94-006

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 remain in respondent's resource room program for the 1993-94 school year, and which denied petitioners' request for an order directing respondent to reimburse them for their expenditures in providing the child with private tutoring. The appeal must be sustained.

Petitioners' child, who is 15 years old, is enrolled in the ninth grade in respondent's Tri-Valley High School. The child has been classified as learning disabled, since 1987. His classification, which is not disputed in this appeal, is based upon a significant discrepancy between the child's expected and actual achievement in reading, spelling and written language.

Petitioners obtained speech/language therapy for the child, while he was in preschool. In September, 1984, the child entered respondent's kindergarten. During the 1985-86 school year, while the child was in the first grade, petitioners referred the child to the CSE, because he was experiencing difficulty in school. The child's teacher reported that the child was easily distracted and had a limited sight vocabulary. Respondent's school psychologist, who evaluated the child in February, 1986, reported that the child had average cognitive skills, with a discrepancy between simultaneous and sequential processing skills which was suggestive of an auditory recall deficit. Achievement tests administered by the school psychologist revealed that the child's reading decoding skills were significantly weaker than his other academic skills. Although the child was described as being anxious about his ability to achieve, the school psychologist recommended that the child receive individualized, but not necessarily special education, instruction in reading. The CSE recommended that the child not be classified. However, the child reportedly received speech/language therapy to develop his oral expression and improve his auditory memory, although he was not classified as a child with a disability.

In January, 1987, the child's second grade teacher referred him to the CSE, which recommended that the child be classified as learning disabled. The CSE also recommended that the child receive resource room services to improve his reading and writing skills and speech/language therapy to improve his oral expression. Petitioners accepted the CSE's recommendations. By the end of the second grade, the child's reading skills, as measured on a group administered test, were reported to be only at the beginning of the second grade level. The child continued to receive resource room services and speech/language therapy while in the third grade during the 1987-88 school year. At the end of the third grade, the child's word identification skills were reported to be at a 2.4 grade equivalent and his word comprehension skills were reported to be at a 3.1 grade equivalent, on an individually administered test.

During the 1988-89 school year when the child was in the fourth grade, he received remedial reading instruction, in lieu of resource room services for reading. When his reading skills were assessed on an individually administered test at the end of the fourth grade, the child's word identification skills were reported to be at a 3.0 grade equivalent, while his word comprehension skills were reported to be at a 6.3 grade equivalent. In a triennial re-evaluation of the child which was performed in June, 1989, the child attained a verbal IQ score of 108, a performance IQ score of 114 and a full scale IQ score of 112. Respondent's school psychologist opined that the child's intellectual potential and well-developed listening skills allowed him to compensate for his disabilities and to function in a regular education program with resource room services. The psychologist recommended that the child be permitted to use tape recorded textbooks to allow him to obtain information which he could not glean from a printed page.

In September, 1989, the child entered the fifth grade in respondent's middle school. The record does not reveal what, if any, special education services were provided to the child, who attained a score just above the state reference point on the New York State Pupil Evaluation Program (PEP) fifth grade writing test. The child's final academic average for the 1989-90 school year was reported to be 90. On a group administered reading test, the child's total reading skills were reported to be at a 4.7 grade equivalent.

The child continued to receive resource room services, speech/language therapy, and remedial reading while in the sixth grade during the 1990-91 school year. Although the record includes the results of various group administered tests, such results are of little value because the tests were read to the child. The child's academic average for the 1990-91 school year was reported to be 93.

For the 1991-92 school year, the CSE recommended that the child continue to receive resource room services, speech/language therapy and special education instruction in reading, while in the seventh grade. However, the child's special education teacher for the 1991-92 school year testified that he had provided indirect, i.e., resource room, instruction to the child and that the child received remedial reading, rather than special education instruction in reading. On an individually administered test in May, 1992, the child's word recognition skills were reported to be at a 3.1 grade equivalent. The child's academic average for the school year was 92.

On May 26, 1992, the CSE met to prepare the child's individualized education program (IEP) for the 1992-93 school year. The CSE recommended that the child continue to receive resource room services one period per day while in the eighth grade, but did not recommend that the child continue to receive speech/language therapy. The child's IEP provided that the child would receive supplemental reading and writing. At the hearing in this matter, the CSE chairperson testified that the CSE intended to address the child's reading deficits through remedial reading instruction, rather than special education, while the child's resource room teacher would assist him in meeting the requirements of his regular education courses. In response to petitioners' request that their child be instructed in reading with the Orton-Gillingham technique, the CSE recommended that the child be independently evaluated by an evaluator who was proficient with that instructional technique. Such evaluation was to be performed in lieu of a triennial re-evaluation by respondent.

