The State Education Department
State Review Officer

No. 02-038

 

 

 

 

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 Kingston

 

Appearances:
Family Advocates, Inc., attorney for petitioner, RosaLee Charpentier, Esq., of counsel

Shaw & Perelson, LLP, attorneys for respondent, Michael K. Lambert, Esq., of counsel

 

DECISION

        Petitioner appeals from an impartial hearing officerís decision denying her request for an order requiring respondent to place her son in a private school, notwithstanding the hearing officerís determination that the individualized education plan (IEP) that respondentís Committee on Special Education (CSE) had prepared for the student was deficient. Petitioner agrees that the IEP was inappropriate, and she asserts that the hearing officer should have directed the school district to place her child in a program at a private school of petitionerís choosing. Respondent cross-appeals from the hearing officerís determination with respect to the studentís IEP. The appeal must be dismissed. The cross-appeal must be sustained.

        Petitionerís son attended a private school for kindergarten and first grade (Exhibits 4 and 5). He entered respondentís schools for second grade during the 1993-94 school year (Exhibit 2). The student was referred to the CSE for an evaluation because of low achievement, reading difficulty and speech/language difficulty (Exhibit 3). The CSE recommended that he be classified learning disabled and speech impaired, and that he receive resource room services, speech/language therapy, and testing modifications (Exhibit 6). For third grade, the CSE recommended that the student be placed in a special class for part of the day, while continuing to receive speech/language therapy and testing modifications (Exhibit 7). Petitioner removed her child from public school in the middle of third grade, and chose to home school him (Exhibit 11). The school district provided speech/language consultant services to the student at home (Exhibit 32).

        For fourth grade, the CSE recommended that petitionerís son be classified as learning disabled and be enrolled in a full time special class, while continuing to receive speech/language therapy and testing modifications (Exhibit 10). Petitioner requested an independent evaluation. Subsequent to the evaluation, the CSE adhered to its recommendation for a full time special class, as well as speech/language therapy and testing modifications (Exhibit 11). Petitioner opted to home school her child (Exhibit 17). The district continued to provide speech/language consultant services at home (Exhibit 32).

        In May 1996, the CSE recommended fifth grade placement in an inclusion program with resource room one period per day, speech/language therapy three times per week, and testing modifications (Exhibit 20). The student began fifth grade in respondentís schools. In November 1996, the CSE recommended a special class with a student: teacher ratio of 12:1+1, as well as speech/language therapy and testing modifications (Exhibit 24). In January 1997, petitioner unilaterally placed her child in a private school. Petitioner requested that the district pay tuition and transportation costs because her sonís needs could not be met in the placements recommended by the CSE. The request was denied, but the CSE did offer to provide resource room services and speech/language therapy. Petitioner declined the offer (Exhibits 25 and 26). The student attended private school for sixth and seventh grades. The district provided tutoring services at the private school during sixth and seventh grade (Exhibits 30 and 33).

        In May 1999, the CSE recommended that the student remain classified as learning disabled. For eighth grade during the 1999-2000 school year, it recommended a daily special education class for reading and language, resource room services each day in a special location, and a multisensory reading class each day. The program also included a speech/language consult, program modifications, test modifications, and access to spellcheck (Exhibit 33). Instead, petitioner enrolled her son in a private school for eighth grade (Exhibit 39).

        The CSEís triennial evaluation of the student was performed in the fall of 1999 and spring of 2000. On the Wechsler Intelligence Scales for Children Ė III (WISC-III), the student achieved a verbal IQ score of 78, a performance IQ score of 81 and a full scale IQ score of 77. The scores indicated that the student was functioning in the borderline range of intellectual ability. On the Wechsler Individual Achievement Test (WIAT), he achieved a reading composite grade equivalent of 5.7, a standard score of 84, and a percentile of 14, as well as a math composite grade equivalent of 5.3, a standard score of 78, and a percentile of 7. In written language, he achieved a writing composite standard score of 77, a grade equivalent of 4.4, and a percentile of 6. The evaluator noted that the studentís ability to decode words had improved significantly, while his math computation skills had declined slightly since the previous administration of the WIAT in 1999. She reported that the student did not demonstrate the 50 percent discrepancy between actual and expected achievement necessary for a classification of learning disabled, but she noted that classroom performance should also be considered (Exhibit 36).

