The State Education Department
State Review Officer

No. 05-097

 

Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education

 

 Appearances:
Advocates for Children, attorney for petitioner, Matthew Lenaghan, Esq., of counsel

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, John P. Hewson, Esq., of counsel

                                                                 DECISION

            Petitioner appeals from the decision of an impartial hearing officer which denied her request for 250 hours of tutorial services for her daughter at the Huntington Learning Center (Huntington).  The appeal must be sustained in part.

            At the time of the impartial hearing, in June 2005, the student was 11 years old (see Dist. Ex. 1 at p. 1) and in fifth grade (Tr. p. 194) at St. Andrew Avellino School (St. Andrew) (Tr. p. 254).  The student has attended St. Andrew since she was four years old (id.).  She has been described as enthusiastic and happy to be in class, as being unfocused and frustrated at times and as having trouble with organizational skills (Tr. p. 11).  She has a history of difficulty in math (Tr. pp. 28-29, 194, 209, 217) and written expression (Tr. pp. 193-94).  She was diagnosed as having an attention deficit hyperactivity disorder (ADHD) in first grade (Dist. Ex. 4 at p. 1).  The student has been classified as a student with a learning disability (LD) (see 8 NYCRR 200.1[zz][6]) by respondent's Committee on Special Education (CSE) (Dist. Ex. 1 at p. 1).

            At the recommendation of staff at St. Andrew, in March 2001 petitioner obtained a private neuropsychological evaluation from Schneider Children's Hospital (Dist. Ex. 4).  Cognitive testing using the Wechsler Preschool Primary Scale of Intelligence–Revised (WPPSI-R) yielded a full scale IQ score of 89, which is in the 23rd percentile and indicated cognitive functioning at the low end of the average range (id. at p. 2), with language functioning in the average range and a weakness in mathematical skills, which was in the borderline range (id. at p. 3).  Relative weaknesses were identified on unstructured tasks requiring perceptual organization, visuomotor integration and executive and problem solving skills (id. at p. 4). 

            The evaluating psychologist reported that, although one of the student's teachers stated that the student worked more than other students in her class and also received remedial reading at school as well as private tutoring, the student still performed "slightly below" grade level (Dist. Ex. 4 at pp. 1, 5).  Noting that parent and teacher reports indicated that the student exhibited anxiety, attention problems, day dreaming, depression, hyperactivity and difficulty with adaptability, the evaluating psychologist recommended reconsideration of the student's educational placement, suggesting that the match between the child and school "may not be the best" because at St. Andrew "most of the children probably function above the national norms" (id. at pp. 4-5).1  She cautioned the student's parents and teachers that they should monitor the student's academic progress and emotional functioning, as there was a risk that continuation at St. Andrew would take a toll on the student's emotional health (id. at p. 5).  The evaluating psychologist encouraged the student's parents to continue providing a structured, nurturing, and positive environment to offset any stressors associated with the student's current learning problems, and also recommended remedial instruction and tutoring (id.).

            A social history was completed by respondent's school social worker in December 2001, during the student's second grade year (Dist. Ex. 5 at pp. 1, 2).  The social worker reported that petitioner's daughter had been referred for evaluations by the staff at St. Andrew because of her difficulty with focus and with following directions while in a group, as well as because of difficulty in academics, particularly in math (Dist. Ex. 5 at p. 2).  She stated that the student had attended a remedial center at her school the prior year and reportedly felt extremely uncomfortable when pulled out of her classroom for remedial services (id.).  The social worker indicated that services at the remedial center located at her school had been recommended, but petitioner had sought tutoring outside of school because of her concern about the student's self-esteem (id.).

            Administration of the Wechsler Individual Achievement Test (WIAT) as part of the educational evaluation conducted by respondent on January 18, 2002 revealed an overall reading standard score of 100 which was in the 50th percentile (2.4 grade equivalent) (Parent Ex. F at p. 3).  The student's subtest score of 99 in decoding on the WIAT was in the 47th percentile (2.6 grade equivalent), and her spelling subtest score of 90 was in the 25th percentile (2.0 grade equivalent) (id.).  Although the student's reading and spelling scores were grade appropriate, the evaluator reported that the student lacked the organizational skills required to put her thoughts in writing (id.).  He stated that the student was aware of sentencing and spelling (id.).  Her major area of weakness was in "organizing her thoughts to create an accurate written passage" (id. at p. 6).  The evaluator opined that this was a skill that the student could learn "{with the proper focus and structure" (id.).