In August, 1992, the child was independently evaluated by an individual who was trained as both a school psychologist and an educator. The evaluator reported that the child exhibited a well above average ability to acquire information from his environment without reading. In reading, the child achieved grade equivalents of 3.7 in word identification and 2.5 in word attack skills, despite having just completed the seventh grade. His grade equivalents for word and passage comprehension were 5.2 and 4.2, respectively. At the hearing in this proceeding, the evaluator testified that in a test of the child's writing ability, the child exhibited below average skills in story development, vocabulary, syntax, sentence structure, spelling and punctuation. The evaluator extensively described the child's learning disabilities in terms of his difficulty with symbol sound association, recognizing vowel sounds and consonant blends, and performing visual motor memory tasks, and opined that the child exhibited abundant evidence of having dyslexia. The evaluator recommended that petitioners' child be instructed in reading, spelling and writing with a multi-sensory technique, such as the Orton-Gillingham technique, and that he have access to tape recorded textbooks and to his teachers' notes. She also recommended that the child be allowed to demonstrate his proficiency in the classroom by alternatives to written assignments, such as oral presentations.

On September 21, 1992, the child's mother and the independent evaluator met with respondent's staff to discuss the results of the independent evaluation. The child's mother also raised the issue of respondent's obligation, if any, to pay for the services of a private tutor whom petitioners had engaged to instruct the child using the Orton-Gillingham technique. Respondent's superintendent of schools subsequently advised petitioners that respondent would not pay for the services of the child's tutor. On December 3, 1992, respondent's staff met with the child's mother and a psychiatrist, who reportedly discussed his interactions with the child. During the course of the December 3 meeting, the child's mother handed the CSE chairperson a letter, in which the parent requested that a formal meeting of the CSE be held for the purpose of revising the child's IEP to reflect the findings of the independent evaluator and to provide the child with instruction using the Orton-Gillingham technique. The parent ended her letter with:

"If this request for an appropriate IEP is not met, let this letter serve as notification for an impartial hearing."

The CSE chairperson informed petitioners that their request for revision of the child's IEP would be deemed to be a request for a re-evaluation of the child, upon the completion of which the CSE would meet with them and make its recommendation. In a letter to the CSE chairperson dated December 19, 1992, the child's mother confirmed her understanding that the CSE would complete its review within 30 days. On January 28, 1993, the CSE met with the child's mother to review the report of the independent evaluator. The CSE also considered a letter by the child's psychiatrist, who urged the CSE to provide the reading program requested by petitioners, as a means of reducing the child's emotional stress. However, the CSE advised respondent that the child's resource room program was appropriate, and did not revise the child's IEP, even to include the results of the August, 1992 independent evaluation which was purportedly performed in lieu of respondent's own triennial re-evaluation.

On May 14, 1993, the CSE conducted its annual review of the child and prepared the child's IEP for the 1993-94 school year. The CSE recommended that the child receive resource room services for one period per day. During the remainder of the school day, the child was to be enrolled in regular education, ninth grade courses in English, social studies, mathematics, science, keyboarding, occupational education and physical education. The child's IEP listed as its single annual goal that the child would improve his written expression and reading by one grade level. The IEP further provided for the child's use of taped texts, and for test modifications, including extended time limits, separate locations, tests questions to be read to the child and flexibility in recording the child's answers. The IEP indicated that the child was a candidate for a local high school diploma and that he had been exempted from the requirement of taking and completing coursework in a second language (8 NYCRR 100.2 [d][1][iii]). Respondent approved the CSE's recommendation on June 3, 1993.

During the May 14, 1993 annual review meeting of the CSE, the child's mother delivered a letter dated May 4, 1993 to the CSE chairperson, in which the mother requested that an impartial hearing be held. In her letter, the child's mother asserted that the "program currently recommended" was inappropriate, and expressed her intention to seek reimbursement for the cost of the tutoring which petitioners had obtained for their child.

