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 Casadaga Valley Central School District
Thomas H. Burton, Esq., attorney for petitioners, H. Jeffrey Marcus, Esq., of counsel
Hodgson, Russ, Andrews, Woods and Goodyear, Esqs., attorneys for respondent, Jerome D. Schad, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioners' child receive counseling by a school psychologist and the services of a peer coach during the 1993-94 school year, but which rejected petitioners' request that the child receive the services of a consultant teacher. The appeal must be sustained in part because of certain inadequacies in the child's individualized education program (IEP), and the level of service recommended by the CSE.
Petitioners' child, who is 12 years old, has been diagnosed as having an attention deficit hyperactivity disorder and Tourette Syndrome. The child's Tourette Syndrome has been manifested by eye-blinking, head bobbing, and involuntary vocal noises. In 1989, the child was evaluated by a neurologist, who reported that the child's cranial nerves were within normal limits and his sensory modalities were intact. The child is presently classified as other health impaired (8 NYCRR 200.1 [am]). There is no dispute about the child's classification.
The child entered respondent's elementary school in the middle of the 1989-90 school year, when the child was in the third grade. The record reveals that the child made satisfactory academic progress while in elementary school. However, he experienced behavioral difficulties. In a letter to the child's principal at the beginning of the 1991-92 school year, the child's private psychologist opined that the child's impulsiveness and restlessness were involuntary behaviors, and that he would require a high degree of structure and prompting to manage his behavior in the classroom. At petitioners' request, the child was seen in December 1991 by respondent's school psychologist, who noted that the child had done well academically in school, but needed to improve control of his behavior and social interactions. The school psychologist suggested that the child be allowed to leave class to go to the office of either the guidance counselor or school nurse, when necessary to take a "time-out" because of behavioral and emotional needs.
In June, 1992, the child's psychologist advised the school principal that he had recommended that the child be re-evaluated by a neurologist to determine if medication should be used to control the child's behavior. Nevertheless, the psychologist recommended that the child be held accountable for his behavior and be provided with a behavior management program and counseling. On June 16, 1992, petitioners referred the child to the CSE. In a notice dated July 29, 1992, the CSE chairperson advised petitioners that the CSE had recommended that the child not be classified because the CSE had concluded that the child's disabilities did not adversely affect his educational performance.
In September, 1992, the child entered respondent's middle school, in which he was enrolled in the sixth grade. At petitioners' request, the child's private psychologist wrote a letter to the CSE chairperson on October 1, 1992, in which the psychologist requested that the CSE meet with petitioners and the psychologist to review the child's continuing behavioral difficulties in school and on the school bus. The record does not reveal whether the chairperson responded to the psychologist's request. For the first quarter of the 1992-93 school year, the child received a grade of B or C in each of his subjects. His teachers reported that the child occasionally worked to the best of his ability, but needed to improve his attitude. On December 7, 1992, the child was suspended from school for one day for allegedly being disruptive and using inappropriate language.
On December 9, 1992, the principal of the middle school referred the child to the CSE. In his referral, the principal asserted that the child's numerous removals from class for disruptive behavior had adversely affected his academic performance. During the requisite observation of the child in class (8 NYCRR 200.4 [b][viii]), the child's interaction with his mathematics teachers reportedly ranged from cooperative to belligerent, and he was described as having annoyed other students by talking during a quiz. On December 23, 1992, the child was evaluated by a school psychologist, who reported that the child had achieved a verbal IQ of 114 and a performance IQ score of 117, demonstrating high average to above average cognitive skills. The child was reported to have displayed relative strength in his fund of general knowledge and general vocabulary skills. The results of achievement tests administered to the child revealed that his reading skills were at the 97th percentile, his mathematical skills were at the 75th percentile, and his written language skills were at the 35th percentile. The school psychologist reported that the child was allegedly failing mathematics, social studies and science/health, primarily because of his failure to prepare for class and disruptiveness in class, notwithstanding the prior implementation of a behavior management system in which the child could take time-outs in the school nurse's office or the guidance counselor's office.
