Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Dryden Central School District
Legal Services of Central New York, Inc., attorney for petitioners, Susan M. Young, Esq., of counsel
Hogan and Sarzynski, LLP, attorneys for respondent, Edward J. Sarzynski, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which held that respondent had adequately evaluated petitioners' son, and which denied petitioners' request for an order requiring respondent to reimburse them for the cost of an independent psychological evaluation which they obtained for the child. The appeal must be sustained.
Petitioners' son is eleven years old. At the age of two, the boy reportedly temporarily lost his hearing because of an ear infection. Thereafter, he suffered from a series of ear infections. In the Fall of 1991, the child entered kindergarten in the Homer Central School District. He was reportedly enrolled in a remedial reading program, while in the first grade in Homer, during the 1991-92 school year. In January, 1992, the boy was referred to the committee on special education (CSE) of the Homer Central School District, because he had weak reading and mathematics skills as well as weaknesses in his auditory and visual skills. In the child's social history, his mother indicated that the child had low self-esteem, and reportedly worried about being accepted by others. She also indicated that petitioners' marital difficulties within the past few years had been stressful for the child.
When tested with the Wechsler Intelligence Scale for Children - Revised (WISC-R) in February, 1992, the boy achieved a verbal score of 106 and a performance IQ score of 108. His full scale IQ was 107, which was in the average range of cognitive functioning. The Homer school psychologist reported that the child had solid ability in the areas of concept formation, thinking, and reasoning. The boy's short-term auditory memory was reported to be adequate. He exhibited relative weakness on the portions of the WISC-R which measure long-term and short-term visual memory skills. On the Woodcock Johnson Tests of Achievement Revised, the child achieved grade equivalent/standard scores of K.3/65 in broad reading, 1.4/95 in broad mathematics, and 1.1/85 in broad written language. The boy achieved a standard score of 104 on a test of his perceptual motor integration skills. On the Visual Aural Digit Span Test, which measures auditory and visual processing skills, he exhibited a significant weakness in his visual processing skills, while his ability to process information auditorily was reported to be satisfactory. This disparity was also indicated by his WISC-R scores.
The Homer school psychologist noted that the child had been absent because of illness on numerous occasions during kindergarten and the first grade. She opined that the child would probably make slower academic progress in reading and writing than his peers, because those tasks involved the use of visual processing skills for symbolic representation. The school psychologist opined that the child could be classified as learning disabled, because of the discrepancy between his expected achievement and actual achievement (see 8 NYCRR 200.1 [mm]). She also suggested that the child be included in a developmental physical education program, because his gross motor skills were below average for his age group.
The Homer CSE recommended that the child be classified as learning disabled, and that the child receive resource room services. He reportedly received those services while in the second grade, during the 1992-93 school year, and the third grade, during the 1993-94 school year. For the 1994-95 school year, the Homer CSE recommended that the boy receive 90 minutes of resource room services per day, to support him in each of his fourth grade academic subjects. However, the child did not attend school in the Homer Central School District during the 1994-95 school year.
In July, 1994, petitioners registered the child as a new resident student with the Dryden Central School District. Respondent's CSE chairperson testified at the hearing in this proceeding that petitioners had represented to her that they would be moving into a home in Dryden by November, 1994. The CSE chairperson further testified that she sought to obtain the child's records from the Homer CSE, while initiating a referral of the child to Dryden's CSE.
The child's vision and hearing were found to be within normal limits, in a health screening performed in October, 1994. At the request of the CSE chairperson, the child's fourth grade teacher, and his art, music and physical education teachers informed the CSE about the child's performance in their respective classes. His special subject teachers reported that his achievement and behavior were in the average range. The boy's fourth grade teacher reported that the child had extremely weak reading and language skills, but that his interaction with adults and peers was satisfactory.
In October, 1994, the child was evaluated by one of respondent's speech/language therapists, who reported that the child achieved standard scores of 98 and 122 for receptive language vocabulary and expressive language vocabulary, respectively. The therapist noted that the child's word recall was slow, at times. On another test of the child's receptive language skills, the child demonstrated his ability to retain information, and answer questions appropriately. The speech/language therapist reported that on an additional test of the child's expressive language skills, the child had achieved standard scores ranging from 77 for synonyms to 110 for associations, and a standard score of 98 for total expressive language. The child had reportedly had difficulty articulating the phonemes "s" and "z" , while in Homer. Respondent's speech/language therapist reported that the child's accuracy rate for articulation of those two phonemes was 30 percent. She explained that the child's speech articulation errors occurred with his tongue protruding between his teeth, and that he could produce the sound of "z" in isolation. While the articulation error was described as noticeable, the therapist reported that the boy's speech intelligibility was not adversely affected.