            The student's performance on the math subtests of the WIAT yielded a standard score of 79 (8th percentile, 1.0 grade equivalent) in math reasoning and a standard score of 87 (19th percentile, 2.0 grade equivalent) in numerical operations, for an overall math standard score of 81 (10th percentile, 2.0 grade equivalent), which the evaluator reported was "within acceptable limits" (Parent Ex. F at pp. 3, 6).  The evaluator noted that the child's strategy of using "hatch marks to solve simple addition and subtraction problems" was "fairly common" in elementary school students, but that it "suggests her limited success with regrouping strategies" (Parent Ex. F at p. 6).

            Although the private evaluator who conducted the neuropsychological evaluation of the student in March 2001 had identified relative weaknesses in visuomotor integration, the student's performance in January 2002 on tests of visual motor skills suggested that visual motor functioning was an area of strength (Dist. Ex. 4 at p. 4; Parent Ex. F at p. 6).  The evaluator concluded his summary by recommending that the student receive some form of assistance that encouraged her strengths and added focus to her weaker areas (Parent Ex. F at p. 6).

            Respondent's CSE met on April 23, 2002 and recommended that the student be classified as LD (Dist. Ex. 1 at p. 1).  The individualized education program (IEP) prepared by the CSE for the 2002-03 school year recommended that the student be placed in a general education program and receive special education teacher support services (SETSS) in a small group with an 8:1 student to teacher ratio, to provide direct instruction in a separate location five periods a week (Dist. Ex. 1 at pp. 1, 10).  Individual occupational therapy twice a week for thirty-minute sessions in a separate location was also recommended for the student (Dist. Ex. 1 at p. 12), as was a 12-month school year (Dist. Ex. 1 at p. 1).   The CSE developed goals and objectives to address the student's deficits in neuromotor functioning, fine motor coordination, visual-perception, reading, writing and math (Dist. Ex. 1 at pp. 7, 8, 9).

            The C-6 Final Notice of Recommendation dated April 23, 2002 listed PS 32 as the site of service (Dist. Ex. 6).  On April 25, 2002, petitioner consented to the provision of services as recommended (id.).  Petitioner testified that a PS 32 representative informed her that no before-school or after-school programs were available (Tr. p. 259).  She also stated that St. Andrew would not consent to the student losing between one and two hours of instruction during the day in order to attend PS 32 (id.).

            Petitioner received from respondent a "Private Tutoring Eligibility Notice-P3" (P-3) form, dated March 8, 2002, stating that the student had been waiting for placement in a SETSS program for more than 60 days (Parent Ex. D at p. 1).  This notice authorized petitioner to obtain provision of appropriate services, including tutoring, from a tutor certified by the state to teach a child with "your child's type of disability," and reasonable transportation costs, at public expense until a resource room became available (id.).  Petitioner testified that she did not receive a list of possible tutors with the P-3 form (Tr. p. 260), and made numerous telephone calls trying to secure tutoring services (Tr. pp. 260-61). 

            On July 1, 2003, petitioner requested an impartial hearing (Dist. Ex. 3 at p. 4).  An impartial hearing was held on July 18, 2003.  By Statement of Agreement and Order, dated July 22, 2003, the parties agreed that the student would receive compensatory services consisting of 180 hours of tutoring at Huntington, pursuant to a P-3 letter, which had already been issued.  Tutoring services were to be provided between July 22, 2003 and August 31, 2004.  To access the tutoring services, the parties agreed that respondent would issue a Metrocard for the student to travel and from Huntington.

            The student attended Huntington and received 180 hours of tutoring services between August 2003 and January 2004 (Tr. pp. 28, 30, 293-94).  Petitioner requested a continuation of services from respondent through telephone communications and facsimile (Tr. pp. 267-70; Parent Ex. E).  Petitioner testified that since the student finished her tutoring at Huntington, respondent has not provided her with any support services, in school or out of school (Tr. p. 270).

            On January 18, 2005 petitioner arranged a follow-up evaluation by a pediatric neurologist at Schneider Children's Hospital (Parent Ex. H).  The pediatric neurologist reported that the results of the neurological examination of the student were "Normal" and offered a diagnostic impression of "ADHD, combined form" for which medication was recommended (id.).  Diagnostic testing conducted by Huntington in June 2005 using the California Achievement Test Student Diagnosis Profile (CAT) indicated that in a test of mathematics concepts and applications, the student's stanine score of three was at the 22nd percentile (Parent Ex. J). The student's scores reportedly decreased as word problems and math on testing became more complex (Parent Ex. K at pp. 1-3).

