Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York
Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Andrew M. Wasserman, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's child receive speech/language therapy in a group of no more than two children, rather than on an individual basis, as sought by petitioner. The hearing officer also held that it was appropriate for such therapy to be provided in school, rather than after school, as sought by petitioner. The appeal must be sustained.
Petitioner's child, who is seven years old, is enrolled in a regular education second grade class in respondent's P.S. 46. The child reportedly achieved developmental milestones within normal time limits, except for delays in his expressive and receptive language skills. He reportedly did not begin to speak until he was three years old. The child attended a preschool program for three years. In a psychoeducational assessment completed in February, 1992, when he was 4.3 years old, the child achieved an IQ score of 71, with a mental age of 3.0. However, on another IQ test administered as part of that evaluation, the child achieved a composite score of 90, indicating that his performance was within the average range of cognitive development. Nevertheless, he reportedly exhibited delays in verbal reasoning skills, which the evaluator opined would be likely to affect the child's speech patterns. The evaluator reported that the child experienced mild to moderate difficulties in acquiring readiness skills, and recommended that the child be placed in an enriched educational program.
In a speech/language assessment completed in February, 1992, the child's speech intelligibility was described as fair for single word utterances, but decreasing as the length of utterance increased. Moderate delays were found in the child's receptive and expressive language development. He reportedly could not follow three-step commands, and his score on a receptive one-word picture vocabulary test indicated a one and one-half year delay in his vocabulary skills. The evaluator reported that the child did not comprehend age appropriate sequential or narrative information. The child's expressive language skills were exemplified by his use of simple sentences and run-on phrases. His expressive vocabulary development was described as significantly restricted. The speech pathologist who conducted the evaluation recommended that the child receive speech/language therapy in a group of no more than three children, twice per week.
In April, 1992, the child was enrolled in the Special Sprouts Nursery School, where he received individual speech/language therapy twice per week. In June, 1992, a speech pathologist of the Special Sprouts Nursery reported that the child displayed significant word finding difficulty, as well as auditory processing problems. She recommended that the child continue to receive speech/language therapy to improve his socialization skills.
On June 2, 1992, respondent's CSE recommended that the child be classified as speech impaired, and that he be enrolled in a regular education kindergarten for the 1992-93 school year. The CSE also recommended that the child receive speech/language therapy in a group of no more than two children, twice per week, and occupational therapy in a group of no more than two, once per week. The occupational therapy was to be provided to remediate the child's deficits in visual motor and perceptual skills, and in bilateral coordination. Petitioner accepted the CSE's recommendation. The record does not reveal whether or not the child's related services were provided at P.S. 46 during the 1992-93 school year.
During the 1993-94 school year, the child remained classified as speech impaired, and was enrolled in a regular education first grade class in P.S. 46. A representative of the CSE testified at the hearing in this proceeding that respondent was unable to provide the child with either speech/language therapy or occupational therapy in P.S. 46, although such services were apparently required by the child's IEP. The child's IEP for the 1993-94 school year was not included in the record of this proceeding. Petitioner received written authorization from respondent to obtain speech/language therapy and occupational therapy from a private source at respondent's expense. The record reveals that the child received both therapies from the Therapy and Learning Center in Brooklyn, New York. In a progress report to respondent, the child's speech/language therapist at the Therapy and Learning Center indicated that the child received individual speech/language therapy to address the deficits in his receptive and expressive language skills. Petitioner testified that the child received services at the Therapy and Learning Center, after the school day had concluded at P.S. 46.
There is no evidence in the record that the CSE conducted an annual review of the child's progress during the 1993-94 school year, or that it prepared a new IEP for the 1994-95 school year (cf. 34 CFR 300.343 [d]; 8 NYCRR 200.4 [e]). In any event, petitioner again received written authorization to obtain private occupational therapy for the child, at respondent's expense. However, he was reportedly advised that the child would receive speech/language therapy, in a group of not more than two children, during the school day in P.S. 46.
By letter dated October 17, 1994, petitioner requested that an impartial hearing be held to review the appropriateness of the speech/language therapy services being provided to his child. The hearing in this proceeding began on November 4, 1994. At the hearing, petitioner asserted that his son had been receiving speech/language therapy in the back of the classroom in P.S. 46, while his peers received other instruction. He submitted in evidence a letter by the child's second grade teacher, who expressed her concern about the child missing instruction in mathematics during the time when he received speech/language therapy. The CSE's representative at the hearing asserted that the CSE was unaware of the child's present level of performance in expressive and receptive language, and sought an adjournment of the hearing to obtain information about the child's performance and the time and location of the speech/language services received by the child in P.S. 46. The hearing officer questioned the CSE representative about the CSE's failure to obtain current information concerning the child's speech/language needs. The hearing officer agreed with the CSE representative's request that the child be re-evaluated. In an interim order, dated November 30, 1994, the hearing officer directed that the child continue to receive speech/language therapy in P.S. 46, but that it be provided in an appropriate room at a time when it would not conflict with the child's instruction in academic subjects, pending the child's re-evaluation and the formulation of a new recommendation by the CSE.
Although the child is a resident of Community School District 13 in New York City, the parties agreed that a triennial re-evaluation and review would be conducted by the staff and the CSE of Community School District 16. In an occupational therapy evaluation completed on November 16, 1994, the child exhibited delays in his graphomotor and perceptual skills. The evaluator recommended that the child receive occupational therapy twice per week on an individual basis. The child's speech/language skills were evaluated on November 19, 1994. The evaluator reported that the child's slow and laborious responses to questions about stories which had been read to him suggested that the child had delays in his auditory processing skills. She also reported that the child had difficulty with his pragmatic and expressive language. The evaluator opined that the child had displayed a two-year delay in his language skills, and recommended that he receive speech/language therapy twice per week in a group of no more than two children.
