The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of Monroe-Woodbury Central School District
Meiselman, Denlea, Packman & Eberz, P.C., attorneys for petitioners, Caryn B. Citrin, Esq., of counsel
Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, James P. Drohan, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request for an order compelling respondent to reimburse them for the cost of their sons tuition at the Community School of Bergen County (Community School) for the 1998-99 and 1999-2000 school years. The appeal must be dismissed.
Before reaching the merits of petitioners' case, I must address a procedural issue. Petitioners have attached two affidavits to their memorandum of law. One affidavit was signed by the student's mother, and one affidavit was signed by a learning consultant employed by the Community School. Respondent asserts that the affidavits should not be considered. It is well established that documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 98-55; Application of a Child with a Disability, Appeal No. 95-41; Application of a Child with a Disability, Appeal No. 93-20). Although the information set forth in the affidavits could have been presented at the hearing, I find that the affidavits will make the record complete, and I will exercise my discretion and accept them (Application of a Child with a Handicapping Condition, Appeal No. 91-25).
At the time of the hearing, petitioners son was thirteen years old, and was classified as learning disabled. His classification is not in dispute. The student was initially referred to the committee on special education (CSE) for evaluation during first grade because his mother was concerned that he was not completing his schoolwork. The student was evaluated by the CSE and by a private consultant in November 1992. His IQ scores were in the average range. On the Peabody Individual Achievement Test - Revised (PIAT-R), the student achieved a grade equivalent of 1.6 in general information, placing him in the 70th percentile. In reading recognition, the student achieved a grade equivalent of K.9, placing him in the 27th percentile. In math, the student achieved a grade equivalent of 1.5, which fell into the 73rd percentile. On the Wide Range Achievement Test - Revised (WRAT-R), the student achieved a grade equivalent of pre-first in spelling, placing him in the 23rd percentile. In arithmetic, the student achieved a grade equivalent of 2B, which fell into the 91st percentile. The private evaluator reported that the student exhibited many characteristics associated with dyslexia, and she recommended that his teachers use the Orton-Gillingham method to instruct the student in reading (Exhibit P-C).
In February 1993, the student was classified as learning disabled by the CSE. The CSE recommended that he be placed for the remainder of first grade in a special education class with a 15:1 student: teacher ratio for 95 minutes of reading and language arts instruction, five times per week (Exhibit SD-1). In June 1993, the student achieved a grade equivalent of 2.10 for math on the Woodcock-Johnson Tests of Achievement Revised (Woodcock-Johnson). He also achieved grade equivalents of 1.10 and K.9 for reading and written language, respectively (Exhibits SD-2, P-X).
At its annual review on June 22, 1993, the CSE noted that the student had regressed academically, and that his regular education and special education teachers, as well as his parent, were in favor of a full time special education class placement. The CSE recommended that the students placement be changed to a full time special class with a student: teacher ratio of 15:1, except for mainstreamed physical education and special subject classes, e.g. art and music classes (Exhibit SD-2). The students special education teacher during the 1993-94 school year was trained in the Orton-Gillingham method (Transcript p. 388).
On the Woodcock-Johnson in April 1994, petitioners son achieved a grade equivalent of 1.4 in broad reading. His standard score of 84 was in the 14th percentile. In broad math, the student achieved a grade equivalent of 3.0 which was in the 79th percentile. He achieved a grade equivalent of 1.5 in broad written language. His standard score was 91, which fell into the 27th percentile (Exhibit SD-36). The private consultant recommended that the student receive primary special education instruction in reading, spelling and written language by a teacher trained in the Orton-Gillingham methodology, and tutoring support for math. She also recommended that the student have access to books on tape (Exhibit P-D).
For the 1994-95 school year, the CSE recommended a full time placement in a special class with a student:teacher ratio of 15:1, except for math, physical education and special subjects (Exhibit SD-3). In December 1994, it recommended removing the student from his mainstream math class because the class was too large and its learning rate was too fast for him (Exhibit P-U). The students mother supported her sons removal from mainstream math (Transcript p. 173).
Petitioners obtained a private tutor for their son near the end of the third grade. The tutor, who was trained in both the Orton-Gillingham and Wilson methods of teaching, continued to work with the student through the summer following sixth grade (Transcript p. 187). On the Woodcock-Johnson in June 1995 as he was completing the third grade, petitioners son achieved a grade equivalent of 3.7 and a standard score of 109 for math achievement, and a grade equivalent of 2.1 and a standard score of 86 for reading achievement. In written language, the student achieved a grade equivalent of 2.0 and a standard score of 84.
