Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Lawrence E. Becker, Esq., attorney for petitioner, Roslyn Z. Roth, Esq., of counsel
Advocates for Children of New York, Inc., attorney for respondent, Dorothy Wendel, Esq., of counsel
Petitioner, the Board of Education of the City School District of the City of New York, appeals from the decision of an impartial hearing officer which directed petitioner to provide respondent's 15 year old child with a lap top computer, monitor and printer (hereinafter "lap top"), for the child's exclusive use on a 12-month basis until the child attains 21 years of age or graduates from high school. The appeal must be sustained.
Respondent's child is classified as learning disabled. There is a significant difference between the child's verbal and performance IQ scores, and he has significant deficits in his fine motor and visual-motor integration skills, which are manifested in his inability to write at a level commensurate with his age. The child's classification is not in dispute, nor is his placement. The record reveals that the child has attended the Churchill School since the 1987-88 school year, when he was in the third grade. He repeated the sixth grade in the Churchill School, and is presently in the eighth grade. The Churchill School is a private school which has been approved by the State Education Department to provide instruction to children with disabilities. Respondent has contracted with the Churchill School for the child's education. In addition to special education, the child has been provided with speech/language therapy.
The record further reveals that the child has received occupational therapy three times per week as part of his educational program for the last seven years. Although occupational therapy was initially provided to assist the child in developing daily living skills like buttoning, the focus of the child's therapy has shifted to developing his communication skills, including handwriting and the use of a computer. His occupational therapist reported in June, 1993 that the child's speed in copying sentences had improved, but his handwriting was largely illegible. However, the occupational therapist reported that the child's typing skills had improved, and that he could type 12 words per minute.
In an end of the year report for the 1992-93 school year, the Churchill School reported that the child had achieved academic success in each of his courses. However, the child's language arts teacher reported that writing remained a laborious task for the child, and that he continued to have difficulty with spelling and vocabulary, in part because of his writing difficulty. The child's social studies teacher reported that the child tended to avoid written work, and opined that typing skills would be invaluable to the child. During the 1992-93 school year, the child was enrolled in a computer course in the Churchill School, in which the students reportedly used standard computers to acquire specific word processing skills.
In the Spring of 1993, respondent, who is the child's parent, discussed the child's use of computers with one of the child's teachers, who reportedly recommended that the child have a lap top. By letter dated October 1, 1993, respondent asked the principal of the Churchill School to support respondent's request to respondent's committee on special education (CSE) for a lap top for the child. On October 20, 1993, respondent asked the principal to solicit written statements in support of his request for a lap top from the staff of the Churchill School. At the principal's direction, written statements were prepared by the child's teacher, his occupational therapist, and his counselor, as well as the computer coordinator for the Churchill School. Each of the individuals recommended that the child have access to a lap top, in order to do his written work. Respondent submitted the written statements to the CSE.
On November 15, 1993, respondent met with respondent's CSE, which revised the child's individualized program (IEP) by listing a specific model of lap top as a specialized equipment/adaptive device needed by the child (see 8 NYCRR 200.4 [c][vi]).1 However, the child's IEP goals were not revised to reflect his use of a lap top. The lap top was added to the child's IEP with a written notation that the child:
" ... has a history of severe visual-motor dysfunction for which OT has been received for seven years. Only with the use computer (sic) can he take notes and produce legible academic work including in mathematics. Lack of such equipment seriously impedes academic progress."
On November 30, 1993, the CSE began the child's triennial evaluation by having the child observed in the Churchill School by one of petitioner's psychologists. The psychologist, who observed the child in a mathematics class, reported that the child frequently responded to the teacher, but his responses were more inappropriate than those of his peers. However, the psychologist further reported that the child appeared to grasp the information being presented in class, and that the child's peers accommodated his idiosyncracies.