            By letter dated May 25, 2005, petitioner requested an impartial hearing alleging  respondent failed to offer a free appropriate public education (FAPE) to the student for the 2003-04 and 2004-05 school years (Parent Ex. A).  The impartial hearing request identified the student's lack of resource room support or any other support since January 31, 2004, including respondent's failure to offer summer services despite the IEP recommendation of extended school year services.  Petitioner requested compensatory services in the form of tutoring at the market rate at Huntington, in addition to payment for transportation to and from Huntington.

            An impartial hearing convened on June 10, 2005.  On June 16, 2005, fourdays before the conclusion of the impartial hearing on June 20, 2005, respondent observed the student at St. Andrew (Dist. Ex. 13)The observer reported that the student was in a class of 28 students, and that she was prepared and began work promptly when given a math test.  The observer indicated that the student completed her test at the same pace as approximately three quarters of her classmates, and did not appear distracted from her test when announcements were made on a loudspeaker.  During the test, the student raised her hand and asked questions about the organization of the test but did not ask questions about the test content.  She appeared confident and independent and spoke in complete sentences with standard grammar and syntax.  The observer also indicated that the student's language arts and science teacher reported that the student was able to contribute to class discussions on a high level.

            During the course of the impartial hearing, respondent conceded that it had not provided the student with "a proper IEP for three years" (Tr. p. 76) and stated that it must give the student a complete and thorough evaluation prior to determining correct remediation approaches (Tr. p. 79).

            By decision dated August 1, 2005 the impartial hearing officer found that there was insufficient reliable, current, and comprehensive evaluative data to determine what services were appropriate to meet the student's current needs (IHO Decision, p. 7).  The impartial hearing officer remanded the matter to the CSE (IHO Decision, p. 8).  She directed that the CSE conduct a comprehensive evaluation of the student and develop appropriate recommendations based on the new evaluative data within one month of the date of her order (id.).

            On appeal, petitioner asserts that: 1) the impartial hearing officer erred in finding that there was insufficient evidence of the appropriateness of Huntington services for the student; 2) the Huntington program is reasonably calculated to benefit the student's needs; 3) the Huntington recommendation of 250 hours of instruction is appropriate; 4) equitable considerations support payment for the services; and 5) the impartial hearing officer erred in stating that the CSE offered to immediately provide services because the provision of a P-3 letter did not offer a specific tutor or site where the student could receive tutoring.  Petitioner requests: 1) reversal of the impartial hearing officer's findings that the Huntington services were inappropriate for the student; 2) a finding that equitable considerations weigh in favor of the parent; 3) an order directing the Department of Education to fund 250 hours of instruction at Huntington at a rate of $80 per hour; and 4) an order directing the Department of Education to fund transportation to and from Huntington in the form of a Metrocard.

            An appropriate educational program for an eligible student with a disability begins with an Individualized Education Program (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. 04-046; 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 Suspected of Having a Disability, Appeal No. 93-9).  An IEP must 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]; see also 8 NYCRR 200.4[d][2][i]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

            At the conclusion of the impartial hearing, respondent conceded that it had not offered the student appropriate services (Tr. p. 349).  Although both parties framed the instant dispute in terms of tuition reimbursement and compensatory education, given the facts of this case, a tuition reimbursement analysis (see Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]) is not the most appropriate analysis for petitioner's request for remedial tutoring.  The essence of petitioner's claim is that respondent did not offer appropriate special education services to the student for the 2003-04 and 2004-05 school years and that additional tutoring services at Huntington are an appropriate compensatory remedy.

            State Review Officers have awarded equitable relief in the form of additional educational services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030).  In general, the award of additional educational services, for a student who is still eligible for instruction, requires a finding that the student has been denied a FAPE (Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 02-047).

            During the impartial hearing, respondent conceded that it failed to offer appropriate services to the student for the 2003-04 and 2004-05 school years (Tr. pp. 92-94, 348).  By Statement of Agreement and Order, dated July 22, 2003, the parties agreed that the student would receive "compensatory educational services," pertaining to the 2002-03 school year, consisting of 180 hours of tutoring at Huntington, to be executed between July 22, 2003 and August 31, 2004 (Dist. Ex. 3 at p. 4).  The student received no resource room or tutoring services during the second half of 2003-04.  Nor did she receive resource room or tutoring services for the 2004-05 school year.2

            Petitioner requests 250 hours of instruction at Huntington and an order directing respondent to fund transportation to and from Huntington in the form of a Metrocard.  Respondent opposes this request, contending that petitioner is unable to demonstrate that the services provided are appropriate for her daughter's special needs.  Respondent also contends that the tutoring the student had received did not result in appropriate progress.  Respondent asks that rather than being ordered to provide the requested tutoring as compensatory services, it be permitted to provide the necessary additional services.2

