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
Michele Kule-Korgood, Esq., attorney for petitioner
Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent,Margaret M. Shalley, 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 six-year old autistic child be enrolled in one of respondent's specialized instructional environment-III (SIE-III) classes in P.S. 77, which is within P.S. 164, during the 1995-96 school year. She seeks an order annulling the hearing officer's decision, and requiring respondent to reimburse her for the cost of her child's tuition in a program of the Association in Manhattan for Autistic Children (AMAC) in which petitioner has unilaterally enrolled the child. The appeal must be dismissed.
The child was enrolled in a preschool program for fourteen months, prior to entering respondent's schools during the 1994-95 school year. The child was classified as mentally retarded by the CSE.1 He was enrolled, with petitioner's consent, in a special education modified instructional services-V (MIS-V) kindergarten class in P.S. 276, during the 1994-95 school year. While in that program, the child reportedly received speech/language therapy and occupational therapy. In March, 1995, the child's occupational therapist reported that the child exhibited vestibular, proprioceptive and tactile deficits, and that he did not visually track. She recommended that the boy continue to receive occupational therapy to improve his fine motor skills, his dressing skills, and his visual perceptual skills.
Petitioner reportedly became dissatisfied with the child's progress in the MIS-V program. At her expense, she obtained a home-based program for the child. The program providers reportedly employed an applied behavior analysis methodology, which is also known as the "Lovaas" method, to address the child's autistic-like features, such as self-stimulation, perseverative play, and delays in language and cognitive development. The boy was observed while participating in his home-based program by two consultants employed by the Eden Institute. The consultants noted that the child initiated and maintained eye contact with them, and that he had emergent expressive language skills. They offered various suggestions for improving the child's self-care, speech/language, social, and cognitive skills. In a subsequent letter to the child's grandparent, dated May 10, 1995, the consultants recommended that the child be placed in a specialized program, in which he could receive 1:1 instruction. They opined that the boy could benefit from a "discreet (sic) trial method" of teaching.
By letter dated May 11, 1995, petitioner asked the CSE to recommend that respondent provide the child with a summer instructional program. Also, in a letter dated May 19, 1995, petitioner asked the CSE to review her son's placement, because she did not believe it was appropriate.
On June 12, 1995, the child was privately evaluated by a psychologist in the Young Adult Institute in New York City. The child achieved a partial composite score of 52 on the Stanford Binet Intelligence Scale, Fourth Edition, which was based upon his completion of five of the eight required tasks for that test. The evaluator reported that the score of 52 was to be considered as a tentative measure of the child's intellectual ability. She further reported that the child appeared to be very responsive to individual direction and praise, and that he exhibited signs of stress when he could not comprehend some instructions. The child reportedly had difficulty with short-term memory tasks, auditory memory tasks, and visual memory tasks. On the Vineland Adaptive Behavior Scale the child achieved a composite score of 50, based on information provided by petitioner and the child's grandparent. The boy reportedly was able to speak in some full sentences, and was beginning to use some prepositions in his speech. The psychologist who evaluated the child opined that the child's behavior was highly consistent with mild autism, based upon his self-stimulatory behavior, impaired social interaction and interest, impaired ability to sustain communication, preoccupation with visual stimuli, and limited symbolic play. The psychologist reported that the child was functioning in the mildly retarded range, and recommended that the child be enrolled in a full-day special education program in which the applied behavior analysis methodology was employed. She suggested that the child should receive individual instruction, until he could learn effectively in a group.
On June 13, 1995, the child was evaluated by one of respondent's educational evaluators, who reported that the child recited words and letters while walking back and forth during his testing. She also reported that the child had a limited vocabulary, and was unable to follow test directions. The child was able to name colors, read the letters of the alphabet in isolation, and recognize numbers. At the time of his evaluation, the child was almost six years old. He achieved mental age equivalent scores which ranged from 2.11 for vocabulary to 5.6 for numbers, letters, and words on the Kaufman Survey of Early Academic and Language Skills. Although the child was able to count, he was unable to do any mathematical computation. The evaluator reported that the child was functioning at the readiness level in academic areas. She described the child as a non-spontaneous youngster, who displayed very limited ability to focus on materials which were before him.