The child was formally observed in his classroom on November 29, 1994. The observer reported that the child participated appropriately as the class answered questions asked by the teacher, although the child's responses revealed that he had some difficulty with his decoding skills. In a psychological evaluation performed on December 3, 1994, the child achieved a composite score of 90 on a IQ test, which was comparable to the score he had attained when tested in 1992. The child's verbal reasoning and quantitative reasoning skills were reported to be in the average range, while his abstract/visual reasoning and short-term memory skills were found to be in the low average range. His visual motor skills were reported to be within the average range. The school psychologist who performed the evaluation opined that the child would benefit from multi-sensory teaching techniques and the use of frequent drills or practice sessions. In a report dated December 3, 1994, an educational evaluator reported that the child had achieved grade equivalent scores of 1.5 in reading and 2.3 in mathematics. The evaluator reported that the child evidenced difficulty with regard to vocabulary, decoding, reading comprehension, sequencing of events, and the overall use of language. She further reported that the child exhibited a delay in his graphomotor skills.
On December 5, 1994, the CSE recommended that the child remain classified as speech impaired, and that he continue to be instructed in a regular education second grade class. The CSE also recommended that the child receive individual occupational therapy twice per week, as the occupational therapy evaluator had recommended. With regard to the child's speech/language therapy, the CSE recommended that it be provided in a group of not more than two children twice per week, as the speech/language evaluator had recommended. The CSE also recommended that the child be evaluated to determine his need, if any, for physical therapy.
The hearing in this proceeding resumed on December 8, 1994. The CSE representative testified that individual speech/language therapy would not be appropriate for the child because the child's deficits were in language, rather than speech, and that therapy in a small group provided a better opportunity to develop language skills. With regard to petitioner's preference for speech/language therapy after school, the CSE representative testified that the child could receive such therapy in school between 2 and 2:30 p.m. without missing any academic instruction. However, petitioner testified that when he had visited the school shortly before the hearing, he discovered that the child was missing science and mathematics, respectively, on the two days each week that he received speech/language therapy. Respondent did not present any witness to refute petitioner's testimony.
In his decision, dated December 19, 1994, the hearing officer held that the CSE's recommendation that the child receive speech/language therapy within a group of no more than two children in school was appropriate for the child to attain meaningful benefits. With regard to petitioner's assertion that respondent had not ensured that speech/language therapy was provided at times which did not conflict with the child's academic instruction, the hearing officer found that the record was unclear. However, he directed respondent to maintain a log, signed by the child's classroom teacher, showing the times of the child's absences from class for speech/language therapy and the activities which occurred in class when the child was absent for therapy. He further directed that copies of the log be given to the petitioner every two weeks.
Respondent asserts that the appeal is premature because the hearing officer indicated in his decision that petitioner could have a further hearing, if petitioner believed the respondent had not complied with the "arrangement agreed for the time of the therapy", and petitioner has not requested that an additional hearing be held. I disagree with respondent's assertion. Petitioner has consistently objected to the provision of speech/language therapy to his son during school hours, and on other than a 1:1 basis. His claims with regard to the time and group size of such therapy are ripe for determination.
The board of education 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, the board of education must show 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]). An appropriate program begins with an IEP which accurately reflects the results of the 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).
Federal regulation (34 CFR 300.344 [a]) and New York State Education Law Section 4402 (1)(b)(1) require that a child's teacher be a member of the CSE which conducts a review, or makes a recommendation for the services to be provided to the child. The written attendance sheet for the December 5, 1994 CSE meeting, and the IEP which was prepared at that meeting, do not indicate that the child's teacher attended the CSE meeting. Respondent's failure to ensure that the CSE was properly constituted requires me to annul the CSE's recommendation (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-39; Application of a Child with a Handicapping Condition, Appeal No. 92-9; Application of a Child Suspected of Having a Disability, Appeal No. 94-41).
Respondent must reconvene its CSE to review the results of the child's re-evaluation and to make a recommendation for the services to be provided to the child. When the CSE meets, it must prepare an IEP which adequately describes the child's present levels of performance (8 NYCRR 200.4 [c][i]). The IEP which the CSE prepared on December 5, 1994 lists the speech/language tests which were administered to the child during his speech/language evaluation on November 19, 1994 and gives a general description of his performance on the tests. However, it does not describe the child's language strengths and weaknesses with the specificity necessary for the CSE to prepare appropriate short-term instructional objectives for his speech/language therapy. Since the speech/language evaluation report (Exhibit 18) lacks the requisite specificity, the CSE should ask the evaluator to provide the necessary information.
Although this matter must be remanded to the CSE, it does not follow that the child should receive individual speech/language therapy after school, as petitioner has requested. There is nothing inherently inappropriate in providing related services during the school day, rather than after school. If related services are provided during the school day, it is respondent's duty to schedule such services to minimize the impact of such scheduling upon the child's academic instruction. There is no evidence in the record that the child's instructional or management needs are so severe that he requires individual speech/language therapy. In view of the child's pragmatic language deficit, small group instruction would appear to be appropriate for the child.
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 from the date of this decision, respondent shall hold a properly constituted CSE meeting to review the results of the child's re-evaluation and to prepare an IEP in accordance with the tenor of this decision.