The State Education Department
State Review Officer

No. 05-028

 

 

 

 

Application of a CHILD WITH A DISABILITY, by his parents, 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 Buffalo

 

 

Appearances:
Bouvier Partnership, LLP, attorney for petitioners, Jay C. Pletcher, Esq., of counsel

 

Hodgson Russ, LLP, attorney for respondent, Jeffrey J. Weiss, Esq., of counsel

 

 

DECISION

 

            Petitioners appeal from the decision of an impartial hearing officer which determined that respondent's staffing changes in the language delayed/learning disabled (LD/LD) program for the 2004-05 school year did not constitute a change in the student’s educational placement and, therefore, did not require prior written notice.  The appeal must be dismissed.

 

            The material facts of this case are not in dispute.  The student is eligible for special education as a student with a learning disability (LD) (Parent Exs. 2, 3; see 8 NYCRR 200.1[zz][6]). During the 2004-05 school year, petitioners’ son was 13 years old and attending the eighth grade at Campus West, P.S. #96 (Campus West), in a class that provided the LD/LD program (Tr. pp. 41-43).  The LD/LD program was designed to provide a modified curriculum to students with language-based learning disabilities and to teach students to overcome or circumvent their disabilities (Tr. p. 43).  During the 2004-05 school year, respondent offered the LD/LD program in four classrooms at Campus West (Tr. p. 42).  Prior to August 2004, respondent assigned one special education teacher, one teacher of the speech and hearing handicapped (TSHH), and one teacher’s aide to the classrooms that offered the LD/LD program (Tr. pp. 44-45).  The special education teacher, the TSHH, and the teacher’s aide were assigned to the classrooms for the entire school day (id.).  Generally, these classrooms contained 15 students (Tr. p. 45).  In this case, the student’s eighth grade class had 12 students (Tr. p. 58). 

 

Prior to August 2004, the special education teacher taught the New York State curriculum and modified the curriculum to meet the language needs of the children (Tr. p. 49).  The TSHH would “infus[e] language into the curriculum or language-based skills into the curriculum” in collaboration with the special education teacher; in addition, the TSHH would also provide speech services as required by the student’s individualized education programs (IEPs) (Tr. pp. 46, 48).  The teacher’s aide assisted students with activities and accompanied students to the restrooms, to lunch, and to “specials” (Tr. pp. 48-49).  

 

            Petitioners’ son initially began attending school at Campus West in sixth grade, for the 2002-03 school year in January 2003 in a classroom that provided the LD/LD program (Tr. p. 74).  A speech/language summary, prepared on December 10, 2002, documented that the student was a candidate for placement in an LD/LD class at Campus West (Parent Ex. 4).  In addition, the summary indicated that the student’s speech therapy should increase from three times per week, 30 minutes per session in a group setting, to six times per six day cycle, 30 minutes per session in a group setting (id.).   

 

            In November 2003, the Committee on Special Education (CSE) developed the student’s 2003-04 IEP and petitioners consented to the recommendations (Tr. pp. 75-76; Parent Ex. 3).  The 2003-04 IEP provided that the student receive special education services for English/Language Arts, Math, Social Studies, Science, and Reading in a special education environment, with a 15:1 student to staff ratio (Tr. p. 47; Parent Ex. 3 at p. 7).  Furthermore, the IEP recommended that the student receive the related service of speech therapy six times per six day cycle, 30 minutes per session, in a small group setting (Parent Ex. 3 at p. 8). 

 

            The student completed sixth grade in the LD/LD program at Campus West, and during the 2003-04 school year he attended seventh grade at Campus West in a classroom that provided the LD/LD program (Tr. pp. 42, 74-75).  Although the CSE had not yet convened to prepare the student’s 2004-05 IEP, petitioners’ son began eighth grade at Campus West in September 2004 in a classroom that provided the LD/LD program (Tr. p. 42).  On or about October 6, 2004, petitioners received a letter, dated September 15, 2004, from respondent notifying all parents of students in the LD/LD program at Campus West that the LD/LD program had been modified in both staffing and method of delivery of speech language services (Tr. pp. 54, 78; Parent Ex. 5).  The letter stated that the LD/LD program had been modified to a “language enrichment class designed to support literacy while addressing the speech and language needs of the students” (Parent Ex. 5).  Specifically, the letter set forth that the staffing for the 2004-05 LD/LD program would consist of one full-time special education teacher, and the services of the TSHH would be reduced from a whole day to a half-day in the classrooms for the fifth through eighth grade LD/LD program (Tr. pp. 49-50; Parent Ex. 5).  In addition, respondent noted that to foster student independence the services of the teacher’s aide would be limited to support “as needed” (id.).  With respect to method of delivery of speech language services, respondent advised that the fifth through eighth grade LD/LD program would utilize a phonological awareness and language development program, which allowed the delivery of speech services to be more focused and more structured, thereby reducing the amount of time required for the TSHH’s services (Tr. pp. 51-53; Parent Ex. 5).   The letter, authored by respondent’s supervisor of speech, also invited any questions from parents regarding the new model, and provided her telephone number (Parent Ex. 5). 