A school psychologist evaluated the child on June 14, 1995. She reported that the child achieved a partial composite score of 65 on the Stanford Binet Intelligence Scale, Fourth Edition, with standard scores of 71 in verbal reasoning and 67 in abstract visual reasoning. The school psychologist reported that the boy's skill levels ranged from two years and seven months to four years and zero months. While noting that the child continued to function within the mildly retarded range of intelligence, the school psychologist reported that the child had made some progress since his last evaluation in March, 1994. She reported that he was more responsive, could name pictures, count objects, and follow simple directions. However, he still exhibited autistic behavior and significant communication delays. The school psychologist reported that when she had observed the child in his classroom, the child was sitting alone looking at a book, and was inattentive to the group lesson which was being presented. She also reported that the child became distracted, and left his seat without permission. The child was also observed in his MIS-V class by the educational evaluator, who reported that the child repeatedly left his place in class during group instruction. She reported that the child frequently mumbled to himself, while walking to the window in the classroom.
In a progress report dated June 16, 1995, the child's speech/language therapist indicated that the child's receptive language skills were stronger than his expressive language skills. She reported that although the child responded well to auditory presentations, he would neither initiate nor engage in directed conversations. Nevertheless, she reported that the child appeared to have made significant progress in his communication skills. She recommended that the child's speech/language therapy be increased from twice per week to three times per week.
An educational planning conference, which involved the child's teacher, the educational evaluator, the school psychologist, a speech teacher, petitioner, and the child's grandparent, was held on June 19, 1995. The record does not reveal the results of that conference. A meeting of the CSE was scheduled to be held on June 27, 1995. The individualized education program (IEP) which was developed for the child at that CSE meeting indicates that an educational evaluator, a social worker, a parent member, a school psychologist, petitioner, the child's grandparent, and the child's teacher attended the meeting. However, the child's teacher was reportedly delayed, and was not present when the CSE convened. Petitioner reportedly left the CSE meeting, before the child's teacher arrived. The following notation appears on the child's IEP:
" The parent was informed that the teacher was on her way to the meeting but chose not to wait for her. When the teacher arrived materials were reviewed with her."
The CSE recommended that the child's classification be changed to autistic. It also recommended that he be enrolled in a SIE-III class, with a child to adult ratio of 6:1+2 on a 12-month basis. The CSE further recommended that the child receive individual speech/language therapy twice per week, and individual occupational therapy twice per week. In addition, it recommended that the child receive the services of a full-time individual management aide to provide transitional support and to participate in the child's behavior modification. A summary of the CSE meeting (Exhibit 1) indicated that the CSE was aware that the child had participated in a program which used the applied behavioral methodology, and that the CSE intended that: "His placement for September 1995 should incorporate the applied behavioral methodology found in the Lovaas program." The child was also to have received adaptive physical education, during the 1995-96 school year. The child's IEP included annual goals to improve his visual memory skills, his fine motor skills, his mathematical readiness skills, his perceptual motor coordination skills, his auditory memory skills, and his gross motor skills.
In a notice which was dated July 27, 1995, respondent's placement officer indicated that a summer program would be available to the child in P.S. 77. Petitioner declined the placement offer on the grounds that it was late, and not in the child's best interests. The record indicates that the summer program had begun in early July and would end in mid-August. In a notice which was dated August 14, 1995, the placement officer informed petitioner that the child's school year placement would also be in P.S. 77.
