Application of CHILDREN WITH DISABILITIES, by their parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Oceanside Union Free School District
Stein and Schonfeld, Esqs., attorneys for petitioners, Nancy A. Sorrentino, Esq., of counsel
Ehrlich, Frazer and Feldman, Esqs., attorneys for respondent, Florence Frazer, Esq., of counsel
Petitioners are the parents of five-year old fraternal twins, each of whom has an educational disability. By agreement of the parties and the hearing officer in this matter, petitioners' separate appeals from the recommendations of respondent's committee on special education (CSE) were consolidated in a single hearing, after which the hearing officer rendered a single decision. Petitioners have appealed from the hearing officer's decision with respect to both children. The individual needs of each child will be considered in this appeal, but this decision will apply to both children. For purposes of clarity in this decision, petitioners' male twin shall be referred to as the "boy", and their female twin shall be referred to as the "girl".
Petitioners appeal from the decision of an impartial hearing officer which upheld the CSE's recommendations for the 1993-94 school year that the boy and the girl should be enrolled in separate special education kindergarten classes, on a 10-month basis, and which denied petitioners' request that respondent be required to pay for the children's enrollment in an approved private school for children with disabilities in which they had been enrolled for preschool. The appeal must be dismissed.
In September, 1991, petitioners enrolled both children in the School for Language and Communication Development (SLCD), a private school which has been approved by the State Education Department to provide instruction to preschool and school-age children with disabilities. The children, who were not quite three years old when they entered the SLCD, were not eligible to receive services from respondent during the 1991-92 school year. For the 1992-93 school year when the children became eligible to receive such services from respondent, respondent's committee on preschool special education (CPSE) recommended that each child be classified as speech impaired and that each child be placed, on a 12-month basis, in classes having a child to adult ratio of 12:2:2 in the SLCD, with individual speech/language therapy twice per week. Petitioners accepted the CPSE's recommendation for their children.
In preparation for the children's referral to the CSE as they became eligible to receive services as school-age children as of September, 1993, the SLCD evaluated the children and prepared an "Internal CSE Summary Report" for each child, in March, 1993. For the purpose of this decision, each report shall be referred to as the "SLCD report." The SLCD report for each child asserted that the child continued to demonstrate severe language disabilities and required a 12-month program of intensive language and communication services provided in a classroom in which a speech/language pathologist would be the primary service provider. Each SLCD report further asserted that each child should be instructed in a class with a 6:1:1 child to adult ratio, and receive daily individual speech/language therapy. The SLCD further recommended that each child receive a transdisciplinary program, including creative arts therapy, music therapy and adaptive physical education, and that petitioners should participate in parent training and behavior management classes. In May, 1993, respondent's school psychologist, a special education teacher and a speech/language teacher visited the SLCD to observe the children who were residents of respondent's school district and who would be eligible to attend respondent's schools in September, 1993.
On June 4, 1993, respondent's CPSE reviewed each child's placement during the 1992-93 school year, and recommended that each child remain in the SLCD on a 12-month basis for the 1993-94 school year. However, the CPSE's responsibility for the education of the children ended when school commenced in September, 1993, because the children were no longer preschool children (Section 4410 [i] of the Education Law). In effect, the CPSE'S recommendation was for the months of July and August of 1993. The chairperson of the CPSE, who is also the chairperson of the CSE, testified at the hearing in this matter that petitioners and respondent's staff agreed to defer making a recommendation for the children's placement during the traditional 10-month portion of the 1993-94 school year. In late July, 1993, respondent's school psychologist again observed the children in the SLCD.
On August 3, 1993, respondent's CSE met with petitioners to prepare its recommendation for each child. Although petitioners were reportedly orally advised of the CSE's recommendations either at or shortly after the August 3, 1993 CSE meeting, they were not sent copies of the recommendations until September 15, 1993. The CSE recommended that each child be classified as speech impaired, and that each child be enrolled on a 10-month basis in separate special education kindergarten classes in respondent's School No. 4. The recommended classes have a 12:1:1 child to adult ratio. The CSE further recommended that each child receive individual speech/language therapy six times during a six-day cycle, and that the boy also receive counseling once per week in a group of not more than five children. The boy and the girl would be mainstreamed for lunch and recess with the other kindergarten children who attend School No. 4.
