The State Education Department
State Review Officer

No. 03-104

 

 

 

 

 

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

 

 

Appearances:
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Joshua C. Chao, Esq., of counsel

 

 

DECISION

 

            Petitioner appeals from an impartial hearing officer's decision that found respondent, the City School District of the City of New York, had offered to provide petitioner's son a free appropriate public education (FAPE) for the 2003-04 school year.  The hearing officer ordered that petitioner's son be immediately placed in the program recommended by respondent's Committee on Special Education (CSE) in the student's June 23, 2003 individualized education program (IEP).  The appeal must be dismissed.

 

            At the outset I must first address a procedural issue.  Petitioner requests that I consider numerous documents not submitted at the hearing that are attached to the petition and verified addendum to petition.  It is well established that documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time of the hearing or when such evidence is necessary to enable the State Review Officer (SRO) to render a decision (Application of a Child with a Disability, Appeal No. 03-078; Application of a Child with a Disability, Appeal No. 03-054; Application of the Bd. of Educ. of the Pawling Cent. Sch. Dist., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 02-098).  The new documentary evidence contains evaluative material pertaining to the student which respondent adequately addressed in its answer and does not object to its submission.  I find that the evaluative material will assist me in rendering a decision and will accept petitioner's submission.

 

            At the time of the hearing, petitioner's son was 14 years old and attending respondent's School of the Future, which is a general education school that has an inclusion program where special education students attend the same classes as regular education students.  Petitioner's son has a profound bilateral sensorineural hearing loss (Exhibit XII), congenital cataracts causing him to be visually impaired (Exhibit 3), and is reportedly "performing on a [m]entally [r]etarded level" (Verified Addendum to Petition, Exhibit L).  The student's classification as multiply handicapped is not in dispute.

 

            Some of petitioner's son's prior educational history is discussed in Application of a Child with a Disability, Appeal No. 03-073, and will not be repeated here in detail.  In Application of a Child with a Disability, Appeal No. 03-073, dated October 23, 2003, the SRO directed the CSE to obtain current evaluations and assessments pursuant to Section 200.4(b) of the Regulations of the Commissioner of Education and promulgate an appropriate IEP based upon those current evaluations and assessments.  Further, the SRO directed the CSE to do the following:  conduct a functional behavioral assessment (FBA) pursuant to 8 NYCRR 200.4(b)(v) and incorporate the results in a new IEP; conduct an assessment to determine petitioner's son's form of communication and determine whether providing ALS instruction would be appropriate for the student;1 and assess whether the student's current educational placement is appropriate for the student in accordance with 8 NYCRR 200.4(b)(iv) and incorporate the results of the assessment in the student's IEP. Respondent's CSE was also directed by the SRO to determine whether providing American Sign Language (ASL) instruction would be appropriate for the student.  Based upon the record in Application of a Child with a Disability, Appeal No. 03-073, the SRO in that decision indicated that he was not persuaded that petitioner's son could make satisfactory progress in a regular educational setting even with the use of supplementary aids and services (see 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 34 C.F.R. Part 300, Appendix A, Section 1, Question 1). 

 

            In reviewing the record before me in the instant case, it is apparent that at the time of the review in Application of a Child with a Disability, Appeal No. 03-073, respondent had existing evaluation and assessment reports pertaining to the student which were not made part of the record pertaining to that appeal.  These evaluations are a part of the record in this appeal.  For example, a psychological evaluation was conducted on January 4, 2002 (Verified Addendum to Petition, Exhibit L).  The psychologist observed the student in his classroom and noted that when the student's sign language interpreter signed into the student's hand it "could not be interpreted if he was responding to these stimuli" (Verified Addendum to Petition, Exhibit L).  The sign language interpreter reported to the psychologist that petitioner's son did not use any formal sign language.  The student's teacher reported to the psychologist that the student is non-verbal, uses a diaper, self stimulates, hits himself in the head, grabs for items he wants, pushes people out of the way when frustrated, and tantrums when he can not accomplish a task (Verified Addendum to Petition, Exhibit L).  The psychologist reported that the petitioner's son does not gesture to indicate "yes" or "no" and is not toilet trained, but can pull up his own garments and get a drink of water without help.  The psychologist further noted that the student interacts with familiar people, but does not show interest in new people in his environment (Verified Addendum to Petition, Exhibit L).  The psychologist opined that while no examination was conclusive, petitioner's son appeared to be functioning in the moderate to severe range of mental retardation.  He recommended that the student participate in a small structured environment that would address his intellectual and cognitive delays (Verified Addendum to Petition, Exhibit L).

