Application of a CHILD WITH A DISABILITY, by his parents, 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
Advocates for Children of New York, Inc., attorney for petitioners, Sonia Mendez Castro, Esq., of counsel
Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Lorie E. Alman, Esq., of counsel
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 enrolled in one of respondent's specialized instructional environment-III (SIE-III) classes in P.S. 37, for the 1994-95 school year, and which denied petitioners' request for tuition reimbursement for the private school in which they unilaterally enrolled their child. In this appeal, petitioners request that respondent be directed to place the child in a regular education class, with an appropriate transition program and supplemental supports and services, and to reimburse them for the child's tuition during the 1994-95 school year at the private school. The appeal must be dismissed.
Petitioners' son is six years old. At the time of his birth, the child reportedly had the umbilical cord around his neck, and he was described as gray in appearance. He has been diagnosed as having transient hypogammaglobulinemia, which impairs his immune system, and has a history of repeated ear infections. Epileptic-like activity was reportedly noticed in an earlier electroencephalogram of the child, but he was described as seizure-free when seen by a psychologist in 1993. The child reportedly attained his developmental milestones within normal limits, except for speech which did not start until he was three years old, and toilet training which also occurred at the age of four.
Petitioners enrolled the child in an early intervention program, the Toddlers and Infants Program for Special Education (TIPSE), when the child was approximately one and one-half years old. The child was reportedly identified as other health impaired, and began to receive speech/language therapy at TIPSE in January, 1991. The child's eligibility to be enrolled in TIPSE ended in June, 1992, because of his age. During the 1992-93 school year, the child was enrolled in a center based preschool program, Our Place, where he continued to receive speech/language therapy. He also received physical therapy and occupational therapy while in the Our Place program.
In a neuropsychological evaluation performed in July, 1993, the child, who was four years old, was described as lacking an awareness of the existence or feelings of others. His speech was described as stereotypic and repetitive. The child was able to say simple words, but was unable to speak in sentences. He exhibited a preoccupation with objects, and was
described by his mother as having an unreasonable insistence upon following routine. The psychologist opined that the child presented symptoms consistent with the diagnostic criteria for autism. On September 9, 1993, respondent's committee on preschool special education (CPSE) recommended that the child be classified as autistic. The CPSE also recommended that the child be enrolled on a ten-month basis in another center based preschool program, with small group and individual speech/language therapy and individual occupational therapy, for the 1993-94 school year.
Petitioners did not accept the CPSE's recommendation for the child's placement. Instead, they unilaterally enrolled the child in the Little Miracles preschool program, which the child's mother helped to be established at the Eden II School, a private school which uses a behavior modification program known as the Lovaas method for the instruction of developmentally disabled children. The child reportedly received 1:1 instruction in the Little Miracles program during the 1993-94 school year. The child also attended a regular education preschool program at the Bayley Seton Hospital for one hour per day, before arriving at the Little Miracles preschool. The child's mother testified at the hearing in this proceeding that the child made significant progress behaviorally and academically in the Little Miracles program.
The boy passed from the jurisdiction of the CPSE to the CSE, because of his age, for the 1994-95 school year. In a social history prepared for the CSE in May, 1994, petitioners reported that their son was able to ask for something to eat or drink, and to feed himself. They indicated that the child was learning to dress himself. Petitioners also indicated that the child conformed to a behavior management plan at home in which there was no "down time", and that he was redirected to other activities when he had temper tantrums. The child's pediatrician, who reported that the child had normal vision and hearing, indicated that the child had mental retardation - autism.
On May 19, 1994, the child was evaluated by one of respondent's school psychologists, who reported that the child achieved a composite score of 70 on an IQ test. On the various subtests of the IQ test, the child received scores ranging from 92 in quantitative reasoning down to 67 in verbal reasoning and in short-term memory. Although the test results were comparable to those which the child had achieved in 1992, the composite of 70 was 20 less than the score he had achieved on a test of his non-verbal cognitive skills in 1993. At the hearing in this proceeding, the school psychologist testified that the composite score of 70 was probably a low estimate of the child's cognitive skills, and noted that the child's receptive and expressive language skills were significantly delayed. Based upon information about the child's adaptive behavior provided by petitioners, the school psychologist reported that the child received standard scores of 73 in communication, 60 in daily living skills, 63 in socialization, and 55 in motor skills. The school psychologist noted that the child exhibited some features of mild autism, and reported that the child's delayed social functioning was commensurate with his cognitive abilities.
