90-013

Petitioner appeals from the determination of an impartial hearing officer finding that respondent was not obligated to provide a computer for use at home by petitioner's son and that respondent had complied with applicable procedural requirements in preparing and adopting an individualized education program (IEP) for the pupil. The appeal must be sustained in part.

Petitioner's sixteen year old son has been classified as learning disabled, because of his significant deficits in spelling and handwriting. The record reveals that the pupil has superior intellectual ability. However, his spelling skills were at a 4.9 grade equivalent in March 1990, when he was in the ninth grade. The pupil also has difficulty in correctly forming letters, although his handwriting is legible to his teachers. The pupil's classification is not in dispute in this appeal.

Petitioner's son was first identified as a pupil with a handicapping condition when he was in elementary school. Since then, he has remained in regular classes, with the assistance of appropriate special educational services. During the 1989-90 school year, petitioner's son received resource room services for one class period each day. The pupil's IEP provided for his use of a spelling aid and a tape recorder to assist him in completing written school work and tests. He was also afforded extended time limits for completing tests. The spelling aid is a hand-held computer. The pupil enters a word as he believes it is spelled into the computer, which then displays a list of correctly spelled words which are phonetically similar to the word entered by the pupil.

On May 15, 1990, a subcommittee of respondent's committee on special education (CSE) met with petitioner to prepare his son's IEP for the 1990-91 school year. At that meeting, petitioner requested that the school district provide his son with a computer for the pupil's use at home. The requested computer would be equipped with a program which identifies incorrectly spelled words in written text entered by the user. The chairperson of the subcommittee orally advised petitioner that the subcommittee would not recommend to respondent that a computer be provided for use at home by petitioner's son. The subcommittee chairperson also told petitioner that he could raise the issue of a computer with the chairperson of the CSE, if petitioner wished to do so. On June 12, 1990, petitioner requested that an impartial hearing be held to review his son's placement and the components of his IEP for the 1990-91 school year.

At a hearing held on August 9, 1990, petitioner asserted that his son required access at home to a computer equipped with a program to identify spelling errors in order to successfully remain in a regular education college preparatory program. Petitioner also challenged the validity of the grade of F which his son had received in English for the first marking period of the 1989-90 school year. Petitioner maintained that the failing grade resulted from his son's handicapping condition, in violation of section 504 of the Rehabilitation Act of 1973. He also objected to the manner in which the subcommittee had reached the decision on his request for a computer and to the fact that the subcommittee did not provide him with written notification of its recommendation to the Board of Education as to the services to be provided to his son.

By decision dated August 24, 1990, the hearing officer found that petitioner's son did not require access to a computer in his home in order to receive an appropriate education. The hearing officer further found that petitioner's son had received a grade of F in English as a result of his failure to complete a major assignment, and not as a consequence of his handicapping condition. With regard to petitioner's claim of procedural violations, the hearing officer found that respondent had not violated the law.

In this appeal, petitioner raises both procedural and substantive issues. He maintains that the development of his son's IEP by the subcommittee of the CSE was flawed by three alleged violations of the Regulations of the Commissioner of Education. First petitioner maintains that the subcommittee did not afford him a meaningful opportunity to participate in the development of the IEP, in violation of Section 200.4(c)(3) of the Regulations of the Commissioner of Education. Petitioner further maintains that the subcommittee should have referred the issue of his request for a computer to the full CSE, in accordance with the provisions of Section 200.3 (b)(4) of the Regulations of the Commissioner of Education. Finally, petitioner maintains that the subcommittee failed to formally notify him of its recommendation to respondent with regard to his son's educational program for the 1990-91 school year, in violation of the provisions of Section 200.4(c)(3) of the Regulations of the Commissioner of Education.