A hearing was scheduled to be held on June 23, 1993, but was adjourned at petitioners' request to afford them the opportunity to obtain counsel. In August, 1993, the evaluator who had performed the August, 1992 independent evaluation re-administered a number of the tests to the child. The hearing commenced on September 28, 1993, and concluded on December 15, 1993. In a decision dated February 4, 1994, the hearing officer found that the child's IEP for the 1993-94 school year failed to identify the child's specific needs in reading, writing and spelling, and failed to set forth evaluation procedures and criteria to ascertain the child's achievement of his annual goal and short-term instructional objectives (cf. 8 NYCRR 200.4 [c][2][iii]). The hearing officer directed the CSE to revise the child's IEP. The hearing officer further found that the CSE failed to meet in a timely manner to consider the results of the child's independent evaluation, because the CSE did not formally review the results of the child's August, 1992 independent evaluation until January 28, 1993. Nevertheless, the hearing officer held that the child's IEP substantially provided for an appropriate educational program for the child, upon a finding that there was no compelling evidence that the teaching method favored by petitioners was essential to enable the child to benefit from instruction. With regard to petitioners' request for reimbursement for the cost of the tutoring services which they unilaterally obtained in the 1992-93 and 1993-94 school years, the hearing officer found that the child's IEP did not reflect any need for the child to receive such services, and denied petitioners' request.

Petitioners assert that the hearing officer erred by not granting their motion that he recuse himself from serving as the hearing officer, because the hearing officer is the chairperson of the CSE in the Monticello Central School District. The record reveals that at the outset of the hearing, petitioners and their attorney questioned the hearing officer about the outcomes of other hearings which he had conducted. The hearing officer declined to answer their questions. He did reveal that he had been appointed by respondent to serve as a hearing officer on one prior occasion. Petitioners asserted a general objection that "the system of appointing a hearing officer is partial in favor of the school board," which the hearing officer overruled. The hearing officer's employment as the CSE chairperson in another school district was not discussed in the record which is before me. In any event, the hearing officer's concurrent employment by another school district would not per se afford a basis for finding that he lacked the requisite impartiality for service as a hearing officer (Application of a Child with a Handicapping Condition, Appeal No. 91-46; Application of a Child with a Handicapping Condition, Appeal No. 91-47). It should be noted that in July, 1993, one month after the hearing officer was appointed, Section 4404 (1) of the Education Law was amended to require the Commissioner of Education to implement a plan by no later than July 1, 1996 to ensure that individuals employed by school districts, schools or programs serving children with disabilities not serve as hearing officers until at least two years after they terminate such employment. Absent evidence of any actual bias on the part of the hearing officer, I find that he did not err in overruling petitioners' objection.

Petitioners raise one other procedural matter. They assert that the hearing officer also erred by excluding from the record a transcription of a tape recording made by the child's mother of a meeting with respondent's staff which she attended on May 22, 1992. Although petitioners refer to the meeting as the child's annual review meeting by the CSE, I note that a copy of the CSE minutes for the child's annual review indicates that the review was conducted on May 26, 1992. However, it is undisputed that the child's parents met with some of the child's teachers and at least some of the CSE members on May 22, 1992. When petitioners attempted to introduce the transcription of their tape recording, respondent objected upon the ground that the transcription and the recording upon which it was based were incomplete and were not the best evidence of what transpired at the meeting. The hearing officer refused to allow petitioners to introduce the transcription into evidence because there was no prior agreement between the parties to admit the document, it was incomplete, and it related to the conversations rather than actions of the CSE members. At the hearing, the child's mother gave testimony about the May 22, 1992 meeting, in which she asserted that the child's remedial reading and speech/language teachers made statements about the efficacy of the services which they had provided the child. Neither teacher testified at the hearing.

A party's request that documentary evidence be introduced at an administrative hearing is subject to the twin requirements of relevance and reliability. The initial question is whether the discussion at the May 22, 1992 meeting is relevant to any issue which was to be decided by the hearing officer. Respondent asserts that the discussion related to the provisions of the child's IEP for the 1992-93 school year which was not the subject of the hearing, and was properly excluded by the hearing officer. I disagree. Petitioners' request for a hearing, which was dated May 4, 1993, but not delivered until the CSE met on May 14, 1993 to prepare the child's IEP for the 1993-94 school year, expressed their dissatisfaction with the child's "currently recommended" program, which was the program implementing the child's 1992-93 IEP. The transcription of the tape recording is 32 pages in length, but does not apparently include all of the discussion which occurred at the meeting. However, neither that fact nor the fact that it was prepared under petitioner's guidance by the secretary of the child's father makes it inherently unreliable (see People v. Watson, 117 AD 2d 882). Indeed, the official minutes of the CSE's meeting of May 26, 1992 consist of only three handwritten sentences. The transcription and the tape recording upon which it was based were provided to respondent's attorney, before petitioners sought to introduce the transcription into evidence, so that respondent had the opportunity to rebut any alleged inaccuracy in the transcription. I find that the hearing officer erred by excluding the document, and will consider the transcription, which is annexed as Exhibit B to the petition, in this appeal.