 

            Petitioner's son's primary receptive communication mode is reported to be individual functional ASL signs with supplemental tactile and visual prompts (Exhibit III).  A January 4, 2002 educational evaluation report (Exhibit XI) noted that petitioner's son did respond to approximately 15 functional signs related to activities of daily living (ADL) (Exhibit XI).  However, the evaluator reported that a sign language interpreter was present during the examination and when the interpreter attempted to use functional sign language, the student did not respond (Exhibit XI).  The evaluator further reported that the student can drink from a cup and use a "spork" with prompts, but requires "total supervision" with all ADL skills (Exhibit XI).  The evaluator further noted that the student engages in inappropriate behaviors such as masturbation in the classroom, rocking, biting his hand, and hitting his head (Exhibit XI).  Academically, the student is unfamiliar with language and math concepts and is working with a tangible symbol system using three-dimensional objects such as a ball and a balloon (Exhibit XI).

 

            A sign language evaluation was conducted on January 6, 2003 (Exhibit VII).  Petitioner's son reportedly did not demonstrate "free will" for using ASL (Exhibit VII).  The evaluator also reported that the student did not consistently use communication tools such as picture boards and did not demonstrate formal or informal language skills of any kind (Exhibit VII).  The evaluator opined the student did not demonstrate "sufficient and consistent receptive and expressive ASL skills" and did not have enough fundamental ASL knowledge to be able to use an ASL interpreter in the classroom (Exhibit VII). 

 

            An adaptive physical education progress report dated January 9, 2003 indicated that petitioner's son's repertoire of physical activities had remained static for the past year and he did not show interest in interacting with his peers (Exhibit VIII).  Petitioner's son's math teacher indicated that the student had not made any academic progress and had not participated in classroom activities (Exhibit IX).  Petitioner's son's science teacher reported that the student did not participate in class activities and did not have meaningful communication with his teacher or his peers (Exhibit IX).  One of the student's teachers indicated that not only did petitioner's son not participate in class he had become more disruptive and frequently banged his head on tables and made loud noises (Exhibit IX).

 

            For the 2003-04 school year, the CSE recommended that the student be enrolled in a twelve-month 12:1+4 special education class in a specialized school with related services and a 1:1 crisis management paraprofessional (Exhibit II).  The student's IEP, dated June 23, 2003, indicates that his mode of communication is English, with assistive technology and gestures, but does not indicate his language of instruction (Exhibit II).

 

            Petitioner did not accept the CSE's recommended educational program and sought an impartial hearing.  The hearing, from which the instant appeal occurred, commenced on July 22, 2003 and concluded on September 11, 2003.  In a decision dated October 9, 2003, the hearing officer found that respondent offered to provide the student with a FAPE and ordered that petitioner's son immediately be placed in the program recommended by CSE in the June 23, 2003 IEP.

 

            Petitioner contends that the hearing officer erred by concluding that respondent offered to provide a FAPE, stating that his son's IEP goals are vague and imprecise.  Petitioner further contends that respondent has never provided the student with ASL instruction, despite an order to do so by a previous hearing officer.  Petitioner requests that the hearing officer's October 9, 2003 determination that respondent offered to provide a FAPE be annulled and requests a finding that respondent must provide the student with ASL as his language of instruction.

