The State Education Department
State Review Officer

No. 00-028




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 the City School District of the City of New York

Queens Legal Services Corporation, attorney for petitioners, Tara Foster, Esq. and Ghita Schwarz, Esq., of counsel



        Petitioners appeal from an impartial hearing officer's decision which held that their son should be independently evaluated at respondent's expense to determine the boy's appropriate classification and placement, as well as his language of instruction. They seek an order requiring respondent to place their son in a bilingual modified instructional services – III (MIS-III) inclusion class, and provide him with compensatory education. The appeal must be dismissed.

        Petitioners' son is nine years old. The child reportedly achieved his developmental milestones slowly. In June, 1994, he was evaluated by a psychologist at the Western Queens Developmental School. The psychologist noted that petitioners were from Ecuador, and that both English and Spanish were spoken in the child's home. Using the Stanford-Binet Intelligence Scale in both Spanish and English with the child, the psychologist reported that the boy's cognitive functioning fell within the borderline range (Exhibit 24). A bilingual speech/language evaluation was also performed at that time. The evaluator reported that Spanish was the child's dominant language, and that he demonstrated marked delays in his receptive and expressive language skills (Exhibit 25A). An educational evaluator at the Western Queens Developmental School reported that the boy was experiencing developmental delays in a variety of skill areas, such as speech/language, general knowledge, and gross and fine motor development (Exhibit 25).

        In August, 1994, petitioners' son was classified as a preschool child with a disability. He reportedly received speech/language therapy in Spanish and physical therapy while attending a preschool program at Our Lady of Sorrow School during the 1994-95 school year (Exhibits 22-23). The child came under the jurisdiction of respondent's committee on special education (CSE) for the 1995-96 school year. In May, 1995, the CSE recommended that petitioners' son be classified as speech impaired, and that he attend a regular education kindergarten class while receiving 30 minutes of speech/language therapy in Spanish twice per week (Exhibit 21). Petitioners chose to enroll their son in a regular education kindergarten in a local parochial school, the St. Leo School.

        The child remained at St. Leo for the first grade during the 1996-97 school year. On January 24, 1997, the child's first grade teacher at St. Leo referred him to the CSE because the child could not do his classwork or complete any tests despite receiving peer tutoring and private tutoring (Exhibit 15). The teacher reported that the child did not pay attention in class, and expected others to do his work for him.

        The child was re-evaluated by a CSE school psychologist on April 1, 1997. The school psychologist reported that the child was impulsive and immature during formal testing. She administered the Wechsler Preschool and Primary Scale of Intelligence – Revised (WPPSI-R) to the boy in English and Spanish, and noted that language differences did not appear to have interfered with his performance on the WPPSI-R. The child's verbal performance and full scale IQ scores were reported to be in the deficient range (0.4 percentile). The school psychologist reported that the child seemed to have a higher potential, but opined that his cognitive limitations were consistent with his lack of academic progress. She further opined that he would benefit from a very structured setting (Exhibit 18).

        An educational evaluator who tested the boy on March 18, 1997 reported that she had attempted to administer a standardized achievement test in Spanish, but that the boy had responded to her questions in English. He could not recite the alphabet in Spanish, but could so in English. On the Woodcock Oral English Cluster, the child achieved a grade equivalent score of 1.0. The child achieved a grade equivalent score of 1.4 on a test of his listening comprehension in English. His math skills were informally assessed in Spanish and English, with the latter being slightly stronger (Exhibit 19).

        On June 14, 1997, a bilingual speech/language evaluation was completed. The evaluator reported that the boy's speech was unintelligible, and characterized by the omission and substitution of sounds and syllables within words. On the Preschool Language Scale-3, the child achieved standard (and percentile) scores of 63 (1) for auditory comprehension and 50 (1) for expressive communication. The evaluator reported that the child had more expressive vocabulary in English than in Spanish. She recommended that he be provided with bilingual speech/language therapy individually and in a group (Exhibit 19). A neurologist who evaluated the child on August 11, 1997 reported that there were some soft signs of neurological impairment with regard to visual motor perception, clumsiness, and fine motor coordination (Exhibit 26).