By agreement of the parties, the child received instruction provided in his home by respondent, pending the outcome of the CSE's review of the child. On January 7, 1993, the CSE recommended that the child be classified as other health impaired and that the child receive instruction at home. The child's report card for the second quarter of the 1992-93 school year, during most of which he received instruction at home, revealed a significant improvement in the child's grades. In a letter to respondent dated February 18, 1993, petitioners' attorney requested that an impartial hearing be held to review the CSE's recommendation. On February 23, 1993, the CSE reconvened, and recommended that the child be declassified and returned to a regular education class, with counseling once per week.
In March, 1993, the parties agreed to the terms of an educational plan for the child, which was intended to address the child's needs and allow respondent to meet its obligation to provide appropriate services pursuant to Section 504 of the Rehabilitation Act of 1973 (29 USC 794). The plan provided in part that the child would receive 30 minutes of counseling per week, and that each of his teachers would complete a written checklist describing the child's behavior during each week which would be sent to petitioners. The plan further provided that the child would be permitted to leave his classes for time-outs in the principal's office in accordance with criteria to be developed, and that his teachers would be provided with in-service training about Tourette Syndrome and attention deficit hyperactivity disorder. Petitioners' attorney represented to the CSE chairperson that petitioners' request for an impartial hearing would be withdrawn upon receipt of the chairperson's written assurance that the child's educational plan would be implemented. Although petitioners subsequently requested that the hearing go forward, the parties entered into a settlement on June 23, 1993, in which petitioners agreed to withdraw their request for a hearing under the Individuals with Disabilities Education Act (20 USC 1400) and Section 504 of the Rehabilitation Act of 1973. Respondent agreed that the CSE would recommend that the child be reclassified as other health impaired and prepare a new IEP for the child.
On August 5, 1993, the CSE met with petitioners and their advocate. At petitioners' request, the child's private psychologist was invited to attend the meeting, but the psychologist was unable to attend the meeting. However, the psychologist submitted a letter to the CSE chairperson, in which the psychologist opined that the child would continue to have behavioral difficulties, as well as problems with attention/concentration, impulsivity, and some degree of heightened activity level. The psychologist urged that the child be provided with assistance in learning to obey class and school rules of conduct, and recommended that respondent provide the child with consultant teacher services (see 8 NYCRR 200.1 ). In the opinion of the psychologist, a consultant teacher could assist the child in paying attention in class, controlling his impulsive urges and responding more appropriately to peers within and outside the classroom. Although the psychologist further opined that a consultant teacher could assist the child's teachers, he did not disclose the nature of such assistance. The psychologist also recommended that the child receive individual counseling twice per week, and urged that consideration be given to providing the child with group counseling to improve his social interaction skills.
At the August 5, 1993 CSE meeting, petitioners' advocate proposed that the CSE consider having students in respondent's high school voluntarily serve as "peer coaches" for the child. The peer coaches would meet with the child prior to class to ensure that he had the appropriate materials for each class, accompany him to class, and accompany the child if he left class for a time-out.
The CSE recommended that the child be classified as other health impaired, and that he receive individual counseling by a school psychologist twice per week for the first six weeks of the 1993-94 school year and such counseling once per week for the remainder of the school year. The IEP which the CSE prepared for the child did not provide for consultant teacher services or for the use of peer coaches, notwithstanding the fact that the CSE had reportedly agreed to attempt to use peer coaches in lieu of providing consultant teacher services. At the hearing in this proceeding, the CSE chairperson testified that the CSE had intended to try using peer coaches, but had refrained from referring to such coaches in the child's IEP because of uncertainty about the efficacy of the use of such individuals. However, the child's IEP for the 1993-94 school year was amended, at petitioners' request, to read that:
"A student in each period may be assigned to peer coach [the child] ... "
On September 8, 1993, petitioners submitted a new request for a hearing, which was held on October 13, 1993. In a decision dated November 8, 1993, the hearing officer noted that petitioners had challenged the alleged failure of the CSE to issue a timely invitation for its August 5, 1993 meeting to the child's psychologist, and its alleged failure to notify petitioners of the other program options which the CSE had considered but not recommended, and further challenged the adequacy of the child's IEP. However, the hearing officer did not address those issues in his decision. The hearing officer held that the CSE had met its burden of demonstrating the appropriateness of its recommendation, except with regard to the frequency of the child's counseling. The hearing officer directed that the child continue to receive individual counseling twice per week, until counseling at such frequency was deemed by the school psychologist to be unnecessary. The hearing officer further directed the CSE to amend the child's IEP to describe the responsibility of the child's peer coaches.
