96-048

      Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that her son, who is speech impaired, be educated in a self-contained special education kindergarten class, without individual speech/language therapy, during the 1995-96 school year. During the pendency of this due process proceeding, the child remained in the School for Language and Communication Development (SLCD), which he had attended as a preschool child with a disability during the 1994-95 school year. Petitioner also appeals from the hearing officer's refusal to require respondent to pay for the child's tuition in the SLCD during the 1995-96 school year, as the child's "status quo, or pendency" placement under Federal and State law (20 USC 1415 [e][3]; Section 4404 [4] of the Education Law). The appeal must be sustained in part.

        Petitioner's son is six years old. He was reportedly slightly delayed in achieving his developmental milestones. At the age of two, the child had several ear infections, and a loss of some of his hearing. In the child's social history, petitioner indicated that her son first used words, other than "ma-ma or da-da", with meaning at the age of two years and eight months, and that he combined different words for the first time at the age of four years. In August, 1992, petitioner enrolled her child in the Long Island Infant Program because she was concerned about his delayed speech development.

        The child entered the SLCD in November, 1992. In May, 1993, an audiological evaluation of the child at the Mill Neck Foundation revealed that the child had a mild high frequency hearing loss in his left ear. A SLCD audiologist who subsequently tested the child recommended that he have medical treatment for an undisclosed problem in his middle ear. However, the child's hearing was reportedly normal by the time of this proceeding.

        In May, 1993, the child was evaluated by a SLCD psychologist, who reported that the child did not express any words during the evaluation, and that he communicated by gestures. She also reported that the child occasionally used sign language to communicate his needs. The child's limited expressive skills precluded the psychologist from obtaining a reliable score on standard intelligence and achievement tests. On the Merrill-Palmer Scale of Mental Tests, he achieved an IQ score of 87, which the psychologist cautioned was a minimal estimate of the child's capabilities. On the Vineland Adaptive Behavior Scales, the boy achieved standard scores of 65 in communication, 77 in daily living skills, 74 in socialization, and 71 in motor skills. Although he had age appropriate play skills, the child's interpersonal skills were described as delayed. The psychologist reported that the child's receptive language skills were in the average range, while his expressive language skills were in the low range. In an end of the year report which he prepared in July, 1993, the child's teacher indicated that the child had made limited progress in developing his pragmatic, semantic, syntactic, and phonological skills, but continued to have significant deficits in his pragmatic and semantic skills.

        The child remained in the SLCD for the 1993-94 and 1994-95 school years, during which time he was under the jurisdiction of respondent's committee on preschool special education (CPSE). The CPSE recommended that the child be enrolled in the SLCD during both of those school years. He received group auditory training during the 1993-94 school year. In February, 1994, when he was 3.ll years old, the child achieved an age equivalent score of 2.11 on the Peabody Picture Vocabulary Test-Revised. On the Preschool Language Scale-3, which was administered to the boy in May, 1994, when he was 4.2 years old, the child achieved age equivalent scores of 2.10 in auditory comprehension, and .11 in expressive communication. A SLCD summary report prepared for respondent's CPSE indicated that the child continued to use primarily nonverbal means to communicate with his peers and adults. The child could reportedly imitate certain sounds, and follow one-step verbal directives. On the Brigance Preschool Screen for three and four-year old children, the child achieved a score of 40 out of 100 possible points.

        In October, 1994, the child was re-evaluated by a SLCD psychologist, who noted that the child's ability to pay attention was limited, and that the child was frequently distracted. However, he was described as being early redirected. The psychologist reported that the child did not speak spontaneously, and that the child generally spoke in single word utterances. She indicated that it was difficult to understand the child's speech because of his mispronunciations. The psychologist reported that the child demonstrated his ability in several kindergarten readiness skills, and that the child tended to be a passive observer of others' actions in the classroom. On the Stanford-Binet Intelligence Scale, the child achieved a composite score of 70, while on the Leiter International Performance Scale, he achieved an IQ score of 85. The child's higher score on the Leiter, which is a nonverbal measure of cognitive skills, suggested that the child's low performances on the Stanford-Binet reflected the child's speech/language deficits. The child's lowest score on the Stanford-Binet was in arithmetic. He reportedly could count to 15 with one-to-one correspondence. His performance at the fifth percentile on the Boehm Test of Basic Concepts revealed that he had not acquired an understanding of the concepts he was expected to have at his age. The psychologist indicated that the child's performance may have been affected by his distractibility. The child evidenced a one-year delay in the development of his visual motor integration skills. The psychologist also noted that the child's muscle control was weak, and she recommended that he be evaluated by an occupational therapist.