The Education of the Handicapped Act (20 U.S.C. 1401 et seq) emphasizes the participation of parents in the development of an IEP (School Comm. Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359). Both Federal and State regulations provide that the parents of pupils with handicapping conditions must be given an opportunity to attend the meetings in which IEPs for their children are developed (34 C.F.R. 300.345, 8 NYCRR 200.4 [c][3]). In this instance, petitioner did attend a scheduled meeting of the CSE subcommittee, at which he was shown a draft IEP which had been prepared in advance of the meeting. The chairperson of the subcommittee testified at the hearing that the subcommittee had anticipated that petitioner would request that a home computer would be provided, and had reached a consensus, in advance of petitioner's arrival at the scheduled time, that his request would not be included in the pupil's IEP. The chairperson also testified that it was the usual practice of the subcommittee to reach agreement on all aspects of a pupil's IEP before the subcommittee meets with the parent and that the presentation by a parent usually had no impact on the development of an IEP, unless the parent raised a new issue.

A CSE may prepare a draft IEP in advance of its meeting with a pupil's parent. However, the CSE must make it clear to the parent at the outset of the meeting that the draft IEP is for discussion purposes and that the services listed in the IEP are only recommendations for review and discussion with the parent (34 CFR 300, Appendix C, Question 55).

A CSE may discuss the classification or placement of a pupil with a handicapping condition in the absence of the pupil's parents (Matter of a Handicapped Child, 21 Ed. Dept. Rep. 100; Judg. granted dism'g pet. to review, Malone v. Albany City School District and Ambach, Supreme Court, Albany County, Cholakis J., February 5, 1982, n. o. r.; Application of a Child with a Handicapping Condition, 27 id. 29). However, both Federal and State regulations accord parents the role of participants, not merely attendees, at meetings held to develop IEPs. Although a CSE, or subcommittee thereof, is not obliged to accede to the wishes of the parents, it must give the parents a meaningful opportunity to interact with the members of the committee or subcommittee in developing the provisions of each IEP. I find that the practice of respondent's subcommittee of the CSE in reaching a decision prior to having afforded the parents an opportunity to meet with the subcommittee is inconsistent with Federal and State regulations, and must cease.

Petitioner's argument that the subcommittee of the CSE should have referred the matter of his request for a computer to the CSE is supported by the provisions of 8 NYCRR 200.3 (b)(4). That regulation reads, in material part, as follows:

". . . the subcommittee shall refer to the committee any matter in which the subcommittee's recommendation concerning a modification or change in the identification, evaluation, educational placement or provision of a free appropriate public education to a pupil is not acceptable to the parent or legal guardian of such pupil."

Without regard to the merits of petitioner's request for a computer, the provision of a home computer would clearly be a change in the provision of a free appropriate education for this pupil, as contemplated by the regulation. The subcommittee's recommendation as to the pupil's IEP did not include the change sought by the petitioner. Under the circumstances, the subcommittee was required to refer the matter to the CSE, instead of telling petitioner that he could, if he wished, appeal the decision of the subcommittee to the chairperson of the CSE.

At the hearing, the chairperson of the CSE conceded that the CSE and its subcommittee do not send notice of their recommendations to respondent to the parents in advance of the meeting at which respondent acts upon such recommendations. Rather, notice is given to the parents in the form of a letter advising the parents that respondent has accepted the recommendation of the CSE or its subcommittee. Section 200.4 (f)(3) of the Regulations of the Commissioner of Education explicitly provides that upon completion of the annual review of a pupil, the CSE shall notify the parents of the CSE's recommendation in accordance with the provisions of Section 200.5 (a)(4). The latter regulation provides that, upon completion of a review of a pupil, a CSE shall report its findings to the board of education in the form of a recommendation and shall give written notice to the parent of its recommendation to the board of education. While, as respondent points out, neither regulation explicitly provides a time limit for the sending of such notices to parents, it would nonetheless defeat the purpose of the notice requirement if notice of a CSE's recommendation is not given to the parent until after the board of education has acted upon such recommendation. Accordingly, respondent's practice of sending parents notice subsequent to action by the board of education upon such recommendation is in violation of the regulation.