Petitioners assert that the CSE was remiss in failing to arrange for the child's private psychologist to attend the CSE meeting held on August 5, 1993. They assert that immediately after the parties agreed in June, 1993 to have the CSE reconvene, they notified the CSE chairperson that they wished to have the child's psychologist attend the meeting, but that the chairperson inexplicably delayed inviting the psychologist to the meeting until on or about July 26, 1993. The record reveals that is a letter dated June 25, 1993, and addressed to the CSE chairperson, petitioners' attorney requested that the next CSE meeting be scheduled at a time which would be convenient for the private psychologist, and that in a letter dated July 26, 1993, the chairperson advised petitioners that he had invited the psychologist to attend a CSE meeting to be held on August 5, 1993 but that the psychologist was not likely to attend. In the hearing in this proceeding, the chairperson testified that it had taken time to schedule a CSE meeting to be held during the Summer, and that it was her impression that the psychologist would not have attended even if another date had been offered. However, the chairperson conceded that she had not expressly offered to hold the CSE meeting on another date. Federal regulation requires that a CSE notify parents of a scheduled meeting in time to ensure that the parents have an opportunity to attend (34 CFR 300.345 [a]), while State regulation requires that a minimum of five days notice be given of a CSE meeting (8 NYCRR 200.5 [a]). Although a notice of a CSE meeting sent to the parents must advise them that they have the right to be accompanied by such individuals as they desire (8 NYCRR 200.5 [a]), neither Federal nor State regulation requires that the CSE invite such other individuals to the meeting. Petitioners do not assert that they requested that the CSE meeting be rescheduled, when they received the chairperson's letter of July 26, 1993. I also note that the private psychologist submitted his written recommendations to the CSE, which were considered at the CSE's August 5, 1993 meeting. Notwithstanding the hearing officer's failure to address the issue of the psychologist's attendance at the CSE meeting, I find that such omission does not afford a basis for annulling the hearing officer's decision.
Petitioners further assert that the CSE reneged upon its agreement with petitioners at the August 5, 1993 CSE meeting to recommend that peer coaching be used with the child. A transcript of the CSE meeting reveals that petitioners' lay advocate suggested the use of student volunteers to serve as peer coaches, as an alternative to the consultant teacher services which the child's psychologist had recommended, and that the CSE chairperson stated that " ... we would like [the child] to have a peer coach in school ... " Although the IEP which was drafted after the August 5, 1993 CSE meeting made no reference to the use of peer coaches, the IEP was thereafter amended when petitioners' attorney brought the omission to the CSE chairperson's attention. In view of the fact that the original IEP has been amended to reflect the CSE's agreement to try to use peer coaches, I find that petitioners' assertion about the original IEP is moot.
Petitioners also assert that the CSE failed to notify them of the other program options which the CSE had considered and the reasons for rejecting such options. Federal and State regulations require that parents be notified of other options which a CSE has considered and the reasons why those options were rejected (34 CFR 300.505 [a]; 8 NYCRR 200.5 [a]). In a letter dated August 9, 1993, the CSE chairperson notified petitioners of the CSE's recommendation, and included a copy of the child's IEP. Neither the chairperson's letter nor the IEP identified any other option considered by the CSE. In the hearing, the CSE chairperson testified that a special education class was discussed by the CSE as an option, and that the private psychologist's suggestion of consultant teacher services had been considered by the CSE. Accordingly, I find that the CSE considered other options, but did not comply with the Federal and State regulatory requirement to identify such other options and explain to petitioners why such options were not selected.