 

            The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq.) is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).  A FAPE includes special education and related services provided in conformity with an IEP (20 U.S.C. § 1401[8]), and it is the student's IEP that tailors a student's program to his or her unique needs (Bd. of Educ. v. Rowley, 458 U.S. 176, 181 [1982]).  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 [2001]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

 

            In order to meet its burden to show that it offered to provide a student with a FAPE, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025).  Procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE (W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D. Conn. 2001]; see Arlington Cent. Sch. Dist. v. D.K., ___ F.Supp.2d ___, 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; Evans, 930 F.Supp at 93; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]; Application of a Child with a Disability, Appeal No. 02-041; Application of a Child with a Disability, Appeal No. 02-015).  The program recommended by the CSE must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

 

            An appropriate educational 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. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child with a Disability, 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

 

            There have been multiple hearings regarding petitioner's son's special education services.  Petitioner contends that there has been an unappealed hearing officer's finding that respondent must provide the student ASL instruction and respondent has yet to provide the student with ASL instruction (Transcript p. 74).  However, in Application of a Child with a Disability, Appeal No. 03-073, the SRO directed respondent's CSE to obtain current evaluations and assessments including an assessment to determine whether providing ASL instruction would be appropriate for the student (Application of a Child with a Disability, Appeal No. 03-073).  A student's evaluation must also include "other appropriate assessments or evaluations …as necessary" (8 NYCRR 200.4[b][1][v]; 34 C.F.R. § 300.308).  I note that the sign language evaluation conducted on January 6, 2003 indicated that the student did not demonstrate receptive and expressive ASL skills, nor did he have sufficient fundamental ASL knowledge to use an ASL interpreter in the classroom (Exhibit VII).  Further, petitioner's son's primary receptive communication mode is reported to be individual ASL signs with supplemental tactile and visual prompts (Exhibit III).  Given the information provided on the IEP regarding the student's mode of communication being English, assistive technology and gestures (Exhibit II), and contrary to petitioner's contention, I do not find that respondent's CSE's lack of explanation about the student's language of instruction to be the type of procedural inadequacy that would result in the loss of educational opportunity and constitute a denial of FAPE (Application of a Child with a Disability, Appeal No. 02-041; Application of a Child with a Disability, Appeal No. 02-015).  I note that although petitioner states that he wants his son to receive ASL instruction (Transcript p. 97), he testified to communicating with his son through "gestures, signs, objects, environmental cues, [and] flickering lights" (Transcript pp. 98-99).  Based upon petitioner's son's evaluations and petitioner's own testimony, I find that petitioner's son should not be taught using ASL as a language of instruction.  Based upon the record before me, I find that petitioner's son needs to be taught using an approach which combines individual functional ASL signs with gestures, hand-over-hand prompting when necessary, and other appropriate forms of communication.  Thus, I find that it would not be appropriate to provide petitioner's son with ASL as a language of instruction because this student requires a diverse approach to the method of delivery of his instruction.  However, I do believe it would be appropriate to continue prompting petitioner's son with individual ASL signs as part of his instruction, including but not limited to the student's 1:1 crisis management paraprofessional having the training and ability to utilize these individual functional ALS signs.  For example, I find that it is appropriate for a crisis management paraprofessional to utilize the ASL sign "stop" when the student is engaging in inappropriate behavior such as biting his hand and hitting his head.

 

            Petitioner contends that his son's June 23, 2003 IEP goals are vague and imprecise.  An IEP must include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and related to meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]).  I note that petitioner's son is currently working on ADL skills and self-help skills such as washing his hands after using the bathroom and wiping his face after eating (Transcript p. 50).  The student has an annual goal to "increase independence in ADL skills" (Exhibit II).  This annual goal is measured by its short-term objectives.  For example, the student is to "wipe his face and hands after eating with prompts at [his] wrist on 4/5 occasions".  He will also "wash his hands after using the bathroom with prompts on 8/10 occasions" (Exhibit II).  I find this annual goal meets the student's needs arising from his disability and I find that this annual goal is measurable by short-term objectives.  In addition, I find that there are other annual goals in the student's IEP that are similarly measurable by short-term objectives.  For example, petitioner's son's June 23, 2003 IEP indicates that at his current level of performance he does not interact with his peers (Exhibit II).  While his annual goal of "social skills" should be more specific, the short-term objectives for this goal are specific and measurable, stating, for example, that the student "will learn to use a socially appropriate gesture (hold out his hand) when approach[ed] by a classmate in 4/5 trials" and the student "will diminish his inappropriate behavior when [the] symbol 'stop' [is used] in 4/5 trials" (Exhibit II).  I find these short-term objectives would enable the student to be involved in and progress in his program of ADL and self-help skills.  Thus, I find petitioner's claim that his son's annual goals are vague and imprecise to be unfounded.

