The State Education Department
State Review Officer

No. 04-034

 

 

 

 

 

 

Application of the BOARD OF EDUCATION OF THE HARRISON 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

 

 

 

Appearances:
Ingerman Smith, LLP, attorney for petitioner, Ralph C. DeMarco, Esq., of counsel

 

Marsh & Gaughran, LLP, attorney for respondent, James R. Marsh, Esq., of counsel

 

 

DECISION

 

Petitioner, the Board of Education of the Harrison Central School District, appeals from the decision of an impartial hearing officer which ordered it to appoint an individual aide certified in American Sign Language (ASL)1 for the student for the remainder of the 2003-04 school year and to continue to provide an aide certified in ASL to the student during the 2004-05 school year as compensatory education for petitioner's failure to provide a free appropriate public education (FAPE) to the student during the 2003-04 school year. The appeal must be sustained.

 

At the time of the hearing, the student was six years old and in the first grade at petitioner's Preston Elementary School (Preston). She has global developmental delays (Exhibit R). Specifically, the student has mild to moderate mental retardation, mild cerebral palsy, an attention deficit hyperactivity disorder (ADHD), and dystonia, a movement disorder characterized by painful sustained involuntary muscle contractions (Exhibit R). She takes medication for both ADHD and dystonia (Exhibit R). The student also has verbal apraxia, a motor planning disorder that affects speech production (Exhibit R). She communicates using some verbalizations, verbal approximations, some sign language, sign approximations, gestures, as well as by physically directing her listener (Exhibits 5, 9-A, R). Several augmentative/alternative communication approaches have been attempted with the student including a picture exchange communication system (PECS), a communication board (Tech/Talk) and a DynaMyte, an augmentative communication device (Exhibits 19, H; Transcript p. 779). The student's hearing was found to be within normal limits (Exhibit R). Her fine motor skills are delayed (Exhibit R). She is described as social, friendly and outgoing, as well as highly distractible and easily frustrated (Exhibits 9-A, 19, R). The student is classified as a student with multiple disabilities and her classification is not in dispute.

 

In September 1998, the student began receiving early intervention services consisting of special education services and occupational, physical and speech-language therapy (Exhibits 9-A, 19, F, J; Transcript p. 771). She reportedly had frequent tantrums during speech-language therapy sessions, and when she was two years old, her speech-language therapist recommended sign language as a means of reducing frustration (Transcript p. 776). Speech-language therapy progress notes from August 1999 indicate that the student babbled, signed and pointed to communicate her wants and needs (Exhibit F).

 

At the age of two and one-half, the student knew approximately nine signs and was able to verbally approximate a word with the sign (Transcript p. 779). At that time, another early intervention provider introduced PECS and the Tech/Talk to the student (Transcript pp. 779-80). However, fine motor delays made it difficult for the student to point, and the PECS and the Tech/Talk were abandoned in favor of verbalization and sign language (Transcript p. 780).

 

In September 2000, the student attended a full day center-based program at the United Preschool Center (UPC), where she received occupational, physical and speech-language therapy (Exhibits 19, G). The following January, she reportedly was diagnosed with apraxia (Exhibits 19, J). In addition to receiving speech-language therapy at UPC, the student began receiving private therapy from a speech-language pathologist who used PROMPT, an intensive oral motor treatment program designed to improve oral muscular strength and tone thereby enabling the student to use her jaw, tongue and lips to produce and sequence standard speech sounds (Exhibits 19, J; Transcript p. 873). Further, the early intervention provider who introduced PECS to the student began providing private instruction to the student using PECS, sign language, speech, and PROMPT (Exhibits 19, H, J; Transcript pp. 873-74).

 

In April 2001, the private instructor reported that the student's expressive communication was limited to isolated sounds and words, and that due to the student's physical limitations, some of her signs were modified restricting communication to a small population (Exhibit H). She indicated that an alternative approach to communication was necessary to reduce the student's frustration and provide her with a means of communication while her apraxia was being addressed. As a result, she began to work with the student on a picture communicator with an auditory output. The student was able to locate items upon request from a field of 32. The private instructor indicated that in order for the student to make progress, a total communication system, verbal, sign and picture symbols, should remain in place.