On or about August 7, 1995, petitioner requested that an impartial hearing be held. The hearing in this proceeding was held on September 1, 1995. At the hearing, respondent's representatives acknowledged that the teaching and support staff in the SIE-III program were not trained in the Lovaas technique, but represented that respondent would employ an aide who was so trained to work with the child. Petitioner, who was assisted by a lay advocate at the hearing, sought a determination by the hearing officer that the recommended SIE-III program was inappropriate, and an order requiring respondent to place the child in the AMAC program. However, she offered virtually no evidence with respect to the AMAC program. Approximately three weeks after the hearing concluded, petitioner's newly retained attorney asked the hearing officer to reopen the hearing " ... to address certain procedural issues that were not addressed in the original hearing." The hearing officer declined to reopen the hearing.
In his decision, which was dated October 23, 1995, the hearing officer noted that petitioner did not dispute the CSE's recommendation that the child be classified as autistic, or its recommendation that he receive speech/language therapy and occupational therapy. He found that the petitioner's child exhibited characteristics which were typical of those of SIE-III students. I must note that the basis in the record for the hearing officer's description of the needs and characteristics of SIE-III children is not apparent.2 The hearing officer found that the SIE-III program, while it did not employ the Lovaas methodology exclusively, was nevertheless appropriate to meet the child's needs. He sustained the CSE's recommendation, and denied petitioner's request that the child be placed in the AMAC program.
Petitioner has annexed various documents to her petition. She asserts that all but one of the documents had been given to her lay advocate for introduction at the hearing, but that the advocate failed to introduce them into evidence. The one document which was not available at the time of the hearing is an educational evaluation, dated November 18, 1995, by the child's teacher in the AMAC. Shortly after the hearing was held, petitioner unilaterally enrolled the child in the AMAC. Respondent objects to the inclusion of the additional documents in the record of this proceeding. However, it has annexed five documents to its answer, none of which were part of the record before the hearing officer. Petitioner has submitted a reply in response to the new evidence offered by respondent (see 8 NYCRR 279.6). Documentary evidence not presented at a hearing may be considered in an appeal from the 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. 95-41). In view of the limited record which was before the hearing officer, I will accept the documents offered by both petitioner and respondent, so that I will have a more complete record.
Petitioner argues that the SIE-III program which the CSE recommended was inappropriate to meet her son's needs, and that respondent failed to make a timely placement offer. She also argues that the CSE's recommendation should be deemed to be a nullity because the CSE was not validly constituted. With regard to the issue of timeliness, she alleges, and respondent concedes, that the CSE received her request for a summer program for the child on May 15, 1995. She further alleges that the child was re-evaluated as a result of her request, and that the CSE did not meet with her to discuss the results of the re-evaluation and to make its recommendation until the last day permitted under State regulation. 8 NYCRR 200.4 (c) and (d) provide that when a child has been referred to a CSE by the child's parent because the parent believes that the child's program is inappropriate, the CSE must review the child and make a new recommendation within 30 days after the referral. State regulation further provides that a board of education must arrange a placement for the child within 30 days after its receipt of the CSE's recommendation, and that parental consent must be obtained for a child's initial placement in a 12-month program (8 NYCRR 200.4 [d]). It should be noted that the term "day" means school work days, except during July and August, when it means every day except Saturday, Sunday and legal holidays (8 NYCRR 200.1 [m]). Petitioner alleges that she was not offered a summer placement for the child until August 1, 1995 (the notice of the placement offer was dated July 27, 1995). I find that respondent's offer of July 27, 1995 was within the regulatory time limit.
Petitioner argues that respondent's offer of a placement to the child for the 1995-96 school year was also untimely. She premises her argument upon the fact that she did not receive respondent's offer of a placement, which was dated August 14, 1995, until August 17, 1995. However, respondent alleges that it offered the child a placement in P.S. 369, in a notice dated August 4, 1995 (Exhibit N), and that the subsequent offer of a placement in P.S. 77 was made after petitioner objected to respondent's initial offer of a placement in P.S. 369. In her reply to the answer, petitioner has not challenged respondent's assertion that its initial placement offer was made in its August 4, 1995 notice to petitioner. I find that respondent's offer of August 4, 1995 was timely, within the meaning of the relevant State regulations.