 

            I am mindful that, in Application of a Child with a Disability, Appeal No. 03-073, petitioner's concern was that his son remain in the general education program at respondent's School of the Future.  I am also mindful that the SRO determined that, in his judgment, educating petitioner's son in a regular education classroom would increase the degree of the student's isolation, would not assist him in developing more positive interactions with his classmates, and that the student would not make satisfactory progress in the regular education setting (Application of a Child with a Disability, Appeal No. 03-073; see also Application of a Child with a Disability, Appeal No. 98-012).  The LRE requirement of the IDEA requires that students with disabilities be educated with nondisabled students "to the maximum extent appropriate" (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.1[cc]).  Although the IDEA requires that a child with a disability not be removed from the regular educational environment if the child's education can be achieved satisfactorily in regular classes with the use of supplementary aids and services, the LRE principle is intended to ensure that a child with a disability is served in a setting in which the child can be educated successfully according to the individual student's needs (34 C.F.R. Part 300, Appendix A, Section 1, Question 1; Application of the Bd. of Educ. of the Carmel Cent. Sch. Dist., Appeal No.03-101); it is axiomatic that the LRE requirement must be balanced against the requirement that each child receive an appropriate education (see Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]; Application of the Bd. of Educ. of the Carmel Cent. Sch. Dist., Appeal No.03-101; Application of a Child with a Disability, Appeal No. 03-021; Application of a Child with a Disability, Appeal No. 02-093; Application of the Bd. of Educ. of the Arlington Cent. Sch. Dist., Appeal No. 98-7).

 

            I note that the student's June 23, 2003 IEP indicates that the student has made minimal progress over the past three years, engages in self-stimulatory and self-abusive behaviors, can not tolerate being in the regular education classroom for more than 15 minutes at a time, and does not interact with other students (Exhibit II).  In addition, the student's teacher reported that he has not made any academic progress and has not participated in classroom activities (Exhibit IX). Thus, I find that petitioner's son has not made satisfactory progress in a regular educational setting (see Application of a Child with a Disability, Appeal No. 98-012) and has not been educated successfully according to his individual needs (8 NYCRR 200.6[a][3] and 200.1[ww][3][i]).  I find that petitioner's son needs to be placed in a small structured environment and find respondent's recommended program in the student's June 23, 2003 IEP to be appropriate.

 

            Petitioner has raised concerns regarding an FBA for his son.  (See Verified Addendum to Petition ¶ 37).  Respondent has already been ordered to conduct an FBA by the SRO in Application of a Child with a Disability, Appeal No. 03-073, dated October 23, 2003.  Respondent shall conduct the FBA in accordance with 8 NYCRR 200.4(b)(v) and the SRO decision if respondent has not already done so.  Such FBA should take place after the student is placed in respondent's recommended placement.

 

            Petitioner also contends that: 1) the hearing officer denied petitioner an opportunity to compel the attendance of certain witnesses and to produce certain documents; 2) the hearing officer stated that "the prior decision of any hearing officer is not relevant to this decision"; 3) respondent should be precluded from relitigating issues that have already been determined; 4) respondent's CSE did not meet its responsibility in recommending a specific placement; 5) the hearing officer's decision was not rendered within 45 days after the receipt by respondent of a request for a hearing; and 6) the evaluations adduced by respondent were defective.  I have considered petitioner's contentions and find them to be without merit.

 

            THE APPEAL IS DISMISSED.

 

 

 

Dated:

Albany, New York

 

__________________________

 

February 20, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

1  Such an evaluation, dated January 6, 2003 was submitted as part of the record in the instant case (Exhibit VII).  It was not part of the record in Application of a Child with a Disability, Appeal No. 03-073.  Given that the evaluation has taken place and is part of the record in the instant care, respondent need not conduct an assessment to determine petitioner's son's form of communication as directed by the SRO in Application of a Child with a Disability, Appeal No. 03-073.