95-002

       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 be instructed in a self-contained special education class, except for mainstreamed reading, art, music, and physical education at the second grade level, during the 1994-95 school year. In doing so, the hearing officer also denied petitioners' request for an order directing respondent to provide a frequency modulated auditory trainer (FM trainer) for the child, and to delete an allegedly inaccurate IQ score from the child's individualized education program (IEP). The appeal must be dismissed.

        Petitioners' child, who is eight years old, was born prematurely. Although he achieved most of his developmental milestones at the appropriate age, he was non-verbal until he became four years old. In November, 1989, shortly before his third birthday, the child was evaluated by a private speech/language therapist. At the hearing in this proceeding, the speech/language therapist testified that the child had speech articulation and oral motor deficits which were addressed by therapy. The child spoke in two-to-three word sentences by the age of four and one-half years. When tested by the therapist in the Spring of 1992 at the age of five years and five months, the child was found to have receptive language skills at the age equivalence of 3.7. The child also exhibited deficits in attention, as well as impulsivity, which the therapist reported had negatively affected the child's progress in therapy and his test performance. Although the child had reportedly shown improvement in his attention, auditory memory and vocabulary skills, he nevertheless continued to be significantly below age expectancy in those skills. The child was re-evaluated at the age of six in December, 1992. He achieved age equivalent scores of 4.3 in receptive vocabulary, 5.2 in expressive language, 3.7 in understanding of grammar, and 3.8 in sentence imitation skills. His auditory comprehension skills ranged between age equivalents of 3.8 to 3.10.

        The child was enrolled in a private preschool program in January, 1992. He remained in the preschool program through June, 1993, when he was six and one-half years old. In February, 1993, petitioners referred the child to respondent's CSE to recommend an appropriate program for the 1993-94 school year. Respondent's school psychologist, who evaluated the child, reported that the child achieved a verbal IQ score of 65, a performance IQ score of 71, and a full scale IQ score of 65. However, the school psychologist opined that the child's test scores were to be regarded as minimal estimates of the child's ability because the child's difficulty in processing language and his attentional deficits had precluded an accurate assessment of his ability. With that caution, he noted that the child had exhibited severe deficits in his fund of general information, abstract, arithmetical and social-judgmental reasoning skills. He also reported that the child's short-term auditory-sequential memory skills were limited. The school psychologist further reported that the child possessed basic academic readiness skills to a limited degree. The school psychologist urged that the child be evaluated by a pediatric psychiatrist to determine the extent of his attention deficit disorder, and to ascertain whether he had a neurological impairment and/or emotional difficulties.

        One of respondent's reading teachers attempted to assess the child's reading readiness skills, but she reported that the child was restless and generally inattentive and she discounted the validity of the test results which she had obtained. The reading teacher recommended that the child be reassessed by an individual who was experienced in dealing with children who have attention deficits. A speech therapist employed by respondent reported that the child's performance during his evaluation was characterized by alternating periods of concentration and cooperation, impulsive/perseverative motor behavior, intermittent body rocking, and relevant and irrelevant comments. The speech therapist also reported that the child's test results during the evaluation were somewhat lower than those which the private speech therapist had reported, but she concurred with the latter's recommended annual speech goals of improving the child's auditory attention and processing skills, developing his vocabulary, and reducing his maladaptive motor behaviors. The speech pathologist recommended that the child be placed in a self-contained special education class, and that he receive speech/language services five times per week. The child's preschool teacher reported that the child had difficulty sitting still and being quiet, and that his socialization skills were immature. She noted that the child frequently rocked back and forth, and made unusual sounds.

        On February 25, 1993, the CSE recommended that the child undergo a psychiatric evaluation. Although a psychiatric evaluation was subsequently completed, the results of such evaluation are not part of the record before me. On March 29, 1993, the CSE recommended that the child be classified as learning disabled, and that he be placed in a 12:1+1 special education class on a 12-month basis for the 1993-94 school year. The CSE further recommended that the child receive speech/language therapy in a small group five times per week, and that a school social worker provide services to him once per week to aid in his transition to the public school. It further recommended that a neurological evaluation be obtained as soon as possible and that the child be psychiatrically re-evaluated in January, 1994. Petitioners accepted the recommendation by the CSE.

