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 Lake George Central School District
Judge and Duffy, Esqs., attorneys for petitioner, H. Wayne Judge, Esq., of counsel
Bartlett, Pontiff, Stewart and Rhodes, P.C., attorney for respondent, Martin D. Auffredou, 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 both regular and special education instruction during the 1994-95 school year, and which denied petitioner's request that respondent be ordered to reimburse petitioner for private tutoring in reading, writing, and mathematics for the child in the Summer of 1994, and to provide or pay for tutoring in reading, writing and mathematics, as well as counseling during the 1994-95 school year. The appeal must be sustained in part.
Petitioner's child, who is thirteen years old, is a seventh grade student in the Lake George Junior-Senior High School. When evaluated by a school psychologist in June, 1985, when he was almost four years old, the child reportedly achieved an IQ score of 100, which is in the average range of cognitive skills. The school psychologist reported that the child had significant expressive language deficits, and he recommended that the child attend a preschool program of the Board of Cooperative Educational Services of Warren and Washington Counties (BOCES). The child was enrolled in a BOCES preschool special education class for the 1985-86 school year.
In June, 1986, respondent's CSE recommended that the child remain in the BOCES preschool special education class for the 1986-87 school year, notwithstanding the fact that he was eligible because of his age to attend kindergarten. The CSE also recommended that the child be classified as speech/language impaired, and that he receive speech/language therapy at the BOCES. The child retained the classification of speech/language impaired for the 1987-88 school year, but he was enrolled in a regular education kindergarten, where he continued to receive speech/language therapy. Relying on the reports by the child's kindergarten teacher that he had progressed academically and socially and by his speech/language therapist that his skills had improved, the CSE recommended that the child be declassified. However, the CSE recommended that the child continue to receive twice weekly speech/language therapy as a supportive service, while in the first grade during the 1988-89 school year.
In February, 1989, the child was evaluated by a school psychologist at the request of his regular education team teachers, who were concerned about the child's rate of progress in learning to read. The school psychologist reported that the child achieved a verbal IQ score of 87, a performance IQ score of 98, and a full IQ score of 91, which placed the child's cognitive capacity in the lower end of the average range. The psychologist further reported that the child did not have any significant global, or unique, cognitive strengths or weaknesses. The child's processing, sequencing, and recall of both visual and auditory stimuli were reported to be in the below average range. The child's reading skills were reported at a readiness level. The school psychologist noted that the child had very weak decoding skills, which had adversely affected his comprehension. His mathematical skills were described as adequate. The school psychologist also reported that the child appeared to be insecure, and lacked confidence in his abilities. The school psychologist recommended that the child be classified as learning disabled and that additional tests of the child's cognitive skills should be performed. He also suggested that the child's central auditory processing skills should be evaluated.
In April, 1989, the CSE recommended that the child be classified as learning disabled, and that he receive one hour per day of special education reading instruction in the resource room program and one half hour per day of regular education remedial reading, while in second grade during the 1989-90 school year. The remainder of his instruction was to be provided in a regular education second grade class. In addition to improving the child's reading skills, the resource room program was also intended to address the child's low self-esteem. The CSE also accepted the school psychologist's recommendation for an evaluation of the child's central auditory processing skills.
In June, 1989, the child received an audiological evaluation at the BOCES. The evaluator reported that the child had auditory processing difficulties in the areas of auditory-linguistic overloading, selective attention, higher speech level discrimination, and auditory memory. The evaluator made a number of recommendations for services to the child, including speech/language therapy, resource room services, and specialized teaching strategies.
At petitioner's request, the child received a private psycho-educational evaluation in April, 1990. The evaluation team reported that the child achieved a verbal IQ of 97, a performance IQ score of 92, and a full scale IQ score of 94. They reported that the only serious deficit evidenced by the child during the IQ test was in his auditory memory skills. The child achieved standard scores of 76 in receptive language, and 67 in expressive language. The team opined that the child appeared to have a generalized language disorder. When tested, the child was mid-way through the second grade. He achieved a grade equivalent score of 2.5 in mathematics, but only a 1.2 in reading. The team reported that the child exhibited a very limited sight-word vocabulary, and that his word attack skills were extremely poor. Noting that respondent's teachers had used a phonetic approach to reading with the child, the evaluators opined that the child did not appear likely to benefit from the phonetic approach. They recommended that reading instruction be provided to him in a way designed to minimize the effect of his auditory processing and auditory memory deficits. Specifically, they recommended that a whole language approach be used, together with instructional techniques which were primarily visual, and that the child's language deficits be addressed by increasing the amount of speech/language therapy for him.
