The State Education Department
State Review Officer
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
Petitioner appeals the decision of an impartial hearing officer which denied petitionerís request for consultant teacher services for his child on the ground that the respondent was appropriately meeting the reading needs of the child with resource room services and related services. The appeal must be sustained in part.
Before reaching the merits of petitionerís appeal, I must first address the timeliness of respondentís answer. The Regulations of the Commissioner of Education require that an answer to the petition in an appeal to the State Review Officer be served within ten days after service of the petition (8 NYCRR 279.5). Petitioner attempted to initiate this appeal by serving his petition upon a representative of Community School District 30. On October 26, 2001, he was informed by the Office of State Review that the petition had to be served upon respondentís Board of Review. The record does not reveal when such service was made. On December 5, 2001, respondentís attorney contacted the Office of State Review about obtaining an extension of time for serving the Board of Educationís answer, and was advised that an extension would be granted if petitioner consented. The answer was served on January 23, 2002. In its answer, respondent does not assert that petitioner consented to an extension of respondentís time to serve its answer, nor does it ask me to excuse its delay in serving the answer. Under the circumstances, I cannot accept the answer.
Petitionerís ten-year-old son has been classified as learning disabled. The childís classification is not in dispute. At the time of the hearing, he was enrolled in a fourth grade regular education class in respondentís P.S. 148, and receiving one period of resource room services per day and 30 minutes of counseling each week. Although he was also supposed to have been receiving occupational therapy, it was not being provided when the hearing was held in March 2001 (Transcript p. 28). The child reportedly began receiving resource room services in the fall of 1999. During the 2000-01 school year, he also received academic intervention services (8 NYCRR 100.2[ee]) for reading and mathematics. However, petitioner testified that his son had withdrawn from an after-school program in which the reading portion of those services was provided (Transcript p. 42).
In a psychological evaluation conducted in September 1999, the child achieved a verbal IQ score of 94, a performance IQ score of 79, and a full scale IQ score of 86, which placed him in the low-average range of cognitive functioning. He evidenced delays in his visual motor integration skills. The school psychologist reported that the childís language skills seemed to be within age expectations and he was able to express his thoughts clearly and in a meaningful way, but he had difficulty with nonverbal tasks, lacked concentration, and had a short attention span. The studentís ability to control his impulses appeared to be low. The school psychologist reported that the studentís self-esteem had been affected by an awareness of his academic delays (Exhibit 10).
On the Kaufman Test of Educational Achievement (KTEA) that was administered during an educational evaluation on September 23, 1999, the child achieved grade equivalent (and standard) scores of 1.3 (81) for reading decoding, below first grade (73) for reading comprehension, 2.2 (89) for computation, 1.6 (90) for math applications, and 1.8 (88) for spelling. Respondentís educational evaluator reported that the child exhibited frustration during reading, as well as some delay in expressive language. She described him as a multisensory learner, who performed best through tactile, visual and auditory learning (Exhibit 12).
An occupational therapy evaluation conducted in November 1999 indicated that the child had difficulty with reading and mathematics, and displayed deficits in visual perceptual functioning with regard to directionality and the processing of positions in space. The evaluator recommended that the child receive occupational therapy once per week for 45 minutes per session (Exhibit 15).
Concerned about their childís reading delays, the childís parents requested in December 2000 that their son be provided with consultant teacher services, either in addition to resource room services or in lieu of such services (Exhibit 4). A social history update was prepared on January 5, 2001. The social worker noted that the child, who had been receiving resource room and counseling services during the past year, had exhibited improvement during the year, especially since taking Ritalin, which had helped him to be more focused (Exhibit 8). I note that although the social worker referred to a possible attention deficit disorder (ADD), there is no formal diagnosis of that condition in the record. The studentís resource room teacher for the 1999-2000 and 2000-01 school years testified that the childís ability to work independently had definitely improved after he began taking Ritalin in the fall of 2000 (Transcript p. 12).
In January 2001, the childís general education teacher reported that the child exhibited difficulty in decoding words and using specific reading strategies. She noted that his reading comprehension skills would improve if he became a more fluent reader. She reported that the child experienced difficulty in mathematics, but had shown improvement in memorizing basic multiplication facts. In writing, he made many grammatical errors, and his writing was difficult to read (Exhibit 7). The childís resource room teacher reported that the child had trouble expressing his ideas on paper, lacked phonic and word attack skills, and had poor reading comprehension. She noted that the child had demonstrated some improvement in mathematics computation, but was lacking in his problem solving skills (Exhibit 6).
On January 25, 2001, a school psychologist informally assessed the studentís cognitive and emotional functioning. He noted that, unlike the previous evaluation one year earlier, the child demonstrated a good attention span, maintained his focus and was not impulsive or slow to respond. He appeared to be of average intelligence and was motivated to learn. The school psychologist reported that the childís affect was flat and that he avoided eye contact. He opined that the child continued to need emotional and educational support (Exhibit 9).