 

            Upon receipt of the letter, petitioners immediately requested an impartial hearing by letter dated October 6, 2004 (Parent Ex. 1).  In the hearing request, petitioner asserted that respondent failed to implement the student’s IEP, failed to provide prior notice of elimination of the student’s LD/LD placement, failed to convene a CSE meeting prior to changing the student’s placement, and failed to provide appropriate speech language services (id.).

 

            Shortly thereafter, a CSE convened on October 19, 2004 to formulate the student’s 2004-05 IEP for eighth grade (Parent Ex. 2).1  Despite receiving an invitation to attend the CSE meeting, petitioners declined upon advice from counsel due to the pending impartial hearing (Tr. p. 79; Parent Ex. 2 at p. 11).

 

            The October 19, 2004 IEP again provided that the student receive special education services for English/Language Arts, Math, Science, Social Studies, and Reading in a special education environment, with a 15:1 student to staff ratio for the 2004-05 school year (Parent Ex. 2 at p. 7).  The CSE also recommended that the student continue to receive the related service of speech therapy six times per six day cycle, 30 minutes per session, in a small group setting (Parent Ex. 2 at p. 8). 

 

            The hearing occurred on December 15, 2004 (IHO Decision, p. 1).  The parties narrowly defined and limited the scope of the issue before the impartial hearing officer to the question of whether the staffing changes in the student’s eighth grade LD/LD program constituted a change in educational placement or program and, therefore, triggered prior notice requirements (Tr. pp. 13-15, 21-22, 23, 26-27, 29-33, 33-34, 62-66, 81; IHO Decision, p. 1).  Both parties requested that the impartial hearing officer not issue a separate pendency placement finding, and similarly, that the impartial hearing officer not address whether the services provided to the student were appropriate or whether the staffing changes were appropriate (Tr. pp. 14-15, 26-27, 28-31, 32-34).  Petitioners argued that the staffing changes were a material alteration of the student’s program, and, therefore, constituted a change in the student’s educational program, which entitled the parents to written notice and a CSE meeting prior to respondent implementing such staffing changes (Tr. pp. 30-34). Respondent contended that the staffing changes did not constitute a change in placement because the specific components of the LD/LD program were not contained in the student's IEP (Tr. p. 24).

 

            At the hearing, respondent's Supervisor of Speech and Language Services (Supervisor) testified that as a result of the changes to the LD/LD program implemented in August 2004, the teacher’s aide would no longer be assigned to a classroom for the entire day (Tr. p. 49).  The teacher’s aide would cover breaks and meetings (id.).  She testified that the special education teacher’s duties and responsibilities were not altered as a result of the changes to the LD/LD program in August 2004 (Tr. p. 50).  She further testified that although the TSHH would be in the classroom for a half day, the TSHH would continue to work in the classroom in collaboration with the special education teacher, and the TSHH would continue to provide speech services pursuant to the student’s IEPs (Tr. pp. 50-51).  She stated that while the letter sent to parents indicated that the TSHH would be assigned to the student’s class for approximately two and one-half hours per day, the TSHH actually spent between three to three and one-half hours per day in the classroom (Tr. p. 68). 

 

            In addition, the supervisor testified about the change made in the method of delivery of speech language services in the LD/LD program (Tr. pp. 51-53).  Specifically, she testified that a phonological awareness program had been implemented in the LD/LD program in 2004-05 (Tr. p. 51; Parent Ex. 5).  She stated that phonological awareness skills had been proven through research to support literacy and that the TSHH would be including phonological awareness skills in her delivery of speech and language services to help support literacy (Tr. pp. 51-53).  The change to the phonological awareness method provided a more structured and more focused approach to develop auditory processing skills and to support literacy; therefore, the new methodology allowed the speech services to be delivered in less time (Tr. p. 53).  The Supervisor specifically testified that the new methodology in the LD/LD program allowed for the reduction of staffing and that the staffing changes were not a result of budgetary considerations (id.). 