The record reveals that multi-sensory instruction is provided by a certified special education teacher in each class. In addition, a speech/language teacher divides her time between both of the recommended classes, in which she provides IEP mandated speech/language therapy to individuals and small groups in the classroom, as well as some general instruction. A school psychologist is also assigned to each classroom to consult with each teacher, prepare behavior management plans, when appropriate, and to provide counseling to individual students. Respondent's witnesses in the hearing in this proceeding testified that children in the recommended program receive language enriched instruction, and encouragement to model their speech after that of their peers and teachers.
On September 8, 1993, petitioners requested a hearing with respect to the educational placement for each child. During the pendency of this proceeding, the children have remained in the SLCD, at respondent's expense. The hearing commenced on October 1, 1993 and concluded on December 9, 1993. In a decision dated February 2, 1994, the hearing officer held that the program and placement recommended by the CSE in each child's individualized education program (IEP) was appropriate, while noting that the continued placement of each child in the SLCD which petitioners favored was not consistent with respondent's obligation to place each child in the least restrictive environment.
Petitioners assert that the hearing officer's decision should be annulled, because respondent failed to provide petitioners with sufficient information about the abilities and needs of the other children in the two kindergarten classes which the CSE had recommended for the boy and the girl. They make this assertion, notwithstanding the fact that they were afforded an opportunity to visit voth of the recommended kindergarten classes and that the record reveals that SLCD employees who testified on their behalf at the hearing did observe both classes. At the hearing, petitioners asked the hearing officer to require respondent to provide them with redacted copies of the IEPs of the children in the recommended classes. The hearing officer's denial of petitioner's request presents an issue of law which is common to both the boy and the girl, and will be addressed before reaching the appropriateness of their respective recommended placements.
Both Federal and State regulations require respondent to maintain the confidentiality of personally identifiable data, information or record pertaining to children with disabilities (34 CFR 300.572; 8 NYCRR 200.5 [f]). Federal regulation further provides that if any educational record includes information concerning more than one child, the parents of those children shall have the right to inspect and review only the information relating to their child (34 CFR 300.564). The use in a hearing of documentary evidence or testimony which reveals personally identifiable data concerning other children is improper (Application of a Child with a Handicapping Condition, Appeal No. 91-9). Although petitioners requested that the names of the children be removed from their IEPs, I find that the removal of the children's names would not be sufficient to preserve the confidentiality of their records, given the relatively small number of children in each class. Therefore, I find that the hearing officer correctly denied petitioner's request for redacted copies of the other children's IEPs (Application of Board of Education City School District of the City of New York, 26 Ed. Dept. Rep. 269).
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 CSE v. 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]). The needs of the boy and the girl and their recommended placements will now be considered separately.
With regard to the boy, the record reveals that he evidenced developmental delays of approximately 11 months, when he was initially evaluated at the age of 2 years and 8 months in July, 1991. His expressive speech was reported to be significantly delayed. In January, 1993, the boy was evaluated by a school psychologist employed by the SLCD. The evaluator reported that the child exhibited limited eye contact in attending, as well as perseverative and echolalic speech, during the evaluation. The boy reportedly achieved a verbal IQ score of 63, a performance IQ score of 100 and a full scale IQ score of 78, with a significant disparity among the results of various subtests. In general, the boy was reported to be more successful with performance tasks which required labeling, rote memory and those which provided visual cues. There were significant deficits in his graphomotor skills. The boy's performance on the verbal IQ test reportedly reflected his limited receptive and expressive language skills. He was reportedly unable to answer any question requiring comprehension or abstract reasoning, and his comments or responses were described as somewhat unrelated. On an achievement test, the boy scored within the low average range, with relative strength in his reading/decoding skills, and average ability in his numerical reasoning. The evaluator opined that the boy was unable to integrate sequentially presented auditory material. In a speech/language evaluation also conducted in January, 1993, the boy's receptive and expressive language skills were reported to be approximately one standard deviation below the average for his age.
In the boy's SLCD report, he was described as demonstrating appropriate eye gaze behaviors, as well as beginning functional language skills for purposes such as greeting, requesting, protesting, and calling attention to items and people. He was reported as being able to initiate conversation with an adult, but could carry on only a very limited conversation. The child was reported to be able to follow routine directions independently, and some two-step directions in the classroom with verbal and visual prompts. His sentence development was described as brief, tangential and involving language structures characteristic of a child three to four years old. The SLCD report further indicated that the child demonstrated limited attending behaviors, and was often oppositional to being redirected, resulting in behavioral tantrums.