The central substantive issue in this appeal is whether respondent has provided the child with an appropriate program. Respondent bears the burden of establishing the appropriateness of the program which its CSE has recommended (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. 93-9). To meet its burden, respondent must demonstrate that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSDv. Rowley, 458 U.S. 176), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]).

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 instructional 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 93-12; Application of a Child with a Disability, Appeal No. 94-4). In this instance, the child's IEPs for the 1992-93 and 1993-1994 school years set forth minimal information about the child's strengths and needs. Both IEPs listed the child's IQ scores. The 1992-93 IEP listed the child's score on a test of his word recognition skills, while the 1993-94 IEP also listed scores for his reading comprehension and spelling skills. Neither IEP included a meaningful description of the child's difficulty with reading, writing or spelling, despite the prior evaluations which have disclosed the nature and extent of the child's disability. The child's IEP for the 1992-93 school year included a single annual goal that the child "will improve reading and writing expression", with three equally vague objectives. The child's achievement of his goal and objectives was to be determined by teacher observation. As noted by the independent evaluator at the hearing, the IEP did not reveal what specific skills would be improved or how they would be improved. I find that the child's IEP annual goal and short-term instructional objectives were too vague to be of value (Application of a Child with a Disability, Appeal No. 93-35). The child's IEP for the 1993-94 school year included a single annual goal that the child "will improve written expression and reading by one grade level." The IEP set forth three short-term objectives which could reasonably be expected to be accomplished in a regular education class, because of their general nature. The objectives did not focus upon either remediation of the child's educational deficits or the development of his compensatory skills to substitute for the skills in which the child is deficient. Therefore, I find that the 1993-94 IEP annual goal and objectives were inappropriately vague. As noted by the hearing officer and conceded by respondent, neither IEP included appropriate objective criteria and evaluation procedures and schedules for determining on at least an annual basis whether the child's short-term objectives were being achieved (cf. 34 CFR 300.346 [a][5]).

At the heart of the dispute between the parties is the question of what special education services respondent must provide to the child. Respondent asserts that it has met its obligation under Federal and State law to provide the child with an appropriate special education program. In support of its position, respondent asserts that petitioners' child has consistently been on its academic honor roll and that the child is presently an officer of his high school class. However, respondent's CSE chairperson acknowledged during the hearing that the child has achieved high grades in regular classes, despite his severe deficits in reading and writing, because tests were read to the child and his answers to test questions were recorded for him. Respondent does not dispute that the child has severe deficits in reading and writing, but asserts that it has provided an adequate program to compensate for his academic weaknesses. Petitioners assert that respondent has failed to provide any instruction which directly addresses the child's educational deficits, or which would enable the child to become an independent learner.

Respondent is required to provide a free appropriate public education which Federal statute defines as special education and related services (20 USC 1401 [a][18]). The term "special education" is defined to mean:

"specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability ..." (20 USC 1401 [a][16]).

Since the child's entrance into the middle school, respondent has attempted to deal with the child's reading deficiency by providing either remedial reading, which is not special education, or resource room services, which by definition do not include primary instruction. The child's resource room teacher for the 1992-93 school year testified at the hearing that he had helped the child to read his homework assignments and to review his notes prior to tests. In essence, the resource room teacher testified that he had helped the child to compensate for his reading deficiency by reading the words which the child could not independently read. While insisting that the child's more than adequate cognitive skills allowed him to ascertain the meaning of words from their context, the resource room teacher conceded that the child nevertheless required assistance in reading test questions in order to complete tests within a reasonable period of time. The record provides little information about the resource room services the child is receiving during the 1993-94 school year to address his reading deficit. The child's resource room teacher, who had been on leave for much of the first semester, testified that she had attempted to instruct the child in spelling using a fourth grade textbook, but had been precluded from continuing such instruction by the child's mother, who insisted that the pendency provisions of Federal and State law (20 USC 1415 [e][3]; Section 4404 [4] of the Education Law) required her to provide the same services as had been provided in the 1992-93 school year. Although the child also had significant deficits in writing and spelling, there is little, if any, useful information in the record about any instruction which respondent may have provided to address the child's needs in these subjects in either the 1992-93 or 1993-94 school years.

