The State Education Department
State Review Officer

No. 04-076

 

 

 

 

 

 

Application of the BOARD OF EDUCATION OF THE SOUTH ORANGETOWN 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:
Kuntz, Spagnuolo, Scapoli & Schiro, P.C., attorney for petitioner, Leah L. Murphy, Esq., of counsel

 

Andrew K. Cuddy, Esq., attorney for respondents

 

 

DECISION

 

            Petitioner, the Board of Education of the South Orangetown Central School District (district), appeals from the decision of an impartial hearing officer which determined that the educational program recommended by its Committee on Special Education (CSE) for respondents' son for the 2003-04 school year was not appropriate.  The appeal must be sustained in part.

 

            Respondents' son was 11 years old and attending a self-contained class in petitioner's district when the hearing began in March 2004.  He is classified as a student with an other health-impairment (OHI) (8 NYCRR 200.1[zz][10].  The student's classification is in dispute. 

           

The student was first diagnosed as having medically intractable epilepsy when he was three months old, for which he has undergone several surgical procedures including installation of a surgical implant which is activated by a magnet to reduce the severity of his seizures (Tr. pp. 667-68; Dist. Exs. 62, 64, 93).  He began to receive special education services from a child development center when he was approximately one year old. He was withdrawn from that program due to seizures, which resulted in inconsistent attendance, and because he underwent two surgical procedures in January and March 1994 to alleviate the seizures (Dist. Ex. 64).  Seizures continued despite neurosurgery, but in November 1994 the student's seizures were described as usually mild and brief, limited to one per day lasting a few seconds (id).  

 

The student was evaluated at the Whitestone School in November 1995 when he was three years, seven months old (Dist. Exs. 61, 62, 63, 65, 66).  At the time of the evaluation, the student was receiving private speech-language therapy (Dist. Ex. 63).  The student's adaptive behavior composite standard score of 78 on the Vineland Adaptive Behavior Scales yielded an age equivalent of two years, nine months, with relative strengths identified in communication and socialization (Dist. Ex. 66). 

 

            The South Orangetown Central School District’s Committee on Preschool Special Education (CPSE) conducted its initial review of the student on December 17, 1996, subsequent to the parents' move to that district (Dist. Exs. 13, 14).  The CPSE recommended placement in a 12:1+1 half-day special class in preschool with related services of speech-language therapy, occupational therapy (OT) and physical therapy (PT) (id).  A May 1997 educational progress report from the preschool described the student, who was five years old at the time of the report, as "social and related" and able to communicate his feelings and needs and also able to comprehend all classroom activities, but requiring assistance to address attentional and motor deficits (Dist. Ex. 69).  A speech-language progress report, also completed in May 1997, noted the student's slow progress and need for adult intervention in order to play and interact with peers (Dist. Exs. 70, 71). 

 

            The student attended a full-day transitional kindergarten during the 1997-98 school year (Dist. Exs. 12, 72).  A March 1998 educational progress report completed when the student was five years, noted standard (and percentile) scores of 75 (5) for letter-word identification, 56 (1) for applied math problems, and 44 (1) for spelling dictation on the Woodcock-Johnson Tests of Achievement (Ex. 72).  A March 1998 speech-language progress report noted a total language score of 63 (1) on the Preschool Language Scale and total language score of 75 (5) on the Clinical Evaluation of Language Fundamentals – Preschool (Dist. Ex. 74). Results of the Goldman-Fristoe Test of Articulation indicated articulation skills within developmental expectations (id.). In April 1998, results of the Vineland Adaptive Behavior Scales yielded a composite score of 66 (age equivalent 3 years, 9 months) (Dist. Ex. 76).

 

            During the 1998-99 school year, the student attended a self-contained special education class in first grade and received related services of speech-language therapy, OT and PT (Dist. Ex. 11).  The student's Individualized Education Program (IEP) for 1998-99 does not note participation in any mainstream activities (id.).  Administration of the Woodcock-Johnson Tests of Achievement – Revised (WJ – R) in May 1999 when the student was seven years old yielded subtest (and percentile) scores of 68 (2) in letter-word identification, 64 (1) in passage comprehension, 57 (0.2) in math calculation, 49 (0.1) in math applied problems, and 35 (0.1) in spelling dictation (Dist. Ex. 78).