The central issue in this appeal is the appropriateness of the program recommended by the CSE. Respondent bears the burden of establishing the appropriateness of the recommended program (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-43). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
There is no dispute that the child has average to above-average cognitive skills, or that his reading and mathematics skills are at an appropriate grade level. The child's need for special education services is a result of his social and management needs. Upon review of the child's amended IEP for the 1993-94 school year, I find that the child's social and management needs are adequately described, although listed as comments, rather than levels of performance and needs (cf. 8 NYCRR 200.4 [c][i]). The amended IEP lists nine annual goals, some of which relate to decreasing his management needs, while the remainder relate to increasing his social interaction skills. Although the annual goals are stated in somewhat general terms, they are clarified by the more specific short-term objectives accompanying each goal. I find that the goals and objectives are premised upon the child's identified needs, and that together they are sufficiently specific to set the general direction to be taken by those who will implement the IEP.
Federal regulation provides that a child's IEP must include appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether the child's short-term objectives are being achieved (34 CFR 300.346 [a]). Although the nature of the child's needs and of the goals and objectives to address those needs will require the exercise of some subjective judgment in assessing the child's progress, I nevertheless find that the child's amended IEP is defective because it fails to set forth any objective criteria or any evaluation procedure, and I will require the CSE to revise the child's IEP to include appropriate criteria and evaluation procedures. However, this defect in the child's IEP does not afford a basis for invalidating the CSE's recommendation (Application of a Child with a Disability, Appeal No. 93-48).
The remaining issue is whether the CSE has recommended an appropriate program of services to enable the child to attain his IEP goals. Some of the child's IEP goals and objectives relate to improving his social interaction skills. The CSE has proposed that the child's need to improve his social interaction skills be addressed through counseling by the school psychologist. I find that the record supports the CSE's recommendation to use counseling to meet the child's need to improve his social interaction skills. Although the CSE recommended that the child receive individual counseling, it may wish to consider the benefit of small group counseling as well.
The remainder of the child's IEP goals and objectives address the child's classroom management needs. The child requires assistance to improve his organization, so that he is prepared for each class with the appropriate books and materials and has completed his homework assignments. In the hearing in this proceeding, respondent's school psychologist testified that she counseled the child 2 days each week and that on the remaining 3 days of the week a peer coach checked the child's homework and helped him prepare for class. Nevertheless, the school psychologist admitted that the child was "borderline", i.e., close to failing his English and Spanish courses because of his failure to complete homework assignments.
The child's classroom management needs also involve improving his ability to remain on task and refrain from disrupting other children in class. One of the child's goals is to become able to identify and practice the more positive behavior established by his counseling. In the hearing, the school psychologist testified that she had devised a check list of the child's behavior, which was to be completed by each of his teachers on a daily basis and reported to petitioners once per week. However, I find that respondent has not established that the twice per week counseling recommended by the CSE would adequately address the child's classroom management needs with respect to his organizational skills or his off-task and/or inappropriate behavior. Although respondent may use volunteers to assist its staff in providing services to the child, it may not rely upon student volunteers to meet its obligation of providing daily, professional assistance and supervision to the child.
Upon the record before me, I find that the child's classroom management needs cannot be met with the program of services which the CSE has recommended. However, I further find that there is no basis for requiring respondent to provide the child with special education in his regular classes to address his classroom management needs. There is nothing in the record which establishes that the child cannot be refocused with visual or manual signals by his teachers, and the private psychologist conceded at the hearing that the child could be taught needed skills separately, i.e., not in the regular classroom. Nevertheless, respondent must provide the child with consistent, daily assistance and guidance to improve his organizational and classroom behavioral skills. I agree with the private psychologist's observation during the hearing that it is imperative that petitioners and respondent work together cooperatively to implement a consistent and coherent system of dealing with the child's behavior, whether such behavior is volitional or not. Rather than direct that specific services be offered to the child, I will instead remand the matter to the CSE to meet with petitioners and reach agreement upon providing the child with the additional service he requires.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the hearing officer, to the extent that it found that the child's needs could be met with twice weekly counseling and peer coaching is annulled; and
IT IS FURTHER ORDERED that within 30 days after the date of this decision, the CSE shall meet with petitioners to revise the child's IEP for the 1993-94 school year to include appropriate daily supportive service and to set forth evaluation criteria and procedures.