In May, 1990, the child was re-evaluated by the BOCES audiologist, who found that the child continued to have central auditory processing difficulties, despite some improvement since the evaluation in June, 1989. She opined that the child's deficits in auditory processing/listening skills were likely to interfere with the child's ability to efficiently use his auditory faculties to learn in the classroom. The evaluator further opined that the child would be likely to experience success in a small group, self-contained class with a very structured environment, because the child would need re-instruction, re-direction and additional time to comprehend information which was orally presented. The evaluator also provided suggestions for teaching techniques.
In May, 1990, the child's resource room teacher reported that the child had achieved grade equivalent scores of 1.4 in reading and 2.7 in mathematics. She recommended that the child be promoted to the third grade, but that he receive additional resource room services. The CSE recommended that the child be instructed in a regular education third grade class, but that resource room services be increased to 90 minutes per day in reading and language arts, and 30 minutes per day in mathematics, for the 1990-91 school year. The CSE further recommended that the child receive speech/language therapy three times per week, and that he have an audiological re-evaluation.
The child was tutored in reading, writing, and mathematics during the Summer of 1990. The child's records revealed that while in the third grade, he completed learning in second grade mathematical skills, and began to learn some multiplication and division. On a standardized test administered to the child at the end of the 1990-91 school year, the child achieved a grade equivalent score of 4.0 in mathematics. However, his reading skills improved only slightly to a grade equivalent of 1.8. The child's central auditory processing skills were re-evaluated by the BOCES audiologist, in March, 1991. She reported that the child demonstrated improved ability in the areas of selective attention, auditory figure ground, auditory discrimination, and auditory closing. Nevertheless, he continued to have significant difficulty with comprehension, and exhibited deficits in his ability to process information through his left ear. She reiterated the recommendations which she made in her prior evaluation reports.
In June, 1991, the CSE recommended that the child receive more intensive special education services, by placement in a self-contained 12:1+1 special education class for the fourth grade during the 1991-92 school year. The child was to be mainstreamed for regular education classes in physical education, art, and music, as well as "academic classes as appropriate." The CSE also recommended that the child receive speech/language therapy three times per week, and that he receive counseling once per week. Although the minutes of the CSE meeting at which the IEP was prepared do not reveal the CSE's rationale for the more restrictive placement, they do indicate that the child's third grade teacher had reported that the child was a constant distraction to others.
In preparation for the child's triennial psychological evaluation, which was performed in February, 1992, respondent's school psychologist obtained reports about the child from his teachers. His special education teacher reported that the child's academic progress was slow, but steady. She indicated that reading was very difficult for the child, and that his spelling and writing were very weak. The school psychologist reported that the child achieved a verbal IQ score of 75, a performance IQ score of 91, and a full scale IQ score of 81. Noting that the child had achieved full scale IQ scores of 91 in 1989 and 94 in 1990, the school psychologist suggested that the lower IQ score in 1992 could have occurred because a newer and different version of the IQ test had been used in 1992. He also reported that the child's arithmetic reasoning skills and his general range of factual knowledge were relative strengths for the child, while the child's abstract verbal reasoning skills, knowledge of vocabulary, social comprehension skills, and auditory short-term memory skills were areas of weakness. He opined that the child's relatively low scores on a test of his visual perceptual skills could be attributed to the child's impulsive work style. Projective testing of the child revealed that he had relatively low self-esteem and self-confidence. The school psychologist recommended that the child remain classified as learning disabled, and that he remain in a self-contained class for instruction.
The child's triennial speech/language evaluation, which was completed in May, 1992, revealed that the child's language skills were still below average. His speech/language therapist reported that the child continued to make gains in his auditory and language skills, notwithstanding his decreased willingness to attend her class. She opined that the child would continue to need assistance in the areas of auditory processing, vocabulary development, and expressive language, and recommended that he receive speech/language therapy in a small group twice per week.
The child received generally satisfactory marks on his report card for the fourth grade, in June, 1992. His special education teacher noted that the child tried hard, and had shown significant improvement in controlling his frustration, anger, and temper. On standardized tests administered in March, 1992, the child achieved grade equivalent scores of 2.1 in reading, 6.0 in mathematics, and 2.1 in written language.
The child's annual review by the CSE was held in May, 1992. For the 1992-93 school year, the CSE recommended that the child remain classified as learning disabled, and that he receive most of his instruction in a self-contained special education class. Although the CSE meeting minutes indicate that the child was to be mainstreamed "as appropriate", his IEP indicates that he was to be mainstreamed for physical education, art, and music. The CSE also recommended that the child receive small group speech/language therapy three times per week, and individual counseling twice per week.
