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
Neal Howard Rosenberg, Esq., attorney for petitioner
Hon. Michael A. Cardozo, Esq., Corporation Counsel, attorney for respondent, Alexandra Standish, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision which denied her request for reimbursement for the cost of her son's tuition at the Xaverian High School (Xaverian) for the 2001-02 school year. The hearing officer denied petitioner's claim because he found that respondent had offered to provide an appropriate placement to the student. The appeal must be sustained in part.
At the time of the hearing in February 2002, petitioner's 17 year-old son was enrolled in a tenth grade class of 14 students at the Real Education Achievement (REACH) program at the Xaverian High School in Brooklyn, where he also received individual speech/language therapy and counseling services twice weekly (Exhibit 3). The student has reportedly been diagnosed as suffering from depression and anxiety, and has been taking Paxil since February 2001. His mathematics skills are significantly delayed, and he has demonstrated some auditory processing deficits. Respondent's Committee on Special Education (CSE) identified the student as learning disabled, and the parent does not dispute that determination.
In preparation for an impending CSE review, an educational evaluation of petitioner's son was conducted on January 31, 2001. On the Wechsler Individual Achievement Test (WIAT), the student achieved standard scores of 106 in basic reading and 87 in reading comprehension, for a composite reading score of 95; 104 in spelling and 102 in written expression, for a composite writing score of 103; and 65 in mathematics reasoning and 80 in numerical operations, for a composite mathematics score of 69. The evaluator noted that the student's word attack skills had improved significantly since his last evaluation in December 1998, but his reading comprehension abilities had not progressed. The evaluator further noted that the student had made no progress in mathematics since his last evaluation, that he was unable to multiply or divide, and that he was also unable to perform any operations with mixed numbers or signed integers. When presented with word problems in the math reasoning subtest, he responded impulsively to questions involving multiplication and division, and did not apply any strategy in his effort to solve the problems. He had difficulty working with money and graphs and was unable to use decimals and fractions in applications.
The evaluator reported that petitioner's son was impulsive in his approach to various tasks. She indicated that his performance was in the average range in basic reading, spelling and written comprehension, the low average range in reading comprehension and numerical operations, and the deficient range in math reasoning. She recommended that the student's educational program address his weaknesses in mathematics and reading comprehension, and that he should be encouraged to be more attentive and motivated to work through tasks he perceived as difficult (Exhibit 2).
A school psychologist evaluated the student on March 7, 2001, and reported that administration of the Wechsler Intelligence Scale for Children-III had yielded a verbal IQ score of 87, a performance IQ score of 54, and a full scale IQ score of 69, placing the student in the intellectually deficient range of cognitive functioning. The student's Verbal Comprehension Index score of 92 was in the average range, his Perceptual Organization Index score of 57 was in the intellectually deficient range, and his Freedom from Distractibility score of 78 was in the borderline range. The psychologist indicated that the differences in the scores suggested that petitioner's son had a learning disability in the area of visual motor and perceptual integration skills. She noted that the student's emotions and the manner in which he worked might have impacted negatively on his performance, and described him as struggling with depression and anxiety. The psychologist suggested that the student would benefit from emotional support and encouragement, as well as counseling (Exhibit 3).
The student's speech improvement teacher reported on March 14, 2001 that the student had difficulty completing tasks in which the vocabulary terms were abstract and in following complex oral directions. She indicated that he had deficits in auditory processing and organization skills, and noted that processing deficits affected the student's ability to sequence and follow, and might have impeded his ability to develop age appropriate vocabulary, syntax and grammar in communicating. She recommended that he continue to receive speech/language therapy to remediate his deficit in receptive language skills (Exhibit 5).
During a structured observation in his global studies class on March 23, 2001, petitioner's son was found to be an active participant in the class. He remained composed while several other students were unruly, and he consistently raised his hand when he wished to make a contribution to the lesson (Exhibit 7).
On May 17, 2001, respondent's CSE developed the student's individualized education program (IEP) for the 2001-02 school year (Exhibit 1). The CSE recommended that he be placed in a modified instructional services-I (MIS-I) special education class with a 15:1 student to teacher ratio. It further recommended that he receive 30 minutes of individual counseling twice per week and 30 minutes of individual speech-language therapy twice weekly. The IEP also provided for test modifications. In its Final Notice of Recommendation, dated May 22, 2001, the CSE recommended placement in an MIS-I class at New Dorp High School.