On May 9, 1994, one of respondent's educational evaluators tested the child. The evaluator reported that the child was extremely distractible and motorically hyperactive. She also reported that the child manifested many behaviors which were autistic in nature, such as directing his interactions toward inanimate objects. The educational evaluator estimated that the child's receptive language skills were delayed by up to two years, and that his expressive language skills were delayed by at least that many years. She reported that the child could follow one or two-directives with reinforcement by verbal and physical cues. She also reported that the child could recognize most colors, and had a fundamental understanding of qualitative proportions and positions in space, but did not have an understanding of one-to-one correspondence in mathematics. The educational evaluator also reported that the child's visual motor integration skills were delayed by at least two years. The educational evaluator recommended that the child receive an intense behavior-modification based program that was focused upon readiness, pre-academics, language acquisition, pre-vocational and socialization skills.
One of respondent's speech/language therapists evaluated the child on June 1, 1994. The therapist reported that the child did not make any speech articulation errors, but had exhibited echolalia throughout the evaluation. When tested, the child was five years and two months of age. His receptive vocabulary skills were reported to be at a 3.2 age level, while his expressive vocabulary skills were reported to be at a 2.0 age level, or slightly more than three years below his actual age. In a test of his auditory comprehension of language skills, the child achieved age equivalent scores ranging from two years and six months to three years of age. The therapist noted that the child had made errors with regard to nouns, verbs, word relations, prepositions, derivational suffixes, noun number, interrogatives, and negatives. She also reported that the child had exhibited difficulty in making choices, and in establishing and maintaining eye contact. The therapist recommended that the child receive speech/language therapy in a group of no more than two children three times per week, and individual speech/language therapy twice per week.
On June 8, 1994, the child was observed for approximately 45 minutes in the Little Miracles preschool program by another school psychologist. He was observed receiving behavior based instruction on a 1:1 basis during which he was able to count to 20 with prompting, and to read several words from flash cards. Although the child did not exhibit negative behaviors, the observer reported that the child appeared to be unfocused at times, but could be returned to the task at hand when behavior management techniques were applied. A progress report from the Little Miracles preschool program, dated June 2, 1994, indicated that the child had been working on responding to questions, naming objects, engaging in reciprocal conversations, understanding expressive and receptive prepositions, counting objects to 20, beginning phonics, copying letters on paper, and improving his motor skills.
When they met with the CSE on June 9, 1994, petitioners expressed their preference for the child to be educated in the Eden II program for school-age children. The CSE recommended that the child be classified as autistic, and that he be placed in a SIE-III class in P.S. 37 on a 12-month basis for the 1994-95 school year. The CSE also recommended that the child receive speech/language therapy in a group of no more than two children three times per week, and individual speech/language therapy twice per week. The child's IEP which the CSE prepared on June 9, 1994 included annual goals for academics, speech/language, and socialization.
Petitioners did not accept the CSE's recommendation, but did not request that an impartial hearing be held to review the recommendation. They enrolled their son in the Eden II School for the 1994-95 school year. Petitioners also enrolled the child on a part-time basis in a regular education preschool program at the Wagner College Early Childhood Center. At the hearing in this proceeding, the Director of School Services at the Eden II School testified that the child's behavior at the Wagner preschool program had deteriorated when he was not accompanied by a paraprofessional from Eden II. In a letter dated October 31, 1994, the child's teacher at the Wagner College preschool program reported that the child had difficulty making a transition from one activity to another, and following directions. She also reported that although the child had been enrolled in her class with the understanding that he would have an aide to assist him in achieving independence, it had not occurred.
In preparation for another meeting of the CSE the child was observed on November 3, 1994 by one of respondent's educational evaluators at both the Eden II and the Wagner College preschool program. The evaluator, who observed the child for approximately five hours, reported that the child played quietly by himself, although he was aware of others around him. During a language lesson with one other child, the child reportedly had difficulty maintaining eye contact, but responded correctly to his teacher's questions. He was also able to identify correctly upper and lower case letters, and the numbers 1 through 20 and counted by rote to 30. The evaluator reported that the child appeared to have difficulty with his graphomotor skills. Notwithstanding the fact that the child had screamed, and at one instance kicked his teacher, during the transition between activities, the teacher reported to the observer that the child usually had a much more difficult time making routine transitions. The child was accompanied by his Eden II teacher at the Wagner College preschool program, where he also had difficulty making the transition from one activity to another in a class with 9 other children. The observer opined that although the child was academically able to do the tasks which were expected of him in the preschool program, he was nevertheless unable to function in a large group because of his behavior. The Wagner College teacher reportedly advised the observer that it had been the child's best day notwithstanding his inappropriate behavior. In an update of the child's social history, petitioners reported that the child's socialization and communication skills had improved, as had his daily living skills.
