Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the Onteora Central School District
Mid-Hudson Legal Services, Inc., attorney for petitioner, RosaLee Charpentier, Esq. of counse
Anderson, Banks, Curran and Donoghue, Esqs., attorneys for respondent, James P. Drohan, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which held that respondent's committee on special education (CSE) was not required to specify in their child's individualized education program (IEP) that the facilitated communication technique be used in the child's instruction. The appeal must be sustained in part.
Petitioners' child is 14 years old. At the age of five, the child was classified as multiply disabled because of his autism or autistic-like condition and placed in a special education class in the New York City school system. The child was enrolled in two different programs in the New York schools, but had the services of an individual classroom aide in each program. In a psychological evaluation which was performed in 1989, the child's cognitive skills were reported to be within the moderately retarded range, although the evaluator opined that the child showed signs of having a higher potential. Tests of the child's adaptive behavior revealed that his daily living skills were equivalent to those of a 5 year old child and his socialization skills were equivalent to those of a 2 1/2 year old child, although he was 10 years old at the time he was tested. In a separate communication evaluation, the child displayed some ability to engage in socially interactive communication. The evaluator reported that the child exhibited an atypical regard toward visual stimuli and selectively attended to auditory stimuli. Based upon the results of prior evaluations, the evaluator reported that the child had made significant progress in his communication skills, but continued to have a severe interactive language disorder.
For the 1989-90 and the beginning of the 1990-91 school years, the child lived on Long Island and received special education instruction provided by a BOCES. The child was psychiatrically evaluated in May, 1990. The psychiatrist reported that the child's developmental history and current performance were consistent with a diagnosis of infantile autism and mental retardation, and noted that the child exhibited severe behavioral problems for which the use of psychotropic medication should be considered. However, the psychiatrist suggested that the child's behavioral difficulties might be attributable in part to a lack of educational programming appropriate for the child's disorder. The child's IEP for the 1990-91 school year reveals that he was to be placed on a 12-month basis in a BOCES special education program with the related services of speech/language therapy, occupational therapy and counseling.
In November, 1990, petitioners became residents of the Onteora Central School District. The child was reported to have experienced much stress with regard to moving to a new home. The child was screened by the Children's Annex, a State approved private school for children with disabilities, for placement in that school by respondent. The child was reported to be ritualistic and very resistent to changes in routine, and perseverative in playing with certain objects. He was described as becoming frustrated when unable to have his own way and engaging in aggressive behavior to avoid activities. During the screening, the child reportedly exhibited a high level of anxiety and agitation which interfered with the screening process. He reportedly screamed and perseverated on questions. His speech was described as intelligible, but "sing-song" in nature. The Children's Annex advised the CSE that it would accept the child on a trial basis in one of its special education classes with 12-month programming and individual classroom and bus aides.
In January, 1991, the Children's Annex reported that the child, who began attending the school in December, 1990, exhibited some interactive skills with adults, but not with other children. The child reportedly had some basic reading readiness skills, and when prompted by an adult, good communication skills. He was described as being able to work independently on prevocational skills, but manifesting his anxieties in self-stimulatory and aggressive behavior. The child also reportedly displayed appropriate fine and gross motor skills on an inconsistent basis. The Children's Annex report did not refer to the use of facilitated communication with the child.
Upon review of the Children's Annex report, respondent's CSE recommended that the child be classified as multiply disabled, based upon autism, mental retardation and emotional disturbance, and that he be placed on a 12-month basis in a Children's Annex class consisting of 8 children. The teacher of such class was assisted by 3 aides. The CSE further recommended that the child receive individual and group speech/language therapy, occupational therapy, and the services of a classroom aide.
