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 Bellmore-Merrick Central High School District
Stein and Schofeld, Esqs., attorneys for petitioners, Nancy A. Sorrentino, Esq., of counsel
Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich and Scricca, Esqs., attorneys for respondent, Lawrence W. Reich, Esq., of counse
Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioners' son be instructed in regular education classes, with supplemental resource room instruction, for the seventh grade during the 1995-96 school year. Petitioners' appeal must be dismissed.
Petitioners' son is twelve years old. The boy, who was reportedly born prematurely, had an elongated palate and related breathing and feeding problems, as an infant. He reportedly achieved his motor developmental milestones within normal limits, but his speech was not apparent until he was three years old. The child attended nursery school. He also received speech/language therapy prior to entering kindergarten. In September, 1988, he entered kindergarten in the Lakeside School of the Merrick Union Free School District (hereafter "Merrick"). Merrick is responsible for providing instruction from kindergarten through the sixth grade for its residents. Respondent provides instruction for the seventh through the twelfth grades to Merrick's residents. While in the first grade in the Lakeside School, the boy was reportedly enrolled in a language infusion program. The boy was privately tutored in reading, and received private speech/language therapy, while in the first and second grades.
In January, 1991, when the child was in the second grade, he was evaluated by the Merrick CSE, because he was reportedly experiencing academic difficulties. A school psychologist reported that the child was unable to remain well-focused, and was extremely sensitive to secondary stimulation. The boy achieved a verbal IQ score of 114, a performance IQ score of 115, and a full scale IQ score of 117, indicating that his cognitive skills were in the high average range. He exhibited strength in the areas of verbal concept formation, visual retention and sequencing, and psychomotor speed. His relative weakness was in the area of auditory memory. The school psychologist reported that although the child demonstrated good language development, he had difficulty retaining and structuring verbal information. She indicated that the child was somewhat impulsive, frustrated and dependent when responding, but responded well to re-direction, repetitions, immediate feedback, and visually based demonstrations. His visual perceptual abilities were reported to be adequate. Projective testing revealed that the boy became somewhat overwhelmed by multi-stimulation, and had difficulty integrating information. However, he was thought to be amenable to external support and compensatory measures to strengthen his strategic approach. She recommended that his visual strengths be emphasized in remedial reading, by using sight vocabulary, and that a behavior modification program be used to foster his independence.
A speech/language therapist who evaluated the boy in January, 1991 reported that the boy exhibited age appropriate receptive and expressive vocabulary skills. She also reported that the boy's performance was poor on tests which required the use of auditory attention and memory skills. The boy's poor attention and distractibility were thought to be related to his auditory deficits. The therapist opined that the boy's auditory deficits inhibited his ability to learn reading and spelling with the use of phonics. She recommended several strategies to remediate the boy's auditory deficits.
The boy's reading skills were also evaluated in January, 1991. He achieved grade equivalent scores of 1.9 in word identification, 1.3 in word attack, 1.9 in word comprehension, and 1.6 in passage comprehension. When tested, the boy was midway through the second grade. The evaluator noted that the child made little use of contextual clues, and relied primarily on beginning and final consonant sounds, to decode words. She reported that his poor decoding skills had depressed his vocabulary and comprehension scores. The evaluator recommended that emphasis be placed upon developing the boy's word analysis techniques.
In February, 1991, the child was evaluated by a special education teacher, who reported that the boy was inattentive, and often impulsive in his responses. The boy demonstrated relative strength in the areas of visual and auditory processing, and relative weakness in short-term memory. He achieved standard scores of 94 in basic reading skills, 99 in broad reading, 111 in broad mathematics, 87 in basic writing skills, and 92 in broad written language. The special education teacher reported that the boy's visual motor integration skills were in the average range. She indicated that the child's major deficit was in auditory memory. The teacher observed that the boy had specific weaknesses which resulted from his poor memory skills and poor visual-auditory integration. She noted that he was unable to generalize vowel sounds or rules. She also noted that he had a poor sight vocabulary.
As a result of his evaluation, the boy was classified as learning disabled by the Merrick CSE, which recommended that he receive resource room services and speech/language therapy. The child reportedly received resource room services and speech/language therapy for the remainder of the 1990-91 school year, and during each of the next four school years.