Petitioner further argues that respondent's placement offer was untimely under the terms of a stipulation entered into by the parties in the action Jose P. et al. v. Sobol et al., 79 270 (U.S. D.C. E.D. N.Y., 1988). Respondent denies petitioner's argument, and asks that I review the entire stipulation for its content and meaning. However, neither party in this appeal has provided me with a complete copy of the stipulation. The single sentence of the stipulation which petitioner has cited in her petition provides that:
" Students shall be eligible to enroll in appropriate programs conducted at approved non-public schools in regard to ... reevaluations on the 65th day after referral, if no site [placement] is actually offered."
In view of the omission just prior to the word "reevaluation", it is not possible for me to conclude whether this provision is specifically applicable to petitioner's child. I am also unable to deduce whether "day" means school work day, except in the summer, as is the case in the State regulations. Accordingly, I must find that petitioner has not established her claim of untimeliness.
With regard to the composition of the CSE, both parties appear to agree that at 10:30 a.m. on June 27, 1995, the time set for the CSE meeting to begin, the child's MIS-V teacher was not present. Petitioner, who attended the CSE meeting, alleges that a member of the CSE advised her that the CSE would recommend a SIE-III class for her child, shortly after the CSE meeting began. She further alleges that the teacher had still not appeared by 11:45 a.m. Petitioner, and her mother, who also attended the CSE meeting, thereafter left the meeting. In a supporting affidavit, petitioner's mother alleges that:
"After an hour and a half, we felt the meeting was over and asked the social worker for a copy of the attendance sheet. She gave us a copy and told us to leave."
Respondent, which has not offered an affidavit by any participant in the June 27, 1995 CSE meeting, asserts that petitioner chose to leave the CSE meeting, rather than to request that the meeting be adjourned. It asserts that petitioner could not deprive the CSE of its power and duty to prepare the child's IEP, by simply leaving the meeting.
The State Education Law requires that respondent must establish at least one CSE in each of its community school districts. It provides that each CSE:
"...shall be composed of at least the child's teacher as defined by applicable federal regulation, a school psychologist, a representative of such school district who is qualified to provide or administer or supervise special education, a school physician, a parent of a handicapped child residing in the school district..." Section 4402 (1) (b) (1) of the Education Law.
The school physician need not attend a CSE meeting, unless his or her attendance is requested by a child's parents. Each of the other CSE members specified in the statute must attend a CSE meeting, in order for a CSE to make its recommendation and to prepare an IEP (Application of a Child with a Disability, Appeal No. 94-5; Application of a Child with a Disability, Appeal No. 95-14). In the absence of a required member, the CSE could not proceed, and should have adjourned. Contrary to respondent's stated position, it was not petitioner's responsibility to request an adjournment. Although the teacher reportedly came to the meeting after petitioner had left, I must nevertheless find that the respondent has failed to demonstrate that the CSE was properly composed. As has been repeatedly brought to respondent's attention, it must show that an educational evaluator who served as the teacher or supervisor of special education member of a CSE was qualified to teach or supervise the provision of special education (Application of a Child with a Handicapping Condition, Appeal No. 92-31; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child with a Disability, Appeal No. 95-4; Application of a Child with a Disability, Appeal No. 95-5). Once again, it has failed to do so. I find that the CSE's recommendation is a nullity because the CSE was not validly composed.
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 parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ). 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]).
Respondent has failed to meet its burden of proof with regard to the first Burlington criterion, i.e., the appropriateness of the educational services which it offered, because it failed to demonstrate that its CSE had all of its required members when it recommended the SIE-III program for petitioner's child. Even if the CSE had been validly composed, I would nevertheless be compelled to find that respondent had not met its burden of proof of demonstrating the appropriateness of the educational program which its CSE recommended. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits. Although the child's IEP generally reflects the results of the child's evaluations, I find that his IEP lacks annual goals to address his inattentive behavior and difficulty following directions. In addition, there are no goals for the transitional support and behavior modification which the CSE intended to provide for the child. By failing to provide adequate focus upon the social and behavioral components of the child's disability, the IEP does not adequately address the child's special education needs. The CSE must meet again to revise the child's IEP to include appropriate annual goals.