On July 23, 1993, a school psychologist employed by respondent observed the boy in his classroom in the SLCD and interviewed his teacher. The school psychologist reported that the boy was able to stay focused for most of the time and could be refocused by calling his name. He further reported that the teacher had revealed that the boy's tantrums and avoidance behaviors still occurred, but were less apparent than they had been at the beginning of the school year.
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 No. 93-12). In preparing the boy's IEP, respondent's CSE relied upon the results of evaluations performed by the SLCD. While not setting forth the boy's needs in the depth provided by the evaluation data presented in the SLCD report, the boy's IEP does accurately reflect the results of the boy's evaluations and does identify his special education needs. I note that petitioners have not specifically challenged the adequacy of the child's IEP. However, I am constrained to note that the boy's annual goals are exceedingly general. Nevertheless, I find that the boy's short-term instructional objectives provide sufficient detail to set the general direction to be taken by those who will implement the IEP and to afford a basis for developing a detailed instructional plan for the child. Consequently, I will not invalidate the IEP solely because of its imprecise annual goals (Application of a Child with a Disability, Appeal No. 93-40; Application of a Child with a Disability, Appeal No. 93-48). Federal regulation requires that a child's IEP shall include appropriate objective criteria and evaluation procedures, as well as schedules for determining, on at least an annual basis, whether the child's short-term instructional objectives are being achieved (34 CFR 300.346 [a]). In this instance, the IEP does not include any evaluative criteria, evaluation procedures or schedules to be followed to determine the boy's progress toward meeting his objectives and annual goals.
The boy's IEP should be revised to include more precise annual goals and the requisite evaluation criteria, procedures and schedules. However, it does not follow that respondent has failed to offer an appropriate program. The boy requires a highly structured language-based special educational program with a small class size. The testimony of the CSE chairperson, the teacher of the recommended class, the speech/language teacher assigned to the class and the school psychologist assigned to the class established that the proposed placement would provide a language enriched, structured, multi-sensory instructional program to the boy, and would address his attentional and behavioral deficits through the use of an appropriate behavioral management plan and counseling. With regard to the boy's speech/language needs, the speech/language teacher testified that she could provide the type of program which had been recommended in the SLCD report.
Representatives of the SLCD who testified on behalf of petitioners expressed concern about the boy's ability to function in a class of 12 children in a setting in which he would be mainstreamed for lunch and recess. Although the boy had previously attended classes of 12 children with four adults, i.e., 12:2:2, the SLCD representatives nevertheless asserted that the boy's severe language deficits, distractibility and the increased academic demands of a kindergarten program would preclude him from successfully functioning in the recommended program. State regulation provides that 6:1:1 classes are for children with highly intensive management needs who require a high degree of individualized attention and intervention (8 NYCRR 200.6 [g][ii][a]). Although the boy clearly has significant speech deficits, I find that those deficits would not per seafford a basis for concluding that he requires such a small class. The SLCD representatives testified that the boy requires individualized instruction. The teacher of the proposed class testified that she could provide individualized instruction. The SLCD representatives asserted that the boy continues to exhibit echolalic and perseverative speech. However, respondent's school psychologist testified that he had not observed such speech by the boy when he observed the boy in his class on July 23 and November 29, 1993. The child's management needs involve his limited ability to attend, and his oppositional behavior. Respondent's school psychologist further testified that the boy had not displayed aggressive behavior or tantrums when he did not receive what he wanted, and was able to transition from one activity to another without difficulty. The school psychologist also testified that the boy could be refocused by merely calling his name. I find that the boy's management needs can be met in the recommended placement.
Each program or placement recommendation by a CSE must be consistent with the Federal and State regulatory requirement of placement in the least restrictive environment (34 CFR 300.550; 8 NYCRR 200.6 [a]). The 6:1:1 class sought by petitioners is a more restrictive placement than the 12:1:1 class recommended by the CSE. Absent evidence that the child could not successfully function in the 12:1:1 class, I find that it is the least restrictive environment for the child. Least restrictive environment also requires that each child, to the maximum extent appropriate, be educated with other children who do not have disabilities (8 NYCRR 200.1 [x]). Although the school psychologist from the SLCD testified that the boy could not benefit from interaction with non-disabled peers at lunch and recess because of his language impairment, I find such testimony is unpersuasive in light of the testimony of respondent's school psychologist about the child's ability to interact with his peers. I also note that the record reveals that aides are assigned to the children in the recommended class to supervise their interaction with children at lunch and recess.
