The State Education Department
State Review Officer

No. 99-98




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 City School District of the City of New York

New York Assistance Group, attorney for petitioner, Laura Davis, Esq., of counsel

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Lisa Weis, Esq., of counsel



        Petitioner appeals from an impartial hearing officer's decision which in the course of upholding a recommendation by respondent's committee on special education (CSE) with regard to the educational program of petitioner's son during the 1999-2000 school year also changed that recommendation. The appeal must be sustained in part.

        The Board of Education requests that I excuse its delay in serving its answer to the petition. The answer was due on December 29, 1999, but respondent’s attorney obtained an extension of time until January 28, 2000 from petitioner’s attorney. However, the answer was not served until February 14, 2000. Petitioner opposes respondent’s request for an excuse of its delay. I must first note that my decision has not been delayed because of respondent’s delay. Given the relatively brief delay and the absence of any injury to petitioner, I will exercise my discretion and excuse the delay ( 8 NYCRR 276.3; 8 NYCRR 279.1 [a]).

        Petitioner's son is 12 years old. At the time of the hearing in this proceeding in the Fall of 1999, the boy was in the sixth grade at I.S. 228. He was classified as learning disabled, and was receiving two periods of resource room services per day. The child was reportedly referred to the CSE in 1995 by his mother, who was concerned about her son’s rate of progress in the second grade at P.S. 329. In October, 1995, the boy achieved a verbal IQ score of 88, a performance IQ score of 98, and a full scale IQ score of 92. Although the record does not reveal what his academic achievement was at that time, the CSE recommended that he be classified as learning disabled. He has remained classified as learning disabled, and his classification is not in dispute in this proceeding. The CSE also reportedly recommended that the boy receive one period of resource room services per day and one period of individual counseling per week during the remainder of the second grade. He continued to receive those services while in the third and fourth grades.

        In the Fall of 1998, the boy was reevaluated by the CSE. A school psychologist reported that the child had informed him that he was taking Ritalin to "control himself." The boy achieved a verbal IQ score of 92, a performance IQ score of 108, and a full scale IQ score of 99. The school psychologist indicated that the boy’s psychomotor speed, visual-motor dexterity, rote learning ability, and visual memory skills appeared to be well developed, but he had evidenced weakness in short-term auditory memory skills and visual motor integration skills. Projective testing revealed that the boy might be anxious and immature (9-21-99,Exhibit 9). The CSE’s educational evaluator reported that the boy’s behavior during testing in the afternoon was significantly worse than in the morning. The boy achieved grade equivalent scores of 2.0 for basic reading, 2.4 for reading comprehension, 3.8 for numerical operations, 4.3 for mathematics reasoning, and 2.6 for spelling on the Wechsler Individual Achievement Test. When tested, the boy was in the fifth grade. The evaluator also reported that the boy’s listening comprehension skills were at the third grade level (9-21-99,Exhibit 4). On November 13, 1998, the CSE recommended that the child continue to receive one period of resource room services per day, but that individual counseling be discontinued.

        Petitioner reportedly did not challenge the CSE’s recommendation for her son by requesting a hearing. However, she asked that her son be reevaluated on April 26, 1999, because she believed that he needed additional special education services (9-21-99,Exhibit 7). When interviewed by a school social worker on May 7, 1999, petitioner indicated that she wanted her son to receive a second period of resource room services to enable him to remain in the regular education program (9-21-99,Exhibit 8). A CSE subcommittee agreed with petitioner’s request, and amended the boy’s individualized education program (IEP) accordingly on May 7, 1999 (9-21-99,Exhibit 5).

        The record does not reveal when petitioner requested an impartial hearing. A hearing was scheduled to begin on August 31, 1999. It was adjourned twice, and did not begin until September 13, 1999. At that time, petitioner’s attorney indicated that petitioner sought a determination that her son should receive one period per day of individual instruction in reading. The CSE representative requested an adjournment so that the boy could be further tested by the CSE. The hearing officer granted an adjournment until September 21, 1999, with the proviso that the boy was to receive individual resource room instruction for one period per day (Interim Order).

