The State Education Department
State Review Officer
Application of the Board of Education of the Shelter Island Union Free School District for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Kevin A. Seaman, Esq., attorney for petitioner
Pamela Tucker, Esq., attorney for respondents
Petitioner, the Board of Education of the Shelter Island Union Free School District, appeals from an impartial hearing officer's decision awarding respondents reimbursement for the cost of their daughter's tuition at the 2003 eight-week Lindamood-Bell summer program (Lindamood-Bell) and directing that respondents' daughter receive direct consultant teacher services in at least three core subject areas for the 2003-04 school year. The appeal must be dismissed.
At the time of the hearing respondents' daughter was 15 years old, in the tenth grade at petitioner's school, and classified as learning disabled (LD). The studentís classification as LD is not in dispute, however the timeliness of classifying the student as LD and eligible for special education services on October 24, 2002 is a central issue in this appeal.
A discussion of the studentís relevant educational history will be helpful in putting the current dispute in context. The student has attended petitioner's school since kindergarten (Exhibit D82) and has had learning difficulties since the second grade (Exhibit D5) for which she has received regular education remedial support services (Exhibit D88; Transcript p. 91). From January 1996 through March 2001, she participated in a learning assistance program (LAP/PSEN) and received academic intervention services (AIS/PSEN). On November 1, 1996, when she was in the third grade, respondents' daughter was evaluated for possible speech and language deficits (Exhibit D83). The student's score on the Clinical Evaluation of Language Fundamentals-III (CELF-III) was within the average range. Her score on the Peabody Picture Vocabulary Test-III (PPVT-III) fell within the low average range (Exhibit D83). The speech-language pathologist who tested the student recommended that respondents' daughter not receive speech-language therapy at that time, but that her progress be monitored in the fourth grade (Exhibit D83). However, it does not appear from the record that the studentís speech-language needs were monitored and she was not evaluated again in this area until the seventh grade (see Exhibit D75).
Shortly after the November 1996 speech-language evaluation, a psychoeducational assessment was conducted. The student had been referred for evaluation by her teacher, who reported difficulty with decoding and comprehension in reading as well as difficulty understanding directions (Exhibit D82). The psychoeducational assessment, conducted on November 8, 1996, identified weaknesses in the studentís general fund of information and vocabulary knowledge (Exhibit D82). During the evaluation, the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) was administered and yielded a verbal IQ score of 94, a performance IQ score of 108, and a full scale IQ score of 101. The evaluator reported that the full WISC-III was not administered and the IQ scores were prorated (Exhibit D82). The psychologist concluded that the difference between the student's verbal and performance IQ scores were "not significant" and that respondents' daughter did not appear to qualify for special education assistance at that time (Exhibit D82). The psychologist further noted that there was a family history of dyslexia; that the student needed to "bolster her self esteem"; and that the student's performance may have been affected by neurological difficulties associated with a diagnosis of Lyme disease (Exhibit D82). The psychologist recommended that the student be reevaluated if she exhibited further academic difficulties despite services then being provided (Exhibit D82).
The Woodcock Reading Mastery Tests-Revised were administered on December 5, 1996. Respondents' daughter, who was in the fourth month of third grade at the time of testing, achieved a total reading standard (and percentile) score of 85 (16) (Exhibit D84). A committee on special education (CSE) convened on December 20, 1996 and recommended that the student not be classified as a student with a handicapping condition that adversely affects her educational performance (Exhibit D79). The CSE noted that the student would continue to receive assistance in reading through the LAP/PSEN program. The student was also offered counseling "as needed" and the parents were assured that their daughter would be monitored for future academic needs (Exhibit D78). Respondents' daughter continued to receive regular education remedial support services in the LAP until the beginning of seventh grade in the 2000-01 school year (Exhibits D88-D94).
Respondents' daughter was again referred to the CSE for new evaluations in the fall of 2000 during her seventh grade year (Exhibit D65), in part, because of concerns about her academic progress and difficulty completing classwork and assignments (Exhibit D71). A review of progress reports in the record reveals that her grades had slipped considerably since her evaluation in 1996. In fifth grade, the student earned passing grades in all subjects, but her reading teacher commented that she lacked persistence and her math teacher recommended she attend summer school (Exhibit D10). Similar comments were made by her sixth grade teachers (Exhibit D9). She received two F's and a D in the first semester of seventh grade for math, social studies and science, respectively (Exhibit D8).