In April, 1991, the Children's Annex reported that the child required individual attention and prompts to transition between activities, but was better able to focus his attention and to complete activities. The child reportedly exhibited basic mathematical skills, such as counting by rote to 27, but was unable to match a number symbol to a quantity. He displayed intermittent interest in books. When asked, he could point to and name simple pictures in a book and could describe actions depicted in pictures. He reportedly enjoyed using a computer, in conjunction with a reading program. While responsive to greetings from adults, he was described as requiring adult assistance to interact with other children. The child's use of spontaneous, functional language was reported to be limited. His performance on standardized tests of expressive and receptive language was lower than his actual level of language development. Nevertheless, the child was reported to have demonstrated limited progress in his communication program since entering the Children's Annex.
In May, 1991, the Children's Annex began to use the facilitated communication technique with the child. Facilitated communication involves the provision of physical assistance to an individual to more effectively control or initiate movement of his or her hand to spell words on a device such as a computer or typewriter keyboard or a specially designed spelling device. The facilitator, i.e., to the person assisting the disabled individual may hold the individual's hand or arm to provide resistance to the individual's forward motion and to pull the hand or arm back to center after each selection of a letter or symbol on the communication device. The record does not reveal whether the technique was referred to in the child's IEP for the 1990-91 school year, or in Phase I of the child's IEP for the 1991-92 school year. The child's Phase II IEP for the 1991-92 school year, which was prepared at the private school in October, 1991, referred to the technique in describing the child's levels of performance and as a method to be used in having the child attain his short-term objectives for various annual goals.
In an annual review summary prepared in March 1992, the staff of the Children's Annex reported that the child's learning rate had been slow and inconsistent and that he had required one-to-one instruction, prior to his introduction to facilitated communication. As of the date of the summary, the child was reportedly able to benefit from small group instruction, and to have advanced from the reading readiness level, i.e., preschool or kindergarten level, to reading at the sixth grade level with facilitated communication. His mathematical skills were reported to have improved from one-to-one correspondence without facilitated communication to the sixth grade level with facilitated communication. The staff further reported that the child had demonstrated an awareness of others and a desire to interact with peers with the use of facilitated communication. The child's speech/language therapist in the Children's Annex reported that the child had shown some improvement in his language skills with the use of facilitated communication.
The child's IEP for the 1992-93 school year, which the CSE prepared in July, 1992, provided that the child required facilitated communication to allow him to participate effectively in his educational program. Among the child's IEP educational goals was a general statement that the child would improve his facilitated communication skills, and the child's use of that technique was referred to in the short-term objectives for his communication goals.
Although the CSE met again in November, 1992 to discuss petitioners' concerns about the child's program at the Children's Annex, it did not revise the child's IEP for the 1992-93 school year. In April, 1993, the Children's Annex prepared another summary of the child's progress in which it was reported that the child had demonstrated improved skills and a more consistent learning rate with the use of facilitated communication. The child's behavior, participation and attention to task had reportedly improved since his medication had been changed. The child had reportedly demonstrated age appropriate one word expressive vocabulary skills and above average receptive vocabulary skills, with facilitated communication assistance. However, the results on the same test of the child's receptive vocabulary when facilitated communication was not employed were approximately five years below his chronological age expectancy. His teacher reported that the child was reading in a seventh grade reading program with facilitated communication. The child's mathematics skills were reported to be at the seventh grade level with facilitated communication, and at a one-to-one correspondence level without such assistance. The staff of the Children's Annex reported that they had been able to individualize the child's program to accommodate his idiosyncratic behavior and prevent increases in his anxiety and resulting aggressive behavior. The report included suggested IEP goals and objectives which referred to the continued use of facilitated communication.
