91-032

Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) with regard to changes in the child's spelling program and the manner in which the child's grades would be reported, and which rejected petitioners' request that respondent be directed to provide more individualized instruction for the child. The appeal must be sustained in part.

Petitioner's 12 year old child was initially classified by the CSE as a speech/language impaired child in 1984, when he attended kindergarten at a private school. During the 1985-86 school year, the child's classification was discontinued. The child was enrolled in a regular education first grade class at respondent's Karigon Elementary School, where he received corrective speech and remedial reading assistance. At the conclusion of the 1985-86 school year, the child was re-evaluated by the CSE, which recommended that the child be classified as learning disabled in the language arts. That classification has continued, and is not in dispute.

The record reveals that the child is of average intelligence, but has an auditory processing deficiency which has hindered his language skills. The child's individualized education programs (IEPs) describe his learning style as best accommodated by the use of concrete presentations. The child attained average scores in all subtests of intelligence testing in 1989, except those which tested the child's memory for sentences and for digits. The psychologist who assessed the test results found that the child's memory for facts and events was intact and opined that the child's low performance on the sentence and digit subtests could be attributed to the child's lack of the strategy and facility for immediate and precise expression of what the child had heard. The psychologist described the child's speech as halting, and found that the child used convoluted sentences. The child's written expression was also found to be below average for a child of his age and education. The child demonstrated a significant deficit in spelling, by misspelling approximately one-third of the words in a 100 word composition for the psychologist. A significant deficit in the child's ability to decode words was also noted by the psychologist, who found that the child was reading at a second grade level although the child had just completed third grade. When he was re-evaluated by the same psychologist approximately one year later in August, 1990, the child demonstrated an improvement in his reading and decoding skills, although his reading continued to be a year behind his grade level. The child's spelling had also improved somewhat, but the psychologist found that the child still misspelled approximately one-fourth of the words in a writing sample. The psychologist noted an improvement in the child's speech, which the psychologist described as more concise and clear, than in the preceding year's evaluation.

In 1986, the CSE recommended that the child be placed in a special education class. For the 1986-87 and 1987-88 school years, the child was enrolled in a special education language concepts class operated by the Board of Cooperative Educational Services of Albany-Schoharie-Schenectady Counties in the Voorheesville Central School District. In the 1988-89 school year, the child returned for third grade to respondent's Orenda Elementary School. He was enrolled in a regular third grade, but received instruction in social studies, science, reading, language arts and spelling in a special education class.

Following extensive negotiations with petitioners, the child's IEP for the 1989-90 school year provided that he would be mainstreamed in mathematics, social studies, science and special subjects with the assistance of a consultant teacher in social studies. The IEP further provided for testing modifications, including extended time, reading test questions to the child, allowing the child to give oral answers to questions, and having the special education teacher assist the child with written answers. The child received individual and small group special education instruction in reading, language arts and spelling. The child's special education teacher testified at the hearing that she had provided the child with primary instruction on a 1:1 basis during the 1989-90 school year, and also spent approximately one or two half-hours each week in the child's fourth grade classroom providing consultant teacher services for social studies and science. The parties agree that the child had a successful year in fourth grade.

In April 1990 petitioners met with a building level subcommittee of the CSE to develop the child's Phase I IEP for the 1990-91 school year. The subcommittee recommended a substantial change in the nature of the child's special education program. Instead of removing the child from the regular classroom for special education for a portion of each day, the subcommittee recommended that the child receive special education from a consultant teacher in the child's regular classroom. The subcommittee recommended that the child receive all of his instruction in a regular education fifth grade, with the assistance of direct consultant teacher services for 1 hour per week in social studies, 1.5 hours per week in English and 2.5 hours per week in reading. In addition, the subcommittee recommended that the consultant teacher provide indirect service in reading for .5 hours per week. The child's IEP provided for testing modifications, as in the IEP for the 1989-90 school year. The IEP made no provision for special education instruction in spelling, although previous evaluations had identified the child's spelling deficits. The IEP also failed to set forth the child's levels of development in the subjects in which he was to receive special education (cf. 8 NYCRR 200.4 [c][2][i]).