        During the 1994-95 school year, the child reportedly received individual speech/language therapy, and auditory training, twice per week, in the SLCD. He also received auditory training and music therapy in a group once per week, and dance therapy in a group twice per week. In March, 1995, the child's teachers in the SLCD reported that the child followed classroom routines, if given prompts and cues, and that he had not evidenced other management needs. The teachers also reported that the child displayed appropriate social interaction skills, with regard to social "rules", but that his verbal and play interaction with other children was significantly limited. They indicated that the child had given correct responses to 45 percent of the questions on the Kindergarten Readiness Test, which was administered to him on February 13, 1995. The teachers also indicated that a formal behavioral management plan had been successfully employed with the child to promote his autonomous behavior, and to decrease his crying incidents.

        The child passed from the jurisdiction of respondent's CPSE to its CSE for the 1995-96 school year, because of his age (See Sections 4401 [1] and 4402 [2] of the Education Law). Respondent's speech pathologist, who evaluated the child for the CSE on May 11, 1995, reported that the child exhibited an immature pattern of speech, and that his speech was characterized by distortions, substitution of speech sounds, and omission of speech sounds. However, the evaluator indicated that the child was stimulable for correct speech production, i.e., he could correct his speech after having been given the correct example. She reviewed the results of tests administered to the child by the SLCD, including the Test of Language Development-Primary, on which the child achieved quotient composite scores of 78 in spoken language, 87 in listening, 73 in speaking, 97 in semantics, 72 in syntax, and 76 in phonology. I note that those scores are reported as standard scores on the boy's IEP for the 1995-96 school year. On the Peabody Picture Vocabulary Test which respondent's speech pathologist administered to the boy in May, 1995, when he was 5.2 years old, the boy achieved an age equivalent score of 3.7. The evaluator concluded that the child had a language disorder of form, content, and use, and she recommended that he be enrolled in a small, highly structured kindergarten, with intensive speech/language services.

        On May 28, 1995, the child was evaluated by one of respondent's school psychologists, who reported that the child had attempted to answer all of the questions asked of him, and that his responses were typically one word answers. She also reported that the child did not attempt any spontaneous conversation during his evaluation. The school psychologist also reported that the boy's speech articulation was quite poor, and that his speech was unintelligible, when the listener was unfamiliar with the context. The child achieved standard scores of 92 in vocabulary (verbal), and 84 in matrices (performance), on the Kaufman Brief Intelligence Test. The school psychologist reported that the child's composite score of 87 on that test fell within the low average range of intellectual ability. She noted that the child's performance on that examination was comparable to his performance on the Stanford Binet Intelligence Scale, and the Leiter International Performance Scale, which had been administered to the boy by the SLCD psychologist. Respondent's school psychologist reported that the child's visual discrimination skills were adequate, but his visual motor skills were poor. She further reported that the child's gross motor and fine motor skills were delayed. The psychologist noted that the child could become easily frustrated, and isolate himself from others, because of the significant deficits in his expressive language skills. She supported the speech pathologist's recommendation that the child be educated in a small, highly structured kindergarten class, with speech and language support services. She also recommended that the child be evaluated by an occupational therapist.

        An occupational therapist who evaluated the child in June, 1995, reported that the child's gross motor muscle tone was in the low normal range, and that there was a one-year delay in his fine motor skills. She also reported that the child had deficits in some of his visual motor integration skills, as manifested by his difficulty in copying designs. She recommended that he continue to receive occupational therapy.

        On June 13, 1995, the child was observed in his SLCD classroom by the chairperson of respondent's CSE. She reported that the child followed a story which his teacher read to the class, and that he interacted with the teacher and his classmates. However, the child's eye contact was occasionally limited, and at least some of his communication was non-verbal. He did not exhibit any inappropriate behavior during the observation.

        On July 6, 1995, respondent's CSE recommended that the child be classified as speech impaired. I note that there is no dispute about this portion of the CSE's recommendation. The CSE further recommended that the child be educated in a self-contained kindergarten class, with a child to adult ratio of 8:1+1 in respondent's Meadow Elementary School, on a twelve-month basis during the 1995-96 school year. It also recommended that he participate on a group basis in a language infusion program, five times per week. As explained by the CSE chairperson at the hearing, the language infusion program was implemented by having one of respondent's speech pathologists come in to the recommended class for approximately forty minutes per day, during which the speech pathologist worked with some children individually, and also provided instruction to the class. The CSE recommended that the child receive adaptive physical education twice per week, music therapy once per week, occupational therapy in a group once per week, and individual occupational therapy once per week. The CSE did not recommend that the child receive auditory training, which the CPSE had recommended that the child receive during the 1994-95 school year. In addition, the CSE recommended that he receive social work support services. Although mainstreaming opportunities existed in the Meadow Elementary School, the CSE did not recommend that the child be mainstreamed for instruction in any subject. The individualized education program (IEP) which the CSE prepared for the child included annual goals for improving the child's reading decoding skills, and improving his knowledge in arithmetic, social studies, and science. The child's IEP also included separate speech/language goals for improving his speech articulation, the intelligibility of his speech, his auditory association, his oral-motor functioning, his semantic skills, his verbal expressive language skills, and his pragmatic language skills.