On April 19, 1993, the CSE conducted its annual review of the child to develop his IEP for the 1993-94 school year. The CSE chairperson, who testified at the hearing in this proceeding, requested that the Children's Annex suggested IEP goals and objectives be revised by deleting references to the child's use of facilitated communication. At the hearing, the CSE chairperson testified that she had requested the revisions because facilitated communication was a methodology which did not need to be listed on an IEP, and because she had become aware of current educational research studies which reportedly cast doubt upon the efficacy of the methodology. The CSE chairperson further testified that she did not wish to have the child's teacher compelled to use facilitated communication, to the exclusion of other techniques, and that the inclusion of the technique on the child's IEP would raise concerns about the manner in which the child's triennial re-evaluation would be conducted in December, 1993 and about the child's transition to another educational program after the 1993-94 school year when he could no longer attend the Children's Annex because of his age. The CSE chairperson also testified that the CSE had not precluded the Children's Annex from using the facilitated technique, and that it was the responsibility of the professional staff of the Children's Annex to determine the extent of the use of such technique.
For the 1993-94 school year, the CSE recommended that the child remain classified as multiply disabled and that he continue to attend the Children's Annex, with the same related services which he had received in the preceding school year. The child's IEP provided that he was to have access to augmentative communication devices, such as a typewriter, computer and communications board. One of his short-term objectives was to improve his ability to access augmentative communication techniques. However, the IEP did not refer to the use of the facilitated communication technique. Petitioners requested that an impartial hearing be held to review the appropriateness of the child's IEP. The hearing commenced on August 3, 1993, and concluded on August 10, 1993.
In a decision dated September 24, 1993, the hearing officer noted that the child's 1993-94 IEP provided for the use of augmentative communication and did not preclude the use of the facilitated communication technique, and held that the CSE was not required to specify on the child's IEP that the technique be used. In view of the extraordinary improvement in the child's academic progress which the Children's Annex had reported, the hearing officer directed respondent to immediately conduct the child's triennial re-evaluation, with the caveat that facilitated communication not be used during the re-evaluation. The hearing officer further directed the CSE to review the results of the child's re-evaluation and revise the child's IEP, where appropriate.
Despite periodic references by petitioners' attorney to the possible inappropriateness of the child's classification during the course of the hearing in this proceeding, petitioners did not specifically request that the hearing officer rule upon the child's classification, nor have they raised the issue in this appeal. Consequently, I will not review the appropriateness of the child's classification (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]).
Petitioners acknowledge that the absence of references to facilitated communication on the child's IEP does not preclude the Children's Annex from using that technique with the child. However, petitioners assert that the hearing officer erred by not finding that the child's IEP for the 1993-94 school year was procedurally and substantively flawed. They challenge the procedure by which facilitated communication was not included on the child's IEP for the 1993-94 school year, despite having been listed as both a goal and a methodology on his IEP for the 1992-93 school year.
In essence, petitioners assert that the CSE's refusal to include references to facilitated communication on the child's IEP for the 1993-94 school year constitutes a change of the child's program and further assert that the CSE could not change the child's program without conducting an evaluation of the child. They offer various rationales for their position that the CSE should have conducted an evaluation. First, the Federal regulations implementing Section 504 of the Rehabilitation Act of 1973 (20 USC 794) require that a child be evaluated before any significant change in the child's placement (34 CFR 104.35 [a]). However, a change in the methodology by which a child receives instruction is not per se a significant change in the child's placement for purposes of the Federal regulation (Application of a Child with a Disability, Appeal No. 93-43).
Petitioners also rely upon the provisions of 34 CFR 300.534 (b) which require that a child with a disability be re-evaluated every three years, or more frequently, if conditions warrant. They assert that the extraordinary improvement in the child's academic performance reported by the Children's Annex required the CSE to immediately re-evaluate the child. I do not agree. The Children's Annex provided the CSE with additional information about the child's performance when facilitated communication was used. However, at the request of the CSE, the Children's Annex report also presented information about the child's performance without facilitated communication, which demonstrated that such performance had not significantly changed. Implicit in petitioners' assertion is the assumption that the CSE was required to choose between the reported performance levels with and without facilitated communication and to prepare an IEP which related solely to his performance either with or without facilitated communication. However, such an IEP would not accurately reflect the child's needs and abilities.