 

The student remained at UPC for preschool for the 2001-02 school year. On December 6, 2001, petitioner's assistant director of special education, who is a psychologist, conducted an observation of the student at UPC (Exhibit I). She reported that the student's attention was fleeting. Attempts to encourage the student to communicate through the DynaMyte were unsuccessful.

 

In a December 19, 2001 update, a speech-language pathologist from UPC reported that the student received a standard score of 50 for receptive language skills as measured in the Preschool Language Scale-3 (Exhibit 19). Her expressive language skills could not be formally assessed due to the severity of her expressive language impairments, however, informal observation revealed that the student could produce several vowel and consonant sounds, but had difficulty with sound combinations. The speech-language pathologist indicated that the student used a number of signs and sign approximations, and used a DynaMyte to request a desired item and respond to inquiries. The speech-language pathologist prepared an addendum to her report in May 2002 recommending an individual aide for the student for kindergarten to promote and enhance total communication. She indicated that it would be beneficial if the aide were fluent in sign language to enable the student to communicate readily and effectively with her teacher and peers (Exhibit 19).

 

The Children's School for Early Development conducted a psychological evaluation of the student in January 2002 (Exhibit 9-A). The psychologist reported that the student communicated through a combination of eye contact, gestures and jargon. The student's receptive language abilities were found to be very low (22 months) and her expressive language abilities were found to be significantly low (18 months) resulting in a very low early learning composite (61) as measured through the Mullen Scales of Early Learning (Mullen). The psychologist noted that the student was motivated to reach others through any means necessary despite the outcome, and that a variety of approaches should be used to address her communication needs.

 

The Children's School for Early Development also conducted a speech-language evaluation of the student (Exhibits 19, J). The evaluator reported that the student was predominately a verbal/gestural communicator. During the evaluation, the student used social greetings, several single words and two-word combinations. She used her DynaMyte briefly, but not spontaneously. On the Preschool Language Scale-3, the student received a standard score of 50 for both receptive and expressive language skills. The evaluator indicated that there were advantages inherent in each of the communication approaches attempted with the student and opined that it would be premature to limit the focus to one approach as the student showed progress in each area over the past year.

 

A March 2002 educational update by a special education teacher at UPC indicated that the student communicated using simple words, sign language and a DynaMyte (Exhibit 19). The student was able to match some letters, numbers, simple shapes and colors, but was not able to identify the alphabet or numbers consistently. She also was able to count to five and sing part of the alphabet song when put to music. She required verbal cues, reinforcement and praise to complete a task.

 

In an April 2002 annual progress report from UPC, the occupational therapist reported that the student made her needs known primarily through the use of gestures (Exhibit 19). The occupational therapist recommended an individual aide for the student due to her decreased attention to task and limited motivation for fine motor activities, as well as to provide guidance through every step of an activity. In an April 2002 progress report from UPC, the physical therapist described the student as easily distracted and often difficult to redirect (Exhibit 19). She noted that the student was able to follow two-step commands when motivated. The report included an addendum recommending an individual aide for the student for kindergarten to provide assistance with various physical activities and in using her communication device functionally throughout the day.

 

A May 2002 progress report by the student's private speech-language therapist indicated that the student spontaneously produced appropriate social greetings, consistently responded verbally to simple yes/no questions, was able to follow one-step commands without visual cuing or prompting, and was able to accurately identify common objects upon request (Exhibit 19). She further indicated that use of the DynaMyte was discontinued during therapy because the student used it as a toy rather than as a system of communication. The therapist noted that the student's high degree of distractibility and behavior management needs negatively impacted her progress. She recommended an augmentative system to supplement the student's verbal communication and opined that sign language was the most successful augmentative means of communication for the student.

 

Petitioner's Committee on Special Education (CSE) met on June 14, 2002 to develop a program for the student for kindergarten beginning in September 2002 (Exhibit 12-C). It classified the student as having multiple disabilities and recommended that she be placed in a communication development class at the King Street School (King Street) in the Port Chester Public School (Port Chester) system with related services of occupational, physical and speech-language therapy. The individualized education program (IEP) developed at the meeting listed a communication board and access to a DynaMyte, and noted that the student used ASL in the section detailing program modification, supports and assistive technology or adaptive devices.