Although I do not minimize the significance of respondent's failure to comply with the requirement for meaningful participation in the development of an IEP and the other procedural violations noted in this decision, it would serve no useful purpose to require the CSE or its subcommittee to reconvene for the purpose of preparing a new IEP for petitioner's son. There is sufficient evidence in the record to reach a decision on the central issue in this appeal which is the appropriateness of the program which respondent is providing to petitioner's son during the current school year. However, I will direct respondent to strictly adhere to the procedural requirements of Federal and State law in the future.

Petitioner's request that his son be provided with a computer equipped with a program to correct spelling errors for his use at home must be considered in the context of respondent's obligation to provide an appropriate program and services for the pupil. An appropriate program is one which is reasonably calculated to enable a child to receive educational benefits (Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176).

The appropriateness of a pupil's program may depend upon the provision of additional special services or equipment and/or the use of individualized curricula modifications, such as the use of alternative testing techniques. 8 NYCRR 200.4 (c)(2)(vi) and (vii) require that a pupil's IEP must describe any specialized equipment and adaptive devices needed by the pupil to benefit from education and must set forth any testing modifications to be used consistently by the pupil in the recommended program. The IEP for petitioner's son for the 1990-91 school year provides that he is to have the use of a spelling aid and a tape recorder, as well as access to a computer. In addition, petitioner's son is to have extra time to complete reports and tests. The IEP further provides that tests and exam grades should not reflect the pupil's spelling errors, provided that he demonstrates comprehension of the material being tested. The IEP for the present school year differs for the 1989-90 school year, in that the latter refers to the use of a computer for reports and tests while the former refers to access to a computer for reports and tests. However, the chairperson of the subcommittee testified that no significant difference was intended by the subcommittee with regard to the use of a computer by petitioner's son.

The record reveals that petitioner's son achieved satisfactory grades in an academically advanced regular education program, with the assistance of resource room services and a spelling aid, during the 1989-90 school year. For the 1990-91 school year, respondent has purchased computer programs which have the spelling correction feature sought by petitioner, for use with computers located in the high school resource rooms and a computer laboratory in or near the school library. The high school principal testified at the hearing that student will have access to the computers with the spelling correction feature before, during and after classes.

Although petitioner's son has a full schedule of classes and is participating in interscholastic athletics after school, he will have some opportunity to use a computer in school. He will continue to have the use of a spelling aid, which can be taken home. The primary advantage of a computer with a spelling program is that the pupil can check his or her work for spelling errors more quickly than could be done by using a spelling aid.

Although the use of a computer with a spelling program would be beneficial, there is no basis upon which I could conclude that access to a computer in the pupil's home is necessary in order for petitioner's son to achieve a meaningful benefit from his instructional program. Therefore, I find that the hearing officer correctly determined that respondent was not obligated to provide petitioner's son with a computer for use at home.

Finally, I find that petitioner's allegation that the school district's action in this case required his son to waive his right to course electives and to participate in interscholastic sports to be without factual support or merit.

Petitioner has not raised in this appeal the issue of his son's grade in English for the first marking period of the 1989-90 school year. Accordingly I do not address that issue in this decision.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the portion of the hearing officer's decision which found that there were no procedural violations by the CSE or its subcommittee be, and the same hereby is, annulled, and

IT IS FURTHER ORDERED that henceforth respondent's CSE or its subcommittee shall cease and desist from its current practice of reaching a decision prior to having afforded the parents an opportunity to meet with its CSE or subcommittee and it shall afford the parents of each pupil with a handicapping condition a meaningful opportunity to participate in the development of their child's IEP, and the CSE and its subcommittee shall promptly provide notice to the parents of the recommendations to respondent prior to respondent's consideration of such recommendations, and

IT IS FURTHER ORDERED that respondent provide petitioner's son with a district owned Franklin Spelling Aid for home use at such times as are necessary because of the unavailability of a personally owned spelling aid.