On October 7, 1994, the child's academic achievement was assessed on the Woodcock-Johnson Psychoeducational Battery, Form B, by one of respondent's special education teachers. The child, who was then in the fourth grade, achieved grade equivalent scores of 1.6 in letter/word identification, 2.4 in reading comprehension, 2.2 in writing dictation, 1.3 in writing sample, 3.5 in mathematical calculation, and 5.4 in mathematical applications (applied problems). The teacher reported that the child was more skilled at reading words in context, than in isolation. She also reported that the child's writing sample was almost completely illegible, which she attributed to a combination of poor penmanship and a lack of correspondence between the sounds of words and the letters which he used to represent those sounds. The teacher recommended that the child be placed in a special education class, rather than receive resource room service as he had in Homer.
On October 17, 1994, the child was evaluated by one of respondent's school psychologists, who also observed the child in his fourth grade classroom. She reported that the child attended well, i.e., paid attention in class, and participated in a discussion led by his teacher. However, the child completed little work, without teacher direction. The school psychologist administered the Wechsler Intelligence Scale-III (WISC-III) to the child. She reported that the child achieved a verbal IQ score of 112, a performance IQ score of 127, and a full scale IQ score of 121. She noted that the child's score on each WISC-III subtest was in the average or above average range. The school psychologist reported that the child did particularly well on subtests measuring his skills in long-term visual memory, cause and effect reasoning, and visual sequencing. She noted that the child's IQ scores were generally higher than those which he had achieved when tested in Homer in 1992, but did not offer an explanation for the higher scores. The school psychologist also noted that the boy's teachers had reported that he was well adjusted, with regard to interpersonal relationships, and that he tended to lack motivation or effort in those subjects which were difficult for him (reading and writing). She recommended that the child's progress be closely monitored to determine the need for future modifications of his educational program.
On October 24, 1994, respondent's CSE recommended that the child be classified as learning disabled, with respect to his reading decoding and comprehension, as well as his writing skills. The CSE further recommended that the child receive speech/language therapy twice per six-day teaching cycle. It deferred making a placement recommendation, in order to afford petitioners the chance to visit possible placement options. Thereafter, it recommended that the child receive reading and language arts instruction in a special education class in the Dryden Elementary School, and that he be mainstreamed for instruction in other subjects. Petitioners accepted the CSE's recommendation. At the hearing in this proceeding, the CSE chairperson testified that the child also received daily 1:1 remedial reading instruction during the 1994-95 school year, although that instruction was not included on the child's individualized education program (IEP).
In a letter to the CSE chairperson, which was dated April 24, 1995, petitioners asked for an independent neuropsychological evaluation of their son, on the ground that they did not agree with the psychological testing done by the school district. They requested that the CSE chairperson agree, in writing, to have the independent evaluation performed by Dr. Anthony Blumetti. The CSE chairperson testified that after she had received petitioners' request, the issue of whether petitioners were residents of the Dryden Central School District arose. While denying that petitioners' request for an evaluation was held in abeyance until the residency issue was resolved, she acknowledged that there was a concern about whether respondent, or the Homer Central School District, would be responsible for paying for the evaluation. In a letter dated June 5, 1995 to petitioners, the CSE chairperson referred to a telephone conversation in which petitioners had reportedly indicated that they did not question the results of the District's evaluation of the child, and asked petitioners to explain why they are seeking an independent evaluation. The CSE chairperson also asserted that petitioners continued to reside in the Homer Central School District, and that their names did not appear on respondent's tax roles as the owners of the property which they reportedly owned in the Dryden Central School District.
On June 7, 1995, the CSE conducted its annual review of the child. For the 1995-96 school year, it recommended that the child remain classified as learning disabled, and that he continue to receive primary instruction for reading and language arts in a special education class, but be mainstreamed for the rest of his instruction. It also recommended that he continue to receive speech/language therapy twice per six-day teaching cycle. It also provided that he would continue to have certain testing modifications to accommodate his disability.
