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 Springville-Griffith Institute Central School District
Tronolone & Surgalla, P.C., attorneys for petitioner, Andrew K. Cuddy, Esq., of counsel
Hodgson Russ LLP, attorneys for respondent, Jerome D. Schad, Esq., of counsel
Petitioner appeals from an impartial hearing officerís decision holding that respondentís refusal to provide vision therapy to her son did not deny the student a free appropriate public education (FAPE) during the 2000-01 school year. The appeal must be dismissed.
Petitionerís son was 13 years old at the time of the hearing, and was in eighth grade regular education classes with resource room services one period a day, speech/language therapy and counseling (June 1, 2001 Transcript pp. 32-33). The student reportedly had been diagnosed with an attention deficit hyperactivity disorder (ADHD), Touretteís syndrome, and obsessive compulsive disorder (OCD), and was taking Prozac, Pamelor and Depakote-11 (Exhibit P-B). His classification had been changed from learning disabled (LD) to other health impaired (OHI) at a January 30, 2001 meeting of respondentís Committee on Special Education (CSE), and is not in dispute (Exhibit SD-24).
A triennial psychological evaluation conducted in June 1999 at the end of the sixth grade reported that on the Weschler Intelligence Scales for Children - III (WISC-III), the student achieved a verbal IQ score of 95, a performance IQ score of 96 and a full scale IQ score of 95. On the Woodcock Johnson Tests of Achievement-Revised (WJ-R), he achieved standard scores in the average range on all subtests, from a 96 in passage comprehension to a 110 in calculation. The psychologist reported that the student appeared to be able to do schoolwork at an appropriate age and grade level. He noted that the studentís response style was inconsistent, and that he required constant encouragement to maintain his level of performance. The psychologist suggested that classroom management techniques might be needed to control behavior that interfered with school performance (Exhibit P-V2).
On August 12, 1999, a central auditory processing evaluation (CAPE) revealed that the student had mild to moderate central auditory processing weaknesses in the areas of figure-ground discrimination, decoding, integration and organization (Exhibit PY-2). The evaluator recommended the use of Fast ForWord (a computerized language program), an FM trainer, speech/language therapy, and a visual processing evaluation. At petitionerís request, the studentís visual/perceptual skills were evaluated by an occupational therapist in October 1999. The evaluator reported that the student had scored in the average range on the Test of Visual-Perceptual Skills, and slightly below average on the Test of Visual Motor Skills. The therapist noted that the studentís teachers believed that legibility problems with his work could be attributed to his effort rather than his ability. The evaluator concluded that the studentís abilities were consistent with the demands of his curriculum, and that he should not receive occupational therapy (Exhibit PX-2). On the Weschler Individual Achievement Test (WIAT) in March 2000, the student scored above average in math on all three math subtests (Exhibit SD-44).
Petitionerís son began the 2000-01 school year in the eighth grade in a BOCES 6:1+1 self-contained classroom in another district, in which he had reportedly been placed in order to address alleged incidences of verbal and physical aggression. He received speech/language therapy twice a week, and individual and group counseling once a week (Exhibit P-B). During the first ten weeks of the year, the student was mainstreamed for art and physical education. During the second quarter, he was mainstreamed for technology, physical education, social studies and health.
In November 2000, the student was examined by a behavioral optometrist. The optometristís December 5, 2000 report notes that the student had 20/20 vision at distance and 20/25 at near, and that he was slightly farsighted. The optometrist also found that the student had difficulties with convergence and with aligning his eyes. Some weakness in visual tracking was also reported. He concluded that the student had significant delays in visual-motor integration skills, visual memory, and visual attention, and he diagnosed an Ocular-Motor dysfunction. The optometrist recommended stress-relieving lenses for near activities of more than two minutes duration, and a program of optometric vision therapy to resolve identified delays. He estimated that the course of therapy would require the student to attend 50-minute sessions once a week for six to seven months at a cost of approximately $3,235 (Exhibit P-E3). A December 2000 speech/language evaluation indicated that the student had no deficits in written language, but recommended that speech/language services be continued in order to address his auditory processing deficits (Exhibit SD-41).