While in the fifth grade during the 1992-93 school year, the child received almost all satisfactory grades in his special education class. However, his teacher indicated on the child's report card that the child continued to have trouble understanding instructions in a large group. She also indicated that the child had trouble paying attention in a larger group, and that he sometimes forgot what he had learned in mathematics. The teacher reported that the child felt better about his ability to work by himself and to learn, than he had at the beginning of the year. On standardized tests administered in April, 1993, the child achieved grade equivalent scores of 2.5 in reading decoding, and 5.7 in mathematics. His instructional reading level was reported to be at a 2.5 - 3.0 grade equivalent.
In April, 1993, the CSE prepared the child's IEP for the 1993-94 school year, during which the child would be in the sixth grade. The CSE recommended that the child continue to be classified as learning disabled, and that he receive most of his academic instruction in a 12:1+1 special education class. The child was to be mainstreamed for science, physical education, art, and music. The CSE also recommended that the child receive small group speech/language therapy two or three times per week, and small group counseling twice per month.
The child achieved generally satisfactory grades while in the sixth grade. His teacher indicated on his report card that the child had worked hard and shown steady progress in all academic areas. She also indicated that the child's self-confidence had improved. Although the child initially received instruction in mathematics in his sixth grade special education class, he was later reassigned to a fifth grade regular education class for mathematics. In April, 1994, the child's speech/language therapist reported that the child had done well with her when given small amounts of information, but had become frustrated when presented with too much information. She opined that the child continued to have an auditory processing deficit, and that he required intensive intervention when new information was taught to him.
At petitioner's request, the child was evaluated by a private psychologist, in April, 1994. In a brief report intended for the CSE, the psychologist challenged the validity of the child's full scale IQ score in his 1992 evaluation by respondent's school psychologist, and asserted that the child was of average intellectual ability. The private psychologist recommended to the CSE that an expert in reading and writing instruction be consulted to provide suggestions for more effective teaching techniques to be used with the child. She also asserted that the child would require some tutoring in sixth grade mathematics. About the time that the private psychologist made her report to the CSE, the child achieved a grade equivalent of 3.7 in reading decoding, and an instructional reading level at a 3.5 grade equivalent. He achieved a grade equivalent of 7.3 in mathematics.
The CSE conducted its annual review on April 28, 1994. For the 1994-95 school year, the CSE recommended that the child receive most academic instruction in a 12:1+1 special education class in the seventh grade of respondent's junior-senior high school. The child's IEP indicated that he would be mainstreamed for physical education, "specials" (special subjects such as technology), remedial reading, health, and "Academics as appropriate". At the hearing in this proceeding, the CSE chairperson testified that the CSE intended to leave the decision about mainstreaming the child to the discretion of his special education teacher. The CSE also recommended that the child receive speech/language therapy twice per week.
By letter to the CSE chairperson, dated June 2, 1994, the child's parents asked for an impartial hearing to review the CSE's recommendation. They informed the chairperson that they were arranging to have the child tutored in reading, writing, and mathematics during the summer, and asserted that respondent should pay for such tutoring. The record reveals that during the Summer of 1994 the child was tutored in mathematics by the private psychologist who had evaluated him in the Spring of 1994, and was tutored in reading and writing by a reading specialist. On August 5, 1994, the CSE chairperson met with petitioner, her attorney, and the private psychologist to discuss petitioner's concerns about the child's mainstreaming in the seventh grade and his tutoring.
On August 30, 1994, the CSE reconvened to consider the child's program for the 1994-95 school year, and petitioner's request that the child receive tutoring and counseling during the school year. Petitioner also requested that references to the child's verbal IQ score of 75 in his 1992 psychological evaluation be deleted from his IEP for the 1994-95 school year. The CSE reportedly agreed that the child would be mainstreamed in science and mathematics and that his special education teacher would consult with a regular education seventh grade English teacher about mainstreaming the child in that subject. However, the CSE agreed that the child should receive instruction in social studies in his special education class. Nevertheless, there is no evidence in the record that the CSE prepared a new IEP to reflect its decisions with respect to mainstreaming. Petitioner and the CSE were unable to reach agreement about petitioner's requests for tutoring and counseling, although the CSE offered to include counseling in the child's IEP.