            At the impartial hearing, a private psychologist called by petitioner to testify, stated that she had reviewed the March 2001 neuropsychological consultation report (Dist. Ex. 4), January 2002 educational evaluation (Parent Ex. F), June 2005 writing sample (Parent Ex. L), and January 2005 follow-up letter from a pediatric neurologist (Parent Ex. H) (Tr. pp. 219-223).  Based on the information she reviewed, the private psychologist testified that the student exhibited deficits in math, writing, attention and organization (Tr. p. 235).  She testified that the student's deficits could be consistent with an attention deficit disorder (ADD) and/or a learning disability in math (Tr. pp. 227-28).  The private psychologist recommended a neuropsychological evaluation to "look more carefully at attention and executive functioning" (Tr. p. 233).

            The private psychologist stated that she agreed with continuation of tutoring and remedial instruction as recommended in both evaluation reports she reviewed (Tr. p. 229).  She testified that the student would benefit from more one-to-one attention in the areas of writing and math reasoning, organizational skills, study strategies and written organizational skills (Tr. pp. 229-30).  The private psychologist opined that the student needed the remediation in order to be successful, and declined to characterize the remediation as enrichment (Tr. p. 230).  She further opined that petitioner's daughter was "at risk of falling further behind" as she got older and academic demands increased (id.).  The private psychologist stated that she would prefer that the student first be evaluated and then receive remediation (Tr. p. 237).  However, she also testified, "But if the evaluation was going to take a long time to do, then I would provide the remediation until the result of the report were provided based upon the fact that I wouldn't want to fall further behind" (id.).  Because previous testing of the student had identified weaknesses in math and writing, the private psychologist recommended remediation in those areas until further details could be obtained (id.).  The private psychologist stated that the student would benefit from remediation outside of her general education classroom and from more one-to-one attention, particularly in the areas of writing and math reasoning, and to learn better organizational skills and study strategies (Tr. pp. 229-30).

            The St. Andrew principal, who had been the student's third grade teacher, testified that the student had difficulty with math, especially memorizing her multiplication tables (Tr. pp. 193-94).  In third grade, the student had difficulty focusing in the classroom and keeping herself on task (Tr. p. 194).  According to the principal, the student failed math in second, third, and fourth grades (Tr. pp. 208-09).  Petitioner testified that, although she had not yet received the student's report card for the year that had just ended, the student also failed fifth grade math (Tr. p. 272).3  Petitioner also stated that the student needed someone to personally explain math to her because it was so difficult for her (Tr. p. 271).  The student's fifth grade language arts teacher stated that she agreed with the fifth grade math/religion teacher, the fifth grade science/social studies teacher and the fourth grade language arts teacher that the student was struggling and all believed she was below average in class (Tr. pp. 24-25).

            St. Andrew's principal testified that petitioner's daughter's writing skills were very poor (Tr. pp. 193-94).  According to the principal, the student's final grade in fourth grade language arts was a D+ (Tr. p. 209).  The student's fifth grade language arts teacher testified that the student was below grade level in grammar and writing and had trouble with organization (Tr. p. 10).  She estimated the student's writing skills to be at approximately the third grade level (id.).  The fifth grade language arts teacher stated that it was sad to watch a student who worked so hard have this kind of trouble (Tr. p. 19) and that the student needed one-on-one attention (Tr. p. 18).

            The Huntington managing director testified that the student first came to Huntington in August 2003 and at that time she was having the greatest difficulty with math (Tr. p. 28).  The director stated that upon her arrival at Huntington the student had difficulty with basic addition and subtraction (Tr. pp. 28-29).  The director testified that the student's performance did not match grade level expectations (Tr. p. 69).  She cited math problems with incorrect answers in the areas of advanced addition, advanced subtraction, telling time, place value, basic money calculations, and patterning as areas that should have been mastered if the student were to be successful in sixth grade (Tr. p. 61). The director stated that the student had decoding difficulties as early as the "late third grade" (Tr. pp. 30-31).  She stated that the student did not possess a very good understanding of paragraph development and continued to have difficulty with the mechanics of writing including punctuation, spelling, capitalization and sentence structure (id.).  She also noted weaknesses in vocabulary, writing, organization, and study skills (Tr. pp. 43-44).