        In a letter which respondent received on August 7, 1995, petitioner asked for an impartial hearing because she did not agree with the CSE's recommendation. The hearing was scheduled to begin on October 2, 1995, but was adjourned by consent on two occasions. It began on January 31, 1996. In addition to challenging the appropriateness of the CSE's recommendation for the child's educational program for the 1995-96 school year, petitioner asserted that respondent was obligated to pay for the child's placement in the SLCD during the pendency of this proceeding. Respondent asserted that it would not pay for the child's placement in the SLCD. In an oral interim decision which he made at the hearing on February 14, 1996, the hearing officer ruled that the SLCD was the child's pendency placement. The hearing concluded on April 17, 1996.

        In his written decision which was dated June 4, 1996, the hearing officer referred to his oral decision in which he had determined that the SLCD was the child's pendency placement. However, he indicated that he had not directed respondent to pay for the child's tuition because he believed that the district's responsibility to pay tuition was contingent upon the outcome of the hearing. In effect, he found that petitioner had unilaterally placed the child in the SLCD, and that she was seeking an award of tuition reimbursement. He framed the issue to be decided as whether petitioner was entitled to be reimbursed for the cost of her expenditures for the child's tuition in the SLCD for the 1995-96 school year.

        With regard to tuition reimbursement, the hearing officer noted that 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 [1985]). 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). The parent bears the burden of proof with respect to the appropriateness of the services which he or she obtained for the child (Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57).

        The hearing officer found that the IEP which the CSE had prepared for the child adequately identified his special education needs, and that it set forth appropriate annual goals and short-term instructional objectives to provide general direction to the child's teachers. With regard to the special education services which the CSE had recommended, the hearing officer noted that petitioner had asserted that the IEP was inadequate because it did not include individual speech/language therapy, or any auditory training. However, the hearing officer found that the educational program recommended by the CSE would have met the child's needs. He also found that the child would have been suitably grouped for instructional purposes with the children in respondent's 8:1+1 kindergarten class. The hearing officer determined that respondent had met its burden of proof that it had offered the children an appropriate educational program for the 1995-96 school year. In addition, he found that the SLCD was not the least restrictive environment in which the child could have been educated during the 1995-96 school year, and concluded that petitioner had failed to meet her burden of proof with respect to the appropriateness of the services which she had obtained for her son. The hearing officer further found that equitable considerations did not support petitioner's claim for tuition reimbursement because she had failed to persuade him that she had fully cooperated with respondent's CSE.

        Petitioner contends that the hearing officer erred by concluding that respondent was not financially responsible for the cost of her son's instruction in the SLCD during the pendency of this proceeding, despite having found that the SLCD was the child's pendency placement. Respondent argues that the Education Law's preschool pendency provision (Section 4410 [7] [c]) did not apply to this child because he had passed from the jurisdiction of respondent's CPSE to that of its CSE. Education Law Section 4410 [7] (c) reads, in material part, as follows:

"During the pendency of an appeal pursuant to this subdivision, unless the board and the parent otherwise agree:

(1) a preschool child who has received services pursuant to subdivision five of this section, shall remain in the current educational placement,..."

        Respondent also argues that State regulation precludes a child who has reached kindergarten age from remaining in a pendency preschool placement during a proceeding to review a CSE's recommendation for the child's kindergarten placement. The regulation in question, 8 NYCRR 200.16 (g) (2) (ii), provides that the notice which a school district gives to the parent of a preschool child with a disability must:

"Indicate that during the pendency of any proceedings conducted pursuant to this Part, those preschool students with disabilities who are receiving special education programs or services pursuant to section 4410 of the Education Law shall remain in the then current education placement of such preschool student until all such proceedings have been completed. Nothing in this subparagraph shall require that a student with a disability remain in a preschool program for which he or she is no longer eligible pursuant to Section 4410 of the Education Law during the pendency of any proceeding brought pursuant to this Part;"

