Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Hyde Park Central School District
RosaLee Charpentier, Esq., attorney for petitioners
Shaw and Perelson, LLP, attorneys for respondent, Lisa A. Rusk, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which found that respondent had provided petitioners' daughter with an appropriate educational program during the 1994-95 and 1995-96 school years. The hearing officer denied petitioners' request for reimbursement for the cost of their child's private tutoring during the first school year, and for tuition at a private school during the second school year. The appeal must be sustained in part.
Petitioners' daughter is 14 years old. She reportedly has normal vision and hearing and she reportedly achieved her developmental milestones within normal limits. In September, 1987, the child entered kindergarten in respondent's school system. During the 1988-89 school year, the child was enrolled in a transitional first grade class, because she reportedly was not ready to be placed in a traditional first grade class. Respondent allegedly began to provide speech/language therapy to the child during the 1988-89 school year, because she had a speech articulation problem. It continued to provide her with speech/language therapy until the 1994-95 school year, when it was determined that she no longer required that related service.
At the end of the 1988-89 school year, the child was referred by her teacher to the building level child study team. She was privately evaluated in the fall of 1989. At the hearing in this proceeding, the child's mother testified that respondent's committee on special education (CSE) initially classified her daughter as learning disabled in March, 1990, and began providing her with resource room services five times per week. However, petitioners allege in their petition and memorandum of law that the child was not classified as learning disabled until August, 1990. In any event, there appears to be no dispute that the girl began to receive resource room services in March, 1990. She continued to receive resource room services and speech/language therapy thereafter. In addition to those services, the child was privately tutored in reading twice per week, beginning in September, 1990. The private tutor reportedly employed the multisensory Orton-Gillingham teaching technique with the child.
The child reportedly received good grades while in elementary school, despite having difficulty with reading and writing. She remained classified as learning disabled. As the child was nearing the end of the third grade, in May, 1992, she attained a degree of reading power (DRP) score of 27, which corresponded to a mid-second grade independent reading level.
In January, 1993, the child's triennial psychological evaluation was performed by respondent's school psychologist. The school psychologist reported that the child had achieved a verbal IQ score of 100, a performance score of 100, and a full scale IQ score of 100, which placed the child in the middle of the average range for cognitive skills. In her prior evaluation in January, 1990, the child had achieved a verbal IQ score of 111, a performance IQ score of 98, and a full scale IQ score of 105. The child's lowest IQ subtest scores in 1993 were for mental arithmetic, and coding. Coding allegedly involves the child's concentration, tracking, and visual-memory skills. The school psychologist reported that the child appeared to be more distractible than most children, and had a relatively weak ability to concentrate on a timed tracking task. On a test of her visual-motor integration skills, the child scored approximately one year below her chronological age, but was still within the normal range. The school psychologist noted that petitioners' daughter continued to have difficulty with writing, with many spelling, capitalization, and punctuation errors in her work. She further noted that the child continued to have difficulty decoding words in reading.
During the 1993-94 school year, the child was enrolled in a regular education fifth grade class in respondent's Smith Elementary School. On her report card for that year, the child's reading skills were described as being below grade level. She nevertheless received the grade of B in language, which included her reading and writing skills, and C's and a B in mathematics. The child's teacher reported that the child consistently applied herself, and that her writing skills had improved. On the New York State Pupil Evaluation Program (PEP) fifth grade writing test which was administered to her in May, 1995, the child reportedly received a score of 12 out of 16, which was well above the State reference point of 8. Children whose score is below the reference point must be provided with remedial instruction (8 NYCRR 100.3 [b]).
In September, 1994, as the child began the sixth grade, respondent's speech/language therapist evaluated petitioners' daughter. She reported that the child had demonstrated that she had age appropriate receptive and expressive language skills, with scores at or above the 50th percentile in each area. Although the child occasionally distorted the "s" sound, her speech articulation was reported to be intelligible. The speech/language therapist recommended that the child not receive speech/language therapy any more, and that service was discontinued.