In a letter to respondent's superintendent of schools, dated June 15, 1995, petitioner's attorney requested that an impartial hearing be held, because respondent's intermediate school principal had reportedly refused to acknowledge receipt of their request for an independent evaluation. The attorney also indicated that petitioners disagreed with the educational program which the CSE had recommended at its meeting on June 7, 1995. It must be noted that the parties' attorneys indicated to the hearing officer in this proceeding that the sole issue was whether respondent should be required to pay for the child's independent evaluation. Accordingly, I have not considered the appropriateness of the educational program recommended by the CSE on June 7, 1995.
In letters to petitioners, which were dated June 30, 1995, July 11, 1995, and July 14, 1995, the CSE chairperson requested that petitioners provide her with information about the issue of their residency in the Dryden Central School District. Petitioners responded to the chairperson's request on July 17, 1995. They indicated that they were living in both the Homer and Dryden residences, and hoped to live primarily in the Dryden residence by September 1, 1995. On August 15, 1995, respondent's superintendent of schools received a letter from petitioners, in which they indicated that they were living in the Dryden residence on August 1, 1995. The superintendent of schools informed petitioners on August 24, 1995, that he had determined that they became residents of the school district effective August, 1995.
In a letter dated August 30, 1995, the CSE chairperson informed petitioners that the Dryden Central School District believed that its evaluation of the child was appropriate, and that it would initiate an impartial hearing to establish the appropriateness of its evaluation. Federal and State regulations provide that the parents of a child with a disability are entitled to obtain an independent educational evaluation at public expense, if they disagree with the school district's evaluation. However, their right to an independent evaluation is subject to the right of the school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If a hearing officer finds that the school district's evaluation is appropriate, the parents may have an independent evaluation, but not at public expense (34 CFR 300.503; 8 NYCRR 200.5 [a]  [vi] [a]).
The CSE met with petitioners on October 3, 1995. It reviewed the child's IEP for the 1995-96 school year, and reportedly heard reports about the child's progress from members of respondents' staff. It agreed to petitioners' request that the child's social studies textbook assignments be tape recorded for him. The school psychologist who had evaluated the child in October, 1994 reportedly discussed her evaluation, and explained to petitioners how the child might have achieved higher IQ scores in the October, 1994 evaluation than he did in the evaluation performed by the Homer school psychologist in February, 1992. The CSE adhered to its prior recommendation for the child's program and placement for the 1995-96 school year, and it denied petitioners' request to pay for their child's independent evaluation.
During November, 1995, the child was independently evaluated by Dr. Jed Weitzen, a licensed psychologist in Ithaca, New York. Dr. Weitzen prepared a summary of his findings, on December 12, 1995. He reported that the child had a generally appropriate affect, and that his speech was relevant, coherent and well-modulated. He noted that the child had some difficulty articulating the "s", "z" and "th" sounds. Dr. Weitzen used the WISC-R to assess the child's cognitive ability. The child's WISC-R scores were below what he had achieved on the WISC-III in October, 1994, but were similar to the scores he achieved on the WISC-R in February, 1992. Dr. Weitzen noted that scores between eight and twelve on the WISC-R subtests were considered to be in the average range, and reported that the child's subtest scores ranged from nine to fourteen.
He also reported that the child had evidenced some difficulty drawing designs, but had good visual memory skills, on the Bender-Gestalt Visual Motor Test and Memory. On the Wide Range Achievement Test - Revised, the child achieved standard scores of 58 in reading, 73 in spelling, and 85 in arithmetic. Dr. Weitzen reported that the child exhibited conspicuous deficits in his written language skills. Dr. Weitzen used certain subtests of the Woodcock Johnson (Revised) Tests of Cognitive and Achievement Ability. He reported that the child achieved grade equivalent scores of 4.9 in picture vocabulary, 4.8 in picture recognition, 2.2 in passage comprehension, 1.8 in word attack, and 2.0 in reading vocabulary. Dr. Weitzen also administered Figure Drawings and the Thematic Apperception Test, two tests which are reportedly used to ascertain a child's emotional status. He reported that the child experienced mild and transitory depressed feelings in response to academic and school frustration, but gave no indication of having a pronounced psychiatric disorder. He recommended that the child remain classified as learning disabled, and continue to receive supportive services, such as speech/language therapy. In his report, Dr. Weitzen indicated that the child was receiving supplementary instruction in a resource room, when in fact, the child was receiving primary special education instruction in reading and language arts. Dr. Weitzen suggested that the use of certain computer-based teaching programs be considered, and that the boy's textbooks be tape recorded for him. He also suggested that the use of short-term supportive individual psychotherapy for the boy be considered. Dr. Weitzen's bill for the child's evaluation was $900, of which petitioners had paid $500 by the time of the hearing.
