The State Education Department
State Review Officer
Application of the BOARD OF EDUCATION OF THE PENFIELD CENTRAL SCHOOL DISTRICT, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Harris, Beach & Wilcox, attorney for petitioner, Alfred L. Streppa, Esq., of counsel
Western New York Advocacy for the Developmentally Disabled, Inc., attorney for respondents, Roger G. Nellist, Esq., of counsel
Petitioner, the Board of Education of the Penfield Central School District, appeals from the decision of an impartial hearing officer holding that the individualized education program (IEP) for respondentsí daughter recommended by petitionerís Committee on Special Education (CSE) for the 2001-02 school year was inappropriate. The hearing officer found that the CSE did not recommend a free appropriate public education (FAPE) for the student because the IEP goals and objectives were not sufficiently specific. The appeal must be sustained.
At the time of the hearing, the student was 11 years old. As a preschool student, she began receiving occupational therapy and orientation/mobility therapy pursuant to Section 504 of the Rehabilitation Act of 1973 (Section 504). She continued to receive services pursuant to Section 504 during kindergarten and first grade (Exhibits P-27 and P-28). She reportedly had difficulty maintaining focus while in the first grade, and was diagnosed as having an attention deficit hyperactivity disorder (ADHD), with some oppositional tendencies, in the spring of 1997 (Exhibit P-45). A private psychologist who evaluated the student in June 1997 noted that there was significant discrepancy between her verbal and nonverbal skills, indicating the possibility of a nonverbal learning disability (Exhibit P-50).
In December 1997, the CSE recommended that the student, who was in the second grade, be classified as other health impaired (OHI) (Exhibit P-65). She continued to be classified as OHI through the fifth grade (Exhibits P-79 and P-96), and reportedly received consultant teacher services and occupational therapy in the second through fifth grades.
During the 2000-01 school year, the student was evaluated in anticipation of her triennial review. On the Wechsler Intelligence Scale for Children, Third Edition (WISC-III), she achieved a verbal IQ score (and percentile) of 91 (27), a performance IQ score of 62 (1), and a full scale IQ score of 75 (5). Her verbal IQ score fell into the average range of intellectual ability, her performance IQ score fell into the deficient range of intellectual ability, and her full scale IQ score fell into the borderline range of intellectual ability. The evaluator reported that the studentís specific weaknesses were in graphomotor ability, long-term memory and short-term memory. The evaluator noted that the studentís strengths were in verbal reasoning and verbal expressive skills. Difficulties with attention were reportedly apparent during testing. The evaluator recommended that accommodations be made for the studentís math and written work (Exhibit P-106).
In September 2000, the school district informed the parents that their daughter had achieved a score of 2 on the mathematics portion of the New York Statewide Testing Program (Exhibit 107). In October 2000, a pediatric neurodevelopmental evaluation was conducted to assess the studentís educational needs. The Woodcock Reading Mastery Tests Ė Revised (WRMT) and the Qualitative Reading Inventory Ė II (QRI) were administered to the student as part of a private evaluation performed by the Developmental Unit of the Genesee Hospital. On the WRMT, the student achieved grade equivalents (and standard scores) of 4.5 (101) for word identification, 6.2 (105) for word attack skills, and 5.6 (107) for passage comprehension. On the QRI, the student achieved a comprehension score at the frustration level, which is the lowest level. On the Test of Written Language Ė 3 (TOWL), she achieved standard scores (and percentiles) of 5 (5) for contextual conventions, and 10 (50) for contextual language and story construction. On the Key Math Test, she achieved standard scores (and percentiles) of 96 (39) for basic concepts, 85 (16) for operations, and 95 (37) for applications (Exhibit P-109).
The Developmental Unit evaluators reported that the student had a nonverbal learning disability, a math disorder, a reading disorder (in comprehension), a written expressive language disorder (in spelling and handwriting), an attention deficit hyperactivity disorder (predominantly inattentive type) and mood problems. They recommended that she be reclassified as learning disabled. Recommended testing modifications included extended time, separate location, rephrasing of questions, access to a word processor with spell checker, use of a calculator and scribing when appropriate. The evaluators recommended placement in a smaller alternative educational setting that provided modification of tasks and a high level of teacher support for organization and comprehension. The report indicated that the student would benefit from information being broken down and sequenced, as well as comprehension checks. The evaluators opined that the student would have difficulty with new, complex or abstract concepts or tasks that require visualization or estimation. They recommended that the student be allowed to "talk things through" because she was likely to perform best in predictable situations. Finally, the evaluators recommended monitoring by the school psychologist and continued outpatient counseling when needed (Exhibit P-112).