On January 26, 2001, the KTEA was administered to petitionerís son as part of an updated educational evaluation. He achieved grade equivalent (and standard) scores of 3.6 (98) for reading comprehension, 4.4 (107) for computation, and 4.1 (103) for math applications. The subtests for reading decoding and spelling were not administered. Respondentís educational evaluator noted that the child read slowly and haltingly, and appeared to be uncertain about when to decode long and short vowel and double vowel sounds. She also informally assessed his writing skills, and reported that his skills had improved, but he needed to improve his spelling. She opined that resource room services appeared to be working for the child and that he did not require instruction in a more restrictive setting (Exhibit 11)
Although the Committee on Special Education (CSE) met twice in February 2001 to review the childís educational program, I note that there was no teacher member at the February 5 meeting and no parent member at the February 27 meeting (Exhibit 4). At both meetings, the CSE recommended that the child continue to receive resource room services, counseling and occupational therapy. An individualized education program (IEP) that was prepared at the February 27 meeting indicated that the student had made great progress according to his standardized test results, but he still had some skills that needed to be remediated. The CSE recommended that he have a structured phonics program to improve his reading, spelling, and writing skills, and it included annual goals to improve his reading comprehension, writing, math, and expressive and receptive language skills (Exhibit 2).
By letter dated February 12, 2001, the parents requested an impartial hearing to obtain consultant teacher services for their son, and the occupational therapy which had been recommended but not provided to him (Exhibit 1). Although the parents were notified on February 28, 2001 that another CSE meeting would be held on March 8, 2001, the record does not reveal whether that meeting was held (Exhibit 17).
The hearing in this proceeding was held on March 16, 2001. The childís parents, appearing unrepresented, reiterated their concern that the child had not made sufficient progress in school, according to his grading reports in reading, and requested that he be provided with consultant teacher services as a remedial action to improve his reading. After listening to the opposing testimony of respondentís witnesses, including the studentís regular education teacher and his resource room teacher, the hearing officer denied the parentsí request for consultant teacher services, in a decision dated May 10, 2001. She found that the Board of Education had met its burden of proving that it was providing an appropriate educational program to the child to meet his needs, as was evidenced by his scores on the KTEA and steady improvement noted on his report card.
Petitioner challenges the decision of the hearing officer on the ground that there is no basis in the record for the hearing officerís conclusion that the services of a consultant teacher are not warranted in light of the academic progress which the child made from receiving resource room services. 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 Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7). To meet its burden, respondent must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (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 the evaluation to identify the childís needs, provides for the use of appropriate special education services to address the childís special education needs, and establishes annual goals and short-term instructional objectives which are related to the childís educational deficits (Application of a Child with a Disability, Appeal No., 93-12; Application of a Child with a Disability, Appeal No., 93-9). The only IEP that is in the record is from the February 27, 2001 CSE meeting. However, there was no parent member of the CSE at that meeting. A CSE must include a parent of a child with a disability other than the parent of the child whose IEP is being prepared, unless the parents of such child request that the parent member not participate (ß 4402[b][a] of the New York State Education Law). There is no evidence that this childís parents made such a request. In the absence of one of the CSEís required members, I must find that the IEP is a nullity (Application of a Child with a Disability, Appeal No. 00-012; Application of a Child with a Disability, Appeal No. 99-2).
I further find that the CSE has not adequately evaluated the child to ascertain the nature and full extent of his disability. Although the CSE has identified and addressed the deficits in the childís visual perceptual functioning, there is no evidence of a speech/language processing evaluation to determine whether he has a language processing deficit that could be affecting his decoding and writing skills. The childís regular education teacher and his resource room teacher have indicated that he has poor decoding skills, as was also indicated by the KTEA in 1999. However, his decoding skills were not tested when the KTEA was administered to him in 2001, and his IEP does not include an annual goal related to decoding. Similarly, the 1999 KTEA results revealed that the childís spelling skills were weak, and his report card indicates that he continues to struggle with spelling. However, his spelling skills were not assessed when the KTEA was administered to him in 2001. The record also reveals that the child has had significant difficulty with writing, in addition to spelling. The only evidence of an assessment of his writing skills in the record was an informal assessment done in the January 2001 educational evaluation.
A CSE must determine what needs that result from a childís disability must be met to facilitate the childís involvement and progress in the general curriculum and what special education and other services and supports are required to meet those needs. For the reasons that I have just indicated, I am not persuaded that respondentís CSE has fulfilled its responsibility to make that determination. Accordingly, I must send the matter back to the CSE. After it has accurately identified the childís needs, the CSE must consider whether those needs can be met by supplementary special education instruction in a resource room, or whether the child requires primary special education instruction by a consultant teacher or in a self-contained class. While I do not decide that issue now, I must remind respondent that it must have a continuum of service options available (8 NYCRR 200.6). I do so because I am concerned by a statement in the minutes of the CSEís February 5, 2001 meeting suggesting that consultant teacher services are not available in the childís school district, as well as the CSE representativeís testimony at the hearing suggesting that consultant teacher service might not be available to a child who is receiving resource room services (Transcript p. 34). Each student with a disability must be provided with the special education necessary to meet the pupilís special educational needs (8 NYCRR ß200.6[a]; Application of the Board of Educ., Appeal No. 91-14).
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 30 days from the date of this decision, the CSE shall reevaluate petitionerís son and prepare a new IEP for the current year for the child in accordance with the tenor of this decision.
Albany, New York
April 17, 2002
ROBERT G. BENTLEY