The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her 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
Bronx Legal Services, attorney for petitioner, Nelson Mar, Esq., of counsel
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Blanche Greenfield, Esq., of counsel
Petitioner appeals from an impartial hearing officerís decision which found that respondent had provided an appropriate educational program to petitionerís daughter for the 2000-01 school year. He denied petitionerís request for an order requiring the Board of Education to place her daughter in a private school to compensate for the allegedly inadequate education that respondent had provided to the child. The appeal must be sustained in part.
Petitionerís daughter is currently 11 years old. At the time of the hearing, she was enrolled in a Modified Instructional Services-I (MIS-I) class for learning disabled children at P.S. 24. The student was initially classified as learning disabled and hard of hearing by respondentís Committee on Special Education (CSE). The CSE recommended placement in respondentís Modified Instruction Services-IV (MIS-IV) program, with speech/language therapy and hearing education services. In addition, it recommended that an FM auditory training unit be used in the classroom to compensate for her hearing problems. She was placed in the MIS-IV program. The student aged out of the MIS-IV program when she was seven years old, and was subsequently placed in the MIS-I program. She continued to receive speech/language therapy and hearing services in that program.
On February 24, 2000, a psychologist reported the results of an independent evaluation that had been performed at the State University of New York College of Optometry during November and December 1999. The student had achieved a verbal IQ score of 99, a prorated performance IQ score of 94, and a full scale IQ score of 96. The psychologist noted that the studentís language difficulties had affected her ability to understand test questions and to express herself. She also noted that the student had some difficulty attending to visual detail. The psychologist described the studentís receptive language skill as marginal, and her expressive language skill as weak, with difficulty retrieving words. The studentís writing revealed profound difficulty with the phonetic aspects of language. On the Wechsler Individual Achievement Test (WIAT), the student achieved standard scores (and percentiles) of 73 (4th) for spelling, 87 (19th) for reading comprehension, and 85 (16th) for listening comprehension. On the Gates McGinite Reading Test, Level 2, the student achieved scores in the 5th percentile for vocabulary and 1st percentile for comprehension. The psychologist reported that the student was frustrated and angry about her academic difficulties, and her self-confidence had been damaged. She opined that neither resource room services nor MIS-I placement could provide the help the student required in light of her severe reading decoding problems. The psychologist recommended that the student be placed in a special school (Exhibit 14).
The CSE conducted its annual review of the student on March 23, 2000, at which time it recommended that she continue to be classified as hard of hearing and learning disabled. The CSE also recommended a continued placement in the MIS-I program, with 30 minutes of speech/language therapy in a group of three twice a week and 30 minutes of hearing education services in a group of three twice a week. The individualized education program (IEP) that the CSE prepared for the student indicated that she continued to need an FM unit. Although the IEP described the student as being belligerent and hostile toward peers and adults, and not easily motivated toward school, it did not include counseling for her.
At petitionerís request, the CSE reconvened on or about May 9, 2000 to address her concern that the student needed counseling. The CSE agreed to add 30 minutes of individual counseling per week to the studentís IEP, but it failed to include any annual goal for such counseling on her IEP. The new IEP no longer classified the student as hard of hearing, but simply as learning disabled. Although the CSE continued to note on the IEP that the student needed an FM unit, it also indicated under the IEP description of her health and physical management needs that consideration be given to determining if she no longer required either the FM unit or hearing education services. The revised IEP indicated that the studentís hearing was "essentially within normal hearing." An audiologist was present at the CSE meeting on May 9, 2000.
Petitioner disputed the adequacy of the recommended program, and requested an impartial hearing on May 9, 2000. The hearing was scheduled for May 26, 2000, June 20, 2000 and July 6, 2000, but was adjourned on those dates. It was held on July 10, 2000 and August 24, 2000. The psychologist who had independently evaluated the child in November and December testified that the child had a global language disorder, and opined that she needed multisensory instruction, possibly with the Orton-Gillingham technique. The studentís MIS-I teacher during the 1999-2000 school year testified that petitionerís daughter did not need a more restrictive placement than an MIS-I class. In a decision rendered on October 19, 2000, the hearing officer found that the student had derived some educational benefit from her MIS-I placement, noting that she was on grade level in math and only one year below grade level in reading. He concluded that the Board of Education had met its burden of proving that it had offered to provide an appropriate educational program to the student for the 2000-01 school year.
Petitioner contends that the decision of the impartial hearing officer was not based or supported by substantial evidence since her daughter was not progressing in her current program. She asserts that the CSE that prepared her daughterís IEP was not properly constituted since it lacked a parent member and a regular education teacher. She seeks a reversal of the decision of the impartial hearing officer, a finding that respondent has failed to provide a free and appropriate public education (FAPE) to her daughter over the last two years, and the issuance of a P-1 Letter ("Nickerson Letter") to remedy respondentís failure to provide a FAPE.