In the Spring of 1992, the boy's speech/language therapist reported that the boy's attitude had become more positive and that his receptive vocabulary skills had improved by almost two years. However, his auditory memory and morpho-syntactic skills continued to be weak. The boy's resource room teacher also reported that the child's behavioral approach, and ability to remain on task and accept responsibility had improved in the third grade. She indicated that, despite some gains, the boy's basic reading and writing skills remained about one year below his actual grade level. Nevertheless, the resource room teacher reported that the boy's instructional reading level was at the beginning third grade level. The child continued to make appropriate progress in mathematics.
In April, 1993, as he was nearing the end of the fourth grade, the child achieved grade equivalent scores of 4.1 in reading, 2.6 in spelling, and 6.4 in mathematics. At the hearing in this proceeding, the child's resource room teacher testified that the boy had been able to successfully complete the course of instruction in the regular education program, with modifications, in the second, third, and fourth grades. She testified that he had a very good basic knowledge of the content areas for those grades.
When tested in April, 1994, as he neared the end of the fifth grade, the boy achieved standard scores of 96 in reading, 79 in spelling, and 120 in mathematics. His decoding skills had reportedly improved, but were described as "sloppy." The boy's writing skills had also reportedly improved. His teacher reported that the boy needed help organizing and setting priorities.
For the 1994-95 school year, the CSE recommended that the boy be enrolled in a regular education sixth grade class, and that he receive 45 minutes of resource room services, four times each week. It also recommended that he receive 30 minutes of speech/language therapy, four times each week.
In October, 1994, petitioners obtained a neuropsychological evaluation of the boy from the North Shore University Hospital. The child achieved a verbal IQ score of 110, a performance IQ score of 125, and a full scale IQ score of 118. The examining psychologist reported that the child had no difficulty performing tasks requiring the use of basic visual-perceptual and construction skills, and did not evidence any coordination difficulty. He also reported that the boy appeared to have age appropriate expressive vocabulary and conceptual language skills, but evidenced difficulty retrieving words and processing language. The psychologist noted that the child had difficulty remaining on task, but reported that the boy's responses were not particularly impulsive. The child achieved grade equivalent scores of 3.2 in word identification, 2.1 in word attack, and 2.8 in passage comprehension. The boy's spelling skills were reported to be consistent with his reading skills, while his writing was characterized as having sparse content and little semantic development. The boy's mathematics skills were reported to be adequate.
The psychologist reported that the child appeared to have an attention deficit hyperactivity disorder, with some related problems with organizational skills, as well as language processing difficulties. He also indicated that the child was dyslexic. He noted that the child had the cognitive skills to be included in a mainstream, i.e., regular education program, but would require extra attention in class, and modification of his assignments. The psychologist suggested that the child's reading material be supplemented with tape recordings, and that oral reports be accepted in lieu of written work. He recommended that the child continue to receive speech/language therapy, with an emphasis on developing critical listening skills and formulating more complex language skills. The psychologist suggested that resource room services be used to reinforce the child's acquisition of basic skills, and to develop compensatory strategies to help him deal with his school work. He indicated that the boy needed intensive work in basic reading and writing skills, and suggested that a strictly phonic approach would not be effective.
Although the evaluations are not included in the record which is before me, I note that the child's proposed IEP for the 1995-96 school year reveals that his reading skills were assessed in January, 1995. He achieved grade equivalent scores of 3.6 in reading decoding, and 6.3 in reading comprehension. When another test was administered in March, 1995, the child achieved a grade equivalent of 4.4 in total reading. His resource room teacher testified that although the child continued to have difficulty reading words in isolation, he nevertheless could read with understanding, in context. She also testified that the boy had achieved passing grades in each of his sixth grade subjects. A document described as the boy's sixth grade report card reveals that his performance was satisfactory, or better, in each of his subjects. The proposed IEP also indicates that when tested in February, 1995, the boy achieved a grade equivalent score of 9.6 in total mathematics, and a grade equivalent score of 4.2 in spelling. In March, 1995, his writing skills were reported to be at the second grade level.
In January, 1995, petitioners employed a special education teacher to tutor the child, once per week. The child's sixth grade teacher provided information about the child to the child's private tutor, in March, 1995. The teacher indicated that the boy's reading, writing, class participation, and study skills were well below grade level. She also reported that he was inflexible on occasion, and exhibited anger when frustrated. The teacher further reported that the child was distractible. However, she reported that the rate of speed at which he completed his work was slow, but within normal limits. The child's resource room teacher provided similar information to the tutor.