On January 4, 1994, respondent requested that an impartial hearing be held, because the child had not been provided with a lap top as the CSE had recommended. However, he subsequently agreed to defer his request for a hearing, pending the completion of the child's triennial evaluation. In the child's triennial psychological evaluation, which was completed on January 11, 1994, his verbal IQ score was reported to be 102, while his performance IQ score was reported to be 54. The child's full scale IQ score was reported to be 77. The psychologist who evaluated the child reported that the child's greatest strength in the verbal area was in his ability to acquire and retain information, while his greatest difficulties were in mathematical computation and short-term memory. In the nonverbal area, the child exhibited weakness in his fine motor movements, visual sequencing, visual-spatial analysis and organizational skills. The child's performance on certain sub-tests in the non-verbal area was significantly lower than recorded in prior psychological evaluations in 1985 and 1990. The child's perceptual motor skills were reported to be at an age equivalent of 6 to 6 1/2 years, although the child was 14 years old. The psychologist opined that the child had quite limited visual memory. The psychologist, who described the child as somewhat constricted emotionally, further opined that the child felt bad about his inability to manipulate the environment through his body and recommended that counseling be considered for the child.
In an educational evaluation, which was also completed in January, 1994, the child achieved grade equivalents of 8.3 in reading comprehension, 7.5 in reading decoding, 2.9 in spelling, 3.5 in math computation and 4.9 in math application. The child's writing skills were reported to be at approximately the fourth grade level, with particular deficits in his spelling, punctuation, and capitalization. At the time of the child's educational evaluation, he was in the eighth grade.
In a letter to the CSE chairperson dated January 11, 1994, the principal of the Churchill School reported that, after reviewing the child's amended IEP, she wished to advise the CSE that the Churchill School could not provide a lap top for the child, but would provide him with ready access to a computer in his classroom. She asserted that the Churchill School could address the child's IEP goal of becoming proficient in using a computer, and would assist the child in taking notes by providing him with computer disks or hard copies of notes and work produced in class. The principal requested that the CSE review its recommendation that the child have access to a lap top, or in the alternative, that the CSE arrange another placement for the child.
On January 28, 1994, the CSE conducted its triennial review of the child. The CSE recommended that the child remain classified as learning disabled and continue to attend the Churchill School. The CSE also recommended that the child continue to have test modifications, including having his test answers recorded in any manner. The CSE further recommended that the child receive speech/language therapy twice per week and occupational therapy three times per week. The CSE did not explicitly recommend that the child receive counseling, as its psychologist had recommended, but it nevertheless included an annual goal and short-term objectives for counseling. The child's IEP which was prepared at the January 28, 1994 meeting did not list any specialized equipment/adaptive device required by the child. The IEP included in a description of other programs and services which the CSE had considered the lap top which had been listed in the child's prior IEP. The CSE's rationale for not recommending a lap top was that the Churchill School had represented that it would provide the child with the use of a computer in the classroom to take tests, prepare assignments and to take notes, and would provide him with hard copies of notes or class work, or computer disks of such material for his use at home on a compatible computer.
The record does not reveal whether respondent requested a hearing to review the January 28, 1994 CSE recommendation. However at a hearing which was held on February 17, 1994, the issue was the CSE's January recommendation, rather than petitioner's failure to implement the CSE's November recommendation. A psychologist representing the CSE testified that the CSE had relied upon the letter of the principal of the Churchill School to the CSE chairperson in not recommending that the child have the use of a lap top, because the Churchill School could adequately meet the child's educational needs without his use of a lap top. In her testimony, the Churchill School principal reiterated her opinion that the Churchill School could meet the child's educational needs without a lap top, but asserted that the Churchill School would train the child to use a lap top if the Board of Education provided the device. The child's teacher for the 1993-94 school year testified that there were two computers available for use by the nine children in her classroom. The teacher also testified that the child required access to a computer, because of his deficient writing skills, but that he did not require a lap top to meet his needs. She further testified that the child did all of his written work on a computer, and that he was able to prepare outlines of written material without difficulty on the computer. With regard to outlining topics which were to be orally presented in school, the child's teacher testified that she would reposition a computer in class, so that the child could sit with his classmates during oral presentations.
In a decision dated March 15, 1994, the hearing officer held that the CSE had failed to meet its burden of proof with regard to the appropriateness of its recommendation that the child not be provided with a lap top. The hearing officer premised her holding upon findings that the child could not write without the assistance of a computer, and that providing the child with access to a standard personal computer in his classroom would not meet his unique needs. The hearing officer also held that the CSE's failure to recommend that the child be provided with a lap top denied the child an opportunity to reach the same level of achievement as his non-disabled peers, in violation of Section 504 of the Rehabilitation Act of 1993 (29 USC 794). The CSE was directed by the hearing officer to amend the specialized equipment portion of the child's IEP to provide for the child's use of a lap top, and petitioner was directed to purchase such equipment. The hearing officer further directed that a lap top shall be available to the child for his exclusive use during the school year and the summer months, until the child becomes 21 or graduates from high school.