 

            For the student's second grade year in 1999-2000, the CSE recommended placement in a 12:1+1 special education class with related services of speech-language therapy, OT and PT (Dist. Ex. 10).  No mainstream activities were listed on the student's 1999-2000 IEP (id.).  A speech-language progress report completed in March 2000 when the student was seven years old noted a standard score of 73 on the Expressive One Word Picture Vocabulary Test and a standard score of 77 on the Receptive One Word Picture Vocabulary Test (Dist. Ex. 83).  The student's total score of 98 on the Test of Minimal Articulation Competence indicated mild articulation delay (id.).

 

            For the 2000-01 school year, the CSE recommended placement in a 12:1+1 self-contained special education class in third grade with related services of speech-language therapy and OT (Dist. Ex. 9).  No mainstream activities were recommended on the 2000-01 IEP (id.). 

 

In April 2001 when the student was nine years old, a psychological evaluation was conducted as part of the student's triennial review (Dist. Ex. 86).  The student's score of 75 on the Test of Nonverbal Intelligence (TONI) was in the below average range, and his estimated full scale IQ score of 72 based on selected subtests of the Wechsler Intelligence Scale for Children (short form) was in the borderline range (id.).  In an April 2001 speech-language evaluation, the student's total language score of 53 on the  Clinical Evaluation of Language Fundamentals – 3 (CELF-3) was in the 0.1 percentile (Dist. Ex. 87).

 

The CSE convened on April 25, 2001 to develop the student's IEP for the 2001-02 school year (Dist. Ex. 8).  It recommended fourth grade placement in a 12:1+1 self-contained special education class at the district's Cottage Lane Elementary School (Cottage Lane) with related services of speech-language therapy and OT (id.).  Extended school year services were not recommended because no evidence of substantial regression was evident (Dist. Ex 8).

 

When the student began the 2001-02 school year at Cottage Lane, he did not participate in mainstream activities.  In November 2001, the student's child study team convened in response to a request from the student's mother that her son be considered for mainstreaming.  Subsequently, the student was mainstreamed in a general education physical education class, where he was accompanied by a teacher assistant (Dist. Ex. 41). 

 

In a March 2002 progress report, the student's fourth grade teacher noted that the student had entered the fourth grade as a nonreader but was now able to read basic consonant-vowel-consonant words on a beginning first grade level (Dist. Ex. 91).  The teacher reported that the student's performance in reading was erratic and that he required refocusing (id.).  He was able to write simple sentences with "intensive assistance".  The student's math skills were reported to be on a first grade level, and he could demonstrate understanding of basic time and money concepts "with assistance".  In social studies and science, the student reportedly participated in learning from the fourth grade curriculum in the special education classroom.  On the WJ-R administered in March 2002, the student achieved standard (and percentile) subtest scores of 57 (0.2) in letter-word identification, 20 (0.1) in passage comprehension, 9 (0.1) in math calculation, 52 (0.1), 9 (0.1) in math applied problems, 63 (1) in spelling dictation, 81 (10) for writing samples, 98 (44) in social studies and 89 (23) in science (Dist. Ex. 90).

 

In April 2002 during the student's fourth grade year, he again underwent neurosurgery (Dist. Ex. 93), which reportedly resulted in a reduction of the frequency of his seizures but an increase in their intensity (Dist. Ex. 5).  Subsequent to this surgery, the student returned to school on a part-time basis, two hours per day, for socialization (Dist. Ex. 6).  In September 2002, he returned to Cottage Lane full time for fifth grade in a 12:1+1 self-contained special education class with related services of speech-language therapy and OT (Dist. Exs. 6, 7).  The student's 2002-03 IEP indicates that the student was to be mainstreamed for physical education but not for specials of art and music (id.).  However, the record reveals that during 2002-03 the student was mainstreamed for specials and also for social studies, accompanied by a classroom aide (Tr. pp. 128-29, 137).