In March, 1995, respondent's CSE met with Merrick's CSE to discuss the child's progress in elementary school, and plan a program for him as he entered the seventh grade in respondent's schools. For the 1995-96 school year, respondent's CSE recommended that the child be enrolled in regular education seventh grade classes in respondent's Merrick Avenue Junior High School. The CSE also recommended that the child receive daily resource room services in a group of no more than five children (see 8 NYCRR 200.6 [f]). The CSE did not recommend that the child receive speech/language therapy, notwithstanding the fact that he had received it while attending elementary school. The CSE chairperson testified at the hearing that the Merrick CSE had not suggested that the boy continue to receive the service, and that he had reportedly become resistant to receiving it. The CSE did recommend certain test modifications, including extended time limits, alternate locations for taking tests and having test questions read to him. It also recommended that he have access to the notes taken by a classmate, and have access to a word processor in the resource room, both of which were intended to help him compensate for his writing difficulties. The IEP which the CSE prepared included annual goals related to the child's reading decoding, word recognition, and reading comprehension skills. It also included annual goals to improve the child's writing skills, and his organizational and study skills.
On March 30, 1995, approximately one week after the CSE meeting, petitioners submitted a request to respondent for transportation of the child to one of two private schools, during the 1995-96 school year. Petitioners visited respondent's junior high school to observe an English and a resource room class, in June, 1995. On or about June 12, 1995, petitioners sent a deposit to the Eagle Hill school in Greenwich, Connecticut, to reserve a place for their son in the school for the 1995-96 school year. At petitioners' request, the private tutor who had worked with the boy since January, 1995, reported to the Eagle Hill School that the boy had poor oral reading and note-taking skills, as well as consistently weak organization skills. Although he had not formally evaluated the child, the tutor reported that the child exhibited considerable weakness in decoding, especially isolated phonemes. He also reported that the boy tended to write less than he knew, and that his attention deficit compromised the boy's ability to perform even simple tasks. The tutor's report was not provided to the CSE.
In a letter dated June 16, 1995, petitioners informed respondent's CSE chairperson that they had decided to place the child in the Eagle Hill School for the 1995-96 school year. They asked that respondent provide transportation for the child, and that the CSE reconvene. On July 13, 1995, the CSE met with petitioners. The CSE chairperson testified that the CSE discussed the child with his sixth grade resource room teacher, who participated by telephone in the meeting. Although petitioners reportedly asked the CSE to support the child's placement in the Eagle Hill School, the CSE chairperson testified that the CSE unanimously concluded that a private school placement was too restrictive for the child. The CSE adhered to its March, 1995 recommendation that the child be enrolled in regular education classes, with resource room services, in the Merrick Avenue Junior High School. It did amend the boy's IEP to provide that he would receive a speech/language evaluation in September, 1995, and that he would have the assistance of a scribe for writing essays and a "word bank." A word bank is a list of words which the child could use to alleviate his word retrieval difficulties. The minutes of the CSE meeting revealed that the CSE proposed that the boy's progress be reviewed by a building-level CSE, after the first marking period of the 1995-96 school year.
On July 27, 1995, petitioners requested that an impartial hearing be held to review the CSE's recommendation. By agreement of the parties, the hearing did not begin until November 16, 1995. The ultimate relief sought by petitioner was an order requiring respondent to reimburse them for the cost of their son's tuition in the Eagle Hill School for the 1995-96 school year. A board of education may be required to pay for educational 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 ). At the request of petitioners' counsel, the hearing officer agreed to limit the scope of the hearing to the first of the three Burlington criteria, i.e., whether the educational program recommended by the CSE was appropriate for the child. The hearing continued on January 17, 1996, and ended on February 5, 1996.
In his decision, which was rendered on March 25, 1996, the hearing officer noted that there was no dispute about the child's classification. He framed the issue to be determined as whether the child could reasonably be expected to achieve his IEP goals in respondent's regular education program, with the supplementary services and aids which the CSE had recommended for him. He held that the educational program and placement which were recommended by the CSE were appropriate to meet the child's needs. He found that the recommended program and placement were also consistent with the Federal and State requirement that respondent place each child with a disability in the least restrictive environment. The hearing officer noted that the CSE had been unaware of the fact that the child had been privately tutored during the second semester of the 1994-95 school year, and that petitioners asserted that they were unaware of the range of services which respondent could provide. He ordered the parties to have the child undergo an independent comprehensive reading test, at respondent's expense, prior to June 30, 1996. The hearing officer directed the CSE to use the results of the independent evaluation to recommend the boy's educational program and placement for the 1996-97 school year.