An impartial hearing was held in September and October 2000 to review the appropriateness of the BOCES program for the student. The hearing officer reportedly annulled the studentís individualized education program (IEP) for the 2000-01 school year (Exhibit P-M). On January 30, 2001, respondentís CSE recommended that the studentís classification be changed to OHI. The CSE recommended that petitionerís son remain in the 6:1+1 BOCES class, and added a behavioral intervention plan (BIP) to the studentís IEP (Exhibit P-B). On March 26, 2001, a CSE subcommittee recommended that petitionerís son return to respondentís schools for placement in regular education eighth grade classes with resource room services, speech/language therapy, and counseling (Exhibit D-15). He returned to respondentís schools on April 2, 2001.
At the January 30, 2001 CSE meeting, petitioner asked to have vision therapy provided to her son. Her request was considered by the CSE at a meeting held for that purpose on April 6, 2001. The optometrist who had evaluated the student and recommended that he receive vision therapy attended the meeting to present his report and discuss vision therapy. An audiotape of that meeting is part of the record before me (Exhibit P-R4). After listening to the optometristís extensive presentation regarding vision therapy and its benefits, the CSE chairperson informed petitioner that the CSE would not recommend that vision therapy be provided. The chairperson indicated that an occupational therapist might be able to help the student with visual-motor skills and visual memory, and suggested that the CSE investigate the issue further.
On April 14, 2001, petitioner, through her attorney, requested a due process hearing to review the CSEís refusal to recommend vision therapy for her son at its April 6, 2001 meeting (Exhibit P-L3). The hearing took place on May 31, and June 1, 2001. At the hearing, respondentís attorney sought to limit the scope of the hearing to the issue of whether the April 6, 2001 determination of the CSE not to provide vision therapy for the student was a denial of a FAPE. Although petitionerís attorney declined to so stipulate that it was the only issue, he did stipulate that it was an issue (Transcript May 31, 2001 p. 25). Despite his assertion that the studentís IEP was inappropriate, he indicated that he would challenge the IEP only with respect to adding vision therapy to it (Transcript May 31, 2001 pp. 6, 8).
The hearing officer rendered his decision on August 17, 2001. He noted that the parties had essentially agreed to limit the scope of the hearing to the issue of vision therapy, and found that there was not enough evidence presented for him to rule upon the appropriateness of the IEP in general. He noted that the IEP for the 2000-01 school year was arguably moot because the school year had concluded. He further found that the optometristís evaluation of the student was a medical service within the meaning of 8 NYCRR 200.4(ee), because it was evaluative and diagnostic. He directed respondent to amend the studentís IEP to include, at a minimum, the diagnosis from the report and the accommodations the optometrist had suggested. He ordered respondent to reimburse petitioner for the cost of the vision evaluation and report, or pay the optometrist directly for the evaluation and report.
The hearing officer determined that vision therapy could be a related service within the meaning of 8 NYCRR 200.4(qq), because it is corrective in nature and an appropriate developmental or corrective support service. However, he concluded that petitionerís son did not need vision therapy to derive educational benefit from his educational program, based on his educational performance. He found that no connection had been shown between the studentís behavior and his visual dysfunction, in relation to the optometristís claims that such therapy could improve behavior. He therefore ruled that respondent was not required to pay for the vision therapy recommended by the behavioral optometrist and did not deny the student a FAPE by its decision not to provide the services.
Since respondent does not cross-appeal from the part of the hearing officerís decision that ordered it to pay for the cost of the optometristís visual evaluation and report, I need not address that issue. I find that the hearing officer correctly limited the scope of the hearing to the issue of whether the student needed to have vision therapy provided to him in order to receive a FAPE. Consequently, I do not reach the issue of the possible mootness of petitionerís claims with regard to her sonís IEP.
Petitioner contends that the hearing officer applied the wrong standard in determining that the Board of Education was not required to provide vision therapy to her son. She relies upon the definition of the term related services that is set forth in 8 NYCRR 200.1(qq):
Related services means developmental, corrective, and other supportive services as are required to assist a student with a disability and includes speech-language pathology, audiology services, psychological services, physical therapy, occupational therapy, counseling services, including rehabilitation counseling services, orientation and mobility services, medical services as defined in this section, parent counseling and training, school health services, school social work, assistive technology services, other appropriate developmental or corrective support services, appropriate access to recreation and other appropriate support services.