        A speech/language evaluation was conducted in April 2000. On the Peabody Picture Vocabulary Test-Revised (PPVT-R), the student achieved a score in the low average range. On the Expressive One Word Picture Vocabulary Test (EOWPVT), he achieved a score in the below average range. The evaluator noted that the student did not achieve a basal score of eight consecutive correct responses. On the Clinical Evaluation of Language Fundamentals (CELF-3), the student achieved scores in the below average range for all subtests evaluating receptive language skills. For expressive language, he achieved a below average score on the formulating sentences subtest. The student achieved a score in the poor range on the recalling sentences subtest and an average score for sentence assembly. On the subtest that evaluated the studentís ability to listen to paragraphs, he achieved a score in the poor range. The evaluator reported that the student exhibited severe receptive and mild expressive language delays, and she recommended the continuation of speech/language services on a consultant basis (Exhibit 37).

        In August 2000, respondentís CSE recommended that petitionerís son be enrolled in a 12:1+1 special education class for English, math, science, and social studies in the Kingston High School. It further recommended he receive speech/language therapy once per week, various program and testing modifications, and have access to a computer with a spell checking program (Exhibit 41). In September 2000, the parties agreed that he would also receive multisensory reading instruction. The student briefly attended the Kingston High School, but was reportedly home schooled beginning in October 2000 and subsequently received home instruction.

        A private audiological evaluation was conducted on October 2, 2000. The audiologist found that the student had a weakness in differentiating speech sounds, which caused difficulty with auditory decoding and phonics. He also demonstrated difficulties distinguishing the main signal from background noises, a weakness in auditory memory and sequencing, and a left ear weakness which the audiologist interpreted as an indication of dysfunction in the developmental growth of the auditory system and confirmation of an auditory processing disorder. The audiologist recommended that the student be placed in a sound controlled environment with as much individual teaching as possible. He also recommended use of a personal FM system (Exhibit 43).

        The CSE reconvened on October 10, 2000. It again recommended a special class with a student: staff ratio of 12:1+1, as well as speech/language therapy, a writing lab, and multisensory reading. Physical education and art/music were the only regular education classes it recommended. The CSE also recommended program modifications, testing modifications, and an exemption from the second language requirement. Finally, the CSE recommended a functional behavioral assessment be performed and a behavior intervention plan be prepared. Petitioner rejected the program and requested that her son be placed at the Kildonan School (Exhibit 45). Ultimately, the mother chose to home school her child (Exhibit 47).

        In December 2000, an independent evaluator reported that the student had achieved scores of 90 for verbal reasoning, 109 for abstract/visual reasoning, 110 for quantitative reasoning, 87 for short term memory, and a test composite score of 99 on the Stanford-Binet Intelligence Scale. On the Woodcock Reading Mastery Test (WRMT), the student achieved grade equivalents (and standard scores) of 6.4 (91) for word identification, 10.0 (103) for word attack, 5.3 (84) for word comprehension, and 5.6 (87) for passage comprehension. On the Wide Range Achievement Test (WRAT), the student achieved grade equivalents (and standard scores) of 5 (86) for spelling, and 6 (90) for arithmetic. However, the studentís performance on the Peabody Individual Achievement Test (PIAT) yielded a grade equivalent (and standard score) of 4.4 (84) for math. On the Test of Written Language (TOWL), the student achieved a standard score of 76 (5th percentile). The independent evaluator recommended that the student be placed in an educational setting with a low student: teacher ratio, with peers having similar IQs and social skills. She also recommended that the studentís program be language based, with teachers trained in the Orton-Gillingham technique. Finally, the evaluator recommended intervention by a language therapist to improve vocabulary and language usage (Exhibit 49).