        On July 15, 1997, the CSE recommended that the child remain classified as speech impaired, and that he be enrolled in a 12:1+1 modified instructional services—IV (MIS-IV) class for the 1997-98 school year. The CSE also recommended that the child receive 30 minutes of individual bilingual speech/language therapy per week and 60 minutes of bilingual speech/language therapy per week (Exhibit 16). Petitioners chose to enroll their son in the St. Leo School for the 1997-98 school year, during which he repeated the first grade. He remained in the private school for the 1998-99 school year, and was placed in a regular education second grade class. He did not receive speech/language therapy.

        On April 28, 1999, petitioners' son was referred by his second grade teacher to the CSE. The teacher reported that the boy had not yet acquired most of the basic first grade skills, and had failed all his tests, even those that were read to him. She indicated that he was receiving one period of remedial reading per week, and attended an after-school instructional program once per week. The teacher reported that petitioners' son rarely spoke in class, and was very nervous. She also reported that he was distractible (Exhibit 2).

        On May 24, 1999, a private tutor who had been working with the child for one hour per day, five days per week, since February, 1999 reported that she had had great success with him, but that the child's success in tutoring had not been transferred to his classwork in the St. Leo School (Exhibit 14). The child's mother indicated in an update of the child's social history that he had begun to receive counseling from a psychologist in July, 1999 (Exhibit 9).

        A bilingual educational evaluation was completed on July 29, 1999. The evaluator reported that English was the child's dominant language. She indicated that the child's word recognition and comprehension skills were at the beginning first grade level on the Brigance Inventory of Basic Skills. His listening comprehension was assessed to be at a lower first grade level. The child achieved a standard score of 86 for reading comprehension on a subtest of the Kaufman Test of Educational Achievement (KTEA). However, the evaluator cautioned that the boy's score, which equated to a high first grade level, appeared to be inflated, and that a middle first grade level for reading comprehension appeared to be more appropriate. The boy's standard score of 65 for math computation on the KTEA was equivalent to below the first grade level, as was his standard score of 69 for math application. He achieved a standard score of 85, for a grade equivalent of 1.5, for spelling on the KTEA. The evaluator reported that the child was quiet and withdrawn, and that he was aware of academic and language difficulties (Exhibit 11).

        On August 13, 1999, petitioners' son was evaluated by a bilingual school psychologist, who reported that English was the boy's dominant language, and that the quality of his speech was poor. The school psychologist opined that the child knew more than what he was able to express. Nevertheless, the boy gave the impression of being developmentally delayed because of his social immaturity. On the Stanford-Binet Intelligence Scale, the child's overall cognitive ability was assessed to be in the upper limits of the mentally deficient range, with significant differences in scores on various subtests. His visual motor skills were found to be well below his age expectancy. He manifested difficulty with visual-perceptual discrimination and spatial orientation. The school psychologist also assessed the boy's adaptive behavior on the Vineland Adaptive Behavior Scales. His communication and socialization skills were found to be moderately low, while his daily living skills were reported to be adequate. The boy achieved an age equivalent score of 6.7 on the Vineland, which was approximately two years below his actual age. The psychologist opined that the child would benefit from placement in a small class setting, with intensive speech/language therapy to address his delayed language skills (Exhibit 10).

        Petitioners' son was also evaluated by a bilingual speech/language therapist on August 13, 1999. She reported that the child had developed a basic level of interpersonal communication skills, as well as a school related vocabulary, in English. However, the evaluator indicated that she could not determine whether English was his dominant language because of his severe language delay. She reported that his connected speech was unintelligible. On the Expressive One Word Vocabulary Test, the boy achieved a standard score of 55, suggesting a language age of 4-3. He achieved a standard score of 72, and a language age of 6-1 on the Receptive One Word Vocabulary Test. At the time of the evaluation, petitioners' son was almost nine years old. On the Clinical Evaluation of Language Fundamentals-3 (CELF-3), the child achieved a standard score of 70 for receptive language, and a standard score of 67 for expressive language. On a supplementary listening sub-test to assess his ability to recall information, the child had difficulty recalling facts and details, and using information to identify cause and effect relations and make inferences and predictions. Expressively, his sentences were incoherent and unrelated to the stimuli pictures. The evaluator concluded that the child exhibited a severe language disorder characterized by receptive and expressive language difficulties. She noted that his language difficulties might interfere with early reading and writing activities, as well as school related activities, e.g., participating in classroom discussions and following oral and written directions. She recommended that the child receive individual speech/language therapy once per week, and speech/language therapy in a small group twice per week (Exhibit 12).