 

A psychological evaluation of the student was performed in March 2003, when the student was 10 years old (Dist. Ex. 99).  The student's full scale IQ score of 48 on the Wechsler Intelligence Scale for Children – III (WISC-III) was below the first percentile and in the mentally deficient range.  His nonverbal IQ score of  79 was in the borderline range (id.).  On the WJ-R, administered in February 2003, the student's standard (and percentile) subtest  scores were 59 (0.3) in letter-word identification, 69 (2) in word attack, 56 (0.2) in passage comprehension, 34 (0.1) in math calculation, 58 (0.3) in applied problems, 53 (0.1) in spelling dictation, and 67 (1) for writing samples (Dist. Ex. 96).

 

The CSE convened on April 16, 2003 to prepare the student's 2003-04 IEP (Dist. Ex. 5).  It recommended sixth grade placement at the district's South Orangetown Middle School in a program identified as Consortium of Occupational Vocational Education (COVE) (Tr. p. 218; Dist. Ex. 5).  The COVE program was described as a center-based program which provided academic and prevocational instruction in small group settings (Tr. p. 135).  To prepare the student for transition to the COVE program, both the student and his mother visited the program and met with the classroom teacher (Tr. pp. 146-47, 150-51).

 

When the student began attending the COVE program in September 2003, no mainstreaming activities were listed on his IEP (Dist. Ex. 5).  The school psychologist who had chaired the student's April 16, 2003 annual review indicated that mainstreaming would be considered after the student had acclimated to his new school building and the staff at the school were familiar with his medical needs (Tr. pp. 215, 220-223, 230). 

 

On October 21, 2003, the student's mother requested an emergency CSE meeting (Dist. Ex. 26).  When the CSE convened on November 5, 2003, the student's mother expressed her concern that the COVE program was not as described to her before she consented to her son's placement there, and that the academic program in which he was participating in COVE was at a lower level than her son required (Tr. p. 1190; Dist. Ex. 1).  In response to the mother's request for additional evaluations of her child, the CSE recommended an assistive technology evaluation and an independent neuropsychological evaluation (Dist. Ex. 1).  To address the mother's concern that the student's reading program in COVE was not sufficiently challenging for him, the CSE agreed to investigate use of a multisensory phonics-based program called the Wilson program (id.).  The student's mother also requested that the CSE explore strategies used to teach children with traumatic brain injuries (TBI) to determine if any of these methodologies would be appropriate for her son.  The district's director of special education, who chaired the November 5 meeting, offered to explore this possibility (Dist. Ex. 1).

 

In December 2003, the student was administered the Wilson Assessment of Decoding and Encoding (WADE) (Dist. Ex. 95).  The evaluator reported that the student's performance on the WADE indicated that he was not an appropriate candidate for the Wilson program and that he was more likely to benefit from a program which emphasized sight vocabulary (Tr. p. 561).

 

An assistive technology evaluation was also administered in December 2003 (Dist. Ex. 98).  The evaluator recommended use of a dynamic seat cushion and a sensory diet to address the student's attentional deficits, and also suggested strategies to assist the student with writing, including word cards or word books and use of prewritten words/phrases.  She also recommended a trial period of using a symbol-writing reading program with picture word symbols and a selection of personal computer software programs. 

 

The district's director of special education responded to the parents' request that TBI resources be explored by arranging for a consultation with a TBI team from the Putnam/Northern Westchester Board of Cooperative Educational Services (BOCES) (Dist. Ex. 20).  The TBI team, consisting of a BOCES supervisor, a neuropsychologist, a consultant teacher and a social worker, met with COVE staff and with the student's mother on December 19, 2003 (Dist. Exs. 17, 19).  At the meeting, the student's mother expressed her concern that the student was not receiving adequate academic instruction in the COVE program (Dist. Ex. 17).  The TBI team concluded that the student was appropriately placed in COVE (Dist. Ex. 19; Tr. p. 59) and suggested that services available through the TBI team would benefit the student, but indicated that these services would only be available if the student's classification was changed from OHI to TBI (Tr. p. 571).  The TBI team suggested that the student was eligible for this classification (Tr. p. 65), but the parents did not wish to have their son's classification changed (Tr. p. 571).