 

The student attended the communication development class at King Street for kindergarten during the 2002-03 school year. In September 2002, the student's kindergarten teacher requested an individual aide for the student (Exhibit L). To support her request, she reported that the student was experiencing frequent muscle spasms and required an aide at all times to monitor, record and correct the spasms. The teacher indicated that when the student's spasms were corrected, she was better able to focus. The teacher noted that the student was beginning to attempt oral language when facilitated with sign language and picture cues. She indicated that the student's current mode of communication was sign language, and that it would be beneficial if an aide who knew sign language were assigned to work with the student to facilitate communication. The kindergarten teacher's knowledge of sign language was limited and no other staff at King Street knew sign language (Transcript p. 1295).

 

Petitioner's CSE met in October 2002 to review the student's program at the request of her teacher (Exhibits 12-B, M). The teacher reviewed the student's performance and the CSE agreed that the student required an individual aide for health and safety reasons. The student's mother reported that the student used adapted sign language with her at home and requested a signing aide. The CSE agreed to make every effort to hire a signing aide. It further agreed to meet in December to review the status of the aide.

 

On November 19, 2002, a speech-language pathologist observed the student in her kindergarten class and spoke to the student's teacher and speech-language therapist who reported that the behavior and attention issues that previously impeded the student's performance had improved, as had her ability to comply in the classroom (Exhibit 13). The student's speech-language therapist also reported that the student was learning the PECS system. The student knew her schedule and was being trained in communication use. The student also had a DynaMyte, but according to the classroom teacher, inconsistencies impeded its successful use. Although sign language reportedly was being encouraged and used at home, it was not used as a communication system in school. The student's occupational therapist opined that the student's fine motor skills, lack of visual acuity and impulsive behavior might impede her from using sign language successfully. The observer noted that the student appeared to have a desire to use oral speech and she was beginning to verbalize catch phrases in context, all of which were intelligible.

 

The CSE convened in December 2002 to review the student's progress and the status of her individual aide (Exhibit 12-A). The teacher reported on the student's progress, noting improvement in the student's ability to sit and attend. Comments included that the student's communication needs were being addressed through PECS, which staff believed also helped improve the student's behavior. She was beginning to verbalize in the classroom and was able to put two to three words together, which were intelligible to the unfamiliar listener. The DynaMyte was not being used. Staff did not sign to the student, nor did the student initiate sign. She would sign "drink" when required to do so. It was also reported that Port Chester hired an individual aide for the student for health and safety issues. The aide was proficient in PECS. Respondent indicated that her daughter used sign language at home and raised the issue of a signing aide. Petitioner hired a new aide proficient in sign language, and it was agreed that the CSE would continue to recommend an individual aide "signing preferred".

 

The individual aide hired by Port Chester began to work with the student (Transcript p. 1301). The signing aide hired by petitioner began to work with the student in December 2002, and eventually replaced the individual aide hired by Port Chester (Transcript pp. 302-04, 1180). The signing aide accompanied the student to related services, but had very little interaction with the student when those services were being provided (Transcript p. 1244).

 

Additional evaluations of the student were conducted in early 2003 (Exhibit 9-A). One of petitioner's school psychologists attempted to conduct an observation of the student in January 2003, but the student was absent. The psychologist obtained information from the student's teacher, who reported that the student was able to sit for 15 to 20 minutes with constant redirecting, but that her visual attending was limited to 5 to 10 seconds. The teacher further reported that the student used sign language a great deal to request things, but did not use sign language during circle time. She indicated that the DynaMyte was not used in the classroom because it was too visually distracting to the student who did not have the attention span or eye hand coordination to use it successfully.

 

A February 2003 psychological evaluation conducted by staff at Port Chester included an assessment of the student's adaptive functioning which was found to be in the mildly deficient range (Exhibit 9-A). The psychologist reported that the student attempted speech in 1:1 lessons with the help of her sign language aide. The student could not recite all of the letters of the alphabet from memory and could not accurately point to all body parts. The psychologist recommended a signing aide.

 

In a March 2003 occupational therapy initial evaluation conducted by a therapist from Port Chester, the therapist indicated that the student was adapting to classroom routines and that her attention span showed some improvement (Exhibits 9-A, 9-B). The student's attempts to verbalize had increased steadily and some single words were very clear. She approximated some signs. The therapist indicated that the student required an individual aide to help her refocus, to maintain the structure of her tasks, to assist with activities of daily living needs and to provide close supervision for safety.