On November 15, 1994, the CSE met with the child's mother and his teacher. The CSE reaffirmed its earlier recommendation that the child be placed in an SIE-III class with a 6:1:1 child to adult ratio, and individual and small group speech/language therapy. On the same day, petitioners requested that an impartial hearing be held to review the CSE's recommendation.
The hearing in this matter was held on November 30, 1994. Petitioners indicated that they did not challenge the child's classification as autistic, which is also not disputed in this appeal. However, they asserted that their child was ready for inclusion in a regular education kindergarten program, with an appropriate transitional program to be provided by the Eden II School. In her decision, dated January 9, 1995, the hearing officer held that respondent had met its burden of proving that the SIE-III class recommended for the child was appropriate to meet the child's needs. With regard to petitioners' contention that only the Lovaas method of behavior modification could be successful with the child, the hearing officer found that the personnel at P.S. 37 were familiar with that method, and could use it with the child, if appropriate. The hearing officer further found that the child's most significant need was socialization, and that he would be grouped with children having similar needs and abilities in the proposed SIE-III class in P.S. 37. The hearing officer declined to direct that a specific inclusion program be developed for the child, and directed respondent to determine if the child was an appropriate candidate for inclusion and to implement a program at the appropriate time. The hearing officer also ordered respondent to conduct physical therapy and occupational therapy evaluations of the child.
At petitioners' request, the hearing officer held an additional hearing on February 2, 1995 to ascertain whether the matter should be reopened. Petitioners asserted that there were two factually erroneous statements in the hearing officer's decision. The first statement was that respondent's CSE had recommended that the child be included in a regular education program while enrolled in P.S. 37. In fact, the CSE made no such recommendation, although respondent's representatives at the earlier hearing had discussed the possibility of developing an inclusion program. The second statement by the hearing officer was that the child's mother had been advised by the professionals who worked with the child that the child required an inclusion program "which would be in addition to his regular school day." On February 2, 1995, petitioners asserted that they sought only one program for the child, an inclusion program. On March 2, 1995, the hearing officer issued a second decision, in which she reopened the matter for the purpose of amending both of the challenged statements in her original decision. Those statements were modified to be factually accurate.
In their reply to respondent's answer, petitioners ask that I disregard Exhibit 2 annexed to the answer. Exhibit 2 is a copy of a license as a teacher of health conservation issued by respondent to the educational evaluator who was a member of the CSE which met on November 15, 1994. Petitioners argue that respondent is precluded from attempting to correct its failure to document the credentials of the educational evaluator at either the CSE meeting or the hearing by submitting evidence of the evaluator's licensure status in this appeal.
Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 93-22; Application of a Child with a Disability, Appeal No. 94-5). Exhibit 2 to the answer could have been offered for evidence at the hearing, as Exhibit 1 to the answer could have been. The latter exhibit is a copy of the teacher of health conservation issued to the educational evaluator who was a member of the CSE which met on June 9, 1994, when the child's IEP for the 1994-95 was originally prepared. Although respondent should have offered both exhibits as evidence at the hearing, I find that the record would be incomplete without the information which they contain, because petitioners challenge the validity of their child's IEP on the ground that it was not prepared by a CSE which included a representative of the school district who is qualified to provide or supervise the provision of special education, in addition to the child's teacher (cf. 34 CFR 300.344[a]; 8 NYCRR 200.3[c][ii]). Therefore, the qualifications of the educational evaluators must be included in the record before me. Respondent represents in its answer that a license as a teacher of health conservation, which it formerly issued when it had its own teaching credentials, is valid to teach special education. Petitioners do not contravene that assertion. I find that the CSE was validly constituted when it prepared the child's IEP on June 9, 1994, and when it reviewed the IEP on November 15, 1994.
Petitioners assert that the educational program which the CSE recommended would not meet the individual needs of their child. 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).
Petitioners assert that respondent failed to obtain an adequate physical examination of the child. On May 9, 1994, the child's father signed a release authorizing the child's pediatrician to provide medical information about the child to the CSE. Although the record does not disclose when the pediatrician completed the medical information form, it was available to the CSE when it met on June 9, 1994. However, petitioners assert that it was incumbent upon respondent to seek an additional medical evaluation, after its school psychologist noted in his report of the June 8, 1994 observation that the child had a "fixed gaze [which] was reminiscent of a mild seizure" (Exhibit 8). The school psychologist's observation was only briefly alluded to at the hearing, when petitioners' representative cross-examined the school psychologist about his remark. The school psychologist testified that the child "...would just sit and gaze off into nothing in particular" (Transcript, p. 33). He explicitly disclaimed any opinion that the child was in fact having seizures. In a private psychological evaluation completed approximately six months before the June, 1994 observation by respondent's school psychologist, the private psychologist reported that the child did not have seizures. Upon the record before me, I find that petitioners' assertion about the adequacy of the physical evaluation obtained by the CSE is without merit. I further find that the child's IEP accurately describes the results of the child's evaluations to identify his needs.