Petitioners' primary objection to the proposed placement is premised upon their assertion that respondent failed to demonstrate that the boy would be grouped with children of similar abilities and needs. State regulation requires that children in special education classes be appropriately grouped using the criteria of levels of academic achievement and learning characteristics, levels of social development, levels of physical development, and the management needs of the children (8 NYCRR 200.6 [a]). The similarity of abilities and needs may be demonstrated through the use of a profile of a children's proposed class together with the testimony of a witness who is familiar with the children in the proposed class (Application of a Child with a Disability, Appeal No. 93-13; Application of a Child with a Disability, Appeal No. 94-5). At the hearing, respondent introduced into evidence a profile of the children in the recommended class which inexplicably reported only their IQ scores. However, the absence of a complete profile is not dispositive of the grouping issue, if there is sufficient testimony in the record to establish that the child would be appropriately grouped with the other children in the recommended class (Application of a Child with a Disability, Appeal No. 93-40; Application of a Child with a Handicapping Condition, Appeal 90-10). The CSE chairperson, the teacher of the recommended class, the speech/language teacher assigned to such class and respondent's school psychologist each testified that the boy's abilities and needs in each of the four areas were compatible with those of the other children in the recommended class. The record reveals that eight of the eleven children in the class are classified as speech impaired and that ten of the children receive speech/language therapy. The CSE chairperson testified that the other children have similar learning styles. The documentary evidence provided by respondent discloses that each child in the class cognitively functions in the low average to average range. Although petitioners attempted to show at the hearing that the boy required a different form of instruction because of the disparity between his verbal and performance IQ scores, their expert witness did not support their position. The CSE chairperson and the school psychologist testified that the boy's social development was comparable to the other children, and the CSE chairperson also testified that the boy's physical development was the same or similar to that of the other children. The teacher of the recommended class testified that the children in her class had few, if any, management needs, except for distractibility. Upon the record before me, I find that respondent has met its burden of proof with regard to the grouping issue and the appropriateness of the recommended placement.
Having found that the recommended placement is appropriate for the boy, I will now consider the recommended placement for the girl. The record reveals that when the girl was initially evaluated by the SLCD in July, 1991, she was found to be functioning in the moderately low range, with communication delays. In March, 1993, the girl was evaluated by a school psychologist employed by the SLCD. The psychologist reported that the girl's distractibility increased during the evaluation, and that she performed best when assisted with visual cues. The psychologist further reported that many of the girl's utterances were echolalic. The girl reportedly achieved a verbal IQ score of 73, a performance IQ score of 95 and a full scale IQ score of 81, with a significant disparity among the results of various subtests. In the performance portion of the IQ test, the child reportedly performed better with more abstract material. In the verbal portion, the child's greatest deficits were in her vocabulary and comprehension skills. On a standardized achievement test, the child achieved subtests scores ranging from low average to high average. Her rote skills were reported to be an area of strength. The psychologist reported that the girl encountered difficulty when faced with increased verbal demands or reduced visual cues. The girl's speech/language skills were evaluated at the SLCD in January, 1993. A test of language development revealed that her language skills were in the low average to borderline retarded range, with the exception of her auditory imitation skills which were significantly lower. In a test of basic concepts used primarily to measure her receptive language skills, the girl achieved mostly age appropriate scores.
In the girl's SLCD report of March, 1993, she was described as communicating in one and two-word utterances, with good intelligibility. The girl reportedly could maintain an appropriate eye gaze for a limited time, and could attend to a structured activity for no more than three to five minutes. The child was reported to have difficulty initiating new topics of conversation or elaborating upon such topics. She was described as being able to verbally respond to simple questions, and to follow two-step related directions. The SLCD also reported that the child could participate in independent, parallel and associative play. In describing the girl's management needs, the SLCD reported that the girl often required redirection and re-enforcement, but did not require a formal behavioral management program.