Petitioner asserts that instead of determining whether vision therapy was necessary for her son to benefit from his educational program, the hearing officer should have determined whether such therapy was "required to assist" her son. I disagree with that assertion. The applicable federal regulation requires boards of education to provide such related services "as are required to assist a child with a disability to benefit from special education" (34 C.F.R.ß 300.24[a]) (emphasis added). I find that the same standard should apply in New York (Application of the Bd. of Educ., Appeal No. 01-041; Application of a Child with a Disability, Appeal No. 00-006).
The optometrist who had recommended vision therapy indicated that it does not teach reading, writing or spelling, nor provide services normally provided by educators or occupational therapists (June 1, 2001 Transcript pp. 128-29; Exhibits P-E3, P-R4). According to the optometrist, vision therapy would teach the student to keep his place while reading and to focus his eyes better so the print would not be blurry (June 1, 2001 Transcript p. 108). He testified that if the student received vision therapy, he would not require some of the recommended classroom accommodations, such as large print, additional time for tests, and passages read to him (Exhibit PR-4). He acknowledged that the student had underlying disabilities, such as Touretteís syndrome, that would not be ameliorated by vision therapy.
Having reviewed the record, I find that there is no evidence that visual deficits affected the studentís functioning in the classroom. His speech/language therapist at BOCES, who worked with him for three-quarters of the school year, testified that she did not observe him having any difficulty with focusing or tracking (May 31, 2001 Transcript pp. 54-55). Nor did he complain of eyestrain or headaches when reading or using the computer (May 31, 2001 Transcript p. 60). His special education teacher testified that the student did not exhibit any difficulty focusing on written work or reading text, and that he seldom exhibited signs of anxiety (May 31, 2001 Transcript pp. 158, 173). The occupational therapist who evaluated him in October 1999, testified that the student did not appear to have any difficulty focussing on written work (May 31, 2001 Transcript p. 88). After reviewing the visual processing report, he opined that the student did not need vision therapy (May 31, 2001 Transcript p. 98).
The optometrist testified that the studentís score of 86 on a subtest of the Beery Developmental Test of Visual Motor Integration (Beery), in which the student must copy geometric shapes, showed "a rather significant delay" (June 1, 2001 Transcript p. 88). However, the occupational therapist who evaluated the student in October 1999 explained that a standard score of 86 on one of the subtests of the Beery in isolation was not a cause for concern, and the report shows that a score of between 83 and 117 is average (May 31, 2001 Transcript p. 135). The therapist indicated that if a subtest score was below 85, he would compare the score to a studentís functional deficits in the classroom and look for lower scores on other subtests (May 31, 2001 Transcript p. 136; Exhibit P-X2). He did not note any functional deficit when he observed the student working in the school environment (May 31, 2001 Transcript p. 97).
Moreover, there is ample evidence that the student was benefiting from the program he received. His standardized test scores show that he made steady academic progress, and only a few scores indicate a deficit. His third quarter grades in 2001, while he was at BOCES and in mainstream classes, were quite good. He received a 90 in BOCES English, a 78 in mainstream English, a 75 in mainstream math, an 85 in mainstream social studies, and an 88 in science, with an overall average of 84 (Exhibit P-X3).
The optometrist also claimed that vision therapy could improve behavior and in some instances prevent juvenile delinquency (June 1, 2001 Transcript pp. 85, 109-111). I find there was insufficient evidence that the student had behavior problems. While there were references in the record to previous behavioral difficulties, the only specific account involves an incident on April 9, 2001, in which he allegedly threw food in the cafeteria and threw a nickel that hit a lunch monitor, and for which he received a one-day suspension (Exhibit P-W3).
I find that the hearing officer correctly determined that the student was benefiting from the services he received, given his passing grades in mainstream subjects. While vision therapy may be useful in some instances, it is not necessary to ensure that this student benefits from his individualized program.
I have considered petitionerís other allegations and find them to be without merit.
THE APPEAL IS DISMISSED.
Albany, New York
July 31, 2002