. On the WRAT-3 spelling sub-test, the boy had achieved a grade equivalent score of 7.5 for spelling in May, 1998. When tested in May, 1999, he achieved a grade equivalent score of 6.2 for spelling. However, his performance on the Ayres Copying Speed, a writing test, improved by two grades to 9.3. In essence, the boy's standardized test results at the end of the 1998-99 school year were as variable as they had been in previous years. Given that history, I am reluctant to infer that the instructional services provided by Kildonan were inappropriate. While I am concerned about the boy's continuing pattern of not completing assignments, I note that his teachers' year-end reports indicated that his effort and achievement improved as the school year came to an end. This appears to be in contrast to his previous performance in petitioner's schools. Upon the record before me, I find that there is adequate support for the hearing officer's decision with regard to the parents meeting their burden of proof on the appropriateness of the services provided by the Kildonan School during the 1998-99 school year.

        The third and final criterion for an award of tuition reimbursement is a finding that the parents' claim for reimbursement is supported by equitable considerations (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra). The hearing officer found that the parents' claim for reimbursement was supported by equitable considerations, largely because of petitioner's alleged failure to determine the extent of the boy's processing disorder and to establish an appropriate educational program for him. He also rejected petitioner's contention that reimbursement be denied because respondents temporarily withdrew the boy from participating in the speech/language therapy offered to the boy in December, 1997, and because respondents made arrangements to enroll their son in the Kildonan School for the 1998-99 school year approximately one month before the CSE made its recommendations for the boy's educational program for that school year. While I do not concur with the hearing officer's suggestion that respondents' initial reluctance to have their son evaluated by petitioner's speech/language pathologist was "understandable", I note that the matter was resolved promptly, and I find that it does not afford a basis for denying tuition reimbursement during the 1998-99 school year. Similarly, the fact that respondents chose to enroll their son in the Kildonan School before receiving the CSE's recommendation does not, in my judgment, afford a basis for denying their claim for tuition reimbursement.

        Having found that petitioner's appeal from the hearing officer's determination with regard to an award of tuition reimbursement should be dismissed, I now turn to the hearing officer's decision awarding reimbursement for the cost of the services provided by the private speech pathologist. I have found that the hearing officer lacked a factual basis at the time of his February 26, 1999 decision for determining that respondents should be reimbursed. The question which I now decide is whether the entire record, including the evidence adduced after the hearing officer's February 26, 1999 decision, affords a basis for upholding his award of such reimbursement. Although the CSE did not initially recommend that the boy receive speech/language therapy, it ultimately did so at its November 5, 1997 meeting. Moreover, the CSE appears to have concluded at its October 8, 1997 meeting that it would provide such therapy. I find that petitioner should have provided speech/language therapy to the boy during the fall of 1997, and that it failed to do so. Therefore, respondents have prevailed with respect to the first criterion for reimbursement.

        The private speech pathologist testified about the services which he had provided to respondents' son, when the hearing resumed on April 12, 1999. He testified that he used his therapy sessions with the boy to help him understand the nature of his disability, and to provide him with strategies which he could employ to deal with his difficulty. One of the things he apparently taught respondents' son to do was to ask for something which he did not understand to be repeated to him. The speech pathologist testified that the therapy which he provided was not intended to remediate the boy's reported executive dysfunction, but to help him overcome one of its consequences, i.e., his alleged failure to learn. He also testified that by the time he stopped providing therapy to the boy, the boy's reaction to his difficulties had improved. The speech pathologist did not formally test the child, or provide any objective evidence of the efficacy of the therapy which he had provided to respondents' son. While I do not condone petitioner's delay in providing speech/language therapy to the boy, I am troubled by the private speech pathologist's vague accounting for the services which he reportedly provided to the boy. I must therefore find that respondents failed to meet their burden of proof about the appropriateness of the services provided by the speech pathologist.

 

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

        IT IS ORDERED that the decision of the impartial hearing officer dated February 26, 1999 is hereby annulled to the extent that it ordered the Board of Education to reimburse the boy's parents for the cost of the services provided to him by the speech pathologist in the Fall of 1997.

 

 

 

 

Dated: Albany, New York __________________________
December 14, 1999 FRANK MUŅOZ