Petitioners' daughter continued to receive five hours of resource room services per week during the 1994-95 school year. Her resource room teacher testified at the hearing in this proceeding that she had provided the child with both "pull-out" services in a group of no more than five children in her resource room, and "push-in" services, i.e., instructional services to the child right in her regular education classroom. Although the relative amounts of time for pull-out and push-in services varied, the resource room teacher estimated that approximately 80 percent of her services were push-in, as the school year progressed.
In September, 1994, the child reportedly achieved a DRP score of 42 at an instructional, rather than an independent, level. As explained by the CSE chairperson at the hearing, the standard for the instructional level of reading is whether the child can correctly answer three of four questions about the material which he or she has read, commonly indicated as 75 percent, while the corresponding percentage for an independent reading level is 90 percent. I note that in a typed document which appears as part of School District Exhibit 6, the resource room teacher indicated that respondent had established "reading comprehension on grade level goals" at 75 percent accuracy, i.e., at the instructional level, of 54 by the end of the fifth grade, and 60 by the end of the sixth grade. Therefore the child's DRP score of 42 was 12 below respondent's own goal for the end of the fifth grade. The resource room teacher pointed out that on an oral reading exercise which she had the girl do in October, 1994, petitioners' daughter showed an improvement in her reading fluency, and she indicated that the child appeared to be better at using cues to sound out words than when she was last tested in the previous school year. On the Spache Diagnostic Reading Scales, which were administered to her in October, 1994, the child's word recognition skill was reportedly found to be at the 6.5 grade level for instructional purposes. Her resource room teacher noted the child's word accuracy was satisfactory, but her comprehension had decreased, as she was asked to read more difficult materials.
In January, 1995, the child accurately read 224 words from a social studies textbook which the resource room teacher described as having a fourth grade level of readability. The resource room teacher testified that she used fourth grade level materials in the resource room to remediate the child's reading skills, but that the child had successfully used sixth grade level textbooks in her regular classroom. In March, 1996, the resource room teacher administered a New York State sixth grade reading PEP test to the child, on an untimed basis to practice for the PEP test to be administered in May, 1995. The child's raw score of 50 out of 77 on the PEP test was the equivalent of a DRP score of 53 at the instructional (75 percent) level. In May, 1995, the child achieved a DRP score of 49 on the sixth grade reading PEP test. On the sixth grade mathematics PEP test, the child's score of 44 was substantially above the State reference point of 25. The resource room teacher testified that the child required some assistance with word problems, but was a strong mathematics student.
For each of the three marking periods during the 1994-95 school year, the child received the grade of C+ in language (reading and writing), and the grade of B in mathematics. Her sixth grade teacher indicated on the child's report card that the child's reading was on grade level, i.e., at the sixth grade level. At the hearing, the sixth grade teacher testified that the child had read the sixth grade textbooks, and had handled the material well. He testified that the child had demonstrated her comprehension of the material which she had independently read by successfully answering oral or written questions about the material. The teacher acknowledged that the girl read more slowly than her peers, and that she was nervous and read slowly when asked to read aloud in class. He further acknowledged that the girl's reading comprehension was about two years below grade level, when she was asked to read aloud. The teacher asserted that the girl's spelling, while at a lower level than some of her classmates, was nevertheless not excessively below the skill level of other sixth grade students. He noted that the child had been given extra time to complete standardized tests, in accordance with the provisions of her individualized education program (IEP), but he testified that she had not required additional time to complete routine tests in class. On the New York State Program Evaluation Test in sixth grade social studies, the child reportedly received 30 out of 50 points on the objective test questions, and nine out of ten points on the essay portion of the test. The child's resource room teacher testified that the child had been given extra time to complete the State test, which was administered in her resource room, but that no other test modification had been used.