Petitioners also assert that their child's IEP annual goals and short-term instructional objectives are not specific, measurable, or attainable. Annual goals are intended to be statements which describe what a child with a disability can reasonably be expected to accomplish within a twelve-month period (34 CFR Part 300, Appendix C, Question 38). Short-term instructional objectives are measurable, intermediate steps between a child's present levels of educational performance and the child's annual goals (34 CFR Part 300, Appendix C, Question 39). The child's IEP includes such annual goals as the child "...will continue to develop early writing abilities," and "...will complete the kindergarten social studies curriculum parallel to the mainstream." Neither annual goal is specific enough to provide direction to the childs' teachers concerning the CSE's expectations (Application of a Child with a Disability, Appeal No. 93-24). However, I find that the child's short-term instructional objectives provide sufficient specificity to afford a basis for developing a detailed instructional plan for the child. Accordingly, I find that the imprecise IEP annual goals do not afford a basis for concluding that respondent has failed to offer an appropriate program (Application of Child with a Disability, Appeal No. 93-48; Application of Children with Disabilities, Appeal No. 94-7; Application of a Child Suspected of Having a Disability, Appeal No. 94-8). In the future, respondent should prepare more specific IEP annual goals for the child.
Petitioners contend that the IEP is deficient in failing to have annual goals for developing the child's spontaneous speech and improving his behavior. I disagree. The child's speech/language annual goals include improving his socio-pragmatic language functioning, one of the objectives of which is for the child to participate in a conversation for three or more reciprocal terms. The child's IEP of November 15, 1994 includes annual goals for the child to reduce inappropriate behavior during work sessions, and to develop the ability to relate to adults and peers. In addition, there are other provisions of the IEP which relate to the child's behavioral needs, such as one of his speech/language objectives which provides that the child will follow oral directions.
Petitioners further assert that the educational program recommended by the CSE is inappropriate because the CSE did not provide for the use of the Lovaas method with the child. They contend that the child has made many academic gains while attending the Little Miracles preschool program, and argue that he has benefitted from the one-to-one behavior management approach used in the Little Miracles preschool program. At the hearing in this proceeding, the Director of School Services for the Eden II School testified that the Lovaas method of behavior management is used predominantly in the preschool, i.e., the Little Miracles program, while an "applied behavioral analysis" approach, based on Dr. Lovaas' research, is used in the Eden II lower grades. She also testified that the child's behavior was managed pretty well through the use of tokens, i.e., the child receives a token for behaving acceptably for a specified period, and may use the tokens he receives to engage in activities which he enjoys. The Director further testified that the child's social needs were more of an issue than his academic needs, and that the child needed to learn social skills using a very specific behavioral model. A private psychologist, who evaluated the child in 1993 and recommended that the Lovaas method be used, testified that the child appeared to have made progress between 1993 and 1994 and opined that there was no reason to change the child's educational program.
I find that neither the testimony of these two witnesses nor the rest of the record establishes a basis for finding that the Lovaas method must be used in order for the child to benefit from instruction. The precise teaching methodology to be used by a child's teacher is a matter to be left to the teacher (Matter of a Handicapped Child, 23 Ed. Dept. Rep. 269,; Application of a Child with a Disability, Appeal No. 93-46; Application of a Child with a Disability, Appeal No. 94-26). Respondent's school psychologist testified the SIE-III teachers in P.S. 37 use a variety of techniques in the classroom. The Acting Coordinator of the SIE-III program is P.S. 37 testified that the SIE-III teachers used a variety of behavior management techniques, one of which was a version of the Lovaas method, and that very individualized behavioral interventions were designed for the children in the SIE-III classes. Upon the record before me, I find that the program recommended by the CSE is appropriate, notwithstanding the fact that the child's IEP does not explicitly provide for the use of the Lovaas behavioral management technique.
Despite their contention that the child requires an intensive behavior modification program, petitioners argue that the recommended placement for the child in a SIE-III class in P.S. 37 would violate the requirement that the child be placed in the least restrictive environment. They assert that the child would be deprived of the opportunity to be educated with non-disabled children, because all of the children in the recommended SIE-III class and all of the children in P.S. 37 have disabilities, and that their child should be placed by respondent in a regular education class, with appropriate supports and services.