The hearing in this proceeding began on October 7, 1994, and ended on October 21, 1994. The hearing officer rendered his decision on March 2, 1995. With regard to the disputed 1992 IQ scores, the hearing officer directed respondent to consider data about the child's IQ from other psychological evaluations. He denied petitioner's request for tutoring during the 1994-95 school year in mathematics for the child, on the ground that the child had demonstrated satisfactory academic progress in that subject. He did order the CSE to consider making accommodations for the child in his seventh grade regular education mathematics class. In regard to petitioner's request for tutoring in reading during the school year, the hearing officer found that there was no basis for ordering respondent to pay for such tutoring. He recommended that the child's seventh grade special education teacher and remedial reading teacher coordinate their approaches to teaching reading to the child. The hearing officer also found no basis for requiring respondent to provide psychological counseling. He also denied petitioner's request for tutoring in all subjects during the Summer of 1994, because there was no evidence that the child required instruction on a 12-month basis. Finally, he directed the CSE to revise the child's IEP to clearly indicate the subjects in which the child would be mainstreamed and those in which he would receive primary special education instruction.
Petitioner does not dispute the appropriateness of her child's classification as learning disabled. She contends that the educational program recommended for the child by the CSE for the 1994-95 school year was not designed to meet the child's individual needs. Petitioner requests that the hearing officer's decision be annulled, and that the CSE be directed to revise the child's IEP to provide for two hours per week of private tutoring in reading by a certified reading specialist, two hours per week of private tutoring in mathematics by a certified mathematics specialist, and one hour per week of counseling by an individual who is acceptable to the child. She also seeks reimbursement for the expenses of tutoring and testing which she incurred subsequent to the CSE meeting on April 28, 1994.
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).
Petitioner challenges the child's IEP on the grounds that it did not accurately identify the child's strengths and needs, because it referred to the disputed 1992 IQ score for the child; did not specify the extent to which the child would participate in regular education; and did not set forth individualized annual goals and short-term instructional objectives for the child. Under a portion of the child's IEP describing his educational achievement and learning rate, the CSE listed the results of the child's performance on achievement tests, and the results of the IQ test administered to the child on March 10, 1992. The child's verbal IQ score of 71 and full scale IQ scores of 81 were below the corresponding scores he achieved on IQ tests administered to him before and after that date. Although the two private psychologists who testified on behalf of petitioner opined that respondent's school psychologist should not have accepted the validity of the child's IQ scores on the March 10, 1992 test, neither psychologist addressed the fact that the March 10, 1992 test was a revised, and different, form of the IQ test administered to the child in prior evaluations and by the private psychologist in 1994. The different test form may well have led to the lower scores in the March 10, 1992 evaluation. The listing of the March 10, 1992 IQ test results on the child's IEP must also be viewed in the context of the purpose for having an IEP describe a child's educational performance and learning rate, which is to assist the teachers who have to implement the child's IEP (Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 94-34). In this instance, the child's IEP not only listed the child's achievement and IQ test results, but also included a narrative description of his relative strengths and weaknesses, and referred to his auditory processing difficulties and his need for consistent methods of instruction. Although I concur with the hearing officer's directive to the CSE to obtain a new psychoeducational evaluation of the child, I find that the listing of the 1992 IQ test results on the child's IEP does not afford a basis for concluding that the IEP is invalid.
State regulation requires that a child's IEP indicate the extent to which the child will participate in regular education programs (8 NYCRR 200.4 [c][iv]). This child's IEP specified that he would be mainstreamed for physical education, special subjects, remedial reading, health, and "Academics as appropriate". The record reveals that for the 1994-95 school year, the child has been mainstreamed for all but three periods of the day, during which he receives special education instruction in social studies, reading, and study skills. Although the CSE reportedly agreed at its meeting on August 30, 1994 to mainstream the child for various academic subjects, except for social studies and possibly English, it did not revise the child's IEP (cf. 8 NYCRR 200.4 [c]), and it delegated its responsibility to determine whether the child should be mainstreamed in English to his special education teacher. A CSE cannot delegate its responsibility to determine the subjects for which a child requires special education and the subjects for which the child requires regular education (Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 94-32). Respondent's CSE must comply, in the future, with the regulatory requirement to determine and specify the extent to which the child will be mainstreamed.