 

The student's parents selected a neuropsychologist to conduct the independent evaluation recommended by the CSE at the November 5, 2003 meeting (Dist. Ex. 22; Tr. pp. 397-99).  The neuropsychologist conducted her evaluation in five sessions during December 2003 (Dist. Ex. 106; Parent Ex. R).  The neuropsychologist administered the Wechsler Intelligence Scale for Children – IV (WISC-IV), which yielded a full scale IQ score of 54 (below first percentile) (id.).  The neuropsychologist noted in her report that the student's  full scale IQ score did not provide an accurate picture of his abilities.  She based this determination on the student's score of 79 on the verbal comprehension index of the WISC-IV, a score which was in the borderline range of cognitive functioning.  The neuropsychologist further noted that, because of the possibility of measurement error on this subscale, the student's "verbal abilities may be as high as 87, which is at the upper end of the low average range" (Parent Ex. R, p. 4). 

 

The parents received the neuropsychologist's evaluation report on or about February 14, 2004 (Tr. p. 1192).  After the parents received the report, the student's mother, in consultation with her advocate, reviewed the report with the neuropsychologist.  The neuropsychologist made revisions to the report based upon this discussion (Tr. pp. 1202-07, 1258).  The revised report was provided to the CSE on March 12, 2004 (Dist. Ex. 106; Tr. pp. 403-04).  The report included extensive recommendations, including placement in a small, structured class for reading and math and placement in an inclusion class for social studies, science, art and music with "one-on-one teaching" in an inclusion setting.  The neuropsychologist also recommended a full-time one-to-one aide throughout the day to assist the student with focus and attention, another assistive technology evaluation by a specific evaluator she identified, and continued related services of OT and speech-language therapy (Dist. Ex. 106).

 

The parents requested an impartial hearing on February 25, 2004, challenging their son's placement in the COVE program as inappropriate and not in the least restrictive environment (LRE).  The impartial hearing commenced on March 26, 2004.  On that same day, prior to the commencement of the hearing, the CSE convened to review the independent neuropsychological evaluation report as well as the assistive technology evaluation report and the results of the WADE (Dist. Ex. 109).  Based on this review, the CSE recommended amending the student's IEP to include a change of the student's classification to TBI, direct and indirect TBI consultant teacher services, a TBI team neuropsychological consultation as needed, removal of the student from the COVE prevocational program, which was implemented by an OT, and replacement of this program with pull-out OT services (Tr. p. 578), pull-out speech services in a small group, implementation of the recommendations in the assistive technology evaluation report, and a full-time one-to-one teaching assistant (Dist. Ex. 109).

 

The parents rejected the recommendations made by the CSE at the March 26, 2004 meeting.  However, while the hearing was in progress during the remainder of the 2003-04 school year, several adjustments were made to the student's program.  Consistent with some of the March 26, 2004 recommendations, equipment and strategies from the assistive technology evaluation report were implemented, the student was removed from the prevocational component of the COVE program, OT services were provided, and he was assigned a one-to-one teaching assistant (Tr. pp. 556, 689,).  In addition, the student, accompanied by his one-to-one assistant, was mainstreamed in the middle school's Explore program, which consisted of rotating sessions of art, music, health, computers and music technology (Tr. p. 707).

 

              The hearing began on March 26, 2004 and was held on nine days, concluding on June 9, 2004.  The resulting record included over 120 exhibits as well as a transcript in excess of 1500 pages, with testimony of 11 witnesses.  The hearing officer issued his decision on August 19, 2004 and ordered the following evaluations be completed by the district: a neuropsychological evaluation, a pediatric neurological evaluation, a physiatric evaluation, a vision therapy evaluation, an assistive technology evaluation, and an evaluation by an educator with experience in teaching reading to youngsters with traumatic brain injury.  The hearing officer also ordered the district to reconvene when the evaluations were complete to recommend a classification, program, services, and to explore opportunities for mainstreaming for the student.

 

          On appeal petitioner claims, inter alia, that its recommendations for the student for the 2003-04 school year were procedurally and substantively appropriate.

 

        The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]).  A FAPE includes special education and related services provided in conformity with a written IEP (20 U.S.C. § 1401[8]), developed by a school district, which is tailored to meet the student's unique needs.