Respondent's CSE met on August 30, 1995, to make its recommendation for the child's educational program during the 1995-96 school year. Petitioners did not attend the CSE meeting because they were out of town on the day of the meeting. At the hearing in this proceeding, the child's mother testified that she had asked a school secretary in advance of the CSE meeting if a teleconference could be arranged to allow petitioners to participate in the meeting (see 34 CFR 300.345 [c]). She further testified that petitioners were telephoned by the CSE chairperson, after the CSE meeting had been held. Respondent acknowledged at the hearing that the required parent member of the CSE (see Section 4402 [b] of the Education Law) had not attended the CSE meeting. The CSE recommended that petitioners' daughter remain classified as learning disabled during the 1995-96 school year, and that she receive one period of resource room/consultant teacher services per day while enrolled in the seventh grade of respondent's Haviland Middle School.
In March, 1995, petitioners applied to the Kildonan School for the admission of their daughter to the school for the 1995-96 school year. The child's mother testified at the hearing that petitioners made a binding commitment to send the girl to the private school in June, 1995. The child began to attend the Kildonan School on September 12, 1995. She was enrolled in the school at her parents' expense. In a letter dated September 15, 1995, the child's father asked respondent to provide an impartial hearing to review the CSE's recommendation for the 1995-96 school year, in order to obtain tuition reimbursement. On October 17, 1995, he amended his hearing request to also include a review of the child's educational program for the 1994-95 school year for the purpose of obtaining reimbursement for the cost of the private tutoring which petitioners had provided to their daughter.
The hearing in this proceeding began on November 9, 1995. After a discussion of the CSE's composition at its August 30, 1995 meeting, the hearing officer remanded the matter to the CSE for another meeting at which each of the required members was to be present, and at which petitioners were to be afforded an opportunity to participate. The CSE met with petitioners on December 7, 1995. It made no substantive changes to the IEP which it had prepared for the child at its prior meeting. The minutes of the December 7, 1995 meeting indicate that the CSE believed that the child had made appropriate progress in remediating her learning problems with the resource room services which she had received, and that she could function effectively in the seventh grade, if she continued to receive those services.
The hearing resumed on January 25, 1996, and it concluded on June 3, 1996. In his decision which was dated August 8, 1996, the hearing officer found that petitioners' daughter was functioning in school at a level which was well above the level at which her raw standardized test scores indicated she could function. He noted that the child had performed well in the Kildonan School, as well as in respondent's schools. The hearing officer denied petitioners' request for tuition reimbursement for the 1995-96 school year on the grounds that respondent had demonstrated that it had offered petitioners' daughter an appropriate educational program, and that her placement in the Kildonan School violated the Federal and State requirement that children be educated in the least restrictive environment. He also denied petitioners' request for reimbursement of the services of a private tutor for the child during the 1994-95 school year, on the ground that the child had received an appropriate program during that school year.
Petitioners challenge the hearing officer's decision on the grounds that he relied more upon the testimony of the child's sixth grade teacher than upon the results of the child's standardized tests in determining the appropriateness of the educational program which respondent had provided during the 1994-95 school year, and which it had offered to provide in the 1995-96 school year. They contend that the child made little or no progress in remediating her reading and writing deficits during the 1994-95 school year, at least in part because the child failed to master any of her IEP annual goals and short-term instructional objectives. Petitioners also contend that their child's IEP for the 1995-96 school year was procedurally and substantively defective.
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).
I note that neither party disputes the appropriateness of the child's classification as learning disabled (see 8 NYCRR 200.1 [mm]). Consequently, I do not reach that issue in this appeal (Hiller v. Bd. of Ed. of Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]). Although the parties disagree about the severity of the child's disability, and its impact upon the child's educational performance, they appear to agree that she has difficulty decoding words, and that she reads more slowly than do her peers. Her reading comprehension skills are stronger than her decoding skills. The child has had difficulty writing, particularly with regard to spelling, and the ability to organize her thoughts.
Petitioners argue that the child's IEP for the 1995-96 school year did not adequately identify the child's present levels of educational performance, as is required by Federal and State regulations (34 CFR 300.346 [a]; 8 NYCRR 200.4 [c][i]). Under the heading of "Levels of Educational Achievement and Learning Rate", the child's IEP described her reading skills by referring to her DRP of 49 at a 75 percent (instructional) level. That information was derived from the child's sixth grade reading PEP test in May, 1995. A parenthetical statement revealed that the child's DRP was below the level expected of a child at the end of the fifth grade. The IEP also indicated that the child's oral fluency and reading speed "remain target areas", but it did not provide either a grade equivalent, or a percentile score for the child's reading skills. With regard to mathematics, the IEP indicated that the child was functioning on grade level. The child's writing skills were described with the notation that she consistently wrote "organized, sequenced pieces", but that her spelling and handwriting remained as "target areas for support".