During the 1995-96 school year, the student was placed in a special class with a student: teacher ratio of 15:1 for all subjects except art, music, physical education, and science. In addition, the CSE recommended a program of tutoring for reading (Exhibit SD-5). In his triennial evaluation in March 1996, the student achieved a grade equivalent of 5.8 and a standard score of 119 for math achievement, a grade equivalent of 3.3 and a standard score of 91 for reading achievement, and a grade equivalent of 2.8 and standard score of 85 for written language on the Woodcock-Johnson. On the Weschler Intelligence Scale for Children (WISC), the student achieved a verbal IQ score of 94, a performance IQ score 94 and a full scale IQ score of 93 (Exhibit SD-5). He was also evaluated by the consultant again. She reported that the student had begun to make progress, which she attributed to the Orton-Gillingham tutoring he had received (Exhibit P-E). The student received final grades of B in language arts, A in math, A in social studies, B in science, B in art and B in music for the fourth grade (Exhibit P-K).
During the 1996-97 school year, the student was in a 15:1 special education class for instruction in reading, language arts, social studies, and science, and was mainstreamed for math and special subjects. His special education teacher used the Orton-Gillingham methodology (Transcript p. 95). The students IEP indicated that he would receive an additional 30 minutes of reading instruction each day (Exhibit D-5). In May 1997, the student achieved a standard score of 112 and grade equivalent of 6.5 for math, and a standard score of 91 and grade equivalent of 4.5 in broad reading, on the Woodcock-Johnson. In broad written language, the student achieved a standard score of 78 and a grade equivalent of 2.9 (Exhibit SD-15).
For the sixth grade during the 1997-98 school year, the CSE recommended that the student participate in an inclusion program of special education in a regular education class for language arts, reading, science and social studies, and that he be mainstreamed for math. The students IEP indicated he would also receive small group instruction in reading and written language for 30 minutes per day (Exhibit P-A). The private consultant reported in June 1997 that the student had made progress in reading, but continued to show signs of dyslexia. She recommended continuation of special reading and writing instruction in the Orton-Gillingham method, mainstreaming for science, social studies and non-academic classes, continuation of private tutoring and books on tape. She opined that a special emphasis should be placed on reading decoding and writing (Exhibit P-F). The students fourth quarter marks for grade five were B for language arts, D for math development, A for social studies and B for science (Exhibit L).
In a letter dated August 28, 1997, the mother requested a CSE meeting to address her concerns about her sons placement in a language arts inclusion class and the appropriateness of small group instruction in reading for her son (Exhibit P-P). At a CSE meeting on October 8, 1997, the mother asked the CSE to provide individual reading instruction and include the goals generated by the students private tutor on her sons IEP. The CSE recommended that the student be placed in inclusion classes for science and social studies and special education classes for language arts and reading. The science, social studies, language arts and reading classes had 15:1 student: teacher ratios. The CSE also recommended a special reading class with a 3:1 student: teacher ratio. The students teacher reported that petitioners son usually received individual reading instruction as well as group instruction in reading and language arts, and that the goals developed by his tutor were consistent with the instruction the student was already receiving. The CSE recommended an occupational therapy evaluation, and agreed to meet in 30 days to review the results of the evaluation (Exhibit SD-6). The mother testified that she had concerns about the ability of her sons teacher to provide a multi-sensory program. She acknowledged, however, that she did not raise her concerns at the CSE meeting because she believed no other teacher was available (Transcript p. 266).
In March 1998, the student achieved a standard score of 115 and a grade equivalent of 8.1 in broad math, a standard score of 90 and a grade equivalent of 4.5 in broad reading, and a standard score of 83 and a grade equivalent 3.9 in broad written language on the Woodcock-Johnson (Exhibit SD-7). His mother requested an independent evaluation because she did not feel the most recent evaluation accurately reflected her sons performance in school (Exhibit P-S). The mother testified that she began to consider a private placement for her son in the spring of 1998. She visited both the Community School and the Windward School (Transcript p. 214). The student earned fourth quarter grades of C for language arts, D for math, D for social studies and C+ for science (Exhibit P-M).