Respondent's school psychologist who observed the child in the SLCD on July 23, 1993, reported that the child remain focused on classroom activities and demonstrated spontaneous and appropriate speech. The psychologist further reported that the child's teacher disclosed that the girl had made great progress in the past several months. The teacher also advised the psychologist that the child needed modeling to overcome any negative behaviors. At the hearing, the CSE chairperson testified that the child's teacher in the SLCD for the 1992-93 school year had advised the CSE at its August 3, 1993 meeting that the girl had made significant progress in the length and relatedness of her speech, and that her attention span had improved.
The girl's IEP was prepared by the CSE, using the results of evaluations performed by the SLCD. The girl's IEP lists her abilities and needs in each of the four areas required by State regulation (8 NYCRR 200.4 [c][i]), although not in the detail provided by the SLCD report. I find that the girl's IEP accurately reflects the results of her evaluations and identifies her special education needs. As with her sibling's IEP, I must note that the girl's IEP annual goals lack precision. Nevertheless, I find that her short-term instructional objectives provide sufficient information to allow her teachers to implement the IEP and develop detailed instructional plans for her. Therefore, I will not invalidate the girl's IEP as a result of its imprecise annual goals. Her IEP also does not include any evaluative criteria, evaluation procedures or schedules to be followed to determine her progress toward meeting her objectives and annual goals, as required by Federal regulation (34 CFR 300.346 [a]). Nevertheless, I find that neither defect in the girl's IEP compels a finding that the program recommended by the CSE is inappropriate.
It is undisputed that the girl requires a language enriched, multi-sensory special education program provided in a small class. The teacher of the recommended class testified that she used multi-sensory special education techniques in her class, an that she could address the girl's speech/language needs with the assistance of the speech/language teacher assigned to the class. With regard to the child's social development, the teacher testified that the child's need for positive role models could be met in her class, and that the girl's emerging interacting play skills would be developed as a means of improving her communication skills. The teacher further testified that the girl's need for a small structured, individualized educational environment with intensive speech/language stimulation could be met in the recommended program. The CSE chairperson, the speech/language teacher assigned to the recommended class, and the respondent's school psychologist also testified that the recommended program would address the child's needs.
At the hearing, petitioners challenged the recommended program on the ground that the girl required a smaller class in order to function successfully. An administrator from the SLCD opined at the hearing that the girl could not succeed in the recommended program because her limited language skills would hamper her ability to socialize with peers, and her extensive management needs could not be met in the program. The administrator asserted that the child required a great deal of refocusing and prompting to remain on task, while a school psychologist from the SLCD suggested that the girl had poor impulse control, and self-esteem problems. However, the administrator conceded under cross-examination that the girl could attend, i.e., remain focused upon a task for up to ten minutes, and that she could benefit from longer lessons which involved varying activities in her class in response to the attentiveness of her students, and that highly distractible children have succeeded in her class with appropriate behavior management techniques. Upon the record before me, I find that there is no basis for concluding that the girl has highly intensive management needs and requires a high degree of individualized attention and intervention, which is the criterion for placement in a 6:1:1 class (8 NYCRR 2006 [g][ii][a]). Therefore, I find that the child's educational needs can be met in a 12:1:1 class, which is a less restrictive environment than the 6:1:1 class sought by petitioners. Respondent is required to educate each child with a disability, to the maximum extent appropriate with other children who do not have disabilities. I find that the recommended placement of the girl in a program in which she will have an opportunity to interact with non-disabled peers at lunch and recess is the least restrictive environment for her.
Petitioners also challenge the appropriateness of the recommended placement upon the ground that respondent failed to establish that the girl would be grouped with children of similar abilities and needs. As in the portion of the hearing dealing with the girl's brother, respondent introduced into evidence a limited class profile which revealed only the IQ scores of the other children in the recommended class. However, the teacher of the recommended class testified that most of the children in the recommended class were classified as speech impaired and had comparable academic, social, physical and management needs to those of petitioner's daughter. The teacher testified that the children were also developing their academic readiness skills, and that some of the children in her class had auditory processing difficulties and deficits in their vocabulary development and sentence formation skills, as did petitioner's daughter. The teacher's testimony was supported by the testimony of the speech/language teacher and respondent's school psychologist. Although the SLCD administrator and SLCD psychologist testified that the girl's speech/language deficits were more severe than those of the children in the recommended class, they conceded that the child could benefit from a placement with children having different educational deficits. Upon the record before me, I find that respondent has met its burden of proof with regard to the grouping issue and the appropriateness of the recommended placement.
THE APPEAL IS DISMISSED.