Initially, I note that on June 3, 1996, petitioners submitted the results of the child's independent evaluation, which they allege was completed after they had filed their petition in this appeal. They ask that I consider the report of the independent evaluator in this appeal, notwithstanding the fact that the evaluation was completed almost one year after the CSE made its recommendation. Section 279.4 of the Regulations of the Commissioner of Education provides that petitioners may submit additional documentary evidence with their petitions, but the regulations do not provide for the submission of such evidence after a petition has been filed. In any event, respondent opposes the inclusion of the independent evaluator's report in the record on the ground that it is of no probative value with regard to the CSE's recommendation. I will accept the evaluator's report, which reveals that in May, 1996, the child achieved grade equivalent scores of 3.8 in word identification, 2.2 in word attack, and 5.6 in passage comprehension. His scores, which are slightly below those which he had achieved in 1995, when he was enrolled in a resource room program, do not, in my opinion, demonstrate the inefficacy of the education program recommended by respondent's CSE.
Petitioners contend that the hearing officer's decision upholding the CSE's recommendation is not supported by the record. They also contend that the educational program recommended by the CSE would not have addressed their son's need to improve his basic reading skills because it did not include any primary instruction in reading. Petitioners argue that respondent failed to demonstrate that their son would have been appropriately grouped for instructional purposes (see 8 NYCRR 200.6 [f]). They also argue that the child's IEP is defective because it does not include an annual goal to improve the child's spelling, and because his IEP annual goals lack the requisite specificity.
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 CSD v. Rowley, 458 U.S. 176 ), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a]). An appropriate program begins with an IEP which accurately reflects the results of 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 (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
This boy's IEP (Exhibit 18) reflects the results of his most recent psychological evaluation (the 1994 evaluation at the North Shore University Hospital), as well as educational achievement test results from January through March, 1995. The child's weak reading decoding skills, lack of reading fluency, weak organization and thematic development, and poor spelling skills are all described in his IEP, which also indicates that his auditory perceptual skills are weak. The IEP indicates that the child is frequently anxious about completing tasks on time, and can become overwhelmed by curriculum demands. I find that the child's IEP adequately describes his individual needs, as required by 8 NYCRR 200.4 (c)(2)(i).
The child's IEP has annual goals relating to his weaknesses in reading, writing and organization. Although the IEP does not include an annual goal relating to the boy's spelling, I am not persuaded that this is a significant omission. At the hearing in this proceeding, the teacher of the resource room class in which the child would have been enrolled, if he had attended respondent's junior high school, testified that she remediated deficits in basic skills in the context of helping her students complete their regular education course assignments. I note that petitioners' attorney raised the issue of the lack of a formal spelling program when the boy was in the sixth grade with petitioners' expert witness, Dr. Horowitz. Dr. Horowitz opined that it was of little value to simply assign lists of words to a child as old as petitioners' son, and that " ... pulling words from social studies, science ... and all other content areas ... is great ... " (Transcript, page 331). This is precisely what respondent's resource room teacher proposed to do during the 1995-96 school year. I also note that the child's elementary school resource room teacher testified that two of the objectives supporting the child's 1995-96 annual goal relating to reading decoding would also help the child with his spelling.
IEP annual goals are " ... statements that describe what a child with a disability can reasonably be expected to accomplish within a twelve month period in the child's special education program" (34 CFR Part 300, Appendix C, Question 38). It is well settled that a statement such as the child "will develop and demonstrate an improvement in written expression," which appears in this boy's IEP, is inadequate because it is not sufficiently specific to provide the child's teacher with direction about the CSE's expectations (Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 94-26). However, I find that the short-term instruction objectives which support each of this boy's IEP annual goals are sufficiently specific to afford a basis for his resource room teacher to prepare instructional plans for the boy. Therefore, I will not invalidate the IEP because of its broadly worded IEP goals (Application of a Child with a Disability, Appeal No. 93-48; Application of a Child with a Disability, Appeal No. 95-19). I find that the IEP annual goals do address the child's special education needs, and are appropriate.