For the seventh grade during the 1998-99 school year, the CSE recommended that the student remain in inclusion classes for language arts, science, and social studies, and continue to participate in regular education math and physical education. It further recommended that he be enrolled in a mainstream class called FEED, which was not described in the students IEP. Resource room was recommended for multi-sensory instruction in reading and writing. The students resource room teacher for the 1998-99 school year testified that she had been trained in the Orton-Gillingham method and the Wilson reading program. She described the Wilson reading program as an extension of the Orton-Gillingham program (Transcript p. 67). The students primary special education teacher was also trained in both programs (Transcript p. 350). A special education skills class and a mainstream academic support class were also recommended by the CSE. The students IEP also included the test modifications of extended time limits, separate locations, and having directions read to him (Exhibit SD-7).
A progress report completed in October 1998 indicated that the students effort and conduct in seventh grade were generally satisfactory (Exhibit SD-26). During that month, the Community School notified the students parents that an opening was available at the school. The student interviewed for the opening and was accepted immediately (Transcript pp. 224-225). In a letter dated October 26, 1998, the mother informed the CSE that she had placed her son in the Community School, and she requested that respondent transport her son to that school (Exhibit P-T). The mother acknowledged that she had not informed the CSE prior to removal of her son from the public placement. At the hearing, she testified that she was concerned that her older child would be adversely affected if she informed the CSE that she was considering a private placement for her son (Transcript p. 313).
One of the students teachers from the Community School testified that the Orton-Gillingham and Lindamood-Bell methodologies were used at the school for students who had not reached fifth grade proficiency in reading, but that neither methodology was employed in the schools comprehensive reading program for those reading at the fifth grade level (Transcript p. 707). Petitioners son was screened by the school and placed in its comprehensive reading program, rather than a program using the Orton-Gillingham or Lindamood-Bell methodologies (Transcript p. 724).
The private consultant re-evaluated petitioners son in December 1998. The student achieved a verbal IQ score of 99, a performance IQ score of 98 and a full scale IQ score of 98. On the Woodcock Reading Mastery Test - Revised (WRMT-R), the student achieved a standard score of 68, a grade equivalent of 3.5 and a percentile of 2 for word identification. In word attack, the student achieved a standard score of 84, a grade equivalent of 2.9 and a percentile of 15. In word comprehension, the student achieved a standard score of 89, a grade equivalent of 5.1 and a percentile of 24. In passage comprehension, the student achieved a standard score of 75, a grade equivalent of 3.4 and a percentile of 5. The evaluator opined that the student had not progressed in basic reading skills since June 1997. She recommended that the student continue to attend the Community School, and she encouraged his use of a computer and books on tape (Exhibit P-G). In June 1999, the Community School indicated that the student had made progress towards or had met most of the objectives for the annual goals on the IEP which the private school had prepared for him (Exhibit P-TT). The school did not, however, report the students specific levels of achievement.
The school districts triennial evaluation of the student was conducted in the summer of 1999. The student achieved a verbal IQ score of 89, a performance IQ score of 91 and a full scale IQ score 89. His full scale IQ score fell into the low average range. On the Woodcock-Johnson, the student achieved a broad reading standard score of 81 and a grade equivalent of 4.1. In broad math, the student achieved a standard score of 104 and a grade equivalent of 8.3. In broad written language, the student achieved a standard score of 74 and grade equivalent of 3.3. The evaluator noted that a comparison of the students scores on standardized achievement tests taken at the end of sixth and seventh grades revealed a decline in progress (Exhibit SD-13). The evaluator also reported that during an observation at the Community School, the students reading teacher had acknowledged that she had no formal training in the Orton-Gillingham methodology (Transcript p. 35). The evaluator recommended that the students program include a combination of special education in the regular classroom and additional support services, books on tape, test modifications and the opportunity to participate in extracurricular activities (Exhibit SD-13).
The private consultant re-evaluated the student once again during the summer of 1999. The evaluator administered the Spache Diagnostic Reading Scales (Spache), the WRMT-R, the Stanford-Binet Intelligence Scale - 4th Edition, the PIAT-R, the WRAT-R and the Test of Written Language - 3 (TOWL). She reported that the student demonstrated significant progress on the WRMT-R in his word identification, word attack, word comprehension, and passage comprehension skills since December 1999, with standard score increases of 18, 14, 7, and 13 points, respectively. She recommended that the student continue to attend the Community School, and opined that an emphasis should be placed on developing his writing (Exhibit P-HH).