The CSE convened on March 21, 2001 to develop the studentís IEP for sixth grade during the 2001-02 school year. It recommended that her classification be changed to learning disabled. The studentís recommended program included an extended school year during summer of 2001 to address her math weaknesses, with individual math instruction twice per week for 60 minutes. Her recommended ten-month program included a special class with a student: teacher ratio of 12:1+1 for reading, language arts, math, organization and attention for 17.5 hours per week, and 12.5 hours per week in regular education classes. Testing modifications included doubled time limits, testing in a small group, repeating/restating directions and providing additional examples, recording answers in a booklet, use of a keyboard or word processor, a spell checker, and an abacus, calculator and math tables (Exhibit P-127).
In May 2001, the studentís parents requested an impartial hearing to challenge the appropriateness of the CSEís recommended educational program. They sought a placement for their daughter in the Norman Howard School, a state-approved private school for learning disabled students (Exhibit P-129). The hearing was conducted during summer of 2001. In August 2001, prior to the issuance of the hearing officerís decision, the mother met with the special education coordinator and building principal to discuss an interim placement while waiting for the hearing officerís decision. They agreed that the student would be placed in a program that included a blended class with a special education teacher or teacher assistant in core classes, a peer helper to assist her in moving from class to class, and use of the homework club when available (Exhibit D-2).
The hearing officer issued his decision on August 29, 2001. He held that, while the IEP should have been more specific with regard to the studentís involvement in the general curriculum, the recommended program was appropriate. He ordered the CSE to revise certain aspects of the studentís IEP. The hearing officer directed the CSE to develop an individualized transition plan to accommodate the studentís entry into the middle school, to complete the IEP with regard to mainstream courses and extracurricular programs, and to consider the need for a social pragmatics group. He also directed the CSE to re-administer the performance IQ subtests of the WISC, to provide 18 hours of tutorial services for mathematics and writing remediation to her, and to consider additional time and the addition of writing remediation as part of the studentís extended school year program for 2002 (Exhibit D-1).
The CSE reconvened on September 18, 2001, when it recommended that the student be enrolled in a special class with a student: teacher of 12:1+1 for instruction in social studies, language arts, math, science and reading for a total of 16.5 hours per week. On the studentís revised IEP, the CSE provided for various testing modifications, including doubled time limits, small group setting, directions repeated/restated and provision of additional examples, answers recorded in booklets, and the use of keyboarding or word processor, a spell checker, an abacus, calculator, and math tables (Exhibit 6).
In accordance with the hearing officerís order, a psychological evaluation was conducted in November 2001. The student achieved a verbal IQ score (and percentile) of 89 (23), a performance IQ score of 75 (5), and a full scale IQ score of 81 (10). The evaluator noted that these results were similar to those that were obtained during the studentís previous evaluation, although her performance IQ score had improved since the last testing. The evaluator reported that the re-administered IQ test did not reveal significant strengths and weaknesses (Exhibit 12).
An occupational therapy evaluation was also conducted in November. The evaluator recommended that the student receive occupational therapy twice per week to practice and strengthen motor memory of specific lower case letters (Exhibit D-13). A November 2001 IEP progress report indicated that some progress had been made for nine objectives and satisfactory progress had been made for four objectives. One objective was not applicable during the fall marking period (Exhibit D-32). A subsequent report in December 2001 indicated that some progress had been made on one objective, satisfactory progress had been made on seven objectives, four objectives had been met, and one objective was not applicable (Exhibit D-42).
A new IEP was developed at a CSE meeting held on December 7, 2001. The CSE indicated on the IEP that the student was inattentive, her work product was impacted by slow processing speed and difficulty with handwriting, her basic skills in math and writing were weak, and inferential comprehension was difficult. With regard to the studentís learning characteristics and strengths, the CSE reported that the studentís decoding skills, pictorial cues and context clues were relative strengths, she enjoyed reading, her effort and organization had improved, and she needed a structured system (Exhibit D-19).
The student's social development was reported in terms of her relationships with herself, her peers, adults and the school and community. The CSE described the student as having improving self-confidence and as becoming more aware of her learning needs. The IEP indicated that the student usually acted appropriately with peers and was accepted, but not often selected within a group. The CSE reported that the student responded well to adult attention and praise, and her production was dependent on the level of trust she had in the adult. The IEP indicated that the student was active in martial arts, music and art. With regard to the student's physical development, the CSE reported that she was diagnosed with ADHD, needed glasses for distance, and experienced migraines. The IEP indicated that the studentís management needs included academic motivation, frustration tolerance, academic independence, distractibility, and organization. The CSE reported that the student was generally willing to do her best and displayed a positive attitude, however, she would become easily frustrated and noticeably "shut down." She also was reportedly self-distracting and needed a consistent structured organizational system and reassurance (Exhibit D-19).