        The record reveals that the child remained in the SLCD, upon the recommendation of the CPSE, for instruction during the Summer of 1995. Since this proceeding was commenced by petitioner's request for a hearing, which was made on or about August 7, 1995, the child was arguably receiving services pursuant to Section 4410 of the Education Law when this proceeding was commenced. Nevertheless, respondent contends that Section 4404 (4) of the Education Law is the relevant pendency provision. The statute reads as follows:

"During the pendency of any proceedings conducted pursuant to this section and during the initial identification, evaluation and placement procedure pursuant to this section and during the initial identification, evaluation and placement procedure pursuant to section forty-four hundred two of this article, unless the local school district and the parents or persons in parental relationship otherwise agree, the child shall remain in the then current educational placement of such child, or, if applying for initial admission to a public school, shall be placed in the public school program until all such proceedings have been completed."

        In essence, respondent argues that during the 1995-96 school year, the child was no longer a preschool child with a disability, and that he was a school age child with a disability who was applying for initial admission to a public school program. It contends that the only pendency placement in this instance was the public school program, unless the parent and school district agreed to an alternative program, and that it cannot be ordered to fund the child's placement in the SLCD because it did not agree to place the child there.

        I note that when the present Section 4404 was added to the Education Law in 1976, school districts were not required to provide instruction to children with disabilities who were not eligible to attend public school because of their age, i.e., they were less than five years old, (see Section 3202 [1] of the Education Law). Preschool age children with disabilities were able to obtain special education services by orders of the Family Court pursuant to Section 232 of the Family Court Act. At that time, the relevant Federal statute, which is now called the Individuals with Disabilities Education Act (20 USC 1400 et seq.), required states to have policies which assured that all children with disabilities who were between the ages of three and twenty-one have the right to a free appropriate education by no later than September 1, 1980 (20 USC 1412). However, there was a statutory exception for children between the ages of three and five in states where the application of that requirement would be inconsistent with state law or practice (Ibid). In 1989, the New York State Education Law was amended by the addition of a new Section 4410, which made the board of education of each school district responsible for the provision of special education services and programs to preschool children with disabilities (Section 4410 [2] of the Education Law). Therefore, each board of education is responsible for providing services to children with disabilities who are between the ages of three and twenty-one, as a matter of Federal and State law.

        The Federal statutory pendency provision, (20 USC 1415 [e] [3] [A]), makes no distinction between preschool and school age children:

"Except as provided in subparagraph (B), during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child, or, if applying for initial admission to public school, shall, with the consent of the parents or guardian, be placed in the public school program until all such proceedings have been completed."

        The companion Federal regulation, 34 CFR 300.513, also makes no distinction between preschool and school age children with disabilities:

"(a) During the pendency of any administrative or judicial proceeding regarding a complaint, unless the public agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her educational placement.

(b) If the complaint involves an application for initial application to public school, the child, with the consent of the parents, must be placed in the public school program until completion of all the proceedings."

        The U.S. Department of Education has opined that 34 CFR 300.512 (a) requires a board of education to continue to provide the special education and related services which it had previously provided to a child in a preschool day care program during the pendency of a challenge by the child's parents to the board of education's offer of a kindergarten placement to the child (Letter to Harris, 12-30-93, 20 IDELR 1225). In essence, it has concluded that a child who had received preschool special education services and thereafter became eligible to attend kindergarten was not making an initial application to public school, as respondent argues is the case in this proceeding. While pendency does not generally attach to unilateral placements made by parents (Joshua B. v. New Trier High School District 203, 770 F. Supp. 43 [N.D. Ill., 1991]; Jefferys v. State of N.J. et al., 23 IDELR 945 [D.N.J., 1996]), I find that the child's placement in the SLCD was not a unilateral parental placement. He was placed in the SLCD for the 1993-94 and 1994-95 school years pursuant to IEPs which had been prepared by respondent's CPSE in fulfillment of respondent's obligation to provide him with special education services. Petitioner had accepted the CPSE's recommendations. Therefore, I find that the SLCD was the child's mutually agreed upon placement when this proceeding was commenced by petitioner's request for an impartial hearing to review the CSE's recommendation for the child's placement for the 1995-96 school year. I further find that the SLCD was the child's pendency placement, notwithstanding the fact that he had passed from the CPSE's jurisdiction to the CSE's jurisdiction as a school age child (Application of a Child with a Handicapping Condition, Appeal No. 91-25; Application of a Child with a Handicapping Condition, Appeal No. 92-43; Application of a Child with a Disability, Appeal No. 94-33).