A clinical psychologist conducted an independent review of the students file. He submitted his report on July 27, 1999. The psychologist opined that the student was predominately an auditory-dysphonetic dyslexic. He explained that the students condition was characterized by difficulties with recognition and reproduction of sound-symbol relationships. The psychologist recommended a multi-sensory approach to learning and Orton-Gillingham training. He noted that Orton-Gillingham training was included on the students IEP. He reported that, given the students disability, the optimal expected growth in reading scores would range from 4 and 7 months for each year of schooling. He also reported that the student had made progress up until the 1998-99 school year (Exhibit SD-12).
The impartial hearing in this proceeding was reportedly requested in May 1999 (Transcript p. 232). It began on August 10, 1999. On August 31, 1999, the CSE recommended an educational program for the student for the 1999-2000 school year. It recommended that he be placed in an inclusion class for math, science and social studies, a 15:1 special education class for English, and a 15:1 skills class for mainstream academic and study support. The CSE also recommended a 5:1 resource room class five times per week to address reading and written language skills. Extensive testing modifications included extended time, special location, directions read and listening sections repeated were included on the IEP (Exhibit SD-37). By letter dated September 27, 1999, the parents informed the CSE that they were rejecting the proposed IEP and seeking reimbursement of their sons tuition at the Community School (Exhibit SD-38).
At petitioners request, a private psychologist reviewed their sons educational records and prepared a written report dated November 8, 1999. The psychologist opined that the student probably had dyslexia and dysgraphia, but she did not offer a definite opinion because she felt that the diagnostic information provided by the district and petitioners consultant was inadequate. The psychologist compared the school districts IEP with the Community Schools IEP, and noted that the IEPs had similar goals and objectives, but the Community School had incorporated visual elements into its IEP. She opined that the school district should have emphasized keyboarding skills because the student had difficulty with the mechanics of writing. In addition, the psychologist stated that the Lindamood-Bell method of teaching would have been more appropriate than the Orton-Gillingham method because Lindamood-Bell places a greater emphasis on visual learning. The psychologist concluded that the school district had not provided an appropriate program (Exhibit P-VV). At the hearing, she opined that the program at the Community School included certain elements that made it more appropriate than the school districts program (Transcript p. 879).
The impartial hearing took place over the course of seven days from August through October 1999. Petitioners challenged the adequacy of their sons IEPs for the 1998-99 and 1999-2000 school years, as well as the timeliness of the latter IEP. They asserted that they had been denied the opportunity to meaningfully participate in the development of their sons IEPs. They also asserted that respondents educational program did not meet their sons educational needs, which were being met by the Community Schools program.
In a decision dated December 22, 1999, the impartial hearing officer dismissed petitioners claim of no meaningful participation in the development of their sons IEP. He also rejected their claim that the students IEPs did not accurately his educational needs, and their claim that the 1999-20000 IEP had not been given to them in a timely manner. The hearing officer found that the school districts educational program would have been appropriate for petitioners son. He further found that petitioners had failed to notify respondent of their intention to unilaterally place their son at the Community School until after they had placed him in that school. In addition, the hearing officer found that the evidence presented to him did not justify the students placement in the private school. The hearing officer denied the parents request for tuition reimbursement.
Petitioners contend that the hearing officer erred in finding that respondents CSE had prepared adequate IEPs for their son, and had offered a timely IEP for the 1999-2000 school year. They also challenge his determination that they had not demonstrated the appropriateness of the Community Schools program for their son.
A board of education may be required to pay for educational services obtained for a child by the childs parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents claim for tuition reimbursement (Florence County School District Four v. Carter, 510 U.S. 7 ). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed. Dept. Rep. 487). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefit (Board of Educ. v. Rowley, 458 U.S. 176 ), and that the recommended program is the least restrictive environment for the child (34 CFR § 300.550 [b]; 8 NYCRR § 200.6 [a]).
An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the childs needs, establishes annual goals and short-term instructional objectives related to the childs educational deficits and provides for the use of appropriate special education services to address the childs special education needs (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9).
The evidence shows that appropriate evaluations were conducted to assess the students needs. The Woodcock-Johnson was administered prior to each annual review. Appropriate psychological and educational evaluations were conducted prior to each triennial review. I find that the results of the evaluations provided adequate information about the students levels of educational performance. The 1998-99 IEP and 1999-2000 IEP contained the results of all current and previous educational testing.