        On September 14, 1999, a school psychologist administered two subtests from the Wechsler Intelligence Scale for Children-Third Edition to the boy. He achieved percentile scores of 16 for vocabulary and 75 for block design. The school psychologist noted that the boy’s performance on the first sub-test was in the below average range, and in the average range on the second sub-test. On the Bender Gestalt test of the boy’s visual motor integration skills, he evidenced a two-year delay, which was consistent with his previous testing. The school psychologist reported that the child appeared to demonstrate appropriate adaptive social and emotional functioning (9-21-99,Exhibit 1).

        An educational evaluation was performed on September 15, 1999. The evaluator noted that although the child spoke some Spanish, English appeared to be his dominant language. On the Woodcock-Johnson, Revised Edition, which is a standardized achievement test, the child earned grade equivalent (and standard) scores of 2.6 (72) for letter-word identification, 4.6 (92) for passage comprehension, 6.7 for calculation, 2.0 (62 for dictation, and 3.3 (85) for writing samples. The evaluator indicated that the child had difficulty with vowel digraphs and dipthongs, and that delays in the development of his vocabulary affected his comprehension. Although he displayed some phonetic awareness in spelling, his visual recall of words was very limited. The evaluator reported that the boy’s broad written language skills were at the 2.4 grade level (9-21-99,Exhibit 2). A second educational evaluator observed the boy in his reading class on September 17, 1999. The evaluator reported that the boy appeared to be attentive, and followed the teacher’s instructions. Although he did not raise his hand to participate in the discussion, he did not speak out of turn or display inappropriate behavior (9-21-99, Exhibit 3).

        The hearing resumed on September 21, 1999. The school psychologist who tested the boy on September 14 testified that it was hard to identify the special education services which the boy needed. Discussing the results of the September 15 evaluation, the educational evaluator testified that the boy’s spelling skills were very limited. He also testified that while the child appeared to have adequate expressive language skills, his listening comprehension skills were below grade level. The hearing was adjourned so that the CSE could meet on September 28, 1999 to prepare an interim service plan for the child, and administer a speech/language evaluation and test him for a central auditory processing delay on or before October 25, 1999 (Transcript, p.55).

        A central auditory processing test battery was administered to the boy on September 27, 1999. The audiologist who performed the test reported that the boy had normal hearing, but that his test results were consistent with the existence of a central auditory processing disorder. The boy demonstrated a weakness in phonemic synthesis, which is a necessary skill for acquiring proficiency in phonetic reading and writing. The audiologist recommended that the boy continue to receive resource room services, have preferential seating in class, and receive training to improve his auditory skills (10-25-99, Exhibit 3).

        The boy’s speech/language evaluation took place on September 28, 1999. The speech/language evaluator reported that the child had adequate speech articulation and pragmatic language skills. On the Oral and Written Language Scale, the boy achieved percentile scores of 18 for listening comprehension, and 16 for oral expression, indicating a delay of approximately two years for each of those skills. The Test of Auditory Perceptual Skills was administered to assess the child’s auditory, memory, interpretation, and processing skills. He achieved an auditory quotient of 82 (12th percentile) which was below his age expectancy. He has deficits in auditory word memory and auditory number memory. The speech/language pathologist reported that the boy revealed weaknesses in memory, following multi-step oral directions, and perceiving sounds within spoken patterns (10-25-99, Exhibit 2).

        On October 21, 1999, the CSE reviewed the results of the boy's evaluations. It recommended that the boy remain in respondent's regular education program, while receiving resource room services and speech/language therapy. The CSE proposed that the child receive one period per day of resource room services in a group of no more than three students, and a second period each day of "push-in" resource room services. Push-in services are delivered by the resource room teacher in the child's regular education classroom, either on a 1:1 basis or to a group of students (Transcript, p. 62). The push-in resource room teacher would decide whether to work with an individual student, or teach the student in a group. I note that there is an apparent error on page 7 of the boy’s IEP which indicates that he was to receive two periods of pull-out resource room services per day. To improve his speech/language auditory skills, the CSE recommended that petitioner's son receive speech/language individually once per week, and in a group of no more than three, once per week. The IEP which the CSE prepared for the boy at its October 21 meeting included annual goals to improve his reading through the use of structural analysis skills and vocabulary development, as well as goals to improve his phoneme segmentation and synthesis skills and auditory and phonological memory skills (10-25-99, Exhibit 1).