By letter dated June 5, 2001, petitioner rejected the CSE's placement recommendation based on her observation that the program which had been recommended for her son included students with behavior problems. By letter dated September 5, 2001, petitioner informed the CSE that since it had failed to respond to her June 5, 2001 letter, she was obliged to continue her son's enrollment in Xaverian. Petitioner asked the CSE to provide her son with transportation and all the related services mandated in his IEP (Exhibit 10).
Petitioner requested an impartial hearing on September 10, 2001 (Transcript p. 4). The hearing was conducted on February 1, 2002, and the hearing officer rendered his decision on February 25, 2002. He found that the student's IEP for the 2001-02 school year accurately reflected the results of the evaluations identifying the student's needs, provided for the use of appropriate special education services to address those needs, and included appropriate annual goals and short-term objectives. The hearing officer also found that the recommended MIS-I program would have been appropriate to meet the student's special education needs. Having found that respondent had proven that it had offered an appropriate placement, the hearing officer did not rule upon the appropriateness of the educational services provided to the student by the Xaverian High School. He upheld the CSE's recommendation and denied petitioner's request for tuition reimbursement.
Petitioner contends that the hearing officer erred in finding that respondent had met its burden of demonstrating that the recommended placement was appropriate for her son. She asserts that the IEP was defective because some of the goals had been prepared in advance of the CSE meeting and because the goals and objectives did not reflect the student's needs. Petitioner also asserts that respondent failed to demonstrate how her son's IEP goals would have been accomplished in the recommended MIS-I placement and failed to show that her son would have been suitably grouped for instructional purposes with students having similar needs and abilities. She asks that a new hearing be ordered, or in the alternative that respondent be ordered to reimburse her for the cost of her son's tuition at the private school during the 2001-02 school year.
A board of education may be required to pay for educational services obtained for a student by the student's 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 parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School District Four, et al. v. Carter by Carter, 510 U.S. 7 ).
A 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 Suspected of Having 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 its recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). 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).
Petitioner questions the manner in which her son's IEP goals were prepared, because at least some of them were prepared in advance of the CSE meeting. However, such a practice does not necessarily violate statute or regulation, provided that the student's parents are not deprived of the opportunity to discuss the draft goals at the CSE meeting (34 C.F.R. Part 300, Appendix A, Section IV, Question 32; Application of a Child with a Disability, Appeal No. 01-073; Application of a Child with a Handicapping Condition, Appeal No. 90-13). Petitioner attended the May 17, 2001 CSE meeting at which her son's IEP was discussed (Exhibit 1). Although she testified that the goals were not discussed with her "one by one" and that the speech-language goals were not discussed with her at the meeting, she does not allege that she was denied the opportunity to discuss the proposed goals (Transcript pp. 60-61). An educational evaluator testified that she believed she had discussed with petitioner goals she had prepared because that was her general practice, but she acknowledged that she did not read them out loud to her (Transcript p. 34). Based on the record before me, I find that petitioner had the opportunity to discuss with the CSE the IEP goals recommended for her son.
Petitioner asserts that reading and mathematics were her son's primary areas of deficit, rather than writing, and that the CSE improperly treated all three areas of need equally because it established two annual goals for each area. She appears to suggest further that the IEP lacked sufficient goals for reading and mathematics (Petition paragraph 23; Transcript pp. 35-36). An IEP must have annual goals and short-term objectives that are related to the student's educational deficits, and are written with sufficient precision to enable the student's teachers to understand the CSE's expectations and for the student's parents to assess the student's progress during the school year (34 C.F.R. § 300.347[a]; 34 C.F.R. Part 300, Appendix A, Section 1, Question 1; Application of a Child with a Disability, Appeal No. 00-054). It is the quality and specificity of the goals, rather than the number of goals, that must be considered in assessing the appropriateness of the IEP.