Petitioners further assert that the CSE was required to evaluate the child to determine the "reliability of his facilitated communications", prior to recommending that the use of the technique not be included on his IEP (para. 33, petition). However, petitioners acknowledge that educational researchers have not, to date, empirically validated the facilitated communication technique. The determination of this appeal does not require that I determine the validity of the technique, and I do not reach that issue. Nevertheless, I find that there is no basis in law for petitioners' assertion that the child should have been evaluated before his IEP for the 1993-94 school year was prepared.
Substantively, petitioners assert that the use of facilitated communication should have been included on the child's IEP because it is the only appropriate means of working on academic goals with him. Federal regulation requires that a child's IEP include "... a statement of the specific special education and related services to be provided to the child ..." (34 CFR.346 [a]). However, an IEP is:
" ... not intended to be detailed enough to be used as an instructional plan. The IEP, through its goals and objectives, (1) sets the general direction to be taken by those who will implement the IEP, and (2) serves as the basis for developing a detailed instructional plan for the child." (34 CFR 300, Appendix C, Question 41).
At the hearing in this proceeding, respondent's expert witness and an administrator of the Children's Annex each testified that facilitated communication is a form of augmentative communication. The child's IEP did refer to his use of augmentative communication, and listed certain augmentative communication devices which were to be provided to him. The precise teaching methodology to be used by the child's teacher in working with those augmentative communication devices is a matter to be left to his teacher (Matter of a Handicapped Child, 23 Ed. Dept. Rep. 269; Matter of a Handicapped Child, 23 id. 308). It should be noted that the child's IEP for the 1992-93 school year did not refer to the use of facilitated communication by the child in order to achieve any of his educational goals, except for short-term objectives relating to his annual communication goals. The child's 1992-93 IEP included the goal that the child would improve his facilitated communication skills. The comparable goal in the child's 1993-94 IEP provided that the child would improve his ability to access augmentative communication techniques. The latter goal would allow the child to receive instruction in facilitated communication or any other technique which his teacher deemed to be appropriate. At the hearing in this proceeding, an administrator of the Children's Annex testified that the omission of facilitated communication from the child's IEP would not preclude the school from using the technique. I find that respondent's CSE was not required to include in the child's IEP the methodology of facilitated communication, which in any event the child will continue to receive.
Petitioners also challenge the appropriateness of the child's IEP for the 1993-94 school year on the grounds that the IEP fails to accurately reflect the child's current needs and abilities, or to specify the means for determining the extent of the child's progress towards achieving his annual goals. Federal and State regulations require that a child's IEP report the child's present levels of performance (34 CFR 300.346 [a]; 8 NYCRR 200.4 [c][i]). Notwithstanding the CSE's receipt of information from the Children's Annex about the child's performance both with and without the use of facilitated communication, the child's IEP does not reflect all of the relevant information about the child's educational performance levels which the Children's Annex provided. For example, the IEP does not disclose any information about the child's present reading and mathematical skills, but merely refers to test results obtained in 1990.
State regulation requires that a child's IEP list annual goals and short-term objectives and evaluative criteria, evaluation procedures and schedules to be followed until the child's next annual review (8 NYCRR 200.4 [c][iii]). Upon the record before me, I find that the child's IEP provided for appropriate evaluative criteria. However, the IEP did not list any evaluation procedures or schedules. I find that the child's IEP must be revised to present information about his current levels of performance, both with and without facilitated communication where relevant, and the evaluation procedures and schedules to be used during the 1993-94 school year. Pursuant to the hearing officer's decision, the CSE must reconvene to review the results of the child's triennial re-evaluation to be conducted this month. I will direct the CSE to revise the child's IEP in accordance with the tenor of the decision in this appeal when it reviews the results of the child's re-evaluation.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondent's CSE shall revise the child's IEP for the 1993-94 school year when it reviews the results of the child's triennial re-evaluation, which shall be completed as expeditiously as possible.