        When it met on December 19, 2000 to review the independent evaluatorís report, the CSE noted that many of the evaluatorís recommendations could be implemented in the districtís schools. The studentís special education teacher opined that the studentís perception that he was not a special education student was causing him to resist placement in the districtís special education class. The CSE recommended four weeks of home instruction for the student, during which the mother would observe an inclusion class. The meeting was adjourned until after the mother observed the inclusion class (Exhibits 50 and 54).

        On January 4, 2001, the mother and the district arrived at a settlement agreement with respect to the 1999-2000 school year and the first semester of the 2000-01 school year. The parent agreed to accept the IEP developed in August. The district agreed to provide one-two periods per week of Orton-Gillingham instruction, pay the parent $5600, fund the expense of an independent evaluation, and contribute up to $250 toward additional testing (Exhibit 55). The CSE met on January 11, 2001 with petitioner, who indicated that she would be unable to observe the inclusion class and suggested that the independent evaluator observe at district expense. The CSE recommended continuation of home instruction until the observation could take place (Exhibit 57). The student continued to receive home instruction for the rest of the 2000-01 school year.

        The CSE convened on June 6, 2001 to prepare the studentís IEP for the 2001-02 school year. In addition to recommending that the student remain classified as learning disabled, the CSE recommended that he be placed full time in an integrated, i.e., inclusion, class with a student: staff ratio of 12:1+1. To address the studentís auditory processing difficulties, the CSE recommended that he receive individual speech/language therapy once per cycle for thirty minutes and indirect speech/language therapy consultation once per cycle in the classroom. It further recommended that he receive one period of individual multisensory reading instruction per cycle, as well as 40 minutes of indirect multisensory reading consultation in the classroom. Program modifications included modified classroom tests and assignments, and the reduction of math problems by one-half. Testing modifications included revised format, answers recorded, directions read, and tests read. Access to a computer with spell check was also recommended, and the IEP provided that the student would be exempt from the second language requirement (Exhibit 66).

        In a letter dated July 2, 2001, petitioner requested an impartial hearing, because she believed that the recommended placement did not include suitable social and intellectual peers for her son (Exhibit 67). The hearing began on October 10, 2001 and concluded on December 13, 2001. In his decision dated March 6, 2002, the hearing officer held that the IEP was inappropriate because it did not meet the studentís individual needs. He found that the proposed integrated class placement constituted a significant change of placement for the student, and that a representative of the district should have observed the student in his current placement of home instruction before the CSE made its recommendation. The hearing officer further found that the CSE failed to develop an IEP when the student entered the home instruction program, failed to properly consider the two independent evaluations, failed to conduct an assistive technology evaluation to determine the need for an FM trainer, failed to consider private school placements as an option, failed to provide transition services when the student left school, and failed to provide an adequate reading and language arts program.

        The hearing officer ordered the CSE to assess the studentís Orton-Gillingham program to determine his exact level of achievement, revise the IEP to insure that the student receive the appropriate amount of Orton-Gillingham instruction, develop a transition plan for the studentís entry into the high school, review course credits and develop an appropriate IEP, develop a written program for training of regular education teachers, conduct a behavioral assessment and create a behavioral implementation plan, conduct an assistive technology evaluation, and consider private school placements.

        I will first consider respondentís cross-appeal. 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 the recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. ß 300.550[b]; 8 NYCRR 200.6[a][1]). 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 with a Disability, Appeal No. 93-9).