        The pendency provisions of Federal and State law have the effect of an automatic injunction (Drinker by Drinker v. Colonial School District, 78 F. 3d 859 [3d Cir., 1996]). Implicit in the maintenance of the status quo under the pendency provisions is the requirement that the school district continue to finance an educational placement which it made and to which the parent agreed prior to the parent's request for a hearing (Zvi D. v. Ambach, 694 F. 2d 904 [2d Cir., 1982]). Therefore, I find that the hearing officer erred in determining that respondent's responsibility for the child's tuition in the SLCD during the pendency of this proceeding was subject to the three criteria of the Burlington decision (Application of a Child with a Handicapping Condition, Appeal No. 92-43). The Burlington criteria would have been relevant in determining whether respondent was required to pay for the child's tuition for any portion of the school year which occurred after this proceeding had concluded. However, the 1995-96 school year ended during the pendency of this proceeding. Therefore, respondent was obligated to pay for the child's tuition for the entire school year.

        Petitioner challenges the hearing officer's determination that the IEP which the CSE prepared for the child was appropriate for him during the 1995-96 school year. She asks that I order respondent to prepare an IEP which would be appropriate to meet her son's individual educational needs. However, the school year for which the IEP was prepared has ended. The record does not reveal whether an IEP has been prepared for the 1996-97 school year, nor does it reveal what the child's current educational needs are. Although the appropriateness of the child's IEP for the 1995-96 school year is now a moot issue, I will briefly address some of the issues which petitioner has raised with regard to the IEP because it may benefit the parties in preparing future IEPs. However, the record reveals that the central issue in this proceeding was the adequacy of the special education services which the CSE recommended for the child. In particular, the issue was whether the child required individual speech/language therapy and auditory training. Any finding which I might make with regard to the adequacy of those services offered by respondent to address the child's needs as of September, 1995 would not materially assist the parties in determining what services the child should receive in subsequent school years because his needs and attainments will have changed since September, 1995.

        An appropriate educational 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). State regulation requires that an IEP report a child's present levels of performance and indicate his or her individual needs with respect to academic achievement, social development, physical development, and management needs (8 NYCRR 200.4 [c][2][i]). The child's IEP listed the scores which the child had achieved on various speech/language tests and a visual perceptual test, which were administered to him in the Spring of 1995. However, it did not report the results of any cognitive testing, or otherwise describe the child's intellectual ability. It also did not report the results of the Kindergarten Readiness Test which was administered to the child in February, 1995, or otherwise indicate what his readiness skills were. Information about the child's cognitive ability and his readiness skills would have been helpful to the child's teacher to plan appropriate lessons for him. The IEP did include a brief description of the child's academic, social, and physical development, as well as his management needs. There does not appear to be any dispute about the accuracy of that description.

        The parties do disagree on the appropriateness of the child's IEP annual goals and short-term instructional objectives. Although the child's distractibility and fine motor deficits were partly responsible for his impaired academic performance, his primary disability was a delay in the development of his speech/language skills. At the hearing, the boy's teacher and his speech pathologist in the SLCD testified that the boy had significant delays in his pragmatic, semantic, syntactical, and phonological language development. Having reviewed the IEP, I find that there was at least one annual goal which was directly related to each of the four areas of delay which the teacher and speech pathologist had identified. I must note that annual goals are to be " ... statements that describe what a child with a disability can reasonably be expected to accomplish within a 12-month period in the child's special program" (34 CFR Part 300, Appendix C, Question 38). An annual goal for this child such as " [the child] will improve semantic skills" 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, the child's short-term instructional objectives provided some indication of the CSE's expectations (See Application of a Child with a Disability, Appeal No. 96-27). Although the SLCD teacher and speech pathologist testified that the CSE should have included additional, or more detailed, objectives in the boy's IEP, I am not persuaded that the CSE was required to do so in order to produce an appropriate IEP. IEP short-term objectives are to be based upon a logical breakdown of the major components of the IEP annual goals. However, they are not expected to be as detailed as teacher lesson plans (34 CFR Part 300, Appendix C, Question 39).

        An IEP must include appropriate objective criteria and evaluation procedures to determine whether short-term instructional objectives have been achieved (34 CFR 300.346 [a][5]). In various places on this child's IEP the CSE indicated that the child's objectives were to be completed with 70 percent and 80 percent accuracy. The CSE chairperson acknowledged that there was a defect in the printing of the IEP, which produced the conflicting standards of mastery. There is no reason to believe that the error will occur in the future.

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED. 

        IT IS ORDERED that the decision of the hearing officer is hereby annulled, and;

        IT IS FURTHER ORDERED that respondent shall pay for the child's tuition in the SLCD during the 1995-96 school year, upon presentation by the SLCD to respondent of a bill for the child's tuition.