The hearing in this proceeding began on January 11, 1996, and ended on February 9, 1996. On April 12, 1996, the hearing officer rendered her decision. With regard to the timeliness of respondent's response to petitioners' request for an independent evaluation, the hearing officer found petitioners were not legal residents of the Dryden Central School District, and that respondent was not legally responsible for the child's education, until August, 1995. She compared the data about the child's cognitive skills and academic achievement which respondent's staff obtained in October, 1994, with the data obtained by Dr. Weitzen in October, 1995. The hearing officer found that the data were comparable, and that the differences in the child's test scores from the two evaluations would not have resulted in a change of the child's classification or placement. She further found that Dryden's evaluation of the child's speech/language skills and needs was consistent with Dr. Weitzen's observation about the child's mild speech articulation deficit. She noted that the Homer Central School District had used projective tests to assess the child's emotional status, and had not described any significant emotional need of the child. Although respondent's school psychologist had not administered formal projective tests, the hearing officer found that Dr. Weitzen's findings about the child's emotional status were not significantly different from the information which the child's teachers had reported to the CSE. She held that Dryden's evaluation of the child had been appropriate, and denied petitioners' request for reimbursement for the cost of the child's independent evaluation.
In their memorandum of law, petitioners indicate that they are not raising the issue of the timeliness of respondent's response to their request for an independent evaluation in this appeal, although they raised that issue at the hearing in this proceeding. Consequently, I will not review the hearing officer's finding that, in essence, petitioners had no legal right to obtain services from respondent, until August, 1995. Petitioners do challenge the hearing officer's finding that the Dryden Central School District had appropriately evaluated their son. They contend that respondent's evaluation of the child in 1994 was inadequate because the child was not assessed in all areas of his suspected disability. Petitioners further contend that respondent's evaluation was inadequate because the results of the only test administered by the school psychologist, the WISC-III, were significantly different from prior test results, i.e., the WISC-R scores in 1992. They also contend that the school psychologist's evaluation of the child in October, 1994 was inadequate because she failed to provide specific recommendations to assist the CSE in planning the child's education program.
I note that both parties have referred to State regulations with regard to the required scope and content of an evaluation. However, it is first necessary to determine the kind of evaluation which respondent was required to perform, before determining whether respondent's evaluation complied with the applicable regulation. In this instance, the child had previously been classified as a child with a disability, and entered respondent's schools with an IEP which respondent was required to implement (see OSEP Opinion, EHLR 213:265). Although respondent's CSE sought, and obtained, the parents' consent to the child's evaluation by respondent's staff, it does not follow that the Dryden CSE was obliged to perform the "individual evaluation" required when a child is initially referred to a CSE (8 NYCRR 200.1 [v]; 8 NYCRR 200.4 [b]). I agree with respondent's school psychologist, who testified that the evaluation which she performed in October, 1994 was, in essence, a triennial evaluation. The statutory and regulatory requirements for a triennial evaluation changed shortly after the 1994-95 school year ended. In the Fall of 1994, when this child was evaluated, the relevant portion of the Education Law read as follows:
" ... each child in a special program or a special class shall be reexamined by qualified appropriate school personnel at least once every three years" (Section 4402 [b][d] of the Education Law)
The relevant State regulation read as follows:
" A committee on special education shall arrange for an appropriate reexamination of each student with a disability at least every three years by a physician, a school psychologist, and, to the extent required by the committee on special education, by other qualified appropriate professionals. The triennial evaluation shall be sufficient to determine the student's individual needs and continuing eligibility for special education." (8 NYCRR 200.4 [e])
An individual psychological evaluation is defined by State regulation as:
" ... a process by which a New York State certified school psychologist or licensed psychologist uses, to the extent deemed necessary for purposes of educational planning, a variety of psychological and educational techniques and examinations in the student's dominant language, to study and describe a student's developmental learning, behavioral and other personality characteristics." (8 NYCRR 200.1 [w])
Neither Federal nor State regulation prescribes a particular set of tests which must be used in each evaluation (Application of a Child with a Disability, Appeal No. 96-3). Respondent's school psychologist administered only an IQ test to the child. She testified that she chose to assess the boy's cognitive skills because he had been so young when he was initially evaluated by the Homer CSD, and the Homer school psychologist had reported that the child had a stuffy nose and dark circles under his eyes, suggesting that he might have been ill when tested in 1992. Although she did not personally assess the child's academic achievement, respondent's school psychologist did review the boy's achievement test results reported by respondent's special education teacher. A comparison of the child's expected achievement, as determined by the child's cognitive skills, with the child's actual achievement would be prerequisite for determining whether he remained eligible for classification as learning disabled (8 NYCRR 200.1 [mm]). The school psychologist also reviewed the child's social history from the Homer Central School District, observed the child in his classroom, and obtained information from the child's teachers about his academic performance, and his social/emotional status. At the hearing, she was asked why she had not used a specific test to assess the child's social/emotional status. The school psychologist explained that her review of the 1992 psychological evaluation, which had included formal projective testing, but had not reported that the child had social/emotional difficulties, as well as the reports by the child's teachers in both the Homer and Dryden school systems, had led her to conclude that there was no basis to administer specific psychological tests to ascertain the child's social/emotional status. She acknowledged that she had been aware of a comment by the child's mother in 1992 that the child lacked self-esteem. However, the school psychologist testified that the issue of self-esteem was not uncommon among learning disabled children, and that she would have tested the child, if there had been any indication that the child's reported lack of self-esteem had affected his classroom performance. I find that the school psychologist's explanation is supported by the record, and that petitioners' contention that the CSE inadequately assessed the child's social/emotional status is without merit.