        The first issue to be decided is whether the CSE had adequate information about the student to prepare his IEP. The studentís IEP lists the studentís WIAT scores from April 2000 and his WISC-III scores from the fall of 1999. It also includes the April 2000 speech/language test results. The IEP does not include the test results reported by the independent evaluator in December 2000, nor does it include the results of the private audiological evaluation performed in October 2000. I note that the auditory evaluator reported that the student had deficits in auditory memory and sequencing which would affect the studentís ability to acquire new information. The studentís IEP indicates that difficulties in his auditory language processing affect his ability to understand and process new concepts. I further note that at the hearing, respondentís speech/language therapist described general classroom strategies for students with auditory processing difficulties. She testified that the CSE had discussed the studentís possible need of an FM trainer, and had considered the parentís concern regarding her sonís reaction to use of a device which would identify him as a classified student (Transcript pp. 244-247). The hearing officerís finding concerning a need for an assistive technology evaluation appears to have been with reference to an FM trainer. I cannot agree with the hearing officer that such an evaluation was necessary.

        The independent evaluator assessed the studentís cognitive skills with the Stanford-Binet, and reported scores that were higher than those the student had achieved on the WISC-III in 1999. I note that the latter results were consistent with the results of previous cognitive assessments (Exhibits 15 and 23), and that the independent evaluator indicated that she had not included the Stanford-Binet subtest score for short-term memory when recalculating results to arrive at an IQ score of 103. Different test instruments were used by the districtís psychologist and the independent evaluator. The district presented written evidence explaining that some discrepancy in scores on the two tests favoring higher scores on the Stanford-Binet was the result of more recent standardization dates on the WISC ĖIII (Exhibit 68). A comparison of the standardized achievement test results from April 2000 that appeared on the IEP with those reported by the independent evaluator in December 2000 reveals no significant differences. I find that the CSEís decision not to include the results reported by the independent evaluator on the studentís IEP does not afford a basis for finding that the IEP is deficient. A CSE is required to consider the results of an independent evaluation (8 NYCRR 200.5[g][1][v][a]). The record indicates that the CSE considered the independent evaluatorís report (Transcript p. 122).

        I have considered the hearing officerís finding that the CSE should have observed the student receiving home instruction before recommending his placement in an inclusion class, and I cannot agree with his finding. The CSE had initially recommended that the student be placed in a 12:1+1 special education class for academic instruction during the 2000-01 school year. The record reveals that the student did attend that class briefly during that school year, but disliked being in that class because he had difficulty being identified as student with a disability. Thereafter, petitioner and the CSE explored the possibility of a placement in an inclusion class. As a temporary measure, they agreed that he should receive home instruction. Although that temporary placement extended for longer than either party wished, it was nevertheless an interim placement. The inclusion placement that the CSE recommended for the 2001-02 school year would have provided special education instruction to the student on a 12:1+1 basis in the setting of a larger classroom that included regular education students. The studentís special education instruction would have been provided with the same pupil: teacher ratio as in the class he had attended at the beginning of the 2000-01 school year.

        The student's former special education teacher and home instructor during the 2000-01 school year participated in the June 6, 2001 CSE meeting, and testified at the hearing about the studentís needs and current levels of performance (Transcript pp. 72-79). He explained how the studentís IEP goals had been prepared (Transcript pp. 102-105). I find that the goals and objectives contained in the studentís IEP appropriately reflected the studentís needs. The evaluations revealed that the student had severe language difficulties (Exhibits 37 and 43). Four goals addressed language. One goal pertained to oral language. The six corresponding objectives addressed the studentís ability to follow oral directions, retain oral information, demonstrate comprehension, utilize skills to assist in auditory recall, demonstrate an understanding of positional and spatial concepts and demonstrate an understanding of antonyms and synonyms. Two goals addressed written language. The corresponding objectives pertained to grammar, writing in a group, letter writing, and summarizing books. A fourth language goal addressed comprehension. The corresponding objectives pertained to identification of "signal words and phrases," determination of order, identification of main ideas and details, discrimination of fact from opinion, and interpretation of newspaper articles. I find that the language goals and objectives appropriately addressed the student's needs.