Initially, I find that the hearing officer exceeded her jurisdiction by purporting to determine the child's educational needs for the next 6 years or until his graduation from high school. Federal and State regulations require that a CSE review each child's educational program at least once a year (34 CFR 300.343 [d]; 8 NYCRR 200.4 [e]), and re-evaluate each child at least once every three years (34 CFR 300.534 [b]; 8 NYCRR 200.4 [e]). As part of each annual review, a CSE prepares the child's IEP which details the educational program, including related services and necessary specialized equipment, to be provided to the child during the next 12 months. At an impartial hearing, it is the hearing officer's responsibility to determine the appropriateness of the program and services set forth in the child's IEP for the year during which the IEP will be in effect. The IEP which was before the hearing officer in this instance was intended to be in effect from January through June 1994, and in any event, would not have been valid beyond January 1995. Consequently, the hearing officer's review should have been limited to the IEP which was before her, and my review will be limited to such IEP. In view of the testimony of the CSE psychologist that the CSE would meet in May, 1994 to prepare the child's IEP for the 1994-95 school year, I further find that the hearing officer was precluded from determining what, if any, need the child had for a lap top during the summer of 1994, which is a matter for the child's 1994-95 IEP.
With regard to appropriateness of the educational services provided to the child by petitioner during the 1993-94 school year, there is a threshold issue which must be addressed. Section 4402 (1)(b)(1) of the Education Law and 34 CFR 300.342 (a)(2) require that a child's teacher participate in CSE meetings in which changes to the child's IEP are to be considered. Although a board of education may, under New York State law, dispense with the attendance of the school physician at certain CSE meetings, it may not dispense with the attendance of the child's teacher (Application of a Child with a Disability, Appeal No. 93-17). The child's IEP developed at the January 28, 1994 CSE meeting lists the participants in the meeting. The child's teacher in the Churchill School did not participate in person in the CSE meeting, and there is no evidence that she participated by telephone conference as is permitted by Federal regulation (34 CFR 300.348 [a]). Notwithstanding the fact that a representative of the Churchill School, its principal, did participate in the January 28, 1994 CSE meeting, I am constrained to find that the CSE was not properly constituted, and that the IEP developed at such meeting is invalid (Application of a Child with a Disability, Appeal No. 93-17; Application of a Child with a Disability, Appeal No. 93-11; Application of a Child with a Handicapping Condition, Appeal No. 92-31).
Although a remand of the matter to the CSE to develop a new IEP may be the appropriate remedy in some instances (Application of a Child with a Handicapping Condition, Appeal No. 92-9), it is not appropriate here, where the parties have no disagreement except for the issue of a lap top, and the school year at issue is virtually completed. The record reveals that the child will not, because of his grade level, be eligible to attend the Churchill School during the 1994-95 school year. The appropriateness of the lap top for the child during the 1994-95 and subsequent school years is not an issue in this proceeding. However, the parties have a right to a determination as to petitioner's responsibility to provide a lap top during the 1993-94 school year, provided that there is adequate record for doing so. In view of the fact that the child's teacher testified at the hearing in this proceeding, and that both parties had an opportunity to present relevant information in support of their respective positions, I find that there is an adequate record to determine the issue of providing a lap top to the child during the 1993-94 school year. Consequently, I will render a decision on this issue.
Petitioner asserts that the hearing officer erred by applying an incorrect standard in determining whether the CSE had recommended an appropriate program for the child. A board of education 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, a board of education must demonstrate that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD 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]).
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 this instance, the issue is whether the child's IEP provides for the use of appropriate special education services to address his special education needs. Petitioner contends that the child, while requiring the use of a regular computer, does not require a lap top in order to benefit from his program of special education. Respondent asserts that a lap top computer is necessary, and that the use of a regular computer in school would be insufficient, for his son to benefit from his special education program.