The relevant Federal regulation provides:
"That special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when the nature or the severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." (34 CFR 300.550[a])
The Courts have held that although there is a strong preference in favor of mainstreaming, that preference is to be weighed against the mandate imposed by Federal law that each child receive a free appropriate public education (Roncker v. Walter, 700 F.2d 1058 [6th Cir., 1983], cert. den. 464 U.S.864; Daniel R. v. State Board of Education et. al., 874 F2d 1036 [5th Cir., 1989]; Briggs v. Bd. of Ed. State of Connecticut et al., 882 F.2d 688 [2nd Cir., 1989]). The relevant inquiry is not whether a child with a disability would learn at the same rate, or master as much of the regular education curriculum as his or her non-disabled peers, but whether the child can achieve the goals of his or her IEP within a regular education program with the assistance of supplementary aids and services (Mavis v. Bd. of Ed. South Lewis CSD, 839 F. Supp. 968 [N.D. N.Y., 1994]; Application of Bd. of Ed. Schalmont CSD, Appeal No. 90-19; Application of a Child with a Disability, Appeal No. 93-4). A CSE must consider the unique benefits, academic and otherwise, which the child may receive from placement in a regular education class, e.g. language development and role modeling with non-disabled peers (Greer v. Rome City Sch. Dist., 950 F. 2d 688 [11th Cir., 1991]). It must also consider what effect the presence of a child with a disability in a regular education class would have on the other children in that class (Daniel R. v. State Bd. of Ed. et al., supra; Greer v. Rome City Sch. Dist., supra).
The record reveals that the child requires specialized education. For example, he is described in his IEP as being unable to remain on task for more than two or three minutes, and requiring verbal and physical prompts. In addition, his curricular needs are substantially different from those of other children in regular education. He requires more intensive instruction in language and daily living skills than his non-disabled peers. The child's social skills are underdeveloped to the extent that he needs specialized instruction to attain appropriate social skills. There is little, if any, evidence that the child has benefitted from interacting with his peers in either the Eden II School or the regular education preschool program of Wagner College.
By all accounts, petitioners' child has significant management needs which limit his ability to benefit from instruction. The record reveals that the child has received intensive, essentially one-to-one, instruction during the last year and one-half. Although petitioners assert that their son has made significant progress while enrolled in the Little Miracles preschool program and the Eden II School, the report by the educational evaluator who observed the child on November 3, 1994 in both the Eden II School and the Wagner College preschool program indicates that the child continued to have substantial difficulty making transitions and functioning successfully in a group of children. For example, the child had tantrums three times during a "large group" language lesson in the Eden II School. The record reveals that there were only six children in the group, and three adults. As the result of his behavior, the child was removed from the group and given one-to-one instruction. Later that day in the Wagner College preschool program with nine other children, the child threw himself on a boat which the other children had constructed of blocks, wandered into another classroom, and screamed until he was removed from the group, despite the fact that his teacher in the Eden II School was present. The observer reported that she saw only one brief instance in which the child attempted to approach another child.
Upon the record before me, I find that there is no basis in fact for finding that this child could attain his IEP goals in one of respondent's regular education classes. Indeed, given his extensive language, social, and behavioral needs which must be addressed with specialized assistance, I am unable to find that the child would benefit at this time from placement in a regular education program on either a full-time or part-time basis. Therefore, I find that a self-contained special education class is the least restrictive environment for the child.
In meeting its burden of proof with regard to the appropriateness of the placement in the SIE-III class in P.S. 37, respondent must also show that the child would be appropriately grouped with the other children in the class with regard to their 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]). Respondent has provided a class profile with information about the needs and abilities of the other children in the proposed class. The profile reveals that the other children are at the readiness level in reading and mathematics, and have below average communications skills. The children also have below average social development. At the hearing the Acting Coordinator of the SIE-III program in P.S. 37 and its educational evaluator each opined that petitioners' child would be appropriately grouped with the children in the proposed class. The child's mother and a teaching coordinator in the Eden II School, having spent 20 to 30 minutes in the proposed classroom, each testified that the children in the proposed class appeared to be functioning at a lower level than that of petitioners' child. I find that respondent has met its burden of proof.
I have considered petitioners' other contentions, which I find to be without merit. In view of my finding that respondent has demonstrated that it offered an appropriate program for petitioners' child during the 1994-95 school year, it follows that petitioners are not entitled to be reimbursed for the cost of the child's tuition at the Eden II School (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ).
THE APPEAL IS DISMISSED.