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 Genesee Valley Central School District
WNY Advocacy for the Developmentally Disabled, Inc. attorney for petitioner, Roger G. Nellist, Esq., of counsel
Harris Beach, LLP, attorney for respondent, David W. Oakes, Esq., of counsel
Petitioner appeals from an impartial hearing officerís decision that found that his sonís individualized education program (IEP) for the 2001-02 school year was appropriate. Respondent cross-appeals from the hearing officerís directive to respondent to reconvene its Committee on Special Education (CSE) for the purpose of preparing another IEP for the 2001-02 school year. The appeal must be sustained in part. The cross-appeal must be dismissed.
At the time of the impartial hearing, petitionerís son was 13 years old and living with his father and his grandmother in respondentís school district. The student was noted to have speech and attention difficulties while enrolled in a preschool program, and he received speech and supportive services while in the early elementary grades. When evaluated by a school psychologist while in the second grade in March 1997, the student achieved a verbal IQ score of 77, a performance IQ score of 95 and a full scale IQ score of 84. The psychologist indicated that the student had deficits in his expressive language and word retrieval skills, as well as an attention deficit disorder (ADD), which affected his academic performance. The student was unable to identify all of the letters of the alphabet or to produce the sounds of the individual letters. The psychologist concluded that petitionerís son had a speech/language impairment, in addition to a learning disability in the areas of reading, math, and written expression (Exhibit SD-19).
A pediatric neurologist who evaluated the student in March 1998 reported that his eye-hand coordination was impaired, and that audio and visual memory storage and retrieval were areas of weakness. She noted that the student had a poor sight vocabulary, and had difficulty hearing sounds in words and sounding out words. She described him as being severely dyslexic. She recommended that a multi-sensory approach be used to instruct him, and noted that he would require repetition and practice to commit something to long-term memory (Exhibit SD-16).
The student repeated the second grade during the 1997-98 school year, while receiving resource room services for reading, language arts and math, as well as individual and group speech/language therapy. He continued to receive resource room services and speech/language therapy while in the third grade during the 1998-99 school year. For the fourth grade during the 1999-2000 school year, the student was placed in a 15:1 special class for English, language arts and math, and was mainstreamed for science, social studies, physical education, art, music and lunch. He also received resource room services and received speech/language therapy (Exhibit SD-13).
Respondentís CSE chairperson testified that the student did not progress during the 1999-2000 school year (August 15, 2001 Transcript p. 206). The studentís grandmother testified that the student developed a negative attitude toward school and his self-esteem suffered (August 15, 2001 Transcript pp. 276-277). She was reportedly advised by her grandsonís teacher that she could not give the student the individual attention he needed (August 15, 2001 Transcript p. 258).
On August 24, 2000, the CSE convened to develop the studentís IEP for the fifth grade during the 2000-01 school year. Petitioner requested that his son be placed in the Norman Howard School (Norman Howard). Norman Howard is a private day school located in Rochester, N.Y., approximately 80 miles from petitionerís house. It provides instruction to students with learning disabilities, and has been approved by the New York State Education Department to provide such instruction. The CSE recommended that petitionerís son attend the Norman Howard School on a 12-month basis and that he receive individual and group speech/language therapy during the 2000-01 school year (Exhibit SD-12). Petitioner agreed to be responsible for the transportation of the student to and from school, and made arrangements to have his son live with petitionerís sister near Norman Howard during the week. The student returned to petitionerís home on weekends and holidays (Exhibit SD-10; August 15, 2001 Transcript pp. 284-285).
The director of Norman Howard testified that when petitionerís son arrived at Norman Howard his reading skills were practically nonexistent, and that he was not ready to begin the schoolís Wilson reading program. Initially, the studentís reading teacher worked with him on consonants, developing phonological awareness and symbol/sound association (August 16, 2001 Transcript pp. 321-322). In addition, it was noted that he needed a great deal of one-to-one support (August 16, 2001 Transcript p. 386). By midyear the student began the Wilson reading program. He began to decode words more confidently and was using the Wilson strategies more consistently. His accuracy and fluency as a reader slowly increased. However, he regressed during spring break.