        On August 31, 1999, the CSE reviewed the results of the child's evaluations with petitioners. The CSE recommended that the boy remain classified as speech impaired, and that he be placed in a monolingual MIS-III class on a 10-month basis. It further recommended that he receive 30 minutes of individual speech/language therapy per week and two 30-minute sessions of speech/language therapy in a group of no more than three students per week (Exhibit 4). In New York City, children who score below the 41st percentile on the Language Assessment Battery (LAB) are considered to be limited English proficient (LEP) and are entitled to receive bilingual instruction, or instruction in English as a second language (see also 8 NYCRR 154). However, a CSE may conclude that it would be inappropriate for a child with a disability who scores below the 41st percentile on the LAB to receive bilingual instruction, or instruction in English as a second language. In this case, the CSE concluded that the boy should be instructed only in English because all of his instruction at St. Leo had been in English and the CSE's educational evaluator and school psychologist had reported that the boy was English dominant (Exhibit 5).

        Petitioners are residents of Community School District 28 in New York City. The St. Leo School which their son attended is in Community School District 24. When a child who is attending a private school in New York City is referred for special education, the CSE of the Community School District in which the private school is located is responsible for conducting the appropriate evaluations and recommending an appropriate educational program for the child (Transcript, pages 36-37). The placement officer of Community School District 24 testified that upon receiving the CSE's recommendation for petitioners' son, she notified Community School District 28, which offered the child a placement in a MIS-III class at P.S. 139 on September 1, 1999 (Transcript, page 32). The Community School District 24 placement officer informed petitioners of the proposed placement (Exhibit 6), and suggested that they visit the class at P.S. 139. Petitioners visited the class at P.S. 139 on or about September 9, 1999. They believed that the class was inappropriate for their son because the children in the class did not appear to be like him (Transcript, pages 59, 76). As a result, they were orally offered an alternative placement in a MIS-III class in P.S. 30, which is also in Community School District 28, their district of residence. At the hearing, petitioner testified that they were not permitted to visit the class at P.S. 30, although neither of them identified anyone who had denied them the opportunity to see the class.

        In a letter dated December 1, 1999, the child's mother advised the CSE chairperson for Community School District 24 that she did not agree with the recommendation that her son be placed in a MIS-III class in Community School District 28, and asked to meet again with the CSE (Exhibit 7). Petitioners, their attorney, and the child's tutor met with the CSE of Community District 24 on December 14, 1999 for what was described as a "conflict resolution" meeting (Exhibit 8). The school psychologist member of the CSE testified at the hearing that the CSE indicated to petitioners that it would continue to recommend that their son be educated in a monolingual MIS-III class, unless petitioners provided evidence of the child's need for bilingual instruction. The parties also reportedly discussed the possibility of placing the child in a bilingual MIS-III class at P.S. 14, which is located in Community School District 24. That class was described in the record as an "inclusion" class consisting of 24 regular education and 10 special education students, taught by two teachers (Transcript, page 50).

        The child reportedly could not have been enrolled in any class in Community School District 24 without a "variance" granted by the Superintendent of Community School District 24 and approved by Community School Board 24 (Transcript, page 38). The CSE school psychologist discussed the matter of the child's placement in the bilingual MIS-III class at P.S. 14 with the Director of Special Education for Community School District 24 (Director), who testified that the school psychologist informed him that the CSE had not recommended a bilingual special education class for the child (Transcript, page 39). The Director testified that no formal request for a variance had been made, and that it would probably not have been granted if it had been formally requested (Transcript, page 41).