Petitioner bears the burden of proof with regard to the appropriateness of the services which she has obtained for the child at the AMAC (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet her burden, petitioner must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington, supra 370), i.e., that the private school offered an instructional program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29).
On August 21, 1995, the child was privately evaluated by a psychologist at the Institute for Basic Research in New York City. The psychologist recommended that the child receive an intensive, structured "Lovaas-type" behavior modification program, for at least 40 hours per week, to develop various skills in the affective and cognitive domains. She also recommended that the child receive some occupational therapy, and that parent training be an integral part of the child's program. At the hearing in this proceeding, the psychologist opined that the child would not learn as effectively in the SIE-III program which the CSE had purportedly recommended, as in a Lovaas-type program which she had recommended. The psychologist also testified that the AMAC uses the applied behavior analysis technique in its program. However, she did not otherwise describe the AMAC program. Petitioner, whose son had not yet entered the AMAC program at the time of the hearing, offered no other evidence of the appropriateness of the AMAC's program.
In this appeal, petitioner has submitted an "educational evaluation" by the child's AMAC teacher, which was dated November 18, 1995. The teacher reported that the child had made some progress in language and cognitive skills, and that he was "beginning to generalize his learning to other environments". Petitioner argues that this evaluation demonstrates that the child has made progress while enrolled in the AMAC, and that it is an appropriate program for him. In the alternative, she asserts that the matter should be remanded for another hearing to afford her another opportunity to offer evidence about the appropriateness of the services which she obtained.
While I have considered the AMAC teacher's "educational evaluation," I must note that a June 23, 1995 report by a social worker regarding the child's progress in his home-based program (Exhibit A) and the report of the psychological evaluation performed on June 12, 1995 (Exhibit 4) suggest that the child had acquired some of the skills described by the AMAC teacher prior to the child's entry into the AMAC program. The nature and extent of a child's disability will obviously affect the rate at which the child makes educational progress, and the appropriateness of a child's educational program cannot be determined solely by the child's rate of progress. In order to determine the appropriateness of the services which a parent has obtained for a child, it is necessary to ascertain what those services were, and how those services addressed the child's special education needs (Application of the Bd. of Ed. Monroe-Woodbury CSD, supra; Application of the Bd. of Ed. Hendrick Hudson CSD, Appeal No. 95-49). The record reveals that the child needs to improve his ability to pay attention, visually track, sustain communication, follow directions, and to decrease his self-stimulatory behavior, in addition to developing his academic readiness skills. Although the report by his AMAC teacher describes the child's performance in some of these areas, it does not reveal what services have been provided by the AMAC to the child. Therefore, I must find that petitioner has failed to meet her burden of proof with regard to the appropriateness of the services provided by the AMAC. Since petitioner has not prevailed with respect to the second Burlington criterion, I do not reach the question of whether equitable considerations support petitioner's claim for tuition reimbursement. I have considered petitioner's other arguments, and find that they are without merit.
Petitioner has requested that, in the event her appeal fails, I remand the case so that additional evidence about the AMAC program can be presented. Petitioner was assisted at the hearing by an advocate from Resources for Children with Special Needs. There is nothing in the record to indicate that either petitioner or her advocate were precluded from offering any testimonial or documentary evidence at the hearing. I find that she has not offered a compelling reason for remanding this matter for yet another hearing.
THE APPEAL IS DISMISSED.
1 Although petitioner alleges that the boy was erroneously classified as mentally retarded, she did not raise the issue at the hearing in this proceeding. I find that the resolution of that issue would not materially assist me in reaching a determination in this appeal, and I will not address it.
2 Respondent has been cautioned in the past about allowing hearing officers to refer to, or rely upon, published descriptions of its educational programs which are not in evidence in a hearing (Application of a Child with a Handicapping Condition, Appeal No. 92-31).