The State Education Department
State Review Officer
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 Honeoye Central School District
Sara B. Baughan, Esq., attorney for petitioners
Harter, Secrest & Emery, LLP, attorneys for respondent, Theresa A. Conroy, Esq., of counsel
Petitioners appeal from an impartial hearing officerís decision finding that respondent had appropriately implemented their sonís individualized education program (IEP) for the 2000-01 school year, and denying their request for compensatory relief. The appeal must be sustained in part.
Respondent objects to petitionersí request that I accept a document that was not part of the record before the hearing officer. The document is a bill for certain speech/language therapy services provided to the student by a private speech and hearing clinic during September and October 2001. Documentary evidence not presented at the hearing may be considered in an appeal from a hearing officerís decision, if such evidence was unavailable at the time of the hearing or if the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 01-083; Application of the Bd. of Educ., Appeal No. 00-042). The document was not available at the time of the hearing. I will therefore exercise my discretion to accept the additional evidence and will consider it to the extent it is relevant (Application of a Child with a Disability, Appeal No. 01-030).
Petitionersí son was 13 years old and was completing the seventh grade in the Honeoye Middle School when the hearing began in June 2001. He entered respondentís schools while in the first grade, shortly before the end of the 1994-95 school year. Respondentís Committee on Special Education (CSE) considered the studentís eligibility for special education services in the spring of 1996 and the spring of 1997, but on both occasions decided not to identify him as a student with a disability. In the fifth grade, respondentís staff devised an instructional support plan to address the studentís organization, attention and auditory processing difficulties. Respondentís speech/language therapist provided a language skills program to the student in the third, fourth and fifth grades.
Petitionersí son was in the sixth grade during the 1999-2000 school year. In January 2000, he was evaluated by a psychologist, who reported that the student was doing reasonably well in reading and math, but his writing skills were delayed by approximately two years. The psychologist recommended classroom modifications and suggested resource room services (Petitionersí Exhibit 36). In February 2000, the student was referred to respondentís CSE by his mother.
Respondentís school psychologist evaluated the student in March and April 2000. She noted that the studentís auditory processing, attention and organizational difficulties had been documented since the second grade, and that he had been diagnosed as having an attention deficit disorder (ADD), for which he was taking medication. The psychologist reported that on the Wechlser Intelligence Scale for Children Ė Third Edition, the child received a verbal IQ score of 93, a performance IQ score of 112, and a full scale IQ score of 102. The studentís scores on the Wechlser Individual Achievement Tests were at grade level, except for a subtest measuring skills in numerical operations, which were delayed by a year and one-half. The school psychologist concluded that the student had a significant deficit in his ability to perform math computations and, based on the private psychological evaluation, determined that he had a learning disability in written expression. She recommended that the CSE consider classifying the student as learning disabled in these two areas. She further recommended instructional modifications and support services be provided, and that the student receive resource room services (Petitionersí Exhibit 27).
On April 10, 2000, the CSE classified the student as learning disabled in the areas of math computation and written expression. For the remainder of the 1999-2000 school year, the CSE recommended that the student receive daily consultant teacher services for English, reading, and math, and the assistance of a teacherís aide for history. It further recommended that he be provided with classroom notes and be responsible for a reduced number of spelling words, and included certain testing modifications on his IEP (Petitionersí Exhibit 4). For the 2000-01 school year, the CSE recommended that the student continue to receive daily consultant teacher services for English and math, and that he receive 40 minutes of resource room services five days per week. The studentís IEP also provided for testing modifications and for modifying the studentís program by providing copies of class notes, assistance with organization, and a shortened spelling list. The IEP contained annual goals and short-term instructional objectives/benchmarks in writing skills and organizational skills (Respondentís Exhibit 5).
The student began seventh grade on September 6, 2001. Shortly thereafter, his case manager realized that the student had not been assigned to a resource room class. It was subsequently determined that the student would drop his fourth period Spanish class and enroll in a fourth period resource room. Although the exact date is unclear, the student began to attend the resource room class soon after the decision was made to change his program. On October 19, 2001, the CSE approved the change in the studentís program (Petitionersí Exhibit 33, Respondentís Exhibit 6).
Respondent staffed the studentís fourth period resource room with a teaching assistant, who provided direct services to petitionersí son during that class. After they became aware that there was no special education teacher assigned to the fourth period resource room and that a teaching assistant was providing direct instruction to their son, petitioners objected to the staffing arrangements. The matter was discussed at a CSE meeting on January 18, 2001 (Petitionersí Exhibit 52; July 12, 2001 Transcript p. 87). As a result of that meeting and the ending of the studentís first semester keyboarding class, respondent assigned him on January 26, 2001 to a second period resource room class on Monday, Wednesday, and every other Friday. That class was taught by the studentís case manager, who is a certified special education teacher. However, the studentís physical education class was also scheduled for that period, so he was not able to attend that resource room class every day. He continued to attend the fourth period resource room class staffed by a teaching assistant. The studentís amended IEP indicated that he would receive five periods of resource room per week (Petitionersí Exhibit 32).