        On January 28, 2000, petitioners requested an impartial hearing. A hearing was scheduled to begin on February 23, 2000, but was adjourned until February 29, 2000. On that date, the hearing was held. Petitioners' attorneys contended that a variance was not legally required to place the child in Community School District 24 under the Individuals with Disabilities Education Act (IDEA) because each community school district in New York City was simply a subdivision of the City School District of the City of New York, and that placement decisions must be made by the CSE. They also pointed out that the child had not received any speech/language therapy since it had been recommended for him by the CSE in August, 1999. They asked the hearing officer to award compensatory education in the form of intensive speech/language therapy.

        The hearing officer rendered his decision on March 22, 2000. After summarizing the pertinent facts, the hearing officer found that there were "so many discrepancies and inconsistencies in this case that the matter is hereby referred back to the CSE". He also ordered that the child be independently evaluated at respondent's expense to determine an appropriate classification and placement for him, and to determine whether he was "bilingual or monolingual". The hearing officer directed respondent to issue a Related Services Authorization which would enable petitioners to obtain speech/language by a private therapist for their son.

        Petitioners challenge the hearing officer's decision on procedural and substantive grounds. I will consider the former first. They assert that the hearing officer permitted three different witnesses for respondent to cross-examine petitioners' witnesses, and allowed those individuals to make statements during the course of their cross-examination of the witnesses. I note that respondent was not represented by an attorney at the hearing. Petitioners and their son's tutor were questioned primarily by the Director and the CSE chairperson at the hearing. I find no basis for concluding that petitioners' due process rights were violated. I must also note that the hearing officer accorded petitioners' attorneys considerable latitude by permitting them to ask very leading questions during their direct examination of their witnesses.

        Petitioners contend that the hearing officer relied in his decision upon information which was set forth in a document which was not admitted into evidence. They assert that the hearing officer referred to the size of the MIS-III class at P.S. 14 in his decision, and that such information was included in a handwritten notation on a document which the hearing officer reportedly excluded from the record (Transcript, pages 55-56). While I agree that the document in question was not formally entered into evidence, I must note that the hearing officer indicated that he would "take it", i.e., accept it, as rebuttal evidence (Transcript, page 55).

        Petitioners also object to the fact that the hearing officer declined to consider their attorneys' post-hearing memorandum of law, despite having indicated at the hearing that he would accept a post-hearing memorandum of law (Transcript, page 93). At the hearing, the hearing officer indicated that petitioners could submit a post-hearing brief, but he also indicated that he would not defer his decision. Petitioners' memorandum of law was submitted three weeks after the hearing was held and five days before the hearing officer rendered his decision. In their memorandum of law for this appeal, petitioners' attorneys assert that they were advised by respondent's Impartial Hearing Officer that the hearing officer had rejected their post-hearing brief because it had not been requested and his decision had been rendered. I must note that the hearing officer appeared to indicate at the hearing that a post-hearing brief could be submitted within a two-week period after the hearing, rather than one week after receipt of the transcript as petitioners' attorneys now assert.

        Petitioners contend that the hearing officer erred by not finding that respondent had failed to prove that it had offered an appropriate placement to petitioners' son for the 1999-2000 school year. They request that respondent be ordered to place their son in a MIS-III bilingual inclusion class which is near their home, and to pay for compensatory education services to make up for the respondent's failure to provide special education to their son during the 1999-2000 school year. They also seek an order requiring respondent to issue a "Nickerson Letter" authorizing them to place their son in an approved private school for children with disabilities (see Jose P. et al. v. Ambach et al. [79 Civ. 270, U.S. D.C. E.D. N.Y., 1982]).

        I must first note that the hearing officer did not uphold the CSE's recommendation for a placement in a monolingual MIS-III class. Instead, he directed that the child be re-evaluated, and that the CSE consider the results of the boy's re-evaluation in recommending an appropriate educational program. Petitioners have not directly addressed the hearing officer's determination that their son should be re-evaluated in their petition. However, I find that I must review that determination prior to reaching the issues which petitioners raise. In doing so, I note that petitioners do not challenge their son's proposed classification as speech impaired, nor do they dispute the appropriateness of the services provided in respondent's MIS-III program to meet their son's special education needs. They contend that the child should be bilingually instructed in a MIS-III class which is inclusive and located near their home.