        Petitioner did not accept the CSE's recommendations because they did not ensure that her son would receive 1:1 instruction by a resource room teacher. The hearing resumed on October 25, 1999. A CSE speech/language pathologist and an educational evaluator testified that the boy did not require 1:1 instruction from a resource room teacher. The resource room teacher who was instructing the boy in an 8:1 resource room and on a 1:1 basis pursuant to the hearing officer’s interim order testified that she could not use the same technique to teach phonics to the boy in the 8:1 class as she used with him on an individual basis (Transcript, p.94). She also expressed doubt about the efficacy of push-in resource room instruction for subjects other than mathematics.

        In his decision which was rendered on November 17, 1999, the hearing officer found that petitioner’s child was capable of benefiting from instruction "in the usual resource room grouping." While noting that such grouping might not be ideal, he found that it was nevertheless appropriate for the boy, and that respondent had therefore met its burden of proof with regard to the appropriateness of the special education program recommended by the CSE. The decretal portion of his decision ordered that "resource room services be continued in an 8:1 group for 2 periods per day."

        The Board of Education concedes that the hearing officer’s order does not reflect what the CSE recommended. It requests that his order be modified to provide that the boy receive resource room services in a group of no more than three students, and that he receive the speech/language therapy which the CSE had recommended. Initially, I find that the fact that the hearing officer did not refer to speech/language therapy in his order means that his decision did not affect that part of the CSE’s recommendation. Therefore, there is no reason for me to address that issue, about which there is no dispute.

        I agree with both parties that the hearing officer’s decision purporting to affirm the CSE’s recommendation with respect to resource room services does not reflect what the CSE actually recommended, i.e., that the child receive one period of resource room services in a group of no more than three students and one period of push-in resource room services each day. The question remains whether that recommendation was appropriate, as respondent contends, or was inappropriate, as petitioner argues. Petitioner asserts that her son requires one period per day of individual resource room instruction in reading, in lieu of the one period of 3:1 resource room and one period of push-in resource room service.

        The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        Petitioner has not challenged her son’s IEP with respect to the identification of her son’s needs, or the appropriateness of his IEP goals. I have nevertheless reviewed the IEP, as amended by the CSE at its October 21, 1999 meeting. I find that the boy’s IEP accurately reflects the results of his evaluations, and includes a generally appropriate description of his academic performance and learning characteristics, social/emotional development, and health and physical development. The boy’s IEP annual goals were intended to address the deficiencies in his auditory processing skills and his reading skills. I find that the goals for auditory processing are appropriate. His two reading goals are appropriate, but incomplete since they do not address the need to improve his reading comprehension. This child’s evaluations reveal that his spelling and writing skills were at the second grade level when he was in the sixth grade. However, there were no goals to improve his skills in either area on the IEP.

        The central issue in this proceeding is the appropriateness of the special education services which the CSE recommended. The parties have focused upon the pupil-teacher ratio for the boy’s resource room services. I must point out that resource room services are by definition supplementary instructional services (8 NYCRR 200.1 [hh]). They are not used to provide primary special education instruction to students with disabilities. The child’s evaluations reveal that he has made little progress in developing his reading, spelling, and writing skills, despite having received supplementary instruction in respondent’s resource room program for four years. As his IEP reading goals indicate, he needs to be instructed with specialized techniques to acquire some basic reading skills. I find that this child needs to have his reading, spelling, and writing skills remediated, in addition to receiving help in coping with the demands of his regular education math, science and social studies courses. While resource room can provide assistance for the latter through supplementary instruction, it cannot provide the intensive, specialized direct instruction he requires to remediate the deficits in his basic academic skills of reading, spelling, and writing. Those deficits must be addressed by placement on a part-time basis in an appropriate special education class. Consequently, I find that respondent has not met its burden of proof with regard to the appropriateness of the special education services recommended by its CSE.




        IT IS ORDERED that the hearing officer’s decision is hereby annulled; and


        IT IS FURTHER ORDERED that this matter is remanded to the CSE, with the direction that it prepare a new IEP for the boy which adequately addresses his need for primary special education in accordance with the tenor of this decision.



Dated: Albany, New York __________________________
November 9, 2000 ROBERT G. BENTLEY