At the time the child's IEP was developed, the Regulations of the Commissioner of Education provided for a two-stage process for preparing IEPs. Each CSE was required to develop a Phase I IEP which identified the child's handicapping condition, the child's present levels of performance and individual needs, annual goals, the recommended program and services to be provided, specialized equipment and testing modifications. Thereafter, a planning conference with the child's teacher, the parents and other individuals would be held to prepare a Phase II IEP in order to add a statement of short-term objectives and appropriate objective criteria and evaluation procedures to ascertain if the child is achieving his instructional objectives to the Phase I IEP. In June 1990, the Regulations of the Commissioner of Education were amended to require that interim instructional objectives and evaluative criteria also be listed on the child's Phase I IEP for the period between the completion of the Phase I and Phase II IEPs. In April, 1991 the Regulations of the Commissioner of Education were further amended to eliminate the two-stage IEP process.

In early October, 1990, one of the child's consultant teachers met briefly with the child's mother to discuss the development of the child's Phase II IEP. At the hearing, the teacher and the mother disputed what had happened at the meeting. The teacher testified that she gave the child's mother a copy of the standard fifth grade curriculum as a starting point for discussing the goals and objectives for the child. The child's mother testified that the teacher presented the curricular material as a draft Phase II IEP, with the request that the mother sign the document. I note that the first page of the document is identified as a Phase II IEP and has spaces for the signatures of the parents and the teacher. Additional disagreements between petitioners and respondent's staff developed, with regard to whether the child should continue in a fifth grade spelling program, whether he should receive grades for his written assignments, such as worksheets, independently completed in class, and whether a narrative report should be substituted for letter grades for reading and writing on the child's report card. The child's mother met with the child's other consultant teacher, late in October, 1990, and with other staff during the months of November and December, 1990. The disagreements as to the child's spelling program and grading were not resolved. The subcommittee referred the matter to the CSE, which met with petitioners on January 17, 1991. At that meeting, the child's Phase I IEP was amended by the CSE to provide that the child's spelling program should be changed from fifth to fourth grade, that his grades in social studies and science would not be based upon his performance on worksheets, and that portions of his grades in reading and his grade in writing would be reported in narrative accounts, rather than by letter grades. The CSE also amended the child's IEP to provide for an additional hour of direct consultant teacher service in spelling.

On January 18, 1991, petitioners requested an impartial hearing to review the action taken by the CSE. Petitioners also asserted that respondent had failed to adequately modify the instructional materials to meet the child's needs, and challenged respondent's failure to develop a Phase II IEP for the child. The hearing was held on five different days between March 27 and April 29, 1991. In a decision dated July 24, 1991, the impartial hearing officer concluded that a fourth grade spelling program, rather than a modified fifth grade spelling program, was appropriate for the child. The hearing officer also found that the grading modifications adopted by the CSE were appropriate. With respect to petitioners' assertion that respondent had failed to record all of the child's text books, the hearing officer found that no evidence had been introduced to establish that the child would benefit from taped materials. The hearing officer also found that respondent's reliance upon general fifth grade curriculum objectives, in lieu of specific short-term objectives and evaluation criteria set forth in a Phase II IEP was nevertheless consistent with the requirement that a Phase II IEP be developed. The hearing officer further found that respondent had provided direct consultant teacher services in accordance with the child's IEP.

Petitioners challenge each of the hearing officer's findings. Respondent asserts that the matter is moot, because the 1990-91 school year has ended. Although much of the appeal involves the specifics of the child's IEP for the 1990-91 school year, it does not follow that the matter is now moot. The issue of how the child's performance should be reported must be resolved, because a child's grades become part of the child's permanent school record. The dispute between the parties as to the need for the modification of instructional materials, the use of a modified spelling program, and the role of consultant teachers must also be resolved, because it is reasonable to expect a repetition of these issues (Honig v. Doe, 484 U.S. 305).

Although the issue of respondent's failure to promptly develop a Phase II IEP is not capable of repetition in view of the April, 1991 amendment to the Regulations of the Commissioner of Education, and no purpose would be served in having respondent prepare a Phase II IEP at this time, I must note that the hearing officer's conclusion on this issue is in error. General curriculum objectives may not be equated with the specific and individualized short-term objectives and evaluation criteria which the Regulations of the Commissioner formerly required be set forth in a Phase II IEP. Respondent's attempt to resolve certain disputed issues with petitioners did not relieve respondent of its obligation to promptly develop a Phase II IEP, so that the child's progress could be evaluated. Indeed the record before me demonstrates that the child's consultant teachers, on January 25, 1991, were unable to indicate the progress the child had made because of the absence of a complete IEP.