Petitioner is obligated to provide the child with a free appropriate public education, which may include access to specialized equipment such as a computer. Federal regulation requires that a board of education provide a child with assistive technology devices, if the devices are required as part of the child's special education or related services, or supplementary aids and services necessary for the child to be educated in the least restrictive environment (34 CFR 300.308). An assistive technology device is defined in Federal regulation as:
" ... any item, piece of equipment, or product system ... that is used to increase, maintain, or improve the functional capabilities of children with disabilities" (34 CFR 300.5).
The U.S. Department of Education has opined that any assistive technology device which a child requires must be listed in the child's IEP (20 IDELR 1216). State regulation requires that a child's IEP must describe any specialized equipment and adaptive devices needed for the child to benefit from education (8 NYCRR 200.4 [c][vii]). Although the parties disagree about the particular kind of assistive technology device to be provided for the child's use, there is no disagreement that the child requires the assistance of a computer to facilitate his written expression. Indeed, I find that the record amply demonstrates that the child requires the use of a computer to compensate for his fine motor and visual-motor deficits and to enable him to benefit from education. I further find that the CSE erred by not describing the specialized equipment needed by the child in the requisite portion of his IEP. However, the CSE's omission of that information from the IEP is not dispositive of the issues presented in this appeal.
The central issue in this appeal is whether the child requires the assistance of a lap top, rather than a regular computer, in order to receive a meaningful benefit from his instructional program (Application of a Child with a Handicapping Condition, Appeal No. 90-13). The child's teacher testified that the child already does all of his written work on computers. The Churchill School has offered to assure the child access to a personal computer in his classroom, on which the child would have the opportunity to take tests, complete assignments and prepare notes. Nevertheless, respondent asserts the CSE's recommendation is not reasonably calculated to enable the child to receive educational benefits without the use of a lap top (cf. Rowley, supra). Respondent contends that the child cannot be making reasonable progress in school, because the disparity between the child's verbal and performance IQ scores has increased and his full scale IQ score has decreased, since the child's prior triennial evaluation. However, there is no expert testimony or other evidence in the record which would afford a basis for the inference that the decline in the child's IQ scores is attributable to an alleged inability of the child to benefit from his educational program, or conversely, that the use of a lap top would enhance the child's IQ scores. The child has significant deficits in his educational achievement which are linked to his disabling condition. However, the child's reading comprehension was at an appropriate grade level in January, 1994. Furthermore, the Churchill School's end of the year report for the 1992-93 school year established that the child has made satisfactory academic progress.
One means of ascertaining whether an assistive technology device is necessary for a child to derive a meaningful benefit from his or her educational program is to determine if the device is required in order for the child to achieve his or her IEP goals (Application of a Child with a Disability, Appeal No. 93-33). Respondent asserts that the CSE's recommendation to provide the child with access to a computer in class will not address all of the child's language arts, or any of his social and emotional, goals. I disagree. The child's IEP reveals that the child will use a computer to compensate for his deficits in written expression and assist him in meeting his language arts goals which are dependent upon having adequate written expression. The child has two social and emotional goals in his IEP. These are to increase his sense of ability and strength to gain a more realistic sense of himself, and to increase his awareness of anxiety. In one of the letters submitted by respondent to the CSE, a Churchill School psychologist opined that the child's deficits in coordination and fine motor skills had negatively affected his self-esteem, and caused the child to become more verbally and physically aggressive. The psychologist further opined that if the child could reduce the extent of his fine motor difficulties by using computers, he could focus upon more appropriate social skills, which would also enable him to improve his self-esteem. However, the Churchill School psychologist's opinion does not afford a basis for concluding that the child requires a lap top, rather than the computers available in his classroom, in order to achieve his social and emotional IEP goals.
At the hearing, the school psychologist who was a member of the CSE testified that a lap top was not necessary for the child. Responding to the hearing officer's question about whether the CSE had adequately addressed the issue of the child's low self- esteem, the CSE's school psychologist opined that the child's feelings of inadequacy in manipulating the environment through his body related to the fact that the child is physically weak, rather than how the child feels about learning. She further opined that providing the child with a lap top would not change how the child sees himself, but conceded that the child might feel that he was more a part of the class with a lap top. Nevertheless, the school psychologist testified that the child's needs were being met in the Churchill School, where the child was receiving counseling to address his social and emotional needs, notwithstanding the CSE's failure to list counseling as a related service in the child's IEP (cf. 8 NYCRR 200.4 [c][vi]).
