The State Education Department
State Review Officer

No. 02-026

 

 

 

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 Syracuse

Appearances:
Legal Services of Central New York, Inc., attorney for petitioner, Susan M. Young, Esq., and Robin Chapman, Esq., of counsel

Hancock & Estabrook, LLP, attorneys for respondent, Renee L. James, Esq., of counsel

 

DECISION

        Petitioner appeals from a decision of an impartial hearing officer which found that respondent had demonstrated the appropriateness of the program its Committee on Special Education (CSE) had recommended for her son for the 2000-01 school year and denied her request for direct services in music therapy. The appeal must be dismissed.

        Petitioner's son was 14 years old at the time of the hearing in February 2001. At the time of the hearing, the student was placed in a 12-month 8:1+1 functional skills program with a community-based component. The student has been identified as a child with multiple disabilities, having been diagnosed as having autism, cerebral palsy and a hearing impairment (Exhibits P-19, P-21, SD-9). The student's primary mode of communication is through sign language. Due to his impaired gross and fine motor skills, the student has difficulty forming signs precisely. The student's individualized education program (IEP) dated February 9, 2001 indicated that he was able to understand and follow simple directions, and was easily distracted, self-abusive, and completely reliant on adults for activities of daily living (Exhibit P-1).

        Petitioner's son was diagnosed with athetoid cerebral palsy when he was fifteen months old (Exhibit P-21). Shortly thereafter, the student was diagnosed with infantile autism (Exhibit P-19). The student attended the Jowonio School, an inclusive preschool specializing in services for autistic children, from the fall of 1989 until the spring of 1991. Beginning in September 1991, the student attended respondent's Ed Smith School. The student was enrolled in inclusion classrooms for kindergarten through sixth grade, and he received related services in speech therapy, occupational therapy, physical therapy, and adapted physical education. A full time one-to-one assistant was assigned to him (Exhibits P-22, P-23, P-25, P-27, P-31, P-32, P-34).

        In September 1999, the student entered respondent's Levy Middle School and was enrolled in a 12-month 8:1+1 functional skills program with a community-based component (Exhibit P-34). The student's IEP developed for the 1999-2000 school year indicated that he possessed a functional sight word vocabulary and functional community based math skills. It was reported that he could approximate some signs and operate a computer using a standard mouse and keyboard. A psychological assessment was conducted in February 2000 (Exhibit SD-5). The evaluator reported that sign language was the student's strongest mode of communication and recommended that it be continued. Standardized testing was attempted, but was discontinued after the student failed to respond or perseverated on choices. For the purposes of the evaluation, petitioner and the student's teacher were asked to complete the Woodcock-Johnson Scales of Independent Behavior. Their responses identified skill deficits in all domains and revealed problems with aggression, destruction of property, and disruptive and socially offensive behaviors.

        A music therapy evaluation was conducted in March 2000, pursuant to petitioner's request and at respondent's expense (Exhibits SD-15, SD-17). The music therapist reportedly met with the student's therapists and classroom assistants, observed the student in the classroom and in therapy, and conducted her own assessment of his abilities using a variety of musical instruments. The therapist noted that during her evaluation the student expressed his wants and needs by playing various instruments, engaged in non-verbal turn taking with the therapist, identified emotions in music, initiated original and rhythmic patterns, and used his hands to grasp beaters, play the piano and strum the guitar. She found that the student was an appropriate candidate to receive direct, individual music therapy services because he demonstrated the motivation and interest in music that could be used to learn new cognitive skills, improve and increase expressive communication, and improve fine motor ability. The music therapist opined that music therapy could enhance the student's current educational program through addressing many of the same therapy goals and objectives in a modality that was particularly motivating for the student (Exhibit SD-15).

        In May 2000, a speech/language evaluation was conducted (Exhibit SD-6). The student's speech/language therapist reported that he had an excellent receptive vocabulary and understood most of what was said to him. She indicated that his primary means of communication was through sign language, and noted that he used only 17 signs. She further noted that many of his signs were approximations, recognizable only to those individuals who were familiar with him. The therapist reported using music in order to calm the student, teach him new skills and distract him.

        Respondent's CSE met on August 24, 2000 to discuss music therapy. The minutes of the meeting reflect that the majority of the committee supported a consultant model for music therapy, but petitioner felt that direct services were necessary in order for her son to benefit. Petitioner opined that the music therapist would achieve greater results addressing the same goals as the student's other therapists, and she rejected the proposed consultant model.

        On September 15, 2000, petitioner requested an impartial hearing following respondent's refusal to provide direct music therapy services to her son (Exhibit SD-12). She also challenged the adequacy of the student's triennial evaluation; the failure of the CSE to recommend alternative therapies to address motivation, distractibility and anti-social behaviors; and the CSE's failure to require his teacher, speech/language therapist and assistant to be fluent in sign language.