 

A speech-language evaluation was conducted in April 2003 (Exhibit 9-A). The evaluator noted that the student communicated using a combination of speech, gestures, facial expressions, actions, sign language and pointing. She could produce two-word utterances and three words when prompted. The student's vocabulary was limited even with sign language. The evaluator reported that the student could comprehend phrases. She responded to her name upon request and when attending, could follow one-step routine verbal commands accompanied by sign. The evaluator noted that the student had an individual aide in the classroom who was proficient in sign language. She indicated that the student understood approximately 50 signs, but that her level of use was simple. She further indicated that the student's use of sign language was restricted due to her poor fine motor abilities, but that she was able to approximate signs so familiar others could interpret her intent. The evaluator opined that the student's use of sign language was more for the understanding of language in the classroom than for communication. She noted that sign language was used in the home along with verbal speech. The evaluator also noted that a DynaMyte was too sophisticated for the student, and that although the student understood PECS, she was not using it functionally due to attending difficulties. She indicated that the student's high level of distractibility impeded her progress in the areas of verbal production and alternative means of communication, but that the student made significant progress in pragmatic language. Progress was also noted in that the understanding of her speech by familiar listeners had increased. The evaluator recommended that PECS should be used to supplement the student's verbal communication and that sign language would be reinforced in the classroom, but no formal instruction would be done.

 

In an April 2003 letter to respondent, one of the student's private speech-language therapists described the services she had been providing to the student (Exhibit 9-B). She noted that the student had behaviors that were difficult to manage. She indicated that PROMPT was helpful in addressing the student's articulation needs. She further indicated that the previous year, the student did not use words to communicate and that currently the student was using one- and two-word phrases. The student also used many word approximations and some signs. The private speech-language therapist did not have any training in sign language (Transcript p. 988). She opined that listening therapy, speech therapy with PROMPT and occupational therapy were key interventions to support the student's growth and development (Exhibit 9-B).

 

The CSE met in April 2003 for the student's annual/triennial review and to develop the student's summer 2003 program (Exhibits 9-B, 10). The teacher reported progress in that the student arrived at class ready to work, responded to commands, was able to put two words together, and was learning sign language. She also reported that the student's impulsivity had decreased. The teacher also indicated that the student's academic progress was slow, with attention and behavior the biggest stumbling blocks. Due to the student's attending difficulties, limited standardized testing was conducted. It was also reported that the student required an aide to function well and that the aide kept the student focused. The aide's signing abilities were helpful to both student and staff, and the student was beginning to use sign language in conjunction with oral language. Her communication partners were limited to family, peers and staff. The IEP provided that the student continue with a visual system of communication and that given that her sign language vocabulary was increasing, she would benefit from at least one adult in the classroom who could communicate with her in a style with which she was most comfortable.

 

The CSE met again in June 2003 to develop the student's IEP for the 2003-04 school year (Exhibit 1). It recommended that the student continue to be classified as a student with multiple disabilities. It further recommended that she be placed in a 12:1+1 special class with an individual aide, and that she receive related services of occupational, physical and individual and group speech-language therapy. The IEP developed at the meeting listed a communication board and access to a DynaMyte, and noted that the student used ASL in the section detailing program modification, supports and assistive technology or adaptive devices.

 

In a letter dated August 4, 2003, petitioner's director of special education advised respondent that effective August 14, 2003, the student's signing aide would no longer be employed by the school district. She indicated that a new aide would be hired and the new teacher would assist the aide in learning sign language (Exhibit 11).

 

The student attended Preston for first grade during the 2003-04 school year. In an October 2003 progress report, the student's speech-language pathologist at Preston reported that most of the student's communicative attempts were characterized by word/sound approximations, gestures, and by the student physically directing her listener (Exhibit 5). Some isolated sign language was used sporadically and consisted of approximations. The therapist noted that despite the student's limitations, she was motivated to communicate. The therapist reported that the student demonstrated strengths in pragmatic language; however, she did not easily sustain visual and auditory attending behaviors necessary for communication. The student was able to imitate vocal sounds and used isolated single words to indicate her needs. She was able to follow routines, simple commands and respond to basic yes/no questions appropriately.