The Woodcock Reading Mastery Test-Revised/Normative Update was administered on November 21, 2000 (Exhibit D96). The evaluator noted that the student was functioning in the below average range in passage comprehension and reading comprehension (Exhibit D96). Her standard (and percentile) scores in passage comprehension and reading comprehension were 85 (17) and 87 (20), respectively (Exhibit D96). A psychological evaluation of the student was conducted over several days and completed in December 2000 (Exhibit D71). The psychologist who conducted the evaluation noted that a TerraNova achievement test, administered in the spring of 2000 resulted in: a grade equivalent score of 3.0 in reading; 5.6 in language; 6.0 in math; and a total grade equivalent score of 4.7 (Exhibit D71). Re-administration of the WISC-III yielded a verbal IQ score of 80 (previously 94), a performance IQ score of 106 (previously 108), and a full scale IQ score of 91 (previously 101) (Exhibit D71). The psychologist concluded that the differences in scores between the two evaluations were clinically significant. He opined that the discrepancy between the verbal and performance IQ scores was "becoming more significant" and recommended review by the CSE for consideration of classification of respondents' daughter as a student with a learning disability (Exhibit D71). The psychologist also noted that the student was having difficulty processing questions and that her motor skills were impaired because she had to concentrate in order to move her left arm and right leg at the same time (Exhibit D71). The psychologist credited respondents' daughter's intelligence and her self-taught compensation skills which allowed her to achieve passing grades. The psychologist noted that projective testing revealed a depressed and confused student who had poor insight and self-esteem (Exhibit D71). He opined that the student would benefit from counseling (Exhibit D71).
Other evaluations conducted between December 2000 and January 2001 included an educational evaluation (Exhibit D72) and a speech and language evaluation (Exhibit D75). The results of the speech and language evaluation indicated that the student's overall language skills were two to three years below her age level (Exhibit D75). The evaluator recommended that a speech pathologist, in the role of a consultant teacher, provide assistance to the student's language arts teachers to help strengthen her language skills within the classroom (Exhibit 75).
Despite the student's significant discrepancy between her verbal and performance IQ scores (Transcript p. 36), her emotional difficulties, a reported two-year lag in speech and language skills and her reading deficits, petitioner's CSE did not classify the student at the February 1, 2001 CSE meeting (Transcript p. 132). The school principal testified that "we needed to try every remediation we had in the district before we went with the classification" (Transcript p. 87). I note that while this CSE appeared to be properly constituted, testimony at the hearing revealed that the additional parent CSE member present was actually an employee of the school district (Transcript p. 160). As a result of the February 1, 2001 meeting, a 504 Accommodation Plan was developed, identifying respondents' daughter as having weaknesses in comprehension and problem solving (Exhibit D58).
By letter dated May 31, 2002, respondents requested that their daughter be further evaluated, because she was still experiencing academic difficulties despite academic intervention services and testing modifications (Exhibit D43). Petitioner conducted an educational evaluation in June 2002 when the student was in the last month of the eighth grade. Administration of the reading and writing subtests of the Woodcock-Johnson III Tests of Achievement yielded standard (and percentile) scores of 80 (9) in reading fluency, 87 (19) in writing fluency and 72 (3) for the student's writing samples (Exhibit D44).
During the summer of 2002, respondents obtained an auditory and language processing evaluation and an educational evaluation (Exhibit D46). The auditory and language processing evaluation was conducted on August 7, 2002 at St. John's University Speech and Hearing Center (Exhibit D86). The evaluator determined that respondents' daughter's expressive verbal skills were at least two years below criterion for her age and opined that it was unfortunate that the student's language deficits were not previously addressed (Exhibit D86). The evaluator recommended that respondents' daughter be classified as learning disabled and that an individualized education program (IEP) be developed. Additional recommendations included reading instruction services, such as the Lindamood Visualizing and Verbalizing program and Fast Forward; assistive technology to help the student with note-taking; speech-language therapy; resource room services; and testing accommodations (Exhibits D86, P14).
An educational evaluation was conducted by a private educational consultant on August 15, 2002 and August 22, 2002 (Exhibit D85). The educational consultant opined that there was "no doubt" that respondents' daughter had a learning disability and indicated that she did not understand why the student had not been previously classified as LD and provided services under the Individuals with Disabilities Education Act (IDEA) (Exhibit D85). The educational consultant concluded that the student needed special education services, such as direct instruction in reading decoding and spelling, instead of remedial services. She recommended that the student be classified as LD, receive direct instruction, be taught learning strategies, be provided books on tape, and receive the support of a consultant teacher who could monitor her participation in academic classes to insure the student's understanding of a given lesson (Exhibit D85).