The CSE recommended that the student be enrolled in a special class with a student: teacher ratio of 12:1+1 for math, social studies, reading and language arts, and participate in the regular education program for science, electives and extra curricular activities. The CSE also recommended group occupational therapy twice per week for 30 minutes, individual assistive technology consult once per week for 60 minutes, and group counseling once per week for 30 minutes. Testing modifications continued to include time increased to double time, testing in a small group, repeating/restating directions and providing additional examples, recording answers in a booklet, and use of a keyboard or word processor, use of a spell checker, and use of an abacus, calculator and math tables (Exhibit D-19).
The IEP included five goals with accompanying objectives. The first goal stated that the studentís written language skills would improve to a fifth grade level over a six-month period. The corresponding objectives indicated that the student would be able to use proper nouns, capital letters at the beginning of sentences, periods, question marks and commas. She would be able to write a paragraph with at least ten sentences including a topic sentence, detail sentences, logical organization of thoughts and a concluding statement. She would be able to improve the legibility of specific cursive letters. She would average 85 percent on weekly spelling tests after utilizing compensatory techniques including, but not limited to, peer practice, tactile rehearsal, tracing, repeating and copying. The studentís progress was to be evaluated based on written work samples.
The second goal stated that the student would learn two organization strategies to improve class work over a six-month period. The corresponding objectives indicated that the student would independently maintain an updated plan book, check off completed assignments, and refer to necessary materials. In addition, the student would be able to repeat verbal directions in her own words to demonstrate comprehension. The studentís progress was to be evaluated based on student self assessment and documented teacher observation.
The third goal stated that the student would learn three strategies to improve frustration tolerance and peer situations. The corresponding objectives indicated that the student would discuss school related social situations with either her guidance counselor or special education teacher, and the student would verbalize a difficult situation and brainstorm solutions with either her guidance counselor or special education teacher. The studentís progress was to be evaluated based on student self assessment and documented teacher observation.
The fourth goal stated that the student would improve her math skills to a fourth grade level over a six-month period. The corresponding objectives indicated that the student would accurately compute fourth grade math materials with 80 percent accuracy. She would multiply and divide numbers up to three digits and add and subtract fractions. She would complete multi-step word problems at the third to fourth grade level with 80 percent accuracy. She would consistently use visual, auditory, kinesthetic and tactile strategies including verbal rehearsal, visualization and mnemonics to aid retention of math facts and concepts. The studentís progress was to be evaluated based on graded work samples.
The fifth goal stated that the student would improve reading skills over a six-month period. The corresponding goals indicated that the student would identify the beginning, middle and end of a written passage and would be able to identify the important information. In addition, the student would aid her recall and comprehension by using graphic organizers, rereading, identifying the main idea and reviewing the sequence in the story. The studentís progress was to be evaluated based on documented informal assessment, short oral and written answers, and graded work samples (Exhibit D-19).
In a letter dated January 1, 2002, the parents requested an impartial hearing. They asserted that the IEP developed on December 7, 2001 was vague, inadequate and showed a lack of academic progress. They proposed that their daughterís teachers be trained to work with a student with a nonverbal learning disability, or that their daughter be placed in a setting with people familiar with nonverbal learning disabilities (Exhibit D-23). On January 15, 2002, respondentsí attorney sent a letter to the districtís attorney stating that the goals and objectives were overly broad and did not address the studentís needs. The attorney asserted that the goals and objectives were duplicative of goals and objectives in prior IEPs and did not provide the basis for an appropriate program. He further asserted that the IEPís description of the studentís current levels of achievement was not relevant and had not been updated (Exhibit D-27).
The hearing was held over the course of four days in winter 2002. The hearing began on January 24, 2002 and concluded on February 12, 2002. In her decision dated March 17, 2002, the hearing officer found that the studentís IEP was deficient because its goals and objectives were overly broad and failed to address the studentís individual needs. She also found that progress towards achieving the objectives would be difficult to measure. The hearing officer also found that the IEP was improperly deficit based and did not address the studentís needs and strengths as a student with a nonverbal learning disability, or teach her compensatory techniques. The hearing officer stated that the written language goal was not based on current information, and benchmarks, to determine progress on the organization objectives, were improperly omitted. She found that the studentís reading skill levels were not recorded on the IEP, and the math goals were not sufficiently specific. She ordered the CSE to reconvene to develop an appropriate IEP.