In her decision finding that the petitioner was required to provide the child with a lap top, the hearing officer relied upon the four brief statements written by the Churchill School staff at respondent's request. Of the four individuals who wrote the statements, only the child's teacher testified at the hearing. In her written statement, the teacher had asserted that the child could do a much better job with the lap top, which would optimize his performance and lessen his anxiety. However, the teacher testified that her letter had been written to assist respondent, and that the child did not require a lap top to meet his educational needs. I find that the written statements of the other three Churchill School staff members also do not afford a basis for concluding that the child requires a lap top to derive a meaningful benefit from his educational program in the Churchill School in the 1993-94 school year.
Respondent asserts that the hearing officer correctly found that the program recommended by the CSE denied the child a free appropriate public education because it required the child to complete homework assignments on a compatible computer owned by petitioner. The record does not reveal the nature or extent of the child's written homework, which is especially significant in view of the representation by the Churchill School that the child could use a computer in school to complete homework and other tasks. However, even if the child completes written homework assignments on a computer at home, it does not follow that the child has been denied a free appropriate public education. In relevant part, Federal regulation defines a free appropriate public education as:
" ... special education and related service that ... are provided at public expense, under public supervision and direction, and without charge ... " (34 CFR 300.8)
States and school districts may use whatever public and private sources of support which are available to provide a free appropriate public education (34 CFR 300.301). I find that there is no basis in the record for finding that the child's use of an existing family computer conflicts with the regulatory requirement that special education and related services be provided without charge to the parent.
Upon the record before me, I find that the child can derive a meaningful benefit from his instructional program, including the achievement of his IEP goals, without the assistance of a lap top. Consequently, I further find that petitioner is not required pursuant to either the Individuals with Disabilities Education Act (20 USC 1400 et seq.) or Article 89 of the New York State Education Law to provide a lap top for the child's use during the 1993-94 school year.
The hearing officer also held that the petitioner was required by the provisions of Section 504 of the Rehabilitation Act of 1973 to provide the child with a lap top, because the child would otherwise be denied an equal opportunity to reach the same level of achievement as non-disabled children. Although the standard articulated by the hearing officer appears to have been taken from one portion of the Federal regulatory definition of discriminatory actions under Section 504 (see 34 CFR 104.4 [b]), it is of questionable applicability in view of the regulatory definition of a free appropriate public education for Section 504 purposes (see 34 CFR 104.33). Indeed, the latter regulation expressly provides that implementation of an IEP developed in accordance with the Individuals with Disabilities Education Act is one means of satisfying the parallel requirement of providing a free appropriate public education under Section 504 (34 CFR 104.33 [b]). Respondent's reliance upon the provisions of 34 CFR 104.44 (d) is misplaced, because that regulation by its terms, is limited to students in postsecondary educational institutions. Having found that petitioner is not required to provide the child with a lap top under Individuals with Disabilities Education Act, I further find that it is not required to do so under Section 504.
Respondent requests that petitioner be ordered to reimburse him for his expenditures for a computer and printer which he purchased for the child. A board of education may be required to pay for educational services obtained by a parent, 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 parent's claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359; Hiller v. Brunswick CSD, 687 F. Supp. 735 [N.D.N.Y., 1988]). In this instance, respondent did not raise the issue of reimbursement at the hearing, and there is no evidence in the record of such expenditures. However, even if I were to reach the merits of this issue (cf. Application of a Child with a Disability, Appeal No. 93-36), I would nevertheless be constrained to deny respondent's request because respondent cannot prevail on the first prong of the Burlington test, i.e. that the services offered by the board of education were inadequate.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing officer is hereby annulled.
1 Although the record reveals that neither the parent member of the CSE nor the child's teacher attended the CSE meeting (cf. Section 4402[b] of the Education Law), the validity of the CSE's recommendation on November 15, 1993 is not at issue in this appeal, because respondent did not seek review of the recommendation, which was subsequently superseded by another CSE recommendation which is the subject of this appeal.