The annual goals in a child's IEP are statements of what a child can reasonably be expected to accomplish within a 12-month period in the child's special education program, and must be consistent with the child's needs and abilities (34 CFR 300, Appendix C, Question 38; 8 NYCRR 200.4 [c][iii]). They must be sufficiently specific to provide direction to the child's teachers about the CSE's expectation (Application of a Child with a Disability, Appeal No. 93-24), but IEP annual goals and short-term instructional objectives need not be as specific as the goals and objectives in a teacher's lesson plans (34 CFR 300, Appendix C, Question 37). The primary special education need of petitioner's son is to improve his ability to read and write. When tested in April, 1994, the child's independent reading level was about four years below his grade level, while his instructional reading level was approximately three years below grade level. However, the record does not reveal the child's writing level, at or near the end of the 1993-94 school year. The child's IEP listed one annual goal for language arts: "[The child] will develop and demonstrate an improvement in the critical skills for reading, writing and vocabulary development through the language arts curriculum." It also included eight instructional objectives for that annual goal. I find that the first objective, which relates to identifying new vocabulary words by using pictorial clues, is not an appropriate activity for a thirteen year old child. The child's fourth objective, that he will read and understand a variety of material with eighty percent success is too vague to be of value. I find that the fifth objective, that he will predict the outcome of a selection, is redundant with his second and third objectives. I further find that his sixth language arts objective, that he will understand that writing is a process provides little, if any, guidance to his teachers. In essence, the IEP described a very general goal and related objectives which were unrelated to special education in general, or to this child's learning needs in particular. In contrast to the child's language arts annual goal and objectives, the child's speech/language goal and objectives were more closely related to the child's special education needs and were more precisely formulated to provide direction to the child's teachers. The CSE should use such goals and objectives as a model in preparing his other goals and objectives.
The central question in this appeal is whether the child's IEP provided for the use of appropriate special education services to address the child's special education needs. This child has a significant delay in the development of his language skills, which has impaired his ability to read at an age-appropriate grade level. However, I am constrained to find that there is little support in the record for the appropriateness of the child's placement in a special education class for approximately two periods per week of reading as a means of addressing the child's language-based reading and writing deficits. At the hearing, the child's special education teacher testified that she used the "Phonetic Reading Chain" as a program to teach reading. However, a reading specialist testified on behalf of petitioner that a phonetically based approach, and that program in particular, would not be appropriate for the child. Although the child was also supposed to receive special education instruction in reading in his daily "study skills" class, I find that respondent did not demonstrate how this instruction would develop the child's ability to read. I must also note that it would appear that the child has made approximately two years of progress in reading over a four year period, using a phonetically based approach to reading. The CSE's recommended program for the 1994-95 school year would again provide the child with phonetically based reading instruction, despite the fact that as of the Spring of 1994 the child's instructional level in reading was at the mid-third grade level. Given the child's relative lack of progress and his need to be able to read for curriculum content, it is apparent that the child requires a different approach to reading.
At the hearing, petitioner's reading specialist opined that, based upon her experience tutoring the child, that his reading needs could be addressed through individual instruction using appropriate techniques for two hours per week, in addition to the child's English and reading classes with the use of the whole language technique. Respondent did not refute the reading specialist's testimony, nor did it show why it could not have offered such instruction by its own reading or speech/language teachers during the school day, in place of the special education reading instruction it did provide.
Although I found that the child's IEP for the 1994-95 school year did not provide him with an appropriate program of instruction in reading, I am not persuaded that the IEP was inappropriate with respect to the child's instruction in mathematics. The results of the most recent standardized achievement test in the record indicate that the child's mathematical skills were at the appropriate grade level, notwithstanding the fact that he used a fifth grade mathematics textbook while in the sixth grade during the 1993-94 school year. There is no basis for finding that the child could not be successful in mainstreamed seventh grade mathematics. Petitioner's request for an order requiring respondent to provide counseling for the child by an individual who is acceptable to the child must be denied. Petitioner conceded at the hearing that the CSE offered to provide the child with counseling when the CSE met with petitioner on August 30, 1994. She further acknowledged that she had requested that counseling not be included on the child's IEP.
My finding with respect to the inadequacy of respondent's reading program for the 1994-95 school year does not afford a basis for ordering respondent to pay for the reading and writing tutoring the child received in the Summer of 1994, prior to the date when services were to be provided pursuant to the child's 1994-95 IEP. I concur with the hearing officer's finding that the child was not eligible for services on a twelve-month basis (see 8 NYCRR 200.6 [j]).
Petitioner's request for reimbursement for the expense of a tutor in reading and writing during the 1994-95 school year is subject to the criteria in the United States Supreme Court decision in School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 (1985). The Burlington decision held that a board of education may be required to pay for education services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents' claim. I have found that the services offered by respondent with respect to improving the child's reading were inadequate. However, there is no evidence in the record of any reading and writing tutoring having been provided since the beginning of school in September, 1994, or if such tutoring has been provided, of the qualifications of the tutor and the nature of the tutor's services. Therefore I find that petitioner has failed to meet her burden of proof with respect to the second Burlington criteria.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the hearing officer is annulled; and,
IT IS FURTHER ORDERED that within 30 days after the date of this decision respondent's CSE shall revise the child's IEP in accordance with the tenor of this decision to provide the child with appropriate instruction in reading.