Petitioners contend that the IEP description of the girl's levels of performance is not precise enough to afford a basis for judging what, if any, progress she might make during the 1995-96 school year. They argue that the lack of precision is compounded by the fact that the child's annual goals and short-term instructional objectives were not prepared to indicate that the child was expected to be able to perform at or near a specific grade level. Instead the child's annual goal for language arts/English provided that she would " ... develop and demonstrate an improvement in the critical skills for reading, writing and vocabulary development through the English curriculum". Each one of the seventeen objectives which supported that annual goal included an objective mastery criterion, e.g., 70 percent success, but did not indicate the grade level at which the child was expected to perform.
I find that the IEP generally reflected the results of the child's evaluations, and the reports of her teachers, and that the IEP did indicate the specific areas of concern with regard to her educational performance, e.g., her reading fluency and rate of reading, her spelling, and her handwriting. The child's DRP score which was included on the IEP provided an objective description of her present level of performance, against which her future performance could be measured. I further find that the child's annual goals for language arts/English, mathematics, and social studies were too broad to have provided sufficient guidance to the child's teachers with respect to the CSE's expectations for the child's performance (Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 94-26). In addition, it is not readily apparent why the CSE believed it was necessary to prepare annual goals for mathematics and social studies. In any event, the IEP short-term instructional objective provided more direction with regard to the CSE's expectations. Although the objectives still failed to indicate the grade level at which this child was expected to perform, they did relate to the child's specific deficits in reading decoding, spelling, and writing.
With regard to the appropriateness of the special education services which the CSE recommended for the child, I find that the provision of resource room/consultant teacher services to the child would have been reasonably calculated to allow her to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, supra). I base that finding upon the record of the child's performance during the 1994-95 school year. Although petitioners criticize the hearing officer for relying upon the sixth grade teacher's description of their daughter's performance in class in the 1994-95 school year, and suggest that her report card grades reflected her positive personality, rather than her academic performance, I find there is nothing in the record before me which would compel me to reject the testimony of either the child's sixth grade teacher, or her resource room teacher, about the child's performance in the classroom. Both teachers testified that the child had been able to read and understand novels and textbooks which were written for use at the sixth grade level. The child's performance on the sixth grade reading and mathematics PEP tests, and the sixth grade social studies Program Evaluation Test also demonstrated her ability to work at the sixth grade level. The resource room teacher also testified that the child had done an excellent job on all of her IEP goals for the 1994-95 school year, as reflected in School District Exhibit 7. The child's DRP scores in March and May, 1995 indicated that she had not overcome her reading disability. However, those scores do not prove that the program which respondent provided during the 1994-95 school year was inappropriate, nor do they afford a basis for finding that a comparable program which its CSE had recommended for the 1995-96 school year would have been inappropriate.
Although I have found that the IEP which the CSE prepared for petitioners' daughter was generally adequate, except for its overly broad annual goals, I must nevertheless find respondent has failed to demonstrate that it offered the child an appropriate educational program on a timely basis. A child's IEP must be prepared at a CSE meeting which each of the CSE's required members attends, and at which the child's parents have been afforded an opportunity to participate either in person, or by telephone. Respondent has not demonstrated that its CSE was validly composed on August 30, 1995, or that the child's parents were afforded an opportunity to participate in that meeting. Therefore, the IEP which was produced at that meeting was a nullity (Matter of a Handicapped Child, 22 Ed. Dept. Rep. 262; Application of a Child with a Disability, Appeal No. 93-11; Application of a Child with a Disability, Appeal No. 95-8). The child's IEP for the 1995-96 school year was not prepared by a validly composed CSE until December, 1995. Under the circumstances, I find that respondent's offer of an appropriate educational program for the child was untimely for 1995-96 school year. Accordingly, I will annul that portion of the hearing officer's decision which found that respondent had met its burden of demonstrating that it had offered the child an appropriate program for that 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 ). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 ). In this instance, petitioners have satisfied the first of the three criteria for obtaining tuition reimbursement because respondent failed to demonstrate that it had offered the child an appropriate educational program for the 1995-96 school year.