 

    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. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]).  To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]).  As for the substantive program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130). 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).  State and federal regulations require that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; 8 NYCRR 200.4[b][5][ii][b] and [d][2][i][a]).  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, Question 1).

 

In selecting an appropriate program, school districts must comply with the LRE requirement of the IDEA, which 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]; see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section 1, Question 1).  There is a strong preference for mainstreaming children with disabilities in regular education classrooms whenever possible (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003]; Walczak, 142 F.3d at 122; see Rowley, 458 U.S. at 202).  Special education and related services must be provided in the least restrictive setting consistent with a child's needs (Walczak, 142 F.3d at 122).  Removal of the child to special classes or separate schooling "occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily" (34 C.F.R. § 300.550[b][2]; see Walczak, 142 F.3d at 122).

 

The student's IEP for fifth grade during the 2002-03 school year at Cottage Lane provided that he be mainstreamed for physical education, an identified area of strength (Dist. Exs. 6, 7).  The record reveals that, although the information was not on the student's IEP, he was also mainstreamed for art and music as well as for social studies (Tr. pp. 128-29).  The district's director of special education testified that the program at Cottage Lane was designed to facilitate mainstreaming in art and music (id.).  She explained that because the student's fifth grade class at Cottage Lane was a small class of only six students, the classroom teacher was able to arrange for the student to attend a mainstream social studies class accompanied by the classroom aide, who could return him to his special education class when he was unable to sustain attention (Tr. pp. 137-38).

 

The school psychologist who provided services to the student at Cottage Lane testified that, based on her observations of the student at Cottage Lane, the student could be mainstreamed for nonacademic subjects such as physical education and specials (Tr. p.  227).  She explained that no mainstream activities were recommended at the April 16, 2003 CSE meeting because the CSE thought it would be best if the student became "acclimated within his own class" before mainstreaming was initiated (Tr. p. 230) and that the student would "eventually" be considered for mainstreaming (Tr. p. 360). 

 

Given reports of his previous successful experience with mainstreaming in physical education and specials, the CSE was remiss in failing to either recommend a mainstreaming component on the student's 2003-04 IEP or to include on the IEP a specific, systematic plan for introducing the student to mainstream activities as soon as possible after he came to the new school building.  The director of special education testified that students coming into the COVE program are evaluated by the COVE teachers to determine their appropriateness for mainstreaming (Tr. p. 136).  However, there is no indication in the record that any teacher or other service provider suggested implementing strategies for mainstreaming until after the parents requested an impartial hearing. 

 

Although the April 16, 2003 IEP did not include a plan for mainstreaming, the record indicates that the student did participate in a mainstream homeroom each day.  The student's special education teacher in the COVE program testified that students came to her classroom in the morning to drop off their coats and backpacks, then went to various homeroom classes for approximately ten minutes before returning to her class for first period language arts (Tr. p. 665).  There is no indication in the record that the student was not successful in this brief mainstream experience, and it demonstrates that he was in some way acclimated to his class at South Orangetown Middle School, which was the criterion identified by the Cottage Lane school psychologist as necessary before mainstreaming was initiated (Tr. p. 230).  In fact, the school psychologist who worked in the COVE program testified that when the CSE convened in November 2003 the student had, in her opinion, acclimated to his new school environment, yet she failed to recommend a plan for mainstreaming (Tr. p. 1053).  The CSE failed to follow up on the student's needs related to mainstreaming activities in a timely manner, and failed to offer an explanation for the lack of a coordinated plan to expand the student's mainstreaming opportunities so they were more in line with the successful mainstreaming activities the student had experienced at Cottage Lane. 

 

In her testimony, the director of special education indicated that the South Orangetown Middle School, where the COVE program was located, was a larger, noisier building than Cottage Lane, and that because of his seizures, staff were concerned about the need to monitor the student closely in order to ensure his safety (Tr. p. 138).  The student's special education teacher in the COVE program testified that she was concerned about mainstream activities for the student because of his seizures (Tr. p. 750).   If the CSE's concern was for the student's safety in the school halls, it failed to explain why it did not offer an aide to accompany the student when it first developed his IEP in April 2003.  The director of special education indicated that the student was monitored when he changed classes (Tr. p. 138) but did not explain why, if the student was being monitored while changing classes in the COVE setting, he could not be similarly monitored during transitions from a COVE class to mainstream activities.