Petitioners met with respondentís superintendent of schools on March 15, 2001, to discuss their continuing disagreement with the staffing of the resource room program (July 12, 2001 Transcript pp. 93-97, August 16, 2001 Transcript pp. 67-72). The superintendentís follow-up letter on March 21, 2001 did not resolve the matter to petitionersí satisfaction (Respondentís Exhibit 10). On April 4, 2001, they met with respondentís director of special education, who presented the parents with four resource room options, none of which were agreeable to petitioners.
Petitioners requested an impartial hearing on April 6, 2001 (Respondentís Exhibit 8) and amplified their claims in a follow up letter (Petitionersí Exhibit 2). The hearing officer was appointed on April 24, 2001 and met with the parties on June 12, 2001. The hearing began on June 25, 2001, and concluded on August 16, 2001. At the hearing, petitioners asserted that respondent failed to implement their sonís IEP by not assigning him to a resource room until sometime after the beginning of the 2000-01 school year, and by failing to staff the studentís resource room class with a certified special education teacher. They also asserted that respondent did not provide them with a meaningful opportunity to participate in the development of the studentís IEP because it did not advise them at the CSE meeting that the program would be staffed by a teaching assistant. Petitioners also contended that respondent failed to provide them with the special education parent handbook required by law, and failed to provide them with regular reports regarding the studentís special education progress. Finally, they claimed that respondent did not allow them access to relevant student records. Petitioners requested compensatory services to make up for the resource room programming which the student had not received. The hearing officer issued a decision on October 26, 2001 which found against the petitioners in all respects.
Petitioners appeal from the entirety of the hearing officerís decision, except his finding with respect to access to the studentís records. They challenge his determination that respondentís failure to provide any resource room services for the first 13 school days in September 2000 did not constitute a denial of a free appropriate public education because it was too short a period of deprivation of services. They also dispute his conclusion that the studentís resource room services were not required by law to be provided by a certified special education teacher and that under the circumstances it was proper for them to be provided by a teaching assistant.
I find that respondent did not properly implement the studentís program for the 2000-01 school year. Respondent does not dispute the hearing officerís finding that the student did not receive any resource room service until September 25, 2000. However, petitioners contend that the hearing officer erred in finding that their son began to receive resource room services on or about September 25, 2000. While they do not identify a specific date on which they believe such services began, they appear to argue that it could not have been before the CSE amended the studentís IEP on October 19, 2000. I note that the studentís special education teacher testified that she believed the services began in September 2000 (July 11, 2001 Transcript p. 34), while the teaching assistant who actually provided the services believed that she began working with the student some time in October (July 11, 2001 Transcript p. 148).
Although the record does not afford a basis for me to ascertain the specific date when the student began to receive services from the teaching assistant, it would appear that such services were not provided for approximately one month. The Board of Education was required to have an IEP in effect at the beginning of the school year (34 C.F.R. ß 300.342[a]) so that it could provide appropriate services to the student when school began in September. While there is no evidence that respondent intentionally sought to deny service to the student, it nevertheless failed to offer him one of his IEP services on a timely basis.
I must also find that the hearing officer erred in his conclusion that the five period per week resource room program appearing on the studentís IEP could be appropriately provided by a teaching assistant. Resource room programs are special education programs (Education Law ß 4401, ; 8 NYCRR 200.1[ww]). The Regulations of the Commissioner of Education describing resource room services indicate that such services are to be provided by teachers (8 NYCRR 200.6[f] and ). The regulations also provide that special education instruction shall be provided by individuals appropriately certified pursuant to Part 80 of the Regulations of the Commissioner of Education (8 NYCRR 200.6[b]).
The word "teacher" is defined in Part 80 of the Regulations of the Commissioner of Education as a "holder of a valid teacherís certificate issued by the Commissioner of Education..." (former 8 NYCRR 80.1[ah], now 8 NYCRR 80-1.1[b]). Although those regulations authorize a certified teaching assistant to provide direct instructional services to student, he or she may do so only under the general supervision of a licensed or certified teacher (former 8 NYCRR 80.33[b], now 8 NYCRR 80-5.6; Petitionersí Exhibit 30). The regulation does not mandate that a certified teacher be physically present whenever a teaching assistant provides direct instructional services (Matter of Rees and Chachakis, 34 Ed Dept Rep 616). However, this studentís special education teacher was assigned to teach another class during the fourth period of the school day, when he was supposed to be receiving resource room services, and was unavailable to work with the student (July 11, 2001 Transcript p. 20).