 

In October 2003, the student's teacher also prepared a report (Exhibit 3). She indicated that the student demonstrated a good understanding of the classroom routine, but displayed attention difficulties and required frequent redirection and refocusing, requiring frequent breaks. She further indicated that she provided individual instruction to the student in reading. The student could recite most of the alphabet verbally with sign prompts, but she could not identify letters visually nor identify their sounds. The student had begun Level 1 of the Preventing Academic Failure (PAF) program, a multisensory method of teaching reading, writing and spelling. The student's math skills were on a concrete level. She could rote count to ten without sign prompts and attempted 11-20 with sign prompts, but she was unable to identify numbers presented visually, sequence numbers or demonstrate 1:1 correspondence. She could identify all colors when signed to her, but could properly sign only a few color words. She could match and sort colors, but was unable to visually/verbally identify colors. The teacher described the student as a prewriter, whose written work consisted of scribbling. The teacher reported that the student used limited ASL in the classroom. The student had a few proper signs, but most were approximations. Her most frequently used signs were accompanied by verbalizations. She has used two-word utterance with no accompanying signs. She readily attempted repeating words when working on vocabulary or while reading, an area that has shown the most growth. Use of the DynaMyte with the student had not yet been explored.

 

In letters dated October 2003, the student's neurologist, private speech-language therapist and pediatrician recommended that the student receive a sign language aide at school (Exhibits 6, 7, 8). The student's private speech-language therapist who described the services she provided to the student in an April 2003 letter to respondent (see Exhibit 9-B) explained that the student's natural form of communication was sign language, that she used sign language during therapy sessions, that she initiated communication frequently with sign language, and that the language she used functionally was sign language. She indicated that the student understood verbal language, but rarely used accurate verbal language, and did not consistently use verbal language to communicate. She recommended that the student's language of instruction and therapy include sign language.

 

At the parent's request, the CSE convened on October 14, 2003 to determine whether the student required an aide conversant in sign language (Exhibit 2). After listening to respondent's position, reviewing information submitted by respondent, and the reports from the classroom teacher and speech pathologist, the CSE determined that the student's needs were being met in the current program and that a signing aide was not necessary (Exhibit 2; Transcript pp. 375-76).

 

Respondent filed a request for an impartial hearing around November 26, 2003 (Resp't Mem. p. 1). The hearing began on January 14, 2004 and concluded on April 13, after ten sessions. While the hearing was pending, respondent obtained a private neurodevelopmental evaluation of her daughter (Exhibit R). In conducting the evaluation, the developmental pediatrician obtained background information from the student's mother, the student's June and October 2003 IEPs, and reports from the student's neurologist, private speech-language pathologist, classroom teacher and school speech-language therapist. The pediatrician observed and assessed the student in respondent's home in February 2004 and in her office in April 2004. The student's ability to attend improved for the office visit and the pediatrician noted that the student's ADHD medication had been increased between visits. The pediatrician assessed the student's speech-language/oromotor functioning. She reported that the student was able to follow one- and two-step commands when both requests were in the same location. The student also was able to follow simple conversation and simple questions. The pediatrician noted that the student's method of communication included some verbalizations with reduced intelligibility, and sign language, though the student did not sign to the pediatrician. Most of the student's verbalizations were repeating learned phrases. To assess the extent of the student's expressive vocabulary, the pediatrician asked respondent to compile an inventory of words used by her daughter based on the MacArthur Communication Developmental Inventory: Words and Sentences. The inventory listed not only verbalizations, but also approximations, signs and sign approximations. The student's score on the inventory was equivalent to the 50th percentile for a 20-month-old girl. On the Mullen the student's receptive language skills were judged to be at the 27-month level and her expressive language skills were at the 20-month level. The student did not consistently identify letters or colors and was unable to follow a three-part unrelated command. The pediatrician derived a Brief IQ composite score equivalent of 52 for the student using the Leiter-Revised, Visualization and Reasoning Battery, placing the student on the cusp of mild to moderate mental retardation. She noted that until a recent adjustment in medication the student had been so distracted, she could not focus for more than a few minutes without requiring redirection. She opined that the student had the capacity to learn if provided a multisensory educational program. She noted that the student could not rely on processing language using the auditory modality alone because of auditory memory and processing deficits. She opined that ASL improved the student's processing and compensated for her communication impairment. She indicated that the student required an individual aide conversant in sign language who also understood behavior and teaching strategies to keep the student focused.