        A hearing officer may order that a child be independently evaluated as part of a hearing (8 NYCRR 200.5 [c][6]). The question which is before me is whether there is an adequate basis in the record for the hearing officer's directive. Petitioners' son was bilingually evaluated in 1997 and 1999. In 1997, his English skills were reported to be stronger than his Spanish skills. In 1999, a school psychologist and an educational evaluator each concluded that the child was English dominant. The speech/language therapist who evaluated the child in 1999 could not determine the child's language dominance because of the severity of his language delay. Petitioners' son has also been tested with the LAB. In view of the extent and the currency of the child's evaluations, I find that additional evaluations are not likely to provide significant new information about the appropriate instructional language for the child.

        Petitioners have submitted a copy of an April 28, 1999 memorandum from the Office of the New York City Chancellor describing the procedure to be followed when a child with a disability scores at or below the 40th percentile on the LAB. The memorandum indicates that the CSE has the responsibility to determine the appropriate service language based upon the individual needs of the child, and that the CSE should consider the language of the child's home, the child's levels of expressive and receptive language proficiency in English and the child's native language, the child's LAB score, teacher observations, informal assessments, and the child's school history. A form which was signed by two bilingual members of the CSE which met on August 31, 1999 indicates that they did consider a variety of factors, and did not base their recommendation that the child not receive bilingual education or instruction in English as a second language on any one factor (Exhibit 5). This child has always been instructed in English. Although Spanish was spoken in the child's home, the boy's father testified that his son spoke to his parents in both English and Spanish, and the child's mother testified that her son used English and Spanish with his siblings and favored English. None of the individuals who have evaluated the child have reported that he is Spanish dominant, or that any of his language skills are stronger in Spanish than in English. While the child scored at the 34th percentile on the LAB, he clearly has significantly delayed language skills, which more likely than not contributed to his low LAB score. I find that the record supports the CSE's determination that petitioners' son should be instructed monolingually, while receiving bilingual speech/language therapy.

        Petitioners have also challenged their son's recommended placement in the MIS-III class in P.S. 139 as being inconsistent with the Federal and State requirement that each child with a disability be educated in the least restrictive environment (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a] [l]). They contend that respondent may not place their son in a self-contained special education class such as the MIS-III class at P.S. 139 without first providing supplementary aids and services to him in an environment which includes nondisabled peers. I disagree. Respondent must offer an appropriate educational program. Petitioners' son has very significant special education needs. His academic skills are severely delayed, and in need of intensive remediation. In addition to significantly delayed language skills, the child's speech articulation skills are delayed, making his speech difficult to understand. The psychologists who tested the child in 1997 and 1999 recommended a small structured setting for him. In the latter evaluation, the child was described as needing much support and praise because he was aware of his learning difficulties. Petitioners accept the fact that their son needs the specialized instruction which is provided in the MIS-III program, but prefer that he be educated in the MIS-III class at P.S. 14, which as noted above consists of 24 regular education and 10 special education students. I find that such a placement would not provide the child with the structure and support he requires in order to be successful in school, and that the smaller MIS-III class in P.S. 139 would provide the structure and support he needs.

        Respondent must also show that the boy would have been appropriately grouped for instructional purposes in the MIS-III class at P.S. 139. It may do so by offering a profile of the students in the class, or having a witness testify about needs and abilities of the students (Application of a Child with a Disability, Appeal No. 97-68). Respondent offered a profile (Exhibit 28) at the hearing. Having compared the information in Exhibit 28 with the results of the boy's latest psychological, educational, and speech/language evaluations, I find that petitioners' son would have been appropriately grouped for instructional purposes in the MIS-III class at P.S. 139.

        I have considered petitioners' other contentions which I find to be without merit.







Dated: Albany, New York __________________________
July 12, 2000 JOSEPH P. FREY