        Upon the recommendation of his private speech/language therapist, the child received a language and auditory processing evaluation in September, 1993. The evaluator reported that the child's receptive vocabulary skills were delayed by approximately two years, and his expressive vocabulary skills were delayed by about one year. She noted that the child appeared to have difficulty finding words. His pragmatic language skills were somewhat limited because he was unable to interact with a series of verbal exchanges. The evaluator reported that the content, form, and use of the child's expressive language were not age appropriate. The child's hearing was reported to be within normal limits. Although the child's auditory discrimination skills were satisfactory in a quiet environment, his ability to comprehend decreased significantly as the level of background noise increased. He also became noticeably restless as the background noise increased. The child exhibited deficits in his auditory attention span for related syllables and unrelated words. The evaluator reported that the child displayed language processing deficits in the areas of speech discrimination, auditory memory, closure and integration. She recommended that the child be provided with instruction in an environment which was free from distraction and that he should be seated in class next to his teacher, away from doors and windows. She further recommended that clear and simple instruction be used with the child, and that he receive written or visual instructions or explanations when possible. The evaluator also recommended that the child receive auditory integration training to improve his ability to discriminate between sounds, and that such therapy should include the use of a FM trainer as an assistive device. She also suggested that such device be introduced in his classroom.

        The special education class which the child entered in September, 1993 provided instruction at both the kindergarten and first grade levels. At the hearing in this proceeding, the child's teacher testified that the child was eager to be in school, but was unsure of himself as a learner. Although the child started with kindergarten level material, his teacher discovered that he was capable of working at the first grade level. The teacher testified that she placed the child with a group of first graders in her class, and that he had been focused and successful while working in the group. She further testified that the child requested additional directions for his individual work, but that he had performed such work satisfactorily once he understood the directions. She described the child as highly motivated, but immature. On achievement tests that were administered to him in the Spring of 1993, the child achieved standard scores ranging from 76 in mathematical applications to 96 in word attack skills. His teacher testified that the child's standard scores had been calculated on the basis of his chronological age, notwithstanding the fact that most children his age had been in elementary school for one more year than had this child.

        In February, 1994, a comprehensive independent evaluation was begun at Schneider Children's Hospital of the Long Island Jewish Medical Center (LIJ). A neurologist at LIJ reported that the child was very distracted and had exhibited some rocking behavior during his evaluation. Although the child had responded well to redirection, he exhibited Akathisia (motor restlessness) when challenged. The child's work style was described as impulsive. The neurologist noted that the child had not exhibited perseverative behaviors, apart from the rocking motion, nor had he exhibited any self-stimulatory or otherwise unusual behaviors. Using information about the child provided by his teacher, the neurologist reported that the child exhibited signs of hyperactivity which were significantly higher than average. The neurologist opined that the child's behaviors were indicative of an attention deficit disorder, and recommended that the child receive medication for his attention deficit disorder.

        An LIJ psychologist who administered the Stanford-Binet Intelligence Scale to the child reported that the child had achieved a composite score of 71, which was in the slow learner range. However, the psychologist administered additional tests to the child because he believed that the child's language processing difficulties had influenced the results of the Stanford-Binet. Using selective subtests of the Differential Ability Scales, the child achieved a non-verbal composite score of 93, which was in the average range. The child exhibited uneven abstract visual reasoning skills, and age-appropriate visual memory skills. The child's below age level performance in a test of his graphomotor skills was thought to have been caused by his impulsivity. The psychologist reported that the child's behavior during the evaluation was similar to that which his teacher had described and which the LIJ neurologist had used to determine that the child had an attention deficit disorder. The child's responses to projective tests revealed that he was anxious about his behavior and his acceptability to others. The psychologist recommended that the child be placed in a language-based class to provide support for the development of his language skills, rather than a regular education class.

        An educational evaluation was also performed at LIJ. The evaluator reported that the child's score on a test of basic concepts was in the low average range for children completing kindergarten, but in the below average range for those completing first grade. His reading skills were reported to be at the early first grade level of achievement. His performance on a mathematics test was described as within the average range. The evaluator opined that the child's overall performance on language related tasks revealed that he was making solid gains, but was still struggling to acquire basic academic skills. The evaluator provided an extensive list of classroom management suggestions for the child, including preferential seating, multi-model presentations, and specific directions for presenting instruction to him.