The central point of contention is whether the CSE recommended appropriate special education services for the child. Petitioners argue that the CSE did not do so because it did not recommend that he receive primary instruction in reading to remediate his decoding deficits. Respondent acknowledges that the child has a significant deficit in reading decoding, but it argues that the record demonstrates that the child has been able to function successfully in a regular education environment, with supplemental instruction in a resource room. At the hearing, petitioners suggested that the grades which the child had received in his regular education classes while in elementary school were not truly reflective of his academic performance. However, I find that their suggestion is not supported by the record, especially in light of the testimony of the child's elementary school resource room teacher.
Although petitioners argue that the report of the 1994 evaluation of the child in the North Shore University Hospital and the testimony of Dr. Horowitz support their claim that the child should receive some primary reading instruction, in addition to resource room services, I do not agree. I note that Dr. Horowitz initially testified that the services provided in the resource room were adequate to meet the child's needs. Thereafter, he opined that the child needed formal reading instruction, and that it would be to his advantage to be in a small class with other children who have reading and language processing deficits. Upon cross examination by respondent's attorney, he conceded that a mainstream setting with supportive services might afford the boy the opportunities which he needs to succeed. He also acknowledged that he was not familiar with respondent's curriculum, or the services which respondent could provide. I have considered petitioners' argument about the apparent decline in the child's reading ability, as indicated by the results of the Kaufman Test of Educational Achievement which was administered to the boy in the fifth and sixth grades. His performance in the fifth grade placed him in the 39th percentile, while his performance in the sixth grade placed him in the 23rd percentile. However, his resource room teacher testified that the different results could be attributed to his answers to two test questions. I find that the test results do not afford a basis for concluding that the boy's needs could not be met in a resource room program.
The question to be answered is whether the special education services which the CSE recommended are adequate to afford the child a reasonable opportunity to achieve his IEP annual goals. The child's elementary school resource room teacher testified that the boy would make significant progress with the services recommended in his IEP. Respondent's CSE chairperson and its resource room teacher described the ways in which the proposed, resource room program would meet the child's needs. Respondent's resource room teacher also testified that the child's IEP annual goals were attainable in her resource room program, as did respondent's CSE chairperson. Upon review of the entire record, I find that there is no reason to believe that the boy could not have attained his IEP annual goals with the assistance of the resource room services and test modifications which the CSE recommended for him. I also find that the proposed placement of the child in regular education classes, with resource room services, would have been consistent with the Federal and State requirement of placement in the least restrictive environment, because there is nothing in the record which suggests that the child could not have successfully functioned in his seventh grade regular education classes, with the assistance which the CSE had recommended.
I have considered petitioners' argument that respondent failed to demonstrate that the child would be appropriately grouped for instructional purposes with the other children assigned to the first period resource room class which he would have attended, if he had been enrolled in respondent's schools for the 1995-96 school year. As noted above, State regulation provides that the composition of instructional groups in resource programs shall be based upon the similarity of the students' individual needs, with respect to academic achievement, social development, physical development and management needs (8 NYCRR 200.6 [f]). Information about the similarity of needs may be presented at a hearing through testimony, or the use of a "profile" of the children (Application of a Child with a Disability, Appeal No. 93-13; Application of a Child with a Disability, Appeal No. 94-22). Respondent introduced into evidence a profile (Exhibit 27), which demonstrated that there were four other children in the resource room class. Each child was within one year of this boy's age, and the cognitive ability of each child was in the average range. Their grade equivalent total reading scores were 4.9, 3.0, 3.1, and 5.2, respectively. Although the profile erroneously indicated that petitioners' son had achieved a grade equivalent total reading score of 6.3, the record reveals that he had achieved a grade equivalent score of 4.4 for total reading. I note that, unlike a self-contained class in which most instruction is provided to the group, respondent's resource room teacher testified that she provided strictly individualized instruction to each child in her resource room class. She also testified that she could have designed an effective reading program for petitioners' son, regardless of the reading needs and abilities of the other children in the class. Although she had never met petitioners' son, she had reviewed his records, and was able to cogently describe his abilities and needs. The CSE chairperson testified that the child would have been appropriately grouped with the other students in the proposed resource room. Her testimony was not refuted at the hearing. Therefore, I find that respondent has met its burden of proof with respect to the issue of grouping.
THE APPEAL IS DISMISSED.