        The remaining goals pertained to mathematical concepts, organization and study skills, and attending skills. The corresponding math objectives addressed the use of fractions. The corresponding objectives for organization and study skills addressed the studentís utilization of time, recognition of needs, and ability to seek assistance. The corresponding objectives pertaining to attending skills addressed the studentís ability to remain on task and follow directions (Exhibit 66). I find that the goals and objectives pertaining to mathematical concepts, organization and study skills, and attending skills were appropriate.

        I have found that the CSE had adequate information about the studentís needs and his current levels of performance, and that it prepared IEP goals and objectives that were related to those needs and levels of performance. I must now determine whether it recommended appropriate special education services to afford the student a reasonable opportunity of achieving his goals and objectives. The parties agree that the student has language based learning disabilities and would benefit from a multisensory method of instruction. The studentís reading difficulties are largely with regard to comprehension. He has made progress in decoding, and standardized test scores indicate that his decoding skills are at or near grade level. In view of his age and skill level, the studentís comprehension skills should be developed in his content area courses, rather than in isolation.

        Although the parties agree that the student would benefit from multisensory instruction, they appear to disagree about the meaning of the term and its relationship to the Orton-Gillingham reading program, which is a sequentially based progression of phonics. Multisensory instruction, as implied by its name, uses more than one of a studentís senses to impart knowledge. It is a practice which most teachers use on a regular basis. While the term is often used in describing the instructional approach used with the Orton-Gillingham curriculum, it is not synonymous with that program, and it is not limited to reading instruction. Although some of petitionerís witnesses opined at the hearing that Orton-Gillingham should be used as a methodology with her son throughout the school day, I find that there is no basis in fact for that opinion. As noted above, the studentís current reading difficulty is with comprehension rather than phonics and decoding.

        In addition to reading difficulties, the student has auditory processing deficits affecting his ability to comprehend spoken language and to formulate sentences. He needs repetition during instruction through preteaching and review, and he requires modifications to his instructional materials. His IEP provides for program modifications. At the hearing, the studentís home instructor described strategies used by inclusion class teachers to address weaknesses in auditory comprehension, such as repetition and informal questioning to ascertain a studentís level of comprehension in a manner that allows him to be part of the group and not feel singled out. That is especially significant for this student, in view of his feelings about being identified as a student with a disability.

        The multisensory reading teacher described how her services would be coordinated with those of the speech/language therapist to improve the studentís vocabulary and his comprehension. She also testified as to how she would have addressed the studentís IEP objectives. I have considered the hearing officerís directive to the CSE to train mainstream teachers to incorporate a language based curriculum into their instruction. I must note that the term "language based curriculum" was not specifically defined by the hearing officer or petitionerís witnesses. In any event, it is clear from the testimony of respondentís witnesses, as described above, that the proposed program would have addressed the studentís language needs in a comprehensive manner.

        There is no doubt that petitionerís son requires specialized instruction to address the aspects of his disability that prevent him from performing successfully in a regular education environment. However, it does not follow that such special education instruction must be provided in a private school. Respondent is required to offer special education instruction to the student in the least restrictive environment. In addition to that legal requirement, the CSE was also well aware of the studentís feelings about being in a special education program. I find that the recommended inclusion class, with the additional supportive services that the CSE recommended, would have afforded the student a reasonable opportunity of achieving his IEP goals and objectives. Consequently, I find that respondent has met its burden of proof with respect to the educational program it offered to provide during the 2001-02 school year.

        Having found that respondent has established the appropriateness of the educational program recommended by the CSE, I must find petitionerís objection to the hearing officerís decision is without merit.

 

        THE APPEAL IS DISMISSED.

        THE CROSS-APPEAL IS SUSTAINED.

        IT IS ORDERED that the hearing officerís decision is hereby annulled.

 

 

 

Dated:

Albany, New York

 

__________________________

 

November 25, 2002

 

FRANK MUÑOZ