The child's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at the Kildonan School during the 1995-96 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parent must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20).
The Academic Dean of the Kildonan School testified that the school served students who had specific developmental reading and writing disabilities. Instruction was provided in small groups of approximately eight students by teachers who were trained in the Orton-Gillingham methodology. Each student also received individual instruction in reading and writing with the Orton-Gillingham methodology during a daily "tutorial". The Academic Dean described the Orton-Gillingham methodology as a multisensory teaching technique which is useful in teaching students with dyslexia. I note that the term dyslexia is not defined in the record, but that it is generally defined to mean an inability to read. The Academic Dean also testified that the child was enrolled in seventh grade mathematics, science, and American history classes, as well as a middle school literature class. She described the child as being highly motivated, and she testified that the child had received one of the highest grades in the middle school on her final term paper in the literature course. In a report dated November 20, 1995, the child's language tutor reported that the child had a good foundation in phonetic skills, and that she read aloud with proper inflection. She further reported that the child was developing five-paragraph essays, and was beginning to proofread and correct her written work. At the last day of the hearing in June, 1996, the Academic Dean testified that the child had made progress academically during the 1995-96 school year, but that the child's tutor had indicated that the child's reading comprehension skills were still at a mid-fifth grade level, and that her writing skills were still not adequate. No objective measures of the child's academic attainments during the 1995-96 school year were introduced into evidence in this proceeding.
As noted by the hearing officer, unilateral parental placements for which tuition reimbursement is sought are subject to the Federal and State requirement that each child be placed in the least restrictive environment (P.J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1992]; Application of a Child with a Handicapping Condition, Appeal No. 92-7, decision sustained sub nom., Lord v. Bd. of Ed. Fairport CSD et al., 92-CV-6286 [U.S. D.C. W.D. N.Y., 1994]). The Kildonan School was a significantly more restrictive placement than this child's previous placement in respondent's regular education classes. The child was capable of doing seventh grade work, as evidenced by her placement in seventh grade classes in the Kildonan School. Indeed, the Academic Dean of that school testified that petitioners' daughter had been placed in the literature class for the school's highest functioning seventh graders. Although the private school's curriculum reportedly paralleled the seventh grade curriculum offered in New York public schools, the Academic Dean testified that less than 50 percent of the child's homework was from her seventh grade academic courses. She further testified that at least initially, students were not expected to read textbooks, and had only brief written assignments in their academic courses.
In view of this child's relatively mild disability, and the record of her success in the far less restrictive environment of regular education classes with supplemental special education assistance, I find that the child's placement in the Kildonan School was not consistent with the requirement that children be placed in the least restrictive environment. Consequently, I agree with the hearing officer that petitioners did not meet their burden of proof with respect to the appropriateness of the educational services which they obtained for their daughter. Since they did not prevail with respect to the second of the three criteria for tuition reimbursement, petitioners' request for reimbursement must be denied.
Petitioners' request for reimbursement for the cost of the private tutoring which they obtained for the child during the 1994-95 school year is also subject to the three criteria of the Burlington decision (Application of a Child with a Disability, Appeal No. 95-17). As indicated in this decision, the record reveals that the child was academically successful in the sixth grade, and she made progress towards achieving her IEP goals, during the 1994-1995 school year. Although I am aware of the fact that the child was tutored during that school year, I must note that there is virtually no evidence of what the tutor did for the child in the record which is before me. I find that respondent offered the child an appropriate educational program during the 1994-95 school year, and that petitioners' request for reimbursement must be denied.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision to the extent that it found that respondent had met its obligation to offer the child an appropriate educational program for the 1995-96 school year on a timely basis is hereby annulled.