 

The hearing officer rendered his decision on May 7, 2004. He found that petitioner failed to provide the student a FAPE because it failed to provide her with a sign language aide. Accordingly, he ordered petitioner to appoint an individual aide sufficiently fluent in ASL to communicate with the student on her educational needs and daily living requirements. He required that the aide have formal training in ASL from a recognized provider of sign language training and be recognized by that institution as a qualified interpreter of ASL. He ordered that the signing aide be assigned to the student for the remainder of the 2003-04 school year and because the school year was almost over, he further ordered that the sign language aide be provided to the student for the 2004-05 as compensatory education as the student had been deprived of appropriate educational services for an extended period of time.

 

Petitioner appeals from the impartial hearing officer's decision. It argues that the program it recommended for the student for the 2003-04 school year was appropriate and reasonably calculated to allow the student to receive educational benefit.

 

Petitioner 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. Fla. Union Free Sch. Dist., 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, petitioner must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA) and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025). The educational benefit must be "meaningful" (Rowley, 458 U.S. at 192) and "more than mere trivial advancement" (Walczak, 142 F.3d at 130; Mrs. B., 103 F.3d at 1121). It must be 'likely to produce progress, not regression,' (Walczak, 142 F.3d at 130 M.S., 231 F.3d at 103). The child's progress must be viewed in light of the limitations of the child's disability (Rowley, 458 U.S. at 202; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114 [2d Cir. 1997]). The recommended program 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 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. 03-037; Application of a Child with a Disability, Appeal No. 02-059; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

 

The record shows that the student has global developmental delays including severe receptive and expressive language deficits. As evidenced above, the record contains numerous evaluations and reports variously describing the student's communication abilities and recommending differing strategies to address her needs. While the professionals who worked with and evaluated the student disagreed as to her primary mode of communication, there is agreement that she is motivated to communicate and communicates in a variety of different ways, including sign language. The record also contains varying opinions regarding the student's sign language ability. There is agreement, however, that her level of use of sign language is simple, that she rarely signs spontaneously at school and that she has fine motor deficits, which impact her ability to sign precisely. The record also contains differing opinions regarding the student's ability to use and the efficacy of the other communication systems attempted with the student. Despite these differing opinions, there is consensus in the record that the student requires multisensory instruction and variety of approaches to address her communication needs. While the parties also agree that the student requires an individual aide for health and safety reasons and to help keep her focused, respondent maintains that the individual aide must be a signing aide in order for her daughter to receive educational benefits.

 

Petitioner's CSE developed IEPs in June and October 2003 (Exhibits 1, 2) and established goals and objectives related to the student's needs for the 2003-04 school year. I note that the October 2003 IEP included essentially the same services, recommendations, and goals and objectives as the June 2003 IEP. The IEPs included goals to improve the student's cognitive and study skills, which target acquisition of basic readiness concepts, attending, task completion, and following directions. The IEPs also included speech-language goals to address the student's oral motor deficits, ability to produce speech sounds, auditory and visual attending skills and ability to retain information presented verbally. They included goals to address the student's social, emotional and behavior needs including remaining on task and eliminating avoidance and atypical behaviors. Motor goals addressed the student's fine and gross motor deficits, as well as motor planning deficits. The IEPs listed access to a DynaMyte in the section detailing assistive technology.