 

            The only witness produced on behalf of petitioners was the student’s mother (Tr. pp. 73-84).  She testified that she was not advised of the staffing changes in the LD/LD program until she received the September 15, 2004 letter in early October 2004 (Tr. pp. 77-80).  In addition, she testified that she participated in the preparation of her son’s 2003-04 IEP at the November 2003 CSE meeting and believed that her son’s placement would “be the same as it was when he went in—when he first started the program” (Tr. p. 76).  She added that no discussion occurred at the November 2003 CSE meeting regarding changes in staffing (Tr. pp. 76-77). 

 

            The impartial hearing officer rendered his decision in favor of respondent on January 24, 2005 (IHO Decision, pp. 1, 9).  The impartial hearing officer found that the staffing changes did not constitute a change in the student’s program, and thus, did not constitute a change in the student’s educational placement (IHO Decision, pp. 6-9).  He found no change to any component of the student’s IEP, as set forth in section 200.4(d)(2) of the Regulations of the Commissioner of Education (id.).  Specifically, the impartial hearing officer determined that although respondent reduced the amount of time the TSHH was assigned to a classroom and removed the teacher’s aide, the student remained in a program with a 15:1 student to staff ratio and the TSHH continued to provide six 30-minute sessions of speech services to the student as required by the student’s IEP (id.). 

 

            On appeal, petitioners request that the student be returned to an LD/LD classroom with three full-time staff, as the program had been staffed prior to August 2004, and that the student receive additional speech and language services to remedy the denial of appropriate speech and language services in the classroom. 

 

I agree with the determination of the impartial hearing officer that the staffing changes did not constitute a change in the student’s educational program or placement in this case.

 

The purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]).  A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both federal and state law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[11]; 34 C.F.R. § 300.340[a]; 8 NYCRR 200.1[y]).   “Although an IEP is not a contract between the parents and the school district, it cannot be ignored and the services that it includes cannot be withheld from a student.  If it becomes impracticable to provide services, it is incumbent upon the CSE to revise the student’s IEP (Application of the Bd. of Educ., Appeal No. 01-047).

 

Both federal and state law provide procedural safeguards to protect the right to a FAPE.  Specifically, prior notice must be given to the parents of a student a reasonable time before a school district proposes a change in “the identification, evaluation, or educational placement of the child,….or the provision of a free appropriate public education” (20 U.S.C. § 1415 [b][3][A], [B]; 34 C.F.R. § 300.503 [a]); 8 NYCRR 200.5[a]). 

 

The Regulations of the Commissioner of Education define both “change in program” and “change in placement” (see 8 NYCRR 200.1).  A change in program means a “change in any one of the components of the individualized education program of a student as described in section 200.4(d)(2) of this Part" (8 NYCRR 200.1[g]).  State regulations provide that a “change in placement” 

 

means a transfer of a student to or from a public school, BOCES or schools enumerated in article 81, 85, 87, 88 or 89 of the Education Law or graduation from high school with a local high school or Regents diploma. For purposes of removal of a student with a disability from the student's current educational placement under Education Law section 3214, change of placement is defined in Part 201 of this Title.

 

 

(8 NYCRR 200.1[h]). 

 

            After a review of these relevant sections, I am not persuaded that the staffing changes made to the LD/LD program constitute a “change in program” or “change in placement (see 8 NYCRR 200.1[g],[h],[qq],[ww]; 8 NYCRR 200.4[d][2], 200.4[d][2][iv]).  Section 200.1[g] requires a review of section 200.4(d)(2) to determine whether respondent’s modifications changed any component of the student’s IEP (see 8 NYCRR 200.1[g]).  Section 200.4(d)(2)(iv) sets forth what appears to be the most relevant items at issue in this case—class size, supplementary aids and services, and program modifications or supports for school personnel (see 8 NYCRR 200.4[d][2][iv]).  With respect to class size, the student’s 15:1 student to staff ratio class, as set forth in both the 2003-04 and 2004-05 IEPs did not change. Moreover, the record shows that there were no changes concerning “supplementary aids and services” or “program modifications or supports for school personnel” that were inconsistent with his IEPs (see 8 NYCRR 200.1[g],[h],[qq],[ww]; 8 NYCRR 200.4[d][2],[d][2][iv]; Tr. p. 81).  Similarly, the level of the student’s IEP identified speech therapy services remained the same.   Petitioners merely argue that the staffing changes, in and of themselves, are a “change in program.” Petitioners provide no evidence to buttress this argument with regard to any of the items listed in section 200.4(d)(2).  Without evidence to the contrary, I cannot conclude that a “change in program” has occurred under section 200.1[g]. 

 

            Similarly, I do not find that a “change in placement” has occurred under section 200.1[h], since there is no evidence that the student has transferred “to or from a public school, BOCES” or any other school delineated in this section (see 8 NYCRR 200.1[h]). 