The studentís speech therapist at Norman Howard noted that petitionerís son had difficulty learning, retrieving and retaining new vocabulary. However, she indicated that concrete examples and high interest subjects improved his retention of vocabulary (Exhibit SD-23). As the year progressed, it was reported that petitionerís son became enthusiastic about learning and tried his best. His grandmother indicated that his self-esteem improved and he became a role model for other students (August 15, 2001 Transcript pp. 278-279). The studentís report cards for the first three quarters of the 2000-01 school year indicated that he had achieved satisfactory grades (Exhibits P-14-16). By May of 2001, petitionerís son had reached Step 1.4 in the Wilson reading program.
On May 21, 2001, respondentís CSE met to develop the studentís IEP for the 2001-02 school year. Representatives of Norman Howard attended the meeting (August 15, 2001 Transcript p. 216). The studentís teacher reported that he had made a number of gains during the school year, and reviewed the studentís standardized test results with the CSE. The CSE chairperson indicated that the CSE was required to place the student in the least restrictive environment, and near the end of the meeting indicated that it was the consensus of the CSE that the student should return to respondentís schools for the 2001-02 school year (Exhibit SD-9). The CSE chairperson testified at the hearing that the CSE addressed the issue of the studentís placement, but did not develop an IEP at the May 2001 annual review (August 15, 2001 Transcript pp. 139, 142). The IEP that was ultimately prepared indicates that the CSE met on May 21, 2001, but omits the CSEís subsequent meeting to prepare the IEP. At the meeting, the chairperson advised the studentís grandmother and aunt that a consent for placement form would be sent to petitioner, who did not attend the meeting, and that petitioner could indicate that he did not agree and could request a hearing. Petitioner requested an impartial hearing on May 21, 2001(Exhibit SD-1).
The CSE reconvened on June 25, 2001 to develop a program for the 2001-02 school year. Upon realizing that a Norman Howard representative had not been invited, petitioner and his family left the CSE meeting. The CSE reviewed a proposed IEP for the 2001-02 school year, and made some modifications. The possibility of placing the student in a 12-month program and providing him with a 1:1 daily tutor was discussed, but the CSE did not make such recommendations (Exhibit SD-5). The CSE recommended that the student be placed in a 15:1 special education class for English language arts, math, and science on respondentís Belmont campus. He was to be mainstreamed for social studies and to have the assistance of an aide in the social studies class twice a week. Finally, he was to receive speech/language therapy on a consultant basis once a week for 30 minutes. The CSE recommended various testing modifications, including extended time, separate location, having tests read and his answers recorded, the use of a calculator, modified work, and no penalty for spelling errors. The CSE did not recommend any assistive technology devices for the student, but did recommend that he be provided with books on tape (Exhibit SD-6).
The hearing in this proceeding began on August 14, 2001. It continued on August 15, 2001 and it concluded on August 16, 2001. Thereafter, the hearing officer advised the parties that she wished to reopen the hearing to have the studentís reading teacher at Norman Howard testify. Over petitionerís objection, the teacher testified on October 10, 2001.
In a decision dated October 10, 2001, the hearing officer determined that respondentís CSE had erred in determining the studentís placement prior to discussing the studentís educational needs at the May 2001 meeting, and by not inviting representatives of the Norman Howard School to participate in the June 2001 CSE meeting. However, she concluded that the educational program that the CSE had recommended for the 2001-02 school year was substantially appropriate for him and was consistent with the requirement that he be placed in the least restrictive environment (LRE). In doing so, she noted that the CSE had not recommended counseling despite some concerns about the studentís self-esteem and his relationships with other students. She ordered the CSE to reconvene with all of the required members of the CSE to prepare a new IEP, and she indicated that the Board of Education would have to continue paying for the studentís placement at Norman Howard until its CSE prepared a new IEP.
Petitioner challenges the hearing officerís determination to reopen the hearing to take the testimony of his sonís reading teacher at Norman Howard. He asserts that there is nothing in federal or state regulation that authorizes a hearing officer to reopen a hearing that has been concluded, and he argues that her determination to do so prolonged the hearing beyond the 45-day period prescribed by 34 C.F.R. 300.511(a). I note that in her final decision, the hearing officer indicated that petitioner had waived the 45-day time limit. Petitioner does not in his petition specifically dispute the accuracy of the hearing officerís assertion that the time limit had been waived. It is a hearing officerís responsibility to obtain an adequate record to support his or her decision (Application of a Child with a Disability, Appeal No. 01-039). Having examined the record, I am satisfied with the hearing officerís explanation of the need for the teacherís testimony.