Upon the record before me, I find that respondent did not offer an appropriate special education program to petitioners' child during the 1992-93 and the 1993-94 school years, because it did not provide instruction specially designed to meet his unique needs in reading, especially his lack of decoding skills, as well as writing and spelling. Instead, respondent relied upon the use of supplementary instruction in the resource room and test modifications to relieve the child of the obligation to become proficient in reading, writing and spelling, which are critical skills in the educational process, or provide him with other skills to use in lieu of his deficient skills, i.e., compensatory skills. At the hearing and in this appeal, respondent asserts that it is not required to detail in the child's IEP the methodology to be used in providing instruction to the child (see 34 CFR Appendix C, Question 41). However, respondent has not demonstrated how its staff provided the special education which the child needs to address his special education needs. Indeed, the record reveals that during approximately seven years of special education services, the child's word recognition skills have only improved by about two years. Petitioners' two expert witnesses each testified that the child requires a multi-sensory, sequential phonetic program of reading instruction, which should be integrated with writing and spelling instruction. One of the witnesses further testified that the child should also receive instruction in skills to compensate for his deficits in reading. Although the record reveals that there is some disagreement among the professional educators about the specifics of the special education instruction the child should receive, it is abundantly apparent that he will require direct special education instruction to address his special education needs in decoding, writing and spelling. I will direct respondent to provide such instruction, without specifying the precise methodology to be used. In view of the CSE's professed unfamiliarity with possible techniques and its concern about the availability of qualified instructors, I recommend that the CSE consult with the appropriate staff of the State Education Department to obtain technical assistance.

Finally, I will consider petitioners' request for reimbursement for their expenditures for the child's tutor during the 1992-93 and the 1993-94 school years. The hearing officer denied their request, in part because it had been initially presented at the September 21, 1992 conference with certain members of the CSE, rather than a CSE meeting, and had been subsequently denied by respondent's superintendent of schools in December, 1992. However, the matter was again raised by the child's mother in her May 4, 1993 letter to the CSE chairperson. I find that the manner in which petitioners' request for reimbursement was initially presented to respondent is not determinative of their right to obtain reimbursement.

A board of education may be required to pay for educational services obtained by the parents of a child with a disability, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359; Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 108; Application of a Child with a Handicapping Condition, Appeal No. 92-21). I find that petitioners have satisfied the first portion of the Burlington criteria.

With respect to the second portion of the Burlington criteria, petitioners bear the burden of proving the appropriateness of the tutoring services which they obtained. Although the record does not include either the tutor's testimony or a written report by the tutor, I find that the testimony and reports of the independent evaluator are adequate to reach a determination about the appropriateness of the tutoring obtained by petitioners. The independent evaluator testified that the child's tutor is experienced in the Orton-Gillingham technique. The independent evaluator reported that, between her initial evaluation of the child in August, 1992 and her re-evaluation of the child in August, 1993, the child's word identification skills improved by one year, his word attack skills improved by 2.2 years and his passage comprehension skills improved by 2.7 years. The child also demonstrated improvement in his spelling and writing tests scores. During the period of time in question, respondent did not provide specialized instruction in decoding, writing and spelling. The child's progress between August, 1992 and August, 1993 is in stark contrast with the minimal progress he achieved before he was tutored. Although respondent has asserted in its memorandum of law that the child's tutor is not certified by the State Education Department to provide special education, I find that the record is inadequate to determine whether the tutor is certified. In any event,I must note that the tutor's lack of certification would not necessarily preclude petitioners' claim for reimbursement (Florence County School District v. Carter, U.S. , 126 L. Ed. 2d 284). Therefore, I find that petitioners have met their burden of proof with regard to the appropriateness of the tutoring services.

I further find that equitable factors support an award of reimbursement of petitioners' expenditures for the services of a tutor. It is readily apparent that this child should have received instructional services which addressed his special educational needs in reading decoding, writing and spelling. The CSE's delay in even considering the results of the child's August, 1992 independent evaluation is inexplicable, as is its failure to consider petitioners' request for the services of a tutor. Although petitioners did not submit a written request for reimbursement to the CSE until May 14, 1993, the CSE chairperson was aware that petitioners sought to obtain reimbursement, as early as September 21, 1992. It would be inequitable to deny petitioners' claim for reimbursement on the grounds of laches.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled, and;

IT IS FURTHER ORDERED that within 30 days after the date of this decision, the CSE shall recommend an appropriate program for the child for the remainder of the 1993-94 school year, and;

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditures for the services of a tutor from September, 1992 until the CSE makes its recommendation pursuant to this decision, upon a submission of proof of such expenditures by petitioners to respondent.