 

The student's April 16, 2003 IEP notes the importance of ensuring that teachers and other building staff become familiar with the student's medical needs (Dist. Ex. 5, p. 3).  This expressed concern about the student's safety did not justify such a significant delay in implementing an appropriate program.  Although this student's seizure disorder is a very serious medical concern, it does not appear to be unmanageable in a contained setting such as a school environment.  Familiarizing the teachers with proper procedure would require ensuring that they were aware that the student would sometimes announce his seizures, and that when a seizure occurred the teachers should assist the student with use of his magnet, promptly contact the school nurse, and stay with the student for the duration of the seizure.  Given the circumstances of this case, the concern for the student's safety was not a sufficient reason for the CSE to delay his mainstream participation for more than seven months.

 

District staff testified at length regarding the student's cognitive and social limitations, indicating that the student was not an appropriate candidate for either mainstreaming or inclusion.  His special education teacher in the COVE program testified that mainstreaming was not an appropriate option because of the student's low reading level and minimal ability to participate in class discussions, and also because of his distractibility and tendency to make inappropriate statements (Tr. pp. 705-06).  She indicated that the student could participate in mainstream physical education and art classes if he was accompanied by a teacher assistant (Tr. pp. 844-45).  At the time of her testimony, the student was mainstreamed in the school's Explore program (Tr. pp. 745-46), and the teacher testified that the student was "doing okay" in the Explore program with an assistant present (Tr. p.708).  She opined that the student was appropriately mainstreamed in Explore "with a great deal of assistance" (Tr. p. 743). 

 

The school psychologist assigned to the COVE program also testified that mainstream classes were very distracting for the student, but that he was appropriately mainstreamed in Explore if accompanied by an aide (Tr. p. 933).  The school psychologist also testified that the student could participate in physical education, music, and art classes without knowledge of content, but could not be mainstreamed for academic subjects because of the high demand for language ability in core academic courses (Tr. pp. 958-59).  She opined that the student would require significant modifications to the curriculum in order to participate in core academic courses such as science and social studies, and that such modifications would result in the student being physically present in the class, but in "a group of one" (Tr. p. 1049).  The special education teacher who taught sixth grade social studies inclusion classes testified that the students in her inclusion classes were reading at the second to sixth grade level, and that the general education social studies class was "strictly lecture" and offered no opportunities for social interaction (Tr. pp. 1559-60, 1562-63).  She opined that it would be "very difficult" for the student to succeed in an inclusion setting and that the student would not derive social benefit from placement in a general education social studies class (Tr. pp. 1562-63).   

 

Disagreement between the parents and the CSE regarding the extent to which the student should participate in general education programs is based, in part, upon a disagreement of the student's abilities and needs.  Cognitive and language testing throughout the student's educational career has consistently suggested that the student exhibits significant delays (Dist. Exs. 74, 76, 83, 84, 85, 86, 89, 99), and standardized achievement test scores indicate performance commensurate with cognitive and language evaluation results (Dist. Exs. 72, 78, 90, 91, 96).  Observations of the student in a classroom setting indicated cognitive abilities consistent with testing (Tr. p. 207).  The school psychologist who provided services in the COVE program testified that, unlike the other students in his class, the student was unable to work independently (Tr. pp. 871, 994).  The opinion of the independent neuropsychologist regarding the student's possible potential was based upon a single subscore on the WISC-IV (Dist. Ex. 106; Parent Ex.  R).  All other scores obtained by the independent neuropsychologist were consistent with previous testing (id.).