        A CSE subcommittee meeting was held on November 21, 2000 (Exhibit P-13). The CSE subcommittee recommended that two individuals with expertise in autism review the student's goals and that the CSE then reconvene to consider any recommended changes. The minutes of the meeting indicated that a functional behavioral assessment was completed, but a behavioral intervention plan was not implemented because the student was reportedly responding to the general classroom structure (Exhibits P-13, P-40). The subcommittee recommended an assistive technology evaluation (Exhibits P-13, SD-2) and expanded the student's signing goals.

        A December 2000 assistive technology evaluation report indicated that the student had access to a Macintosh computer at school for the use of academic and musical programs (Exhibit SD-11). The assistive technology team noted that use of a DynaVox electronic communication device had been attempted with the student in January 2000, but that he did not use the device in a functional manner.

        Petitioner requested a CSE meeting to review the November 21, 2000 recommendations of the CSE subcommittee (Exhibits P-38, P-39). The meeting was held on January 23, 2001, at which time an evaluation by a teacher of the hearing impaired was recommended (Exhibit P-14). That evaluation took place the following day (Exhibit SD-9). Based upon auditory testing obtained by petitioner, the teacher of the hearing impaired reported that the student exhibited a mild to moderate bilateral hearing loss. He observed that the student communicated using a combination of signs, gestures and oral utterances. The teacher suggested the possibility of hearing aids or an auditory trainer, but expressed concern whether the student could tolerate such devices. He opined that an interpreter would not be appropriate for the student, as he required signing for expressive rather than receptive purposes. The teacher of the hearing impaired stressed the importance of reinforcing signs at home and in community environments. He recommended that the student receive the services of a teacher of the hearing impaired three times per week for forty minutes to expand his expressive signing vocabulary.

        A CSE meeting was held on February 8, 2001 to review the recommendations of the teacher of the hearing impaired. The IEP developed at that meeting added the services of a teacher of the hearing impaired (Exhibit P-1). During the meeting, petitioner asserted that her son required an instructor fluent in sign language to help him learn to read, and contended that the recommended skill level for the teacher of the hearing impaired was inadequate.

        The hearing began on February 22, 2001. Testimony was heard for a total of seven days over a four-month period. In a decision dated February 10, 2002, the hearing officer determined that the student was benefiting from his educational program without direct music therapy services. The hearing officer further found that the student's triennial evaluation was adequate to determine his individual needs, educational progress and achievement. The hearing officer determined that all of the student's teachers were properly certified and need not be fluent in sign language. The hearing officer further found that the record did not support petitioner's contention that the CSE subcommittee had recommended a reexamination of the student's IEP by a consultant with expertise in autism. Rather, he determined that the subcommittee had only recommended a hearing evaluation. The hearing officer also determined that the record did not afford a basis for him to order respondent to provide nontraditional physical therapy. Finally, the hearing officer ordered respondent to provide petitioner with sign language instruction.

        In this appeal, petitioner contends that the hearing officer erred in failing to order the provision of music therapy, to require that the student's teachers be fluent in sign language, and to require a review of the student's IEP by an autism specialist. 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 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]).

        I find that the record indicates that petitioner's son is able to benefit educationally from his program without direct music therapy services. The student's teacher testified that petitionerís son showed progress during the 2000-01 school year, and her testimony remained unrefuted over the course of the hearing (Transcript pp. 69, 77, 122, 125). Further, petitioner's music therapist failed to articulate any needs or goals of the student that would be addressed by music therapy but were not being addressed by other means.

        I further find that the record does not support petitioner's assertion that her son needs instructors fluent in sign language in order to benefit from his program. By all accounts, all of the student's instructors are able to sign at his level. The student is able to understand verbal instruction, and his teachers need only be familiar with his approximations in order to communicate with him. Furthermore, the teacher of the hearing impaired reported in his evaluation that an interpreter would be inappropriate for the student (Exhibit SD-9). Based upon the teacher of the hearing impaired's evaluation findings and his testimony at the hearing, I find that the student does not require an interpreter to comprehend the instruction he receives in the classroom and that his teachers can understand him without an interpreter (Exhibit SD-9; Transcript pp. 312, 315-18).

        Finally, the minutes of the CSE subcommittee meeting held November 21, 2000, indicate that a recommendation was made that the student's IEP goals be reexamined by two of respondent's employees purported to be "specialized autism personnel" (Exhibit P-13). A review of the record indicates that this recommendation was not implemented. In this appeal, petitioner requests simply that I order respondent to implement the CSE subcommittee's recommendation that an "autism consultant" review the student's IEP goals. Petitioner does not seek review by a specific consultant. The student's special education teacher testified that she had worked for respondent for 14 years and had always taught autistic students (Transcript p. 34). She further testified that she had earned a master's degree in special education with a specialization in autism (Transcript pp. 35-36). The student's IEP goals were reviewed by his special education teacher, and the changes she suggested were included in the IEP dated February 9, 2001 and approved by petitioner (Exhibit P-1; Transcript pp. 59-60, 895). Under the circumstances, I find petitioner's request for review of her son's IEP goals by a specialist in autism is moot.

 

        THE APPEAL IS DISMISSED.

 

 

 

 

 

Dated:

Albany, New York

__________________________

February 7, 2003

FRANK MUÑOZ