Based on my review of the student's IEP, I find that his annual goals for reading were appropriate. The CSE noted that, during the formal educational evaluation conducted in January 2001, the student performed at a mid-tenth grade level in basic reading and at a low average fifth-grade level in reading comprehension. It established two reading goals which specified the levels of difficulty. Each annual goal included three short-term objectives that were sufficiently specific to provide the student's teacher with directions regarding the CSE's expectations (Application of a Child with a Disability, Appeal No. 99-6). However, I find that the student's annual goals for mathematics were inadequate. The goals and short-term objectives failed to address his deficits in computation involving multiplication and division, performing operations with signed integers, and using fractions and decimals in applications, weaknesses that had been noted in the student's January 31, 2001 educational evaluation.
Petitioner challenges the failure of the CSE to include on her son's IEP the testing modification of repeating multi-step directions. The academic performance and learning characteristics portion of the IEP prepared for petitioner's son indicates that he has difficulty organizing and formulating his responses and may experience delays in auditory processing and organization. This information adequately alerts the student's teachers to his processing difficulties and provides useful guidance concerning the manner in which instructions should be communicated to the student. Although it might be useful to include the repetition of multi-step directions as a testing modification, I find that the IEP adequately describes the student's needs in this area.
An IEP must also provide for the use of appropriate special education services to afford the student a reasonable opportunity of achieving his or her annual goals (Application of a Child with a Disability, Appeal No. 00-054). Petitioner alleges that respondent did not provide sufficient proof to establish how the recommended MIS-I program would have addressed her son's special education needs and afforded him a reasonable opportunity of meeting those goals. I agree. Respondent produced four witnesses at the hearing. The first witness, a school psychologist, discussed the report of the school psychologist who had examined the student and, in a conclusory manner, opined that the CSE had appropriately recommended a self-contained special education program for the student (Transcript p. 14). Respondent's second witness was the special educator who had evaluated the student and had been a member of the CSE that prepared his IEP. She discussed the evaluation of the student and her preparation of the educational goals on his IEP. The next witness, the assistant principal for special education at the New Dorp High School, provided a general description of the special education program at the school, and described the method by which incoming special education students are assigned to specific classes. The assistant principal testified that the reading teachers and the speech teacher have been trained to use a multi-sensory approach to reading (Transcript pp. 43-44), but she provided no information about how this student's IEP goals would be achieved in the MIS-I class. Finally, the CSE chairperson testified about the manner in which the placement recommendation is accomplished after the IEP is constructed. She provided no information about the program at New Dorp, or how the recommended program would have addressed this student's specific special education needs.
Additionally, I note that although petitioner's son falls generally within the parameters of the class profile prepared of the students in the class which was recommended for him, his math functioning level appears to be lower than all of the students in the profile (Exhibit 16). The gap in performance in mathematics between petitioner's son and the other students is of particular concern, given the lack of information in the record about how his needs in this area would be met. In sum, there is insufficient evidence in the record explaining how the recommended program and placement would address the student's individual needs, including his significant deficits in mathematics. Accordingly, I find that respondent failed to meet its burden of establishing the appropriateness of the educational program that it had offered to petitioner's son.
Petitioner apparently intended to call a representative of Xaverian High School as a witness at the hearing, but that individual did not appear at the hearing. The hearing officer indicated that he would proceed to write a decision. If he found the IEP to be appropriate, the parent could appeal, and that if he found the IEP to be inappropriate, additional testimony would be taken. Hearing officers do have the authority to bifurcate a hearing, declining to consider evidence of the appropriateness of a private placement until the issue of the appropriateness of the CSE's recommendation has been decided (Application of a Child with a Disability, Appeal No. 98-40). Unfortunately, as in Appeal No. 98-40, this has resulted in an incomplete record on appeal, which requires that this matter now be remanded to the hearing officer for completion of the testimony. The hearing shall be limited to the issues of whether the services provided to the student by Xaverian during the 2001-02 school year met the student's special education needs, and whether petitioner's claim for an award of tuition reimbursement is supported by equitable considerations.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the determination of the hearing officer be annulled; and
IT IS FURTHER ORDERED that this matter be remanded to the hearing officer for further proceedings consistent with the terms of this decision.
Albany, New York
February 28, 2003
ROBERT G. BENTLEY