The studentís special education teacher testified that she conversed with the teaching assistant about the student once or twice a week, unless something came up which resulted in more frequent consultation (July 11, 2001 Transcript p. 12). The teacher also provided written instructions to the teaching assistant (Respondentís Exhibit 12). The samples of those written instructions in evidence are single page sheets listing the subjects the student was taking, with blank spaces next to each subject. There are brief handwritten notes indicating when assignments were due, or that they were overdue. Respondent contends that the purpose of having the student in the resource program was to improve his organizational skills, rather than to address his instructional needs, and that its teaching assistant did address the studentís organizational needs in the fourth period resource room.
In essence, the Board of Education argues that the CSE recommended daily resource room services for the student so that an adult would check his homework, organize his folders, and help him clean out his locker. I note that the studentís IEP does not indicate that resource room services were recommended solely for that purpose. The special education teacher testified that her role and that of a teaching assistant are different, noting that she could have pre-taught information, which a teaching assistant would not do (July 11, 2001 Transcript pp. 15-17). The teacher also described the kinds of things she did with the student during the second period resource room, which the student joined in the second one-half of the year (July 11, 2001 Transcript pp. 21-24). She testified that one of his needs was to acquire organizational strategies, and a second was to be pre-taught content area vocabulary, and information that he would see in his math class. The teacher further testified that he needed to be directly instructed in study skills, including how to attack a test and how to organize himself for large tests in the future. In addition, she testified that he needed help in beginning to write things for school, expressing his ideas, and including details, and that she provided him with graphic organizers in her class. The teacher acknowledged that the studentís organizational difficulties were more extensive than simply physically organizing his materials, such as what books to take home for homework assignments. I am not persuaded by respondentís argument about the nature of the studentís resource room needs and the manner in which they were addressed by the teaching assistant.
Petitioners request compensatory services to address the harm caused by respondentís failure to implement an appropriate resource room program for their son during the 2000-01 school year. As noted above, the student did receive some resource room services from his special education teacher during the latter half of the school of the school year, in addition to the services provided by the teaching assistant. Although I have indicated that the teaching assistantís services should have been provided to the student under closer supervision and direction of a certified special education teacher, it does not follow that the teaching assistantís services were not of value to the student. After a review of the record, I find that there is no basis to ascertain the harm resulting from respondentís failure to implement an appropriate resource room program on a timely basis. I shall therefore direct the CSE to review the studentís educational program and recommend additional amounts of service to enable him to address any deficiency caused by the failure to provide appropriate resource room services (Application of a Child with a Disability, Appeal No. 99-87). The CSE is not limited to considering additional amounts of resource room, but may consider the efficacy of other services.
I have considered petitionersí alternative request for relief that respondent be required to reimburse them for the cost of services provided to their son by Bright Beginnings Educational Center (Bright Beginnings) in the summer of 2001 to assist the student in written language skills, and for other services provided or to be provided by Nazareth College (Nazareth). A board of education may be required to pay for educational services obtained for a student by his parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parentsí claim (Burlington Sch. Comm. v. Depít of Educ., 471 U.S. 359 ).
Petitionersí request must be denied because the record does not contain any information from Bright Beginnings identifying the specific services it provided. Petitioners have submitted a bill from Nazarethís Speech and Hearing Clinic for certain speech/language therapy sessions, but there is no other information from the clinic further identifying those services. In the absence of evidence of how the privately obtained services met the studentís needs, there is no basis upon which I could require respondent to reimburse petitioners.
Petitioners contend that respondent failed to provide them with information relative to their sonís progress in his special education program, and they challenge the hearing officerís finding to the contrary. I find that the hearing officerís conclusion that respondent provided the required information must be reversed. An IEP is to include a statement of how the childís parents will be regularly informed of their childís progress toward the annual goals set out in the IEP and the extent to which such progress is sufficient to enable the child to achieve the goals by the end of the year (34 C.F.R. ß 300.347[a][ii]; 8 NYCRR 200.4[d][x]). The record does not show that respondent provided petitioners with this information over the course of the school year.
Petitioners challenge the hearing officerís dismissal of their claim in regard to the special education parent handbook required by law (Education Law ß 4402[b]). Respondent does not contend that its CSE provided petitioners with a copy of any such a handbook or booklet. Moreover, contrary to the hearing officerís conclusion, the CSE chair did not provide petitioners with a copy of such a document (June 26, 2001 Transcript pp. 41-42). In sum, the record contains no evidence that any respondent staff person ever provided a copy of the required parent handbook or booklet to petitioners.
I have considered petitionersí other claims, which I find to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officerís decision is hereby annulled to the extent indicated; and
IT IS FURTHER ORDERED that respondentís CSE shall conduct a review and make recommendations as indicated in this decision within 30 days after the date of this decision.
Albany, New York
October 28, 2002