With regard to the appropriateness of the fourth grade spelling program recommended by the CSE, I find that the hearing officer reached the correct conclusion. The child's Phase I IEP for the 1989-90 school year reveals that the child had been working on third grade spelling objectives during that school year, and did not begin with fourth grade spelling materials until May, 1990. At the hearing, the child's fourth grade special education teacher testified that by the end of the 1989-90 school year, the child was just beginning fourth grade level spelling. The teacher further testified that the program recommended by the CSE would be appropriate for the child, because it followed the spelling program which she had used with the child during the 1989-90 school year. The child's consultant teacher who was responsible for providing instruction in spelling during the 1990-91 school year, testified that the child became upset after taking the first regular fifth grade spelling test. The consultant teacher also testified that when she met with the child's mother in October, 1990, she agreed that in the future the child would only be required to learn one-half of the spelling words assigned to the child's classmates each week. The consultant teacher further testified that the child's mother asked that the easiest words in each weekly list of words be assigned to the child, and that he not be required to write those words in spelling sentences dictated by the teacher to the child.

Although the child received grades of A in his modified spelling program for each of the first two marking periods, the consultant teacher testified that she recommended that the child's spelling program be changed, because the child was merely memorizing words for each spelling test. The consultant teacher testified that there was little or no carry-over of the words presented each week in the child's writing assignments, and that he had not learned the necessary spelling rules to be successful in a fifth grade spelling program. A private tutor who tutored the child during the summers of 1989 and 1990 and during the 1989-90 school year testified that the child already knew the rules upon which the proposed fourth grade spelling program was based. However, the tutor conceded that whether the child could apply the spelling rules which he had learned was an entirely different issue. The witness suggested that the child should be encouraged to proofread his written work, in order to detect spelling errors, and that the child should be exposed to the larger words in the fifth grade curriculum despite his inability to spell smaller words. I find that respondent has provided an adequate basis for its proposal to group the child with other fifth grade children who were working on a fourth grade spelling program, in order to provide continuity in his instruction and to develop his skills. As with any special education program, the child's spelling program should be adapted by his teacher to meet his special needs.

Petitioners object to the CSE's recommendation that narrative reports be substituted for a letter grade for the child's grades in a portion of reading and all of the writing on the child's report card. They also challenge the CSE's recommendation that the child's homework and independent school work not be given a letter grade.

In his testimony at the hearing, the chairperson described the issue as to the appropriateness of grading the child's performance on worksheets completed in school as confusing. Unfortunately, neither his testimony nor that of any other witness clarified the exact nature of the CSE's proposal nor the rationale for the proposal. I note that the amended Phase I IEP prepared at the January 17, 1991 CSE meeting states that the child's independent worksheets in science and social studies will not be graded. However, the child's regular education fifth grade teacher testified that the children in her class were graded on those worksheets, but the grades they achieved were used solely for determining their reading grades. In essence, the dispute appears to be premised upon the provisions of the child's IEP which required that the child receive testing modifications. Petitioners assert that the worksheets are, and should be considered to be, tests, and that they should be modified to address the child's learning disability. In any event, I find that respondent has failed to articulate any basis for treating the child's worksheets differently from those of other children.

At the hearing, respondent's staff offered two explanations for the CSE's proposal that the child not receive a letter grade in writing or in that portion of his reading grade to be derived from his performance in literature and on the science and social studies worksheets. One of the child's consultant teachers suggested that a narrative report would provide a more complete description of the child's performance than a simple letter grade. That would, of course, be true for any child, and does not afford a basis for replacing letter grades in these subjects with narrative reports. A second reason for the CSE proposal, according to the child's principal and two of his teachers, was to lessen the stress placed upon the child, whom respondent's staff described as overly concerned about his grades. Petitioners asserted that grades are important to the child, but that he is not obsessed with his grades. This issue, like that of grading the child's worksheets is another reflection of the disparate views of the parties as to the nature of the special education to be provided to the child. If the child has been properly prepared and is presented with appropriate materials in writing and reading, there is no reason to believe that assigning him letter grades will be any more stressful than the grades which he received in his other subjects. Therefore, I find that respondent has not established an adequate basis for its grading proposals.