Respondent contends the decision of the impartial hearing officer should be upheld since it was based on substantial evidence. It asserts that the MIS-I program was appropriate for the student and was reasonably calculated to allow the student to receive educational benefits. Respondent further contends that the lack of a parent member at the studentís CSE meeting was a de minimus irregularity that should not invalidate the findings of the CSE.
A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 ). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. ß 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 studentís needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
Petitioner contends that the studentís IEP for the 2000-01 school year was invalid because the CSE that prepared it was not properly constituted (Application of a Child with a Disability, Appeal 99-19) since it lacked both a regular education teacher and a parent member. Federal regulation mandates that a CSE include at least one regular education teacher of a student if the student is, or may be, participating in the regular education environment (34 C.F.R. ß 300.344). No regular education teacher was present at the meeting. However, the CSE made no recommendation that the student participate in the regular education program. Although the studentís teacher testified that in the future, the student might be able to attend general education classes with some support services (July 10, 2000 Transcript p. 52), that would require a modification of the May 9, 2000 IEP. I find the fact that no regular education teacher was present does not afford a basis for invalidating the IEP since a regular education teacher was not required to participate in the CSE.
The lack of a parent member at the CSE meeting is, however, a significant procedural defect. State regulation requires that IEPs be developed by a CSE that includes a parent member of a student with a disability residing in the school district or a neighboring school district (8 NYCRR 200.3[a]  [viii]). The absence of the parent member from a CSE does afford a basis for invalidating an IEP prepared by the CSE (Application of a Child with a Disability, Appeal No. 00-012; Application of a Child with a Disability, Appeal No. 99-2; Application of the Board of Education of the North Rose-Wolcott Central School District, Appeal No. 97-1).
Petitioner happened to be a parent member of the CSE in Community School District 10, the CSE that prepared her daughterís IEP. Respondent asserts that petitioner signed in at the CSE meeting as a parent member, and further argues that even if petitioner could not serve in the dual role as parent and parent member, it is a de minimus irregularity that should not invalidate the IEP. Petitionerís position is that she signed the IEP as a parent member inadvertently since she has participated as a parent member on respondentís CSE. However, the fact that petitioner has acted as a parent member for respondentís CSE does not mean that she can serve as her own parent member in the development of her childís IEP. There is no evidence in the record before me that petitioner requested that she act as her own parent member, or that she expressly asked not to have a parent member present (Education Law ß 4402[b][[a][viii]). In the absence of the required parent member, respondentís CSE could not prepare a valid IEP for petitionerís daughter (Application of a Child with a Disability, Appeal No. 96-87).
I now turn to the question of what is the appropriate relief in this case. As noted above, petitioner seeks a "Nickerson" letter (see Jose P. et al. v. Ambach et al., 79-C-270 U.S. D.C. E.D. N.Y., 1982) authorizing her to place her daughter in an approved private school for the 2000-01 school year at respondentís expense. However, the school year is over. In addition, I must note that the remedy of a "Nickerson" letter was intended to address the situation where a child has been referred to respondentís CSE and has not been evaluated within 30 days or placed within 60 days. In this instance, the student was in an MIS-I placement, but there is a disagreement about the efficacy of that placement. I find that petitioner is not entitled to receive the relief of a "Nickerson" letter.
In view of the fact that the 2000-01 school year is over, it would serve no purpose to remand the matter to the CSE to prepare a new IEP for that school year. Nevertheless, I am concerned by the lack of clarity in the record about this studentís disabilities and their effect upon her educational performance. For example, although an audiologist reported on April 15, 2000 that the studentís hearing was "essentially within normal limits", there is also evidence in the record of a possible continuing intermittent hearing loss. Although the IEP description of the childís social/emotional performance suggests that her emotional concerns may be affecting her academic performance, I am unaware of any projective testing having been administered.
The IEP description of the studentís present levels of academic performance and learning characteristics is inadequate. It indicated merely that her teacher had estimated in September 1999 that the studentís reading and math skills were at a 2.0 grade level. The IEP did not include the achievement test results reported by the independent evaluator in February 2000, nor did it include any measure of the studentís speech/language needs, notwithstanding the fact that the student had been receiving speech/language therapy and the CSE recommended that she continue to do so. I note that the studentís speech/language therapist had reported the studentís progress on May 1, 2000, prior to the May 9, 2000 CSE meeting.
I will direct the CSE to re-assess the student to ascertain her present levels of performance and special education needs, draft appropriate annual goals and short-term objectives to address each of her needs, and recommend appropriate services to afford her a reasonable opportunity of achieving those goals in the least restrictive environment.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officerís decision is hereby annulled; and
IT IS FURTHER ORDERED that within 45 calendar days after the date of this decision, the CSE shall re-evaluate petitionerís daughter and prepare an IEP in accordance with the tenor of this decision.
Albany, New York
December 20, 2001
ROBERT G. BENTLEY