On October 24, 2002, petitioner's CSE met again to determine whether respondents' daughter should be classified as a student with a handicapping condition (Exhibit D52). This CSE meeting also appeared to be properly constituted, however subsequent testimony revealed that the additional parent CSE member was actually an employee of the school district (Transcript p. 160). At this meeting, the CSE recommended that the student be classified as LD and be provided with special education services through a ten-month program (Exhibits D52). In addition, the CSE recommended that she receive resource room services for three hours per week, two 40-minute sessions per week of group speech-language therapy with a student to staff ratio of 2:1 and 40 minutes per week of individual speech-language therapy, with the committee to reconvene in six weeks for a review of the program (Exhibits D52, P4; D55). By letter dated November 20, 2002, the student's father indicated his agreement with the recommendations made by the CSE but noted that he also believed that the IEP should have more goals to address his daughter's individual needs (Exhibit D55). By letter dated February 27, 2003, the CSE chairperson scheduled a subcommittee on special education (subcommittee) meeting for March 4, 2003 (Exhibit D34). Due to a lengthy session, the subcommittee reconvened on March 14, 2003, but no agreement could be reached regarding the provision of special education services (Exhibit D15). By letter dated March 28, 2003, respondents requested an impartial hearing seeking a "certified consultant teacher, experienced in their daughter's disability"; resource room services; and individual speech-language therapy five times per week. They also sought approval for their daughter's participation in a 2003 Lindamood-Bell summer program to address her reading and auditory processing deficits (Exhibit D5).
A Lindamood-Bell clinical director evaluated respondents' daughter on May 8, 2003 (Exhibit P8). The clinical director recommended that the student participate in the Lindamood-Bell program four hours daily for a minimum of 200 to 240 hours (Exhibit P8). The clinical director testified that the Lindamood-Bell program was designed to remediate language processing deficits and would address the student's decoding difficulties (Transcript pp. 396, 401). The student's father unilaterally enrolled his daughter in the Lindamood-Bell summer program in July 2003 (Transcript p. 636). The student was tested at the beginning of the program and retested on August 26, 2003, after 144 hours of the Lindamood-Bell summer program (Transcript p. 453). Respondents' daughter reportedly made marked gains in her ability to decode, but her ability to understand what she was decoding was still minimal (Transcript pp. 455-57).
An impartial hearing commenced on September 9, 2003 and concluded on September 10, 2003. In a decision dated October 16, 2003, the hearing officer found that petitioner did not identify respondents' daughter as a student with a learning disability in a timely manner, that the February 1, 2001 and October 24, 2002 CSE memberships were improper, and that the March 14, 2003 CSE sub-committee rejected respondentsí request for consultant teacher services and services from the Lindamood-Bell program. The hearing officer concluded petitioner failed to provide a free appropriate public education (FAPE). The hearing officer further found that the 2003 eight-week Lindamood-Bell summer program provided education benefits to the student and equitable considerations favored reimbursement. The hearing officer awarded partial tuition reimbursement for the eight-week Lindamood-Bell summer program. The hearing officer also found that a direct consultant teacher would be an appropriate service for the student, and directed petitioner to provide direct teacher services in at least three core subjects.
Petitioner contends that the hearing officer erred in concluding that the district must reimburse respondents for the Lindamood-Bell summer program and erred in concluding that respondents' daughter needs direct consultant teacher services. Petitioner claims that the Lindamood-Bell summer program was an extended school year (ESY) service pursuant to section 200.6(j)(1)(v) of the Commissioner's Regulations and as such there needed to be a showing that the student was in danger of "substantial regression" academically over the summer months of 2003 (8 NYCRR 200.6[j][v]). Petitioner also claims that it was not appropriate for the hearing officer to direct that the student receive a direct consultant teacher in at least three of the student's core academic subjects.
The purpose behind the IDEA is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. ß 1400[d][A]; see Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]). A FAPE consists of specialized education and related services embodied in an individualized education program (IEP) (34 C.F.R. ß 300.13). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 ; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1988]; Application of a Child with a Disability, Appeal No. 02-029). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-07 ). 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]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child'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. 02-014; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
A board of education may be required to pay for educational services obtained for a student with a disability by his or her 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 (Burlington Sch. Comm. v. Dep't. of Educ., 471 U.S. 359 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ). The central question in this appeal is whether respondentsí daughter was identified, in a timely manner, as a student with a learning disability. A board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 01-107; Application of a Child Suspected of Having a Disability, Appeal No. 01-017; Application of a Child with a Disability, Appeal No. 00-063; Appeal of a Child with a Handicapping Condition, Appeal No. 91-11). An additional question is whether once the student was classified, she was offered a program that was reasonably calculated to provide educational benefits. A board of education has the burden of demonstrating the appropriateness of the educational program that it offered to provide to a student (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 ).