An IEP description of current levels of performance should accurately describe the effect of a students disability on his or her performance in both academic and non-academic areas, and should be written in objective measurable terms to the extent possible (34 CFR Part 300, Appendix, Question 36). Test scores pertinent to the childs disability may be used, but they should be self-explanatory. The 1998-99 IEP reports the students IQ scores and test scores from the March 1998 administration of the Woodcock-Johnson (Exhibit SD-7). The 1999-2000 IEP reports the students IQ scores and test scores from July 1999 administration of the Woodcock-Johnson, the WRMT-R, the TOWL, the Visual Motor Integration Test and the Kaufman Test of Educational Achievement (Exhibit SD-37). Both IEPs indicate the areas that each test evaluated. I find that the test scores indicate the student's level of functioning in all educational areas, including his areas of deficit. In addition, the IEPs describe his social development, management needs and physical development, as required by 8 NYCRR 200.4 (c) (2) (I).
Petitioners premise their assertion that the IEPs inadequately described their sons levels of performance and needs upon the private psychologists opinion that additional testing was needed to identify the nature of the students disability. I disagree. The record reveals the student has been extensively evaluated, and his educational needs have been adequately identified. I find that both the 1998-99 IEP and the 1999-2000 IEP appropriately described the students current levels of performance.
The record reveals that petitioners son had deficits in his reading, writing, and organizational/study skills. His IEPs for both school years included annual goals and objectives which were specifically related to those deficits. I find that the students IEP goals and objectives addressed his special education needs.
I also find that the special education services provided by the school district would have appropriately addressed the students needs. For the 1998-99 school year, the CSE recommended inclusion classes for language arts, science, and social studies, a resource room class for instruction in reading, and a "mainstream support services" class. The inclusion classes were taught by a team of one regular education teacher and one special education teacher. The special education teacher member of the team explained at the hearing that she not only monitored the students performance in class, but also provided additional instruction and guided practice (Transcript p. 362). The student also received direct instruction in reading and writing during his "resource room" class. While I am aware that a resource room is by definition for supplemental instruction (8 NYCRR 200.1 [hh]), I note that the inclusion teacher and the resource room teacher testified that the latter provided direct instruction in reading and writing (Transcript pp. 69). I further note that both teachers were trained to use the Orton-Gillingham methodology which the private consultant had recommended. Supplemental instruction was provided in the mainstream support class (Transcript p. 367). The recommended educational program for the 1999-2000 school year included a special education class for English, inclusion classes for math, science, and social studies, a resource room class for reading and writing, and a mainstream support class.
Petitioners appear to challenge the adequacy of respondents special education program on the grounds that instruction using the Orton-Gillingham technique might not be as effective as instruction using another approach such as Lindamood Bell, as well as their assertion that the districts expectations for their sons reading skills to improve are too low. Petitioners first argument appears to be based upon the private psychologists report. I must note that in her report, the psychologist indicated that it was difficult to ascertain the most appropriate modes of instruction for the student because of a lack of "specific diagnostic" information (Exhibit P-VV). The hearing officer noted in his decision that the private psychologist testified that she could not determine the appropriateness of respondents educational program for learning disabled students in its middle school. With regard to the issue of the students progress, I have carefully reviewed the entire record, and I concur with the clinical psychologists July 27, 1999 report concerning the students actual and expected progress, given the nature of his disability (Exhibit D-12). The student steadily progressed in his area of disability every year he was a student in the school district. I find the educational programs developed by the CSE for 1998-99 and 1999-2000 appropriately addressed the students needs.
Petitioners assert that the IEP for the 1999-2000 school year was untimely. School districts must have an IEP in effect for each child with a disability at the beginning of each school year (34 CFR § 300.342). The evidence shows that the IEP for the 1999-2000 school year was delivered to the parents representative the day before the start of the 1999-2000 school year. The evidence also shows that the parents were present at the CSE meeting, and consented to the delivery of the IEP to their representative. Although it is preferable for an IEP to be developed in a more timely fashion, the CSE did recommend a program that was in effect for the student at the beginning of the school year. I concur with the hearing officers determination that there was no violation of the timeliness requirement with regard to the 1999-2000 IEP. Because I have found that the school district recommended appropriate programs for the student in the 1998-99 and 1999-2000 school years, it follows that petitioners cannot prevail in their claim for tuition reimbursement. Therefore, I do not address the issues of the appropriateness of the private placement, and the degree to which equitable considerations support their tuition claim.
I have considered petitioners further assertions and find them to be without merit.
THE APPEAL IS DISMISSED.
Albany, New York
February 7, 2001