Petitioner also challenges the hearing officerís decision to in effect decide the case on the merits, despite having determined that it should be remanded to the CSE to prepare a new IEP. He contends that the purpose of having a new IEP prepared has been seriously undermined by the hearing officerís finding that the studentís IEP was substantially appropriate. Petitioner contends that having found that the IEP was procedurally flawed, the hearing officer should have simply remanded the matter to the CSE to prepare a new IEP.
A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's 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).
I agree with the hearing officer and petitioner that the CSE should not have attempted to determine the studentís placement on May 21, 2001, before it had adequately ascertained his needs, drafted IEP goals and objectives based upon those needs, and decided upon the special education services required to afford the student a reasonable opportunity of meeting his IEP goals. However, that error did not preclude the CSE from reconvening on June 25, 2001 to actually prepare the studentís IEP (Application of a Child with a Disability, Appeal No, 97-58).
Although a parentís presence at an IEP meeting is desirable, it is not mandatory. Petitioner chose to leave the June 25, 2001 CSE meeting because no one from Norman Howard had been invited. At least one of studentís special education teachers is a required member of the multidisciplinary team that prepares the studentís IEP (34 C.F.R. 300.344[a]). The hearing officer found that the CSE on June 25, 2001 was invalidly composed because it did not include one of the studentís teachers from Norman Howard. The mandated special education teacher member of a CSE may be the studentís private school teacher, a public school special education teacher who was likely to implement the studentís IEP, or the studentís related service provider (Application of a Child with a Disability, Appeal No. 00-044; Application of a Child with a Disability, Appeal No. 00-031). One of respondentís special education teachers who was likely to implement the studentís IEP during the 2001-02 school year was present at the June meeting. Therefore I find that the hearing officer erred in her determination with respect to the composition of the CSE.
Petitioner argues that the educational program recommended by the CSE is inadequate to meet his sonís needs. He contends that the educational program that was recommended for the sixth grade during the 2001-02 school year differs little from his sonís educational program for the fourth grade during the 1999-2000 school year. In the latter, the student had received primary special education for English and language arts, while the new IEP provided for primary special education instruction in English, language arts and science. As noted above, the 1999-2000 school year was a difficult year for the student. The CSEís recommendation that the student participate in a mainstreamed social studies class, with the assistance of an aide twice a week, during the 2001-02 school year is difficult to understand in view of the studentís weaknesses in reading and writing.
I am also concerned about how the proposed program would address the studentís reading needs. I find that the student continues to need a structured sequential approach to learn to read. Respondent has not established that the student would in fact receive such instruction in its proposed program. The CSE recommended that the studentís speech/language therapy be reduced to consultant services once per month, based upon the recommendation of the studentís speech/language therapist at Norman Howard (Exhibit D-23). However, the minutes of the CSE meeting of June 25, 2001 reveal that the school psychologist questioned the basis for the recommendation (Exhibit Sd-6). The therapistís recommendation appears to have been based upon the assumption that the student would be enrolled in an educational program like Norman Howardís, and it describes several areas in which the student needs to continue to develop skills. The record does not reveal how those skills would have been developed in respondentís proposed program.
For all of the foregoing reasons, I must disagree with the hearing officerís conclusion, and find that respondent has not demonstrated that its proposed program was adequate to meet the studentís educational needs. Although petitioner asks me to find that the Norman Howard School would be an appropriate place for his son during the 2001-02 school year, I need not address the issue. Since respondent placed the student at that school for the 2000-01 school year, it has continued to be his pendency placement throughout the duration of this proceeding and respondent must pay for such placement. In view of my findings with regard to petitionerís appeal, I find that respondentís cross-appeal must be dismissed.
THE APPEAL IS SUSTAINED IN PART.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the hearing officerís decision is hereby annulled to the extent that she found the studentís IEP for the 2001-02 school year was appropriate, and limited respondentís financial responsibility for the studentís placement to the period preceding the CSEís development of a new IEP.
Albany, New York
September 5, 2002