Learning Disability is defined as follows:
Learning disability means a student with a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural or economic disadvantage. A student who exhibits a discrepancy of 50 percent or more between expected achievement and actual achievement determined on an individual basis shall be deemed to have a learning disability. (8 NYCRR 200.1[zz])
The comparable federal regulatory criteria for finding that a student has a learning disability are set forth in 34 C.F.R. ß 300.541, which requires that there be a severe discrepancy between a student's achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematics calculation or mathematics reasoning. Although the state regulatory definition expressly refers to a 50 percent discrepancy between expected and actual achievement, it is well established that the state's 50 percent standard is the functional equivalent of the federal severe discrepancy standard, and should be reviewed as a qualitative, rather than a strictly quantitative standard (Riley v. Ambach, 668 F.2d 635 [2d Cir. 1981]; Application of a Child with a Handicapping Condition, Appeal No. 99-74; Application of the Bd. of Educ., 27 Ed Dept Rep. 272 ). In order to be classified as learning disabled, a student must exhibit a significant discrepancy between his or her ability and achievement (Application of a Child with a Disability, Appeal No. 99-74; Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 91-34).
I concur with the hearing officerís determination that petitioner did not offer respondent's daughter a FAPE. Based upon my review of the record, I find that respondentís daughter should have been classified as LD at the February 2001 CSE meeting, and petitioner erred in not providing special education services until the student was eventually classified as LD in October 24, 2002. Further, the membership of the October 24, 2002 CSE improperly included an additional parent member employed by the district, the March 2003 CSE sub-committee did not issue recommendations, and at the time of the hearing a new IEP had not been timely developed nor properly implemented for the 2003-04 school year (Transcript pp. 186-88). In addition to failing to provide an appropriate substantive educational program prior to October 24, 2002, the procedural violations committed in formulating and implementing the studentís educational program were of a nature and number that amounted to a denial of a FAPE (Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]; see also, J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 02-092; Application of a Child with a Disability, Appeal No. 02-015; New York State Education Law 4402[b][a][viii]). I also find, under the circumstances of this case, that petitionerís argument that respondents may not be awarded reimbursement for the summer services, unless there is a showing of "substantial regression", to be without merit. I further find that the hearing officer applied the appropriate tuition reimbursement standard, and correctly determined that the petitioner failed to offer or provide a FAPE, that the summer services obtained were appropriate to the studentís needs, and that equitable considerations do not support a denial of reimbursement to respondents.
Regarding the untimely classification, testimony provided at the hearing indicated that as a student with a learning disability ages, the discrepancy or gap between verbal and performance IQ scores can become greater (Transcript p. 335). When comparing the WISC-III administered on November 8, 1996 and the WISC-III administered in December 2000, the discrepancy between the studentís verbal and performance IQ scores became greater as the student became older (Exhibits D82, D71). I find that because in 1996 the speech-language pathologist recommended that respondents' daughter be monitored in the fourth grade for progress (Exhibit D83) and the psychologist recommended that the student should be retested if further difficulties arose despite tutoring (Exhibit D82), petitioner's CSE failed to properly evaluate respondents' daughter again before 2000 in light of the academic difficulties she exhibited. I also find that while it may have been appropriate to conclude that the student did not have a learning disability in 1996, certainly by the February 1, 2001 CSE meeting, the CSE should have classified this student as LD given the information that it had at that time. For example, the February 2001 CSE did not classify her as LD despite the psychological evaluation completed in December 2000 yielding a 26 point discrepancy between the student's verbal and performance IQ scores and a recommendation that the CSE should consider classifying the student as a LD student (Exhibit D71).
The district has known for many years that this student was having academic difficulties and that having her repeat the same types of remedial programs was also not producing adequate results (Exhibits D90-D95). Further, the district's position that the child must try "all" the remedial services available prior to receiving special education services is incorrect (Transcript p.87; 8 NYCRR 200.4[a][ii]). In addition, the speech pathologist indicated in the December 2000/January 2001 speech-language evaluation that the student's overall language skills were two to three years below her age level (Exhibit D75). Thus, I find that petitioner failed to provide respondents' daughter with a FAPE as of at least February 1, 2001 because she was not appropriately identified and provided special education services.
In the instant case respondents sought a St. John's University recommended program, the Lindamood-Bell program, at a time that was least intrusive to the student's school scheduling, to address the student's learning difficulties because petitioner was not addressing her individual needs. Therefore, under the circumstances of this case, I concur with the hearing officerís determination that respondents be reimbursed for the 2003 eight-week Lindamood-Bell summer program.
I have considered petitionerís other arguments and find them to be without merit
THE APPEAL IS DISMISSED.
Albany, New York
December 31, 2003
PAUL F. KELLY