The central issue in this appeal is the nature of the child's special education program, using the consultant teacher model. The Regulations of the Commissioner of Education define the term "special education" as "... specially designed individualized or group instruction or special services or programs ... to meet the individual needs of pupils with handicapping conditions." (8 NYCRR 200.1 [kk]) Such instruction is to be provided in the least restrictive environment which means that, to the maximum extent appropriate, the child should be educated with children who do not have handicapping conditions (34 CFR 300.550 [b][1]). In this instance, the child was to receive both special education and regular education in his regular fifth grade classroom. The child's special education was to be provided by two consultant teachers. By definition, such services must be provided by a certified special education teacher to a child with a handicapping condition who attends a regular education program on a full-time basis (8 NYCRR 200.1 [pp]). Consultant teacher services may be provided directly or indirectly, which are defined by State regulation as follows:

"(1) Direct consultant teacher services means specially designed individualized or group instruction provided by a certified special education teacher to a pupil with a handicapping condition to aid such pupil to benefit from the pupil's regular education program.

(2) Indirect consultant teacher services means consultation provided by a certified special education teacher to regular education teachers to assist them in adjusting the learning environment and/or modifying their instructional methods to meet the individual needs of a pupil with a handicapping condition who attends their classes." (8 NYCRR 200.1 [pp])

The child's IEP reveals that he was to receive both direct and indirect consultant teacher services. Both of his consultant teachers testified at the hearing. Each teacher stated that she met with the child's fifth grade teacher on a regular basis to plan the lessons which the fifth grade teacher would present. Each consultant teacher also reviewed the instructional materials used in the regular fifth grade classroom, but neither teacher saw the need to modify the materials for the child. The child's consultant teacher for reading, writing, language arts and spelling testified that none of the instructional materials was modified because the child was expected to do what a regular fifth grade child does, although she mentioned that, on occasion, a novel which the children were reading would be recorded so that this child could hear the words as he read the novel. The child's consultant teacher for social studies and science testified that if she determined that instructional materials should be modified, it would be necessary to refer the matter to the CSE for an amendment of the child's IEP. When asked to describe the direct instruction which they provided to the child, both consultant teachers testified that they were available to help the child with worksheets and other tasks assigned by the regular education teacher. Each checked the child's work, periodically, but primarily responded to the child's requests for assistance with the child's assignments from his fifth grade teacher.

I find that respondent has failed to establish that it provided specially designed instruction to meet the child's needs, in accordance with the definition of direct consultant teacher services in State regulation. Merely having a special education teacher available in a regular education classroom to respond to requests for help from a child with a handicapping condition is not a specially designed program of instruction to meet the child's needs. A specially designed program of instruction begins with an appropriate IEP which details a child's present levels of achievement and individual needs, establishes annual goals which are consistent with the child's needs and abilities, and prescribes instructional objectives and the evaluative criteria to determine whether the child has achieved those objectives. In this instance, the description of the child's academic needs and annual goals in the Phase I IEP lacked specificity. That lack of specificity, as well as the absence of a Phase II IEP, precluded a clear concept of the individualized instructional program which the child should have received. As a result, petitioners and respondent's staff had varied beliefs as to the nature of the child's program, ultimately resulting in this appeal.

A description of the specialized instructional program to be provided to a child must include whatever modifications of instructional materials or techniques the CSE believes are appropriate to meet the child's needs. While it is not necessary to specify how each piece of instructional material will be modified to meet the child's needs, the IEP should provide general guidance to the child's teachers on how materials should be modified. In this instance, both consultant teachers noted that the child's IEP made no provision for the modification of instructional materials, but did provide for testing modifications. Neither teacher explained how the child could need testing modifications, but not require any modification of materials or techniques.

The instruction which a consultant teacher provides to a child must be geared towards helping the child achieve the objectives and goals set forth in the child's IEP. Contrary to the assertion of petitioners at the hearing, direct consultant teacher services need not be solely 1:1 instruction. Group instruction may be provided, if appropriate to the needs of the children in the group. Upon the record before me, I am not persuaded that this child's needs may be met only through 1:1 special education instruction.

In view of the fact that the 1990-91 school year, has ended, it would serve no useful purpose to order respondent's CSE to revise the child's IEP for such school year. The CSE must ensure that the child's IEPs for future years are prepared and consultant teacher services are provided in accordance with the tenor of this decision. I have considered petitioners' other assertions, and found them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.