        During a speech/language evaluation at LIJ, the child repeatedly exhibited a high degree of anxiety and restlessness. The evaluator reported that the child demonstrated relative strength in receptive language in his ability to follow oral directions, repeat digits backwards and discriminate between similar sounding words. However, areas of weakness included his vocabulary, concept development, semantic-syntactic comprehension, and his ability to process, retain and recall information in connected language. Although the child was reportedly able to speak in multi-word utterances with good intelligibility, all aspects of his expressive language development were described as impaired. The evaluator recommended that the child continue to receive speech/language therapy, and that in the classroom, the child should use printed material to accompany oral instruction. The evaluator also recommended that the child use a FM trainer initially to screen out ambient noise.

        In May, 1994, the various LIJ evaluators met to make combined findings and recommendations. The evaluators diagnosed the child as having a developmental expressive and receptive language disorder, as well as an attention deficit hyperactivity disorder. In their collective report, the evaluators recommended that the child be placed in a special education classroom designed for children with language processing disorders, and that he continue to receive speech/language therapy. They further recommended that psychostimulant medication be tried as a means of reducing the child's distractible behaviors. They also recommended that the child receive individual counseling to develop strategies for expressing and coping with his feelings, improving his self-esteem, and developing his social skills.

        On June 6, 1994, respondent's speech therapist recommended that the child receive speech/language therapy in a small group twice per week and individually three times per week. She expressed concern about having the child use a FM trainer, because of his reported sensitivity to loud noise and normal hearing. The therapist acknowledged that "an appropriate and carefully monitored program might be beneficial," but suggested that the child use a FM trainer at selected times at home before attempting to use it in school.

        On June 26, 1994, respondent's CSE prepared the child's IEP for the 1994-95 school year. The CSE recommended that the child's classification be changed from learning disabled to multiply disabled (speech impaired and other health impaired). It further recommended that the child be educated in a 12:1+1 combined second and third grade special education class, and that he be mainstreamed for reading at the second grade level and for special subjects like art, music, and physical education. The CSE also recommended that the child's speech/language therapy be changed from small group therapy five times per week to small group therapy twice per week and individual therapy three times per week. In addition, the CSE recommended that a social worker continue to counsel the child, but that the frequency of the social worker's services be changed from once per week to once per month and that the social worker provide liaison with the child's private therapist. The CSE did not make provision for the child's use of a FM trainer on his IEP.

        By letter dated August 3, 1994, petitioners asked for an impartial hearing on three issues: (1) respondent's alleged failure to provide counseling by a school social worker and speech/language therapy in the amount specified in the child's IEP for the 1993-94 school year; (2) the CSE's failure to recommend a FM trainer as an assistive technology device for the child during the 1994-95 school year; and (3) the CSE's inclusion of an allegedly inaccurate IQ score on the child's IEP. The hearing began on September 30, 1994, and ended on November 4, 1994. At the hearing, petitioners did not challenge the CSE's recommendation with regard to the child's classification or his placement in a special education class for the 1994-95 school year.¹During the hearing, petitioners also challenged respondent's failure to mainstream the child for reading at the beginning of the 1994-95 school year, and its subsequent placement of the child in a second grade mainstreamed reading program on October 28, 1994.

        In his decision dated November 30, 1994, the hearing officer found that respondent had substantially complied with the child's IEP in providing counseling and speech/language therapy. He further found that the child's use of a FM trainer was not appropriate "at this time," but suggested that respondent might consider the use of such device if the child's progress in school failed to continue. With regard to the composite IQ score of 71 on the child's IEP, which had been obtained by the LIJ psychologist, the hearing officer found that the IQ score was correct. The hearing officer also found that the child had been appropriately placed in a second grade regular education class for instruction in reading.

        Petitioners have not challenged the hearing officer's finding with regard to respondent's alleged failure to comply with the child's IEP in providing counseling and speech/language therapy to the child during the 1993-94 school year and the latter service during the Summer of 1994. In view of the "finality" provisions of Federal and State law (20 USC 1415 [c]; Section 4404 [1] of the Education Law), I will not review the hearing officer's finding. Nevertheless, I caution respondent that changes in the amount of services to be provided to a child should not be made without a recommendation by the CSE for such changes (Application of the Bd. of Ed. Ellenville CSD. Appeal No. 92-22; Application of a Child with a Handicapping Condition, Appeal No. 92-39; Application of a Child with a Disability, Appeal No. 93-12). Although petitioners assert that respondent has not paid for the cost of the private audiological evaluation which they obtained, they did not raise that issue at the hearing in this proceeding. Therefore, I do not reach that issue in this review of the hearing officer's decision (Application of a Child with a Disability, Appeal No. 94-12).