 

Despite consistent test results indicating significant deficits, the student is described as benefiting from social interaction in a mainstream environment (Tr. p. 342).  The school psychologist who provides services to the COVE program testified that mainstream classes are very distracting for the student (Tr. p. 908), but opined that he was appropriately mainstreamed in Explore if accompanied by an aide (Tr. p. 933).  The student's father expressed his desire to have his son have as much contact as possible with nondisabled peers (Tr. p. 1149).  He provided examples of situations at home which suggested that the student may have a higher level of understanding and a greater ability to sustain focus than the student demonstrates in the classroom (Tr. pp. 1146-47, 1153-54).  The student's father testified regarding his son's ability to function independently, describing the student's participation in extracurricular sports and noting that the student routinely rides his bicycle to the middle school (Tr. pp. 1146-47, 1149).  Both parents attributed the student's slow academic progress in 2003-04 to insufficient emphasis upon academic skills in the COVE program (Tr. pp. 1143, 1152, 1172, 1176-77, 1183, 1246).  The student's mother testified that she wanted her son to have the experience of participating in general education social studies and science classes, and opined that it was too soon to "give up" on her son when he had not yet been afforded this opportunity (Tr. p. 1232).

 

The impartial hearing officer was persuaded by respondents’ assertion that their son should be afforded a greater opportunity to participate in the general education environment and directed that the student be placed in either social studies or science class on a trial basis with consultant teacher services. 

 

I find that the April 16, 2003 IEP denied the student a FAPE because it did not adequately address the student's need for participation in mainstream activities. Based upon the record before me, I concur with the impartial hearing officer’s order pertaining to the mainstreaming opportunities to be provided to the student (IHO Dec. pp. 75-76).

 

        The hearing officer also directed the CSE to arrange for a series of independent evaluations, and ordered the CSE to reconvene to review these evaluations in order to determine the appropriate classification for the student, and to develop an appropriate program for him.  Because of the strong disagreement between district staff and the student's parents regarding the student's abilities and needs, independent evaluations are an appropriate vehicle to assist in resolving these disagreements.  Because further evaluations must be conducted, I will sustain the impartial hearing officer's decision to remand this matter to petitioner's CSE.  However, the minimum number and scope of the evaluations ordered by the hearing officer is extensive and does not allow for prompt and practical dialogue among the independent evaluators and the CSE.  I will direct the CSE to arrange for an independent neuropsychological evaluation, as well as a neurological evaluation, and an educational evaluation conducted by an educator with experience in teaching students with TBI.  These three evaluators should be selected by petitioner which shall give due consideration to recommendations from respondents in making the selections. These three independent evaluators should also recommend to the CSE what, if any, additional evaluations will be required in order to determine an appropriate classification and to develop an appropriate program for the student.   When the three evaluations have been completed, the CSE should reconvene in a timely manner to review the evaluation reports, recommend an appropriate classification for the student, develop an IEP which will address his unique needs, and identify a program with appropriate supports and services to address those needs within the least restrictive environment. The impartial hearing officer directed that the CSE convene with participation of the outside evaluators, however given that scheduling conflicts may arise and prevent the timely convening of a CSE with all the evaluators present, I direct that the CSE may convene without the evaluators participating, but their reports must be thoughtfully and fully considered.  

In light of my remand of this matter to the CSE, I need not consider the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the impartial hearing officer’s decision is annulled to the extent that it ordered evaluations beyond the three evaluations ordered by this decision; and

IT IS FURTHER ORDERED that petitioner shall arrange for and pay the costs of 1) a neuropsychological evaluation, 2) a neurological evaluation, and 3) an educational evaluation of the student to be conducted by an educator with experience in teaching students with TBI; and

IT IS FURTHER ORDERED that, unless the parties otherwise agree, these three evaluations will be performed and the evaluation reports provided to the CSE within 60 calendar days from the date of this decision; and

IT IS FURTHER ORDERED that, unless the parties otherwise agree, the CSE shall reconvene within 75 calendar days from the date of this decision; and

IT IS FURTHER ORDERED that upon reconvening the CSE shall review the evaluations to determine whether additional evaluations are appropriate and to recommend an appropriate classification for the student, develop an IEP which will address his unique needs, and identify a program with appropriate supports and services to address those needs within the least restrictive environment; and 

 IT IS FURTHER ORDERED that, unless the parties otherwise agree, mainstreaming opportunities be provided forthwith as ordered by the impartial hearing officer.    

 

 

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

December 2, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER