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 South Cayuga Central School District
Legal Services of Central New York, Inc., attorneys for petitioner, Ronald Van Nostrand, Esq., and Susan M. Young, Esq., of counsel
Matthew R. Fletcher, Esq., attorney for respondent
Petitioner appeals from the decision of an impartial hearing officer which found that an individualized education program (IEP) which respondent's committee on special education (CSE) had prepared for petitioner's son on November 18, 1994 was appropriate. The hearing officer further found that respondent had allowed petitioner to participate in the development of the child's IEP, and had provided at least minimal information to petitioner about the other options for programs or services which the CSE had considered (see 34 CFR 300.505 [a]; 8 NYCRR 200.5 [a][i]). The hearing officer also found that respondent had failed to implement portions of the child's IEP in an appropriate and timely manner. Although neither party raised the issue of the child's classification as other health impaired, the hearing officer nevertheless found that there was inadequate evidence in the record of the child's need for special education services in order to benefit from his schooling. The hearing officer ordered the CSE to reconvene to make a recommendation for services to be provided to the child, either under the Individuals with Disabilities Education Act (20 USC 1400 et seq.), or Section 504 of the Rehabilitation Act of 1973 (29 USC 794).
Petitioner seeks an order annulling that portion of the hearing officer's decision which found that the child should not be classified as a child with a disability, and that the services set forth in her son's IEP exceed what the boy needs to benefit from his course of study. She also challenges the hearing officer's findings with respect to the appropriateness of her son's IEP, and respondent's implementation of the IEP. She asks that the child's teachers for the 1994-95 school year be directed to regrade the child's tests, quizzes and projects, using the child's IEP testing modifications. The appeal must be sustained in part.
Respondent cross-appeals from that portion of the hearing officer's decision which directed the Board of Education to make services available to the child pursuant to Section 504 of the Rehabilitation Act of 1973. It also requests that I find that the child "is not a child with a disability entitled to special education services." However, I find that respondent may not challenge its own CSE's recommendation that the child be classified as a child with a disability and that he receive special education services, which respondent subsequently approved (Matter of a Handicapped Child, 19 Ed. Dept. Rep. 387; Application of a Child with a Disability, Appeal No. 93-14). In view of my finding below that the hearing officer erred in ruling that the child was not a child with a disability under the Individuals with Disabilities Education Act, her authority to order respondent to provide services under Section 504 is a moot point. The cross-appeal must be dismissed.
Petitioner's son, who is fifteen years old, has been classified as other health impaired. His classification was reportedly based upon the fact that he has Tourette Syndrome (see 8 NYCRR 200.1 [mm]). The record indicates that the child was diagnosed as having Tourette Syndrome at the University of Rochester Medical Center in April, 1993. Tourette Syndrome is a neurological condition which may be manifested by involuntary, abrupt and random muscle movements, known as tics, e.g., eye blinking, facial twitches, throat clearing, inarticulate noises. A brief written report by the University of Rochester Medical Center, dated September 9, 1993, indicated that the child evidenced motor and vocal tics, and that the child had an attention deficit disorder without hyperactivity (ADD). The report further indicated that the child was receiving medication to suppress his tics and to improve his attention span. At the hearing in this proceeding, petitioner testified that the child's medication was discontinued in June, 1994.
During the 1994-95 school year, the child was in the ninth grade of respondent's Poplar Ridge Junior-Senior High School. The child was enrolled in regular education classes for each of his subjects. His special education program consisted of one period per day of resource room services, and one period per week of individual counseling. In addition to his scheduled daily period of resource room services, the child also had access to the resource room during the approximately four periods per week when he was assigned to study halls. The child's IEP also provided for certain curricular and testing modifications which will be discussed below, in more detail.
The child was reportedly referred to the CSE in the Fall of 1992, when he was in the seventh grade. His initial IEP which was drafted in June, 1993, indicated that when the child was evaluated in December, 1992, he achieved a verbal IQ score of 118, a performance IQ score of 116, and a full scale IQ score of 119. He also achieved grade equivalent scores of 16.9 in word attack skills, 12.9 in word comprehension, 16.9 in passage comprehension, 9.9 in mathematical concepts, and 6.7 in mathematical applications. In January, 1993, he reportedly achieved standard scores of 130 in contrived expression, and 88 in spontaneous expression, on the Test of Written Language-2. The child's IEP indicated that the child had difficulty expressing ideas in written form, and he had difficulty with his short-term memory skills. He also had trouble with his grapho-motor (handwriting) skills. Many learning characteristics associated with Tourette Syndrome were included on the child's IEP. The IEP also described his management needs as including the ability to leave the classroom when he felt the need, no penalties for missed homework, no punishment for manifestations of Tourette Syndrome, and the coordination and adjustment of his assignments.
For the 1993-94 school year, the CSE recommended that the child be enrolled in regular education eighth grade classes, and that he receive one period per day of resource room services for supplemental support and assistance in developing the child's organizational and word processing skills. The child's IEP provided that he would have the use of a tape recorder in his classes. The child's IEP annual goals involved improving his study and keyboarding skills, increasing his understanding of Tourette Syndrome, and developing coping strategies. The IEP also provided for various testing modifications, including flexible scheduling, flexible setting, revised test formats and directions, and alternative methods for responding to test questions. The IEP also provided that the child would not be penalized for failing to complete homework assignments, for a 20-week period.
In January, 1994, petitioner requested that an impartial hearing be held because her child was reportedly not receiving services in accordance with his IEP. The hearing request was held in abeyance while the CSE met with petitioner in February, 1994 to revise the child's IEP. The IEP was amended to indicate that the child had ADD, and was moderately obsessive-compulsive. The IEP provision about not being penalized for missing homework was made permanent.
In March, 1994, petitioner, through her attorney, renewed her request for an impartial hearing. A hearing officer was appointed, but the hearing was deferred by agreement of the parties, so that an independent assessment of the child's adaptive technology needs could be conducted. The independent assessment was reportedly conducted in July, 1994, but the assessment findings are not part of the record of this proceeding. The organization which performed the assessment also provided training for the child and his resource room teacher in the use of a laptop computer (which respondent subsequently provided for the child).
On September 15, 1994, the CSE met with petitioner and her attorney to review the child's IEP. Petitioner presented a proposed IEP to the CSE. She testified at the hearing in this proceeding that many of the provisions in the proposed IEP were derived from a handbook about the education of children with Tourette Syndrome which she had obtained from a Tourette Syndrome organization. She included in the proposed IEP an extensive discussion of the reasons why the child should use a computer, and a request that respondent provide the child with a laptop computer with specific word processing software, as well as a calculator, tape recorder and small dictaphone. At the hearing in this proceeding, the CSE chairperson testified that the CSE required additional time to review petitioner's proposed IEP, and adjourned its meeting. Thereafter, the CSE chairperson reportedly discussed the proposed IEP with the child's teachers, and prepared a draft IEP, which incorporated some, but not all, of the provisions of petitioner's proposed IEP. On November 18, 1994, petitioner, her child, and her attorney met with the CSE. The minutes of the CSE meeting indicate that the CSE discussed its proposed IEP, which was compared to the proposed IEP which petitioner had offered in September. The child's resource room teacher was questioned by petitioner's attorney about the manner in which the child's tests and assignments were modified, and the ways in which testing modifications would be made for the child's Regents examinations were also discussed. The CSE approved its proposed IEP for the child.
The November 18, 1994 IEP, which is the subject of this proceeding, provided that the child would remain classified as other health impaired, and would receive resource room services once per day. He would also be eligible to receive resource room services when he was scheduled for study halls, and would receive individual counseling once per month. The IEP included an extensive description of the benefit which the child could derive from using a computer. It also indicated that the child would be provided with a laptop computer with a Windows operating system and three kinds of software. The IEP also indicated that the child would have access to a calculator, a tape recorder for recording lectures in class and a dictaphone. The IEP provided for the use of alternative testing techniques, including the statement that:
" There will be a reduction in the number of questions assigned on a test. For example, [the child] will be allowed to answer every other question or half of the questions listed on a particular test".
The IEP also provided for extended time limits on tests, and for allowing the child the options of registering his answers to test questions orally, and writing or circling his answers in the test booklets for tests having computer scored answer sheets. It also indicated that respondent would apply to the State Education Department for authorization to allow the child to complete State tests over a period of days, and would implement the Department's authorization.
In describing the child's written expression skills, the IEP indicated that the child had difficulty completing assignments, and expressing his ideas on paper quickly when taking quizzes and tests. The IEP provided that the child's mastery of a given topic was to be assessed "by what has been learned rather than by what can be written." It also provided that "no unfinished class assignments requiring written work will be sent home with [the child] to be completed". If the child was unable to complete his assignments during the school day, his teachers were to modify their expectations. The IEP also indicated that:
" [The child] will not be required to rely upon his note taking skills for retention of classroom material. [The child] will be provided with a copy of the teacher's outline listing the main ideas and related sub-topics for each class presentation. Hard copies of the outline will be given to [the child] and the outline will be entered into [his] computer. The hard copy will be introduced into his computer by school personnel on a timely basis when available.
[The child] will be provided with prepared or duplicated copies of any board material and/or questions to be answered during the class to eliminate the excessive time stress and frustration produced by copying from the board, text or presentation. [The child] should not be asked to copy questions or problems before answering them."
The boy's IEP also provided that teachers were to allow the boy to leave class "if he feels the need to do so," and that the boy and his teachers would agree upon a private hand signal to be used when it was necessary for him to leave class. The IEP indicated that a consultant would provide a one-day in-service training program on Tourette Syndrome for school personnel, and that written materials and videos dealing with the disorder would be distributed to respondent's staff. Daily communication between petitioner and the child's teachers was to be established and maintained by the use of an assignment notebook.
On January 31, 1995, petitioner's attorney wrote to the school district attorney that he and petitioner had reviewed the IEP that had been prepared at the November 18, 1994 meeting, and that petitioner wanted certain changes in the IEP. He requested that the annual review date be changed to June, 1995, rather than November, 1995, and he requested that obsessive compulsive disorder be added as a learning characteristic of the child. Additionally, he requested that language in the IEP be modified to indicate that repetition in the child's classroom assignments must be reduced in quantity to focus upon the child's demonstration of his mastery of certain concepts. The attorney requested that the IEP be changed to indicate that the child would be provided with copies of classroom notes, rather than having the information put on the child's computer as time permitted. He requested that the IEP's description of the child's instructional characteristics be expanded to indicate that the child must never be given consequences for behaviors associated with his neurological disorders, and that the IEP should indicate that traditional behavior management techniques, except for positive reinforcement, were ineffective in modifying the behavior of students with neurological deficits. He also requested that a seven-step analysis of the boy's behavior which the IEP listed as a topic for teacher in-service training should instead be included in another portion of the IEP. The attorney alleged that numerous provisions of the IEP had not been implemented.
In a subsequent letter to respondent's attorney, dated February 24, 1995, petitioner's attorney asserted that respondent had failed to provide a dictaphone to the child. He also asserted that it had not complied with the IEP provisions about not assigning written work to be done at home, reducing the number of test questions to be answered, arranging a hand signal for leaving class, maintaining daily communication through the use of an assignment notebook, allowing the child to answer test questions orally, providing him with teacher outlines, and providing instruction in computer and word processing. The attorney also claimed that respondent had failed to work on some of the child's IEP short-term instructional objectives. Petitioner's attorney reiterated her request for a hearing.
The hearing in this proceeding commenced, by agreement of the parties, on May 15, 1995. It continued for four additional days, ending on June 23, 1995. On the first day of the hearing, the parties agreed that neither the child's classification as other health impaired, nor his placement in respondent's high school, was at issue. Petitioner's attorney identified the issues to be determined as those which he had expressed in his letters of January 31 and February 24, 1995, which involved the appropriateness of the child's November 18, 1994 IEP, and its implementation by respondent. The attorney also raised the issue of respondent's alleged failure to include a description of other options considered and the reasons why they were rejected in its notice to petitioner of the CSE's recommendation. He also asserted that respondent had allegedly failed to provide its staff with appropriate in-service training, and had failed to provide the child with test modifications. Respondent's attorney indicated that respondent did not oppose two of petitioner's requests: that an annual review be conducted in June, 1995, and that the IEP description of the child's learning characteristics indicate that the child had an obsessive-compulsive disorder.
The hearing officer rendered her decision on November 6, 1995. She noted that the child had passed each of his Regents level courses during the 1994-95 school year, and that he appeared to get along well with his peers and teachers. The hearing officer further noted that there was little information in the record about the child's disability, and little evidence that he manifested his disability in school. The hearing officer found that the November 18, 1994 IEP had been developed in accordance with the regulatory requirements, and that it was substantively adequate to provide the child with a free appropriate public education. With regard to petitioner's claim that the IEP had not been completely implemented, the hearing officer found that a dictaphone had not been provided to the child until March, 1995, and that the child's teachers had not strictly followed the IEP test modification provisions. While most, if not all, of the time limits had been waived for the child, at least one teacher admitted that he had not reduced the number of test questions to be answered by the child. The hearing officer parenthetically noted that a number of the child's teachers had seen the child's prior IEP, but not his November 18, 1994 IEP, until shortly before the hearing. The hearing officer further found that the child's teachers had not developed a private hand signal which the child could use to leave class, or the teacher could use to suggest to the child that he leave the class. She also found that an assignment notebook had not been used as a daily communication device for petitioner and the child's teachers, and that respondent's alternative of sending messages between petitioner and the child's resource room teacher on a computer disk the child took home every day did not meet the IEP requirement, nor did it help the child develop his organizational skills. The hearing officer also found that respondent had not provided some of the computer software which was specified in the child's IEP, and had given little priority to developing the child's computer skills.
The hearing officer rejected petitioner's other claims of alleged non-implementation of the child's IEP, with regard to written homework assignments, provision of teacher notes and outlines, and in-service training for respondent's staff. The hearing officer also found that the record demonstrated that the child was not legally classifiable as a child with a disability under the Individuals with Disabilities Education Act, or the State Education Law, because there was no indication that the child's disability prevented him from benefitting from his schooling, or substantially interfered with his academic progress. She further found that the child did meet the definition of a person with a disability under Section 504 of the Rehabilitation Act of 1973, and as such would be entitled to have some of his IEP provisions included in his 504 accommodation plan. In view of her finding that the child was not classifiable as a child with a disability, the hearing officer declined to order respondent to implement the child's IEP as written. She left the parties the option of proceeding under the Federal and State education law provisions as a way of addressing the child's rights under Section 504.
Petitioner argues that the hearing officer deprived petitioner of due process of law by finding that the child was not entitled to be classified as a child with a disability. She contends that the child's classification was not in dispute, and was therefore not an issue to be determined by the hearing officer. She notes that the Commissioner of Education and the State Review Officer have been precluded from reaching the issue of a child's classification in reviewing a hearing officer's decision, if neither party to the appeal raised the issue of classification (see Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 198]; Application of a Child with a Disability, Appeal No. 93-42). Those decisions were premised upon the Federal statute, which provides that a hearing officer's decision shall be final, unless appealed to the State Review Officer (20 USC 1415 [e]). Nevertheless, I find that the jurisdiction for the hearing in this proceeding was petitioner's complaint about certain portions of her son's IEP and respondent's alleged failure to implement the IEP. Since petitioner had not challenged the portion of the child's IEP which identified him as a child who was other health impaired, that portion of the IEP was not in dispute and could not afford a basis for the hearing officer to determine that the child did not have a disability, for the purposes of the Individuals with Disabilities Education Act and Article 89 of the New York State Education Law. I will annul that portion of the hearing officer's decision which found that the child did not have an educational disability under Federal or State law.
Petitioner argues that the hearing officer erred in finding that respondent had not violated her procedural due process rights by allegedly failing to give petitioner adequate notice of the CSE's recommendation. Federal regulation requires that a notice to a parent include:
" A description of the action proposed or refused by the agency, an explanation of why the agency proposes or refuses to take the action, and a description of any options which the agency considered and the reasons why those options were rejected;" (34 CFR 300.505 [a])
State regulation provides that whenever the CSE proposes a change in, or continuation of, a child's classification, educational program or placement, the CSE:
" ... shall give written notice to the parent of its recommendation to the board of education or trustees including a description of the program and placement options considered and a rationale for rejecting those options not selected." (8 NYCRR 200.5 [a][i])
Petitioner contends that the notice of the CSE recommendation which she received after the November 18, 1994 CSE meeting should have listed, but did not list, each of her admittedly numerous proposals to change the child's IEP provisions, and should have provided a written explanation of why each proposal was not adopted by the CSE, and what other options were considered. In her decision, the hearing officer found that respondent's notice of recommendation was "skimpy" with regard to other options, but further found that the proposed IEP provisions which the CSE did not adopt were matters of teaching methodology. She held that the regulatory notice requirements applied to program options, or choices, rather than to specific teaching methodologies. I do not agree with the hearing officer's finding that the regulatory requirements are so limited (see Application of a Child with a Handicapping Condition, Appeal No. 92-47), and urge respondent to provide more of a discussion of the options which its CSE has considered when such notices are provided in the future. However, I do not agree with petitioner's contention that this defect in respondent's notice denied the child a free appropriate public education.
Petitioner asserts that the child's IEP was inappropriate for him because it did not include certain "essential" language. She offers four examples. First, she asserts that the IEP should have included the statement:
" The focus of tests and classroom assignments must be to demonstrate mastery of concepts and/or calculation. Repetition beyond mastery must be reduced or eliminated. Accordingly, classroom assignments shall be reduced in quantity sufficient to demonstrate mastery of concept or calculation Such curriculum modifications shall be completed by each classroom teacher and the modifications must be determined and executed by classroom teachers prior to the presentation of classroom material to [the child]."
In lieu of this statement, the IEP included a fairly extensive description of alternative testing techniques which were to be used with the child. The IEP provided for flexible scheduling, flexible setting, revised test formats, and optional methods of answering questions. The IEP also provided that the child would not be given written assignments to be completed at home, and that teachers were to modify their expectations if the child could not complete his work in school. I find that these IEP provisions were adequate to address the child's need for modifications.
The second statement which petitioner wished to have in the child's IEP provided in part that hard copies of teacher outlines " ... will be given to [the child] and introduced into his computer by school personnel prior to presentation of the material." The CSE approved IEP provided that: "The hard copy will be introduced into his computer by school personnel on a timely basis when available." The record reveals that teacher outlines were given to the child's resource room teacher who entered them in the child's computer. It would appear that the outlines were not always made available to the child prior to the teachers' presentation of the material in their classes. However, the record does not reveal what if any, use petitioner's child made of the outlines. Nevertheless, petitioner's expert witness opined that it would be useful for the child to have them. Although there is some question about respondent's implementation of the IEP provision in question, I find that the provision in the child's IEP was appropriate as written. Its implementation is a separate issue.
The third statement which petitioner wished to have included in the IEP read as follows:
"The child must never be given consequences for behaviors associated with his neurological disorders. For example, behaviors associated with impulsivity, hyperactivity and/or inattention. Traditional behavior management techniques, except for positive reinforcement, are ineffective in modifying the behaviors of students with neurological deficits such as [the child's] since these methods rely on the student's ability to attend, concentrate and neurologically remain in control."
The fourth example which petitioner gives involves a seven-step analysis of the boy's behavior which is described in the boy's IEP as a topic for in-service education for respondent's staff who work with the boy. Petitioner insists that this language be listed under the "Support Section" of the IEP, as the "proper progression of inquiry" regarding the child's behavior. I find that the record does not support petitioner's position with respect to the inclusion of the language in her third and fourth examples into the child's IEP. There is little evidence in the record that the child's behavior in school has been a significant issue, as petitioner's expert witness acknowledged in her testimony. Although petitioner briefly alluded in her testimony to the child having been inappropriately disciplined by a substitute mathematics teacher during the 1994-95 school year, there is no evidence that the child was in fact inappropriately disciplined. In essence, petitioner's concern is that the child's teacher should be aware of the nature and manifestations of Tourette Syndrome, so that they can distinguish between behavior which is a manifestation of his disability and other behavior. The child's IEP provided that the child's teachers would receive in-service education about Tourette Syndrome, including the seven-step analysis of behavior. I find that the child's IEP was appropriate, without the language which petitioner sought to have added to it.
Petitioner challenges the hearing officer's finding that certain provisions of the child's IEP were "excessive and/or inappropriate." The hearing officer found that respondent had not implemented a portion of the child's IEP which provided that: "Daily communication between classroom teachers and [the child's] parent will be established and maintained through the use of an assignment notebook." The record reveals that the child's resource room teacher and petitioner communicated on a regular basis by exchanging messages on a computer disk which the child brought home. The child's other teachers did not communicate with petitioner on a regular basis. However, the hearing officer found that there was no need for daily communication between petitioner and each of the child's teachers. As noted above, the child's IEP precluded the child's teachers from giving the child written assignments to be completed at home, and required that the child's tests and assignments be modified. The hearing officer opined that using a different standard of achievement to grade the child on his tests and assignments gave the child "preferred treatment ... bordering on reverse discrimination toward his regular education peers."
Petitioner argues that an IEP must be implemented as written (see Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 339). Although the record does not establish a clear nexus between each of the IEP provisions and this child's specific needs, I agree with petitioner. If portions of a child's IEP are found by the child's teachers or school administrators to be inappropriate or unworkable, the CSE should be asked to revise the child's IEP (Application of the Bd. of Ed. Ellenville CSD, Appeal No. 92-22). In the absence of modifications by the CSE, school officials must implement a child's IEP as written. The hearing officer's finding that the communication and grading portions of this child's IEP were inappropriate was made after the 1994-95 school year had ended, and obviously did not relieve respondent of its obligation to comply with the IEP provisions during that school year. The child's IEP for the 1995-96 school year is not at issue in this proceeding. In any event, the hearing officer's findings with respect to the appropriateness of portions of the child's 1994-95 IEP would not be determinative of the question whether those IEP provisions would be appropriate in the child's subsequent IEPs.
Petitioner also challenges the hearing officer's findings that respondent had substantially complied with its obligation to implement the child's IEP provisions with respect to the assignment of written homework, the provision of teacher outlines to the child, the child's option of completing written assignments orally, the in-service education provided to the child's teachers, and the achievement of IEP goals and objectives. I find that there is no support in the record for petitioner's position with respect to the assignment of written homework, or the in-service education provided to the child's teachers. There was no evidence that the child had in fact worked upon any written assignment at home. Petitioner's expert witness, who provided the in-service education to the teachers, testified that she would have preferred to have spoken with the child's teachers in a group, rather than individually throughout the school day during the teachers' free periods. However, there is no reason to believe that the expert did not impart useful information to each teacher. I agree with the hearing officer's determination.
The child's mathematics, Global Studies and English teachers testified that they had provided copies of their lesson outlines to the child's resource room teacher to be made available to the child on his computer. His French teacher testified that she had not given her lesson outlines to the resource room teacher. While the record does not definitively establish whether the child's other teachers consistently made their outlines available before class, I find that there was a rational basis for the hearing officer's determination that respondent substantially complied with the IEP provision.
The child's IEP also provided that until he became proficient in using his computer he would be allowed to complete classwork assignments orally. Petitioner asserts that the child's English, Global Studies and French teachers testified that they had not informed the child that he could complete his assignments orally. I find that the hearing officer's finding of substantial compliance with this IEP provision was not supported by the record.
With regard to the implementation of the child's IEP annual goals and objectives, the hearing officer noted that the issue had been raised, but did not specifically address the issue in her decision. There was very little testimony at the hearing about the IEP goals and objectives. The testimony that was given suggested that petitioner and respondent had differing perceptions about the dates when objectives and goals were to be achieved, as well as the methods which were to be used to assist the child in achieving his goals and objectives. Since the child's IEP goals were to be achieved within the period of one year after the IEP was prepared, i.e., from November, 1994 until November, 1995, I find that the issue was prematurely raised in a hearing which ended in June, 1995.
Petitioner asks that I direct the child's teacher to regrade his tests, quizzes and projects completed during the 1994-95 school year, using the modifications required by his IEP. With the exception of the child's English teacher, who testified that he had not reduced the number of test questions which the child was required to answer, the child's teachers appear to have modified their expectations for the child's performance in accordance with his IEP provisions. I must note that the child achieved consistently good grades in English throughout the 1994-95 school year. His final grades were 91 in English, 89 in Global Studies, 78 in earth science, 86 in French and 66 in mathematics. He achieved a grade of 78 in his earth science Regents examination.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is annulled, to the extent that it found that petitioner's child was not eligible to be classified as a child with a disability and to receive services under the Individuals with Disabilities Education Act, that it found that the Federal and State notice provisions did not extend to the IEP modifications requested by petitioner; that respondent should not be ordered to implement the child's IEP as it was written; and that respondent substantially complied with the IEP provisions to afford the child the option of orally completing his written class assignments.