            Although the Huntington director testified that the student's writing skills had improved a great deal," she added that the student was not yet able to write at a fifth grade level (Tr. p. 31).  The director indicated that although she did not ever reach grade level in math, the student had mastered addition and subtraction and was working on advanced multiplication when she left Huntington (Tr. p. 29).  The Huntington director testified that the student made "tremendous progress" while at Huntington (id.).  Petitioner testified that the student made excellent progress at Huntington (Tr. pp. 265-66).  She also stated that the St. Andrew teachers believed that the student was benefiting from the tutoring at Huntington (id.).

            I find that the record does not provide sufficient information for a determination of the current needs of the student.  Without further evaluative data, I cannot determine what services are appropriate to address the student's needs.  I concur with the impartial hearing officer that there is insufficient current and comprehensive evaluative data to determine what services are appropriate to meet the student's current needs.  I also concur with the impartial hearing officer's order that the student be referred for further evaluations and that the CSE convene and develop appropriate recommendations based on new evaluative data.

            I am persuaded by the testimony of the student's teachers and Huntington representative that the student has deficits in the areas of written expression and math.  Petitioner's post-hearing IEP dated August 23, 2005 recognizes these needs in part through its recommendation of special education services in the area of writing skills (Pet. Ex. C at p. 6).  However, respondent's post-hearing psychoeducational evaluation report does not recommend special education services in math (Pet. Ex. B at pp. 5, 6).  A review of the evaluation report reveals that the student's math reasoning subtest score of 88 on the Wechsler Individual Achievement Test-II (WIAT-II) was in the 21st percentile (Pet. Ex. B at p. 8) and her matrix reasoning subtest score on the Wechsler Intelligence Scale for Children–Fourth Edition (WISC-IV) was in the 5th percentile (Pet. Ex. B at p. 7).  The evaluator stated that the student's difficulty in matrix reasoning might translate into some difficulty in areas of conceptual math (Pet. Ex. B at p. 3).  The results of the WIAT-II and WISC-IV, the record as discussed above and testimony from the private psychologist regarding more in-depth testing of the student's math skills (Tr. p. 228) persuade me that the student's math skills must be evaluated further.  I am especially concerned about the incongruity of the student's history of failing math for multiple years (Tr. pp. 208-09, 272) and her math scores in the average range on the WIAT-II (Pet. Ex. B at pp. 4, 8).  Based on all of the above, I am ordering that respondent comply with the impartial hearing officer's order, and in additional that respondent expeditiously arrange for the administration of a neuropsychological evaluation to assess the student's neuromotor functioning, attention, executive functioning and math abilities.

            The CSE is to reconvene to review the results of the neuropsychological evaluation and to determine the areas of need for which the student requires special education services, award further additional educational services as appropriate, and amend the student's 2005-06 IEP accordingly.  Appropriate goals and objectives in all areas of deficit, including writing skills and math, must be developed and included on the 2005-06 IEP.  Respondent's CSE shall convene within fifteen days once it is in possession of the neuropsychological evaluation report, and review and revise the student's IEP as appropriate. Moreover, pending completion of the neuropsychological evaluation and CSE review, I direct respondent to implement its offer, as described at the impartial hearing (Tr. p.76), pertaining to the issuance of a P-3 letter.

            I have considered the parties' remaining contentions and I find them to be without merit.

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

            IT IS ORDERED that within 30 days after the date of this decision, unless the parties otherwise agree, respondent's CSE shall ensure that the student has been evaluated consistent with this order and the order of the impartial hearing officer, that such evaluation shall include a neuropsychological evaluation as specified in this decision, and within 30 days thereafter the CSE shall convene and recommend appropriate  educational services for the student including appropriate additional educational services to compensate for the lack of provision of appropriate services during the 2003-04 and 2004-05 school years.

Dated:

Albany, New York
November 3, 2005

 

__________________________
PAUL F. KELLY
STATE
REVIEW OFFICER

   

1 At the impartial hearing, the principal of St. Andrew testified that the academic abilities of the students at the school were diverse, ranging from those who were above average to those who were struggling to maintain their grade level (Tr. pp. 191-92).  She disagreed with the assertion by petitioners' private evaluator that the students at St. Andrew were cognitively higher functioning than students in public schools (Tr. p. 192).

2 An IEP developed by respondent's CSE on August 23, 2005 for the 2005-06 school year, after the conclusion of the impartial hearing, was submitted by petitioner with its petition for review.  The 2005-06 IEP also recommend SETSS services (Dist. Ex. 1 at p. 1; Pet. Ex. C at p. 1).

3 This statement refers to information regarding the 2004-05 school year as testimony was taken in June 2005.