 

To enable the student to meet the established goals, the CSE recommended that she be placed in a 12:1+1 special class with related services of occupational, physical and individual and group speech-language therapy. It also recommended that she be provided an individual aide to keep her on task, focused and seated, as well as to monitor her physical needs. The student's teacher testified that her classroom consisted of six students and five adults, including a teacher assistant and the student's individual aide (Transcript p. 489). The teacher further testified that she reached level five in ASL training from the New York School for the Deaf in White Plains, New York and has incorporated sign language throughout the day (Transcript pp. 487, 564). She indicated that the assistant teacher used sign language in the classroom and that the student's individual aide used sign language, but was not proficient (Transcript pp. 510, 534). The teacher testified that she provided individual instruction to the student using the PAF reading program and used sign language during that instruction (Transcript pp. 494-95). She also provided individual instruction to the student in math, using a multisensory approach and incorporating sign language (Transcript pp. 502-04). The DynaMyte was also used to instruct the student (Transcript p. 504). When using the DynaMyte with the student, her individual aide would often make verbal requests unaccompanied by sign (Transcript p. 533). The teacher testified that she tried multiple approaches to address the student's communication needs (Transcript p. 559). She stated that she created materials specifically to keep the student's interest, and that because music motivated the student, she made up songs to go with activities (Transcript pp. 555-56).

 

The teacher further testified that the student transitioned well and learned the classroom routine fairly quickly (Transcript pp. 518-19). She indicated that the student exhibited some avoidance and tantrum behavior at the beginning of the year (Transcript pp. 519-20). She testified that the student's use of sign language was minimal, that the student required prompting to use sign language, and that the student did not use sign language functionally (Transcript pp. 520, 538). The teacher noted that the student used more vocalizing and vocal approximations, that her vocalizations were not usually accompanied by sign and that she was not reluctant to imitate words (Transcript pp. 520, 537, 568).

 

The student's speech-language therapist at Preston testified that the student used more spontaneous verbal approximations than sign language (Transcript p. 696). She further testified that the student rarely used spontaneous sign language at school and that sign language was not the student's primary form of communication (Transcript pp. 688, 751). She indicated that the student used sign language to avoid a task and during circle time when her peers were signing (Transcript pp. 684, 694). She opined that the teacher's level of sign was meeting the student's needs (Transcript p. 696).

 

The issue presented is not whether a program which provides for a signing aide is better for the student, but rather, whether the program offered by petitioner is appropriate. Although the record contains conflicting evidence as to whether the student needed a signing aide utilizing ASL during the 2003-04 school year to receive educational benefit, I am persuaded by a reading of the entire record that the program petitioner offered was appropriate. Moreover, while the record does not demonstrate consensus among service providers and evaluators on the extent of signing needed for an appropriate program, it does reveal agreement that signing should be a part of the student's program. The 2003-04 IEP continued to provide for an adult in the classroom who could use sign language with the student. While in the 2002-03 school year this person was the student's individual aide, in 2003-04 this person was the student's special education classroom teacher, trained in ASL, who could use sign language while providing direct instruction. While I am sympathetic to respondent's desires to have the best possible program for her daughter, the IDEA does not require a school district to "maximize the potential of a handicapped child" (Rowley, 458 U.S. at 197 n. 21). Nor does it require a school district to provide "everything that might be thought desirable by loving parents" (Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989]). As noted above, the IDEA requires school districts to offer a program that is reasonably calculated to confer educational benefits. Based upon the information before me, I find that the program developed by petitioner's CSE for the student for the 2003-04 school year provided appropriate personalized instruction and related services to meet the student's appropriately identified needs. I further find that petitioner met its burden of demonstrating that the recommended program, at the time it was formulated, was reasonably calculated to confer educational benefits and likely to produce progress. I note also that the impartial hearing officer found the 2003-04 IEP to be inappropriate in part because he concluded that the record did not demonstrate adequate progress subsequent to the development of the IEP. Although the Second Circuit Court of Appeals has not directly addressed the issue, a federal district court in New York recently held that the appropriateness of an IEP is determined by assessing whether it was reasonably calculated to provide educational benefit at the time the IEP was formulated (see Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 724-25 [S.D.N.Y. 2003]). Moreover, I cannot concur with the impartial hearing officer's conclusion that the record did not demonstrate adequate progress during the first half of the 2003-04 school year.

 

 

THE APPEAL IS SUSTAINED.

 

IT IS ORDERED that the decision of the hearing officer requiring petitioner to provide a signing aide for the student is annulled.

 

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

July 30, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

 

 

1 The term "signing aide" was used throughout the record to describe the individual aide respondent was seeking and to refer to the individual aide who used sign language with the student in Port Chester. The hearing officer also used the term in his decision. In an effort to be consistent and to avoid confusion, I too will use the term signing aide.