             

            In Letter to Fisher, the United States Department of Education Office of Special Education Programs (OSEP) specifically addressed the question of what constitutes a change in educational placement and opined that consideration should be given to whether a change in educational placement has occurred on a case-by-case basis, as it is a very fact specific inquiry (Letter to Fisher, 21 IDELR 992 [OSEP 1994]).  OSEP concluded that whether a change in educational placement has occurred turns on “whether the proposed change would substantially or materially alter the child’s educational program” (id.).  OSEP set forth the following factors to be considered in determining whether a change in educational placement has occurred:  

 

(1)    whether the educational program set out in the child’s IEP has been revised;

(2)    whether the child will be able to be educated with nondisabled children to the same extent;

(3)    whether the child will have the same opportunities to participate in nonacademic and extracurricular services; and,

(4)    whether the new placement option is the same option on the continuum of alternative placements. 

 

OSEP established that if this inquiry leads to the conclusion that a substantial or material change in the child’s educational program had occurred, the public agency must provide written prior notice (Letter to Fisher, 21 IDELR 992 [OSEP 1994]).       

 

More recently, the New York Court of Appeals discussed what constitutes a change in educational placement in In the Matter of Beau II, 95 N.Y.2d 234, 239 [2000], and relied upon Letter to Fisher, in part, to make a determination regarding whether a petition seeking to have a disabled child adjudicated as a person in need of supervision (PINS) constituted a change in the student’s educational placement (In the Matter of Beau II, 95 N.Y.2d 234, 239-41 [2000]).  In that case, the court held that a student with a disability is entitled to the procedural safeguards afforded by the IDEA, but only if the school has proposed a modification that is “likely to affect the child’s learning experience in some significant way” (In the Matter of Beau II, 95 N.Y.2d 234, 239-40 [2000] [citing Dong v. Board of Educ., 197 F.3d 793, 801 [6th Cir. 1999]; see also Concerned Parents & Citizens for the Continuing Educ. at Malcom X (P.S. 79) v. New York City Bd. of Educ., 629 F.2d 751 2d [1980]). 

 

Based upon the foregoing and my examination of the record, I cannot find that respondent’s staffing changes constituted a change in this student’s educational program or placement. 

 

Petitioners assert in a conclusory manner that the staffing changes are a substantial or material alteration to the student’s program and, therefore, constitute a change in the student’s educational placement without submitting sufficient evidence to support that assertion.  In particular, nothing in the record as a whole discloses, nor have petitioners presented, any evidence whatsoever which suggests that the staffing changes made to the LD/LD program have materially altered or substantially altered this student’s IEP required educational program; nor have petitioners presented any evidence to demonstrate that the staffing changes have, in any way, affected the student’s learning experience in some significant way. 

 

Significantly, the student remains in a 15:1 student to staff ratio class, and he continues to receive the same level of speech therapy services identified on his 2003-04 and 2004-05 IEPs.  Petitioners presented no evidence to suggest that the previous staffing of the student’s LD/LD classroom was required for, or was in any way related to, the student’s achievement of the goals and objectives set forth on his IEP. Furthermore, petitioners failed to produce any evidence regarding how the current staffing of the LD/LD program in their son’s classroom impacted or affected the provision of a FAPE to their son. 

 

Moreover, petitioners presented no evidence to support an argument that the changes in staffing constituted a “substantial or material alteration in the student’s program” according to the factors set forth in Letter to Fisher. There is no evidence in the record to suggest that the staffing changes resulted in a revision of the student’s educational program as provided for by his IEP.  Petitioners presented no evidence that the staffing changes impacted whether the student will be able to be educated with nondisabled children to the same extent.  Petitioners presented no evidence that the staffing changes impacted whether the student will have the same opportunities to participate in nonacademic and extracurricular services.  And finally, petitioners presented no evidence that the staffing changes affected whether the new placement option is the same option on the continuum of alternative placements. 

 

Without such evidence, I cannot conclude that the staffing changes resulted in a substantial or material alteration in the student’s educational program which affected the student’s learning experience in some significant way.  After the staffing changes were made, the student continued to receive the same program as identified by his IEP. The student continued to attend the same school, in the same student to staff ratio class, with the same level of speech therapy services.

   

I have considered petitioners’ remaining contentions and I find them to be without merit. 

 

 

THE APPEAL IS DISMISSED.

 

 

Dated:

Albany, New York

 

__________________________

 

April 11, 2005

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1 Petitioners raise no objection to the timeliness of an October 2004 CSE meeting to prepare an IEP for the 2004-05 school year, nor do petitioners object to the formulation of  the October 19, 2004 IEP or to the resulting substantive program.