        The central issue in this appeal is the appropriateness of the child's program which the CSE recommended for the 1994-95 school year. Respondent bears the burden of demonstrating the appropriateness of the program recommended by its CSE (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 show 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 [1982]), 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 a child's evaluation 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).

        Petitioners assert that their child's IEP does not accurately reflect the results of his LIJ evaluation. The IEP describes the child's intellectual functioning by listing the results of the Stanford Binet Intelligence Scale which was administered to him at the LIJ in March, 1994. The IEP lists the composite scores which the child achieved on the verbal reasoning, abstract/visual, quantitative, and short-term memory portions of the Stanford Binet, as well as his composite score of 71 on the Stanford Binet. The IEP accurately reflects the test scores which were reported by the LIJ psychologist. However, petitioners object to the CSE's failure to include the results of the Differential Ability Scale which was also administered to the child by the LIJ psychologist. They assert that the DAS score is a more appropriate measure of the intellectual potential of children who have significant language delays. The relevant Federal regulation provides that:

"Tests are selected and administered so as best to ensure that when a test is administered to a child with impaired sensory, manual, or speaking skills, the test results accurately reflect the child's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child's impaired sensory, manual, or speaking skills (except where those skills are the factors that the tests purport to measure)." (34 CFR 300.532 [c]).

        I find that the Stanford Binet was appropriately administered to the child and that the CSE reasonably relied upon the results of such examination. Each evaluation of a child should include an assessment of the child's cognitive ability, using a test that has been validated for that purpose. There is nothing in the record to suggest that the Stanford Binet, a widely recognized test, has not been validated for the purpose for which it was used, or that it was not administered in accordance with its protocol. The test includes various subtests which measure different aspects of a child's cognitive skills. The results reported by the LIJ psychologist and reflected on the child's IEP were not limited to tasks or functions requiring well-developed communication skills, nor were those scores used to support a possible classification of the child as mentally retarded. The selected portions of the DAS which the LIJ psychologist administered to the child provided additional information about his relative strengths and weaknesses, as well as the nature of his educational disability. However, it does not follow that the use of the entire Stanford Binet Intelligence Scale was inappropriate to measure the child's cognitive ability.

        Petitioners do not challenge the appropriateness of their child's IEP goals. However, they assert that the CSE failed to recommend the appropriate services to enable the child to achieve his annual goals. Specifically, they assert their child requires the use of a FM trainer in school. A board of education is required to provide a free appropriate public education to each child with a disability (20 USC 1414 [a][1][c][ii]). A free appropriate public education may include access to specialized equipment or assistive technology devices. 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)

        A board of education must provide a child with an assistive technology device, if the device is required as part of the child's special education or related services, or it is a supplementary and/or service which is necessary for the child to be educated in the least restrictive environment (34 CFR 300.308). State regulation requires that a child's IEP describe any specialized equipment or adaptive device needed by the child to benefit from instruction (8 NYCRR 200.4 [c][2][vii]). The issue to be determined is whether petitioners' child requires a FM trainer in order to benefit from his instructional program (Application of a Child with a Handicapping Condition, Appeal No. 90-13; Application of a Child with a Disability, Appeal No. 93-33; Application of a Child with a Disability, Appeal No. 94-11, Application of a Child with a Disability, Appeal No. 94-40).

        Petitioners argue that the only professional person qualified to evaluate the extent of their child's auditory processing disorder and to recommend services to address that disorder was the audiologist and speech/language pathologist, Dr. Geffner, who evaluated the child in September, 1993. Dr. Geffner recommended that the child begin an experimental auditory training program and that he be provided with a FM trainer in the classroom. The FM trainer would amplify the voice of the child's teacher, and enable the child to be less distracted by the background noise in his classroom. At the hearing in this proceeding, Dr. Geffner opined that preferential seating, i.e., having the child sit near his teacher would not be adequate to address his auditory processing disorder. She also opined that the child would need support from his teacher, a teacher aide, or a peer to ensure that the child had accurately copied or absorbed information provided by the teacher. She testified that " ... the other thing that works very well for children like this is an auditory unit." (page 132) Dr. Geffner conceded that she had never observed the child in his classroom, and that the child could benefit educationally from his special education program without the use of a FM trainer. She asserted that it would be "more of a struggle" for the child to benefit from instruction without the device. The child's private speech/language therapist also opined at the hearing that the child required the use of a FM trainer in the classroom. However, she admitted that she had never observed the child in his classroom, and that she was not qualified to determine who would be an appropriate candidate for the use of a FM trainer.