The Board of Education challenges the hearing officerís findings with respect to the studentís IEP. It 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 ). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the studentís 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 find that the goals and objectives appropriately addressed the studentís needs. Federal regulations require that an IEP include a statement of measurable annual goals, including benchmarks or short-term objectives related to meeting the studentís needs that result from her disability, enabling her to participate and progress in the general curriculum and meeting the studentís other educational needs resulting from her disability (34 C.F.R. ß 300.347[a]). Goals and objectives must relate to the studentís present levels of educational performance, including how the studentís disability affects her involvement and progress in the general curriculum (34 C.F.R. ß 300.347[a]).
This studentís IEP listed her November 2001 WISC scores and the results of her October 2000 educational evaluation. As noted above, it also included a description of her strengths and weaknesses, significant educational deficits pertaining to her disability and her learning characteristics and strengths. I find that the IEP appropriately described the studentís present levels of educational performance and her individual needs in each of the four areas required by 8 NYCRR 200.4 (d) (2) (i).
The hearing officer determined that the IEP goal for written language was not sufficiently specific because it stated that the studentís written language skills would improve to a fifth grade level, but it did not identify whether the skills would improve to the beginning or end of the fifth grade level. The grade level refers to the end of fifth grade, as testified to during the hearing (Transcript pp. 181, 182). The omission of this information does not nullify the IEP. The first two objectives under this goal directly address contextual conventions, the only area of weakness identified in the TOWL. The third written language objective addresses the studentís ability to write a ten-sentence paragraph, despite achieving TOWL scores in the 50th percentile. The inclusion of this objective indicates the CSEís awareness of the complexities of the studentís disability. The fourth written language objective is for cursive writing and specifically identifies letters the student does not write legibly. The final objective for this goal is for spelling. It specifies grade level, level of mastery, and time. It identifies compensatory techniques and strategies. I find the goal and objectives pertaining to written language are specific and appropriate.
Although the hearing officer held that the written language goal was not based on current information, I find the information to be up to date. CSEs are required to reevaluate students with disabilities at least every three years (8 NYCRR 200.4[b]). The evaluative information the CSE relied upon was less than three years old, and the record does not indicate a need for more current information. I find that the CSE relied on current information.
The hearing officer held that the goal of developing two strategies to improve organization was inappropriate because benchmarks to determine progress had been omitted. A studentís IEP must include benchmarks or short-term objectives, relating to each goal (34 C.F.R. ß 300.347). The organization goal did have corresponding short-term objectives, a time frame for evaluation and evaluation procedures. I find that the organization goal related to the studentís needs and the corresponding objectives were appropriate.
The CSE recommended that the student learn three strategies to improve her ability to deal with frustrations and peer situations. The IEP included two objectives relating to that goal. The first objective indicated that the student would learn to discuss school related social situations with her guidance counselor or special education teacher. The second objective indicated that the student would learn to verbalize a difficult situation and brainstorm solutions. I find the goal and objectives were appropriate given the studentís needs.
The studentís math goal provided for her to improve her math skills to the fourth grade level over a six month period. The math goal had four corresponding objectives. Although the hearing officer found that the objectives were not sufficiently specific, the objectives do identify expected grade levels, expected rate of accuracy for mastery, specific skills such as three digit multiplication, division, addition and subtraction of fractions, and mastery of multi-step word problems at the third to fourth grade level. One objective also identified specific strategies to aid in retention of math facts. I find the math goal and objectives to be sufficiently specific.
The CSE developed a goal for the student to improve reading skills over a six-month period. The hearing officer correctly stated that the reading goal lacked a statement of grade level. However, that omission does not afford any adequate basis for the hearing officerís conclusion that the CSE had failed to recommend an appropriate educational program for the student. The CSE recommended two objectives for the goal, the first of which pertained to comprehension even though standardized test results do not indicate a deficit in this area. The CSEís inclusion of this objective reflects its understanding that a nonverbal learning disability can affect comprehension. Although the first objective for reading was the same objective contained in the studentís 1997 IEP, it continues to be appropriate for a student who will require continual remediation in reading as the level of difficulty increases from grade to grade. The second objective lists four readily observable specific skills to aid in recall and comprehension and includes evaluation procedures appropriate to monitoring those skills. I find that the objectives were appropriately specific.
Having found that the IEP in question accurately described this studentís needs and current levels of performance, and that it included appropriate goals and objectives that were directly related to her needs, I cannot agree with the hearing officerís finding that the IEP was inadequate or inappropriate.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officerís decision is hereby annulled.
Albany, New York
November 5, 2002