At the hearing, the school psychologist and Dr. Weitzen, the independent evaluator, testified extensively about the results of the child's testing on the WISC-III in 1994, and on the WISC-R in 1995. I must note that the record reveals that the two tests are normed on different population, and have slightly different formats and contents. A comparison of the child's scores on the two different tests is therefore of limited value. In any event, the hearing officer prepared a chart listing the child's scores on the WISC-R in 1992, the WISC-III in 1994, and the WISC-R in 1995, which she incorporated in her decision. The record reveals that she transposed the scores for the picture arrangement and block design subtests of the WISC-III. Nevertheless, the chart supports the hearing officer's finding that the results of the tests are generally consistent. There is one significant discrepancy. The child achieved a score of 18 on the picture arrangement subtest in 1994, but only 11 on that subtest in 1995. The school psychologist testified and the child's score on that subtest was of no significance for purposes of the child's classification or placement. Dr. Weitzen testified that the child's subtest score in 1994 showed that visual sequencing was an area of strength for the child, but acknowledged that it did not explain why the child had trouble decoding words. Upon the record before me, I find that there is no basis for concluding that respondent's reliance upon the results of the child's WISC-III test was inappropriate.
Petitioners also argue that the recommendation set forth in the school psychologist's evaluation were too general to be of any meaningful value in planning an appropriate educational program for their son, which is one of the primary purposes of conducting an evaluation (Application of a Child with a Handicapping Condition, Appeal No. 91-11). The school psychologist recommended that " ... consideration be given to the most appropriate academic placement/services to meet [the child's] needs in the areas of reading and written expression and content area support at this time." An evaluation must include not only test results, but an interpretation of those results by appropriate professionals, in order to provide an adequate basis for a CSE to recommend an appropriate placement and program for a child. I have considered the school psychologist's report, as well as the educational achievement test results reported by the special education teacher who administered the Woodcock Johnson Psychoeducational Battery to the child. The special education teacher provided some details about the manner in which the child actually performed various academic tasks, as well as an observation that the child's special education needs were not being met in the resource room program, and a recommendation that he receive primary instruction in reading and language arts in a special education class. However, neither the school psychologist nor the special education teacher described the ways in which the child's disability impacted upon his ability to learn, or what approaches might be tried to address the deficits in his ability to read and to write. I find that the information provided in the reports of the school psychologist and the special education teacher was not sufficient to enable the CSE to prepare an IEP which addressed the child's specific needs. Therefore, I further find that respondent has failed to demonstrate that its evaluation was appropriate. I will direct respondent to reimburse petitioners for the cost of the independent evaluation, because they are entitled to receive reimbursement if the board of education fails to demonstrate that its evaluation was adequate. However, I must point out that even with the independent evaluation, respondent's CSE lacks sufficient information to plan an instructional program to address the child's specific needs. The CSE should further evaluate the child to ascertain how the child should be instructed to address the deficits in his reading and writing skills.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing officer is hereby annulled; and
IT IS FURTHER ORDERED that respondent reimburse petitioners for the cost of the independent evaluation performed by Dr. Weitzen, less any portion of that cost which is paid by petitioners' health insurance.