        Although the parties have presented conflicting expert opinion about the appropriateness of a FM trainer for a child with normal hearing like petitioner's son, I need not resolve that professional disagreement. The record reveals that the child made significant academic gains without the use of a FM trainer while enrolled in respondent's special education program during the 1993-94 school year. Between February, 1993 and March 1994, the child's performance on a test of his receptive language skills improved from an age equivalent of 4.0 to 5.2. In June, 1994 the respondent's speech/language therapist reported that the child had exhibited improved auditory skills of attention, discrimination, and rhyming, as well as improved articulation and pragmatic language skills. The child also made academic progress as demonstrated by his advancement from a kindergarten group to a first grade group within his special education class. In addition, he reportedly made social gains during the 1993-94 school year. Upon the record before me, I find that the child does not require the use of a FM trainer in order to benefit from his instructional program.

        Petitioners also assert that their child should be provided with a FM trainer as a supplementary aid or service to ensure that he remains in the least restrictive environment (34 CFR 300.308 [c]). I find that their assertion is without merit. Dr. Geffner testified that it would be very difficult for the child to function in a class of 20 or 30 children without a FM trainer. However, it does not follow that the child could obtain a suitable education in a regular education class of any size. Notwithstanding the progress which he made during the 1993-94 school year, the child continues to have various academic, social, and behavioral needs for which he requires primary instruction in special education in many of his academic subjects. He will require such instruction regardless of whether he has the use of a FM trainer. Therefore, I find that a FM trainer is not required to ensure that the child is educated in the least restrictive environment.

        The last issue to be determined in this appeal is whether the child was appropriately mainstreamed for reading in a second grade class in the Fall of 1994. Although the CSE had recommended that the child be mainstreamed for reading, he was not mainstreamed at the beginning of the 1994-95 school year. The child's special education teacher reported that the child's decoding skills were appropriate for the second grade, but that he was having trouble comprehending what he read. The special education teacher provided individual reading instruction to the child. On October 28, 1994, the child was mainstreamed into a second grade reading class.

        Petitioners contend that the child's placement in a second grade reading class was inappropriate and contrary to the recommendations of the LIJ evaluators. The LIJ evaluators reported that on tests administered in April, 1994, the child achieved grade equivalent scores of 1.4 in oral reading and 1.2 in a broader measure of his reading skills. The scores reported by the LIJ evaluators were consistent with an estimate of the child's reading skills which his teacher for the 1993-94 school year had made in her testimony of the hearing. The LIJ evaluators recommended that the child be placed in a special education class for children with a language processing disorder, but did not address the issue of whether or not the child should be mainstreamed for reading.

        Respondent contends that the child was appropriately mainstreamed for reading at the second, rather than the first, grade level because he had made such significant progress during the 1993-94 school year, and because the second grade reading program was more appropriately organized to address the child's reading needs. In addition, respondent asserts that socially, the eight year old child is more appropriately grouped with second grade children.

        I find that the child was appropriately mainstreamed for reading at the second grade level. During the 1993-94 school year, he progressed through kindergarten into first grade level reading. Although his comprehension skills have not kept pace with his decoding skills, I find that the child's comprehension needs can be addressed through the coordinated efforts of the child's second grade reading teacher, his special education teacher and his speech/language therapist. Respondent uses the whole language approach to reading in the first grade, so that reading instruction and related activities are presented throughout the day. In the second grade, reading is taught as a discrete subject, which would allow the child to be mainstreamed for specific instruction in reading. At the hearing, the child's teacher during the 1993-94 school year testified that the child modeled his behavior after that of the children with whom he was placed. It would be more appropriate for him to be with second grade children.

THE APPEAL IS DISMISSED.