Application of the BOARD OF EDUCATION OF THE ELLENVILLE CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Anderson, Banks, Curran and Donoghue, Esqs., attorneys for petitioner, Daniel Petigrow, Esq., of counsel
Petitioner, the Board of Education of the Ellenville Central School District, appeals from the decision of an impartial hearing officer which found that petitioner's committee on special education (CSE) had failed to prepare an appropriate individualized education program (IEP) for respondent's daughter for the 1995-96 school year. In his answer to the petition, respondent cross-appeals from the hearing officer's denial of his request that he be reimbursed at the rate of $8 per hour for his services in tutoring his daughter at home during the 1995-96 school year. The appeal must be sustained in part. The cross-appeal must be sustained, but only to the extent of annulling the hearing officer's finding that the CSE did not need to prepare IEP goals and objectives for science and social studies.
At the outset, I note that petitioner contends that the cross-appeal should be dismissed because respondent served his notice of intention to seek review upon petitioner's Director of Pupil Personnel Services, who is not one of the individuals upon whom that document may be served pursuant to 8 NYCRR 279.2 (a). However, the purpose for serving a notice of intention to seek review is to alert the board of education of the need to gather the record of a hearing, and to mail the record to the State Education Department. In this instance, the board of education had already provided a copy of the hearing record to the State Education Department. Therefore, I will not dismiss respondent's cross-appeal on the ground that he did not serve a copy of his notice of intention to seek review upon the appropriate person. I have also considered petitioner's other procedural objections to the cross-appeal, which I find to be without merit.
Respondent's daughter, who is eleven years old, was initially classified as speech- impaired in 1989, when she was in a preschool program. In 1990, petitioner's CSE purportedly recommended that the child's classification be changed to emotionally disturbed, although it apparently failed to revise the child's IEP to indicate the child's new classification. In any event, the child remained in a special education class of the Community Rehabilitation Center for the remainder of the 1990-91 school year. During the 1991-92 school year, the child's classification was changed back to speech-impaired, and she was enrolled in a special education class of the Ulster County Board of Cooperative Educational Services (BOCES). The child was then in the custody of the Ulster County Commissioner of Social Services, and was living with a foster parent who had not objected to the CSE's recommendations. Respondent and his wife became the child's foster parents in June, 1992, and they adopted her in May, 1993.
For the 1992-93 school year, the CSE recommended that the child remain in the BOCES special education class, in which she was to receive a language based therapeutic education program. In November, 1992, a BOCES supervisor recommended that the CSE consider mainstreaming the child in a pre-first grade class. Shortly, thereafter the child began to participate in certain activities such as art, music, library and physical education, with the children in petitioner's pre-first grade regular education class. When the BOCES class was dissolved early in 1993, the child was enrolled in petitioner's pre-first grade class for instruction in all subjects.
In June, 1993, the CSE recommended that the child's classification be changed to multiply disabled. It also recommended that the child be enrolled in a 12:1+1 special education class, with an unspecified amount of daily mainstreaming for socialization during the 1993-94 school year. In September, 1993, respondent unilaterally enrolled the child in the Mountain Laurel Waldorf School, a private school which is not approved by the State Education Department to instruct children with disabilities. Respondent also requested that an impartial hearing be held to review the CSE's recommendation. The hearing officer found that the child was appropriately classified as multiply disabled, and that she would have been appropriately placed in the special education class which the CSE had recommended. Respondent appealed to the State Review Officer from the hearing officer's decision. He requested that petitioner be ordered to pay for the cost of an independent evaluation of the child, and to reimburse him for his expenditures for the child's tuition in private school. The State Review Officer found that the child had been adequately evaluated by the board of education, but that she did not meet the regulatory criteria for classification as multiply disabled (see 8 NYCRR 200.1 [mm]) because there was no evidence that the child had a multisensory or motor deficiency. He noted that the child had cognitive deficits, as well as comparable deficits in her adaptive behavior, and found that the significant deficits in the child's expressive and receptive language skills were consistent with the deficiency in her cognitive development. The State Review Officer concluded that the child would be appropriately classified as mentally retarded (see 8 NYCRR 200.1 [mm]). He further found that the CSE lacked adequate information about the child's academic skills and achievements when it prepared her IEP for the 1993-94 school year, and that the IEP lacked certain required information. The parent's request for tuition reimbursement was denied upon the ground that he had failed to demonstrate how the private school had addressed the child's special education needs (Application of a Child with a Disability, Appeal No. 94-17).
In his decision, which was dated July 14, 1994, the State Review Officer directed petitioner's CSE to prepare the child's IEP for the 1994-95 school year within the next 30 days. However, the CSE was reportedly unable to convene until October 13, 1994, because of scheduling difficulties with various members and the child's parents. The child was once again attending the Mountain Laurel Waldorf School, at her parents' expense, when the CSE met with respondent on October 13, 1994. Respondent and the CSE reportedly agreed that the CSE should obtain additional information about the child. In December, 1994, one of petitioner's special education teachers observed the child in a third grade classroom in the private school. In January, 1995, respondent met with the CSE chairperson, the special education teacher who had observed the child, and the child's private school teacher to discuss possible IEP annual goals and objectives for the child during the 1994-95 school year. Respondent requested that another impartial hearing be held to consider his claims that petitioner had not complied with the State Review Officer's order to prepare the child's IEP, that petitioner had denied the child a free appropriate public education during the 1994-95 school year, and that petitioner should reimburse him for the cost of the girl's tuition in the private school during that school year.
In late January, 1995, the parties agreed that the CSE would re-evaluate the child. Petitioner's psychologist who evaluated the child at the Mountain Laurel School in February, 1995, reported that the child had been reassigned from the third grade to the second grade for academic and social reasons. She also reported that the child had achieved a composite score of 54 on the Stanford Binet Intelligence Scale, which indicated that the child's cognitive ability was in the mentally retarded range. On academic achievement tests, the child's reading, writing, arithmetic, broad written language, social studies, and broad knowledge skills were found to be at the kindergarten level, while her science and mathematical application skills were found to be at the beginning first grade level. The school psychologist also reported that the child could recognize all letters of the alphabet, but had not mastered the sounds associated with each letter, and did not attempt to phonetically decode words. The child was reported to be able to write some letters of the alphabet, but she confused upper and lower case letters. Her visual motor integration skills were reported to be delayed by approximately four and one half years. Petitioner's school psychologist reported that the child's scores and errors on the tests of her visual-motor integration skills were typical of children who had cognitive ability in the mentally retarded range. The child also made numerous errors on the Slingerland Screening Test for Identifying Children with Specific Language Disability, indicating that she had poor memory and perceptual skills. On the Vineland Adaptive Behavior Scales, the child achieved standard scores ranging from 70 in communication (the retarded range), to 98 in socialization (the average range). The school psychologist recommended that the child's instruction focus upon learning the reading and mathematics skills which are presented in a first grade curriculum. She also recommended that the child's instruction be provided in a multi-modal manner.
Petitioner's reading specialist also evaluated respondent's daughter in February, 1995. The child's letter identification, word identification, word attack, word comprehension, and passage comprehension skills were found to be at the kindergarten level on the Woodcock Reading Mastery Test, while her listening skills were found to be at the low first grade level on the Durrell Analysis of Reading Difficulty. On the Brigance Grade 1-Screen, the child achieved a score of 85 out of 100, indicating her readiness for the first grade. Petitioner's reading specialist reported that the child was at the pre-reading level, and that she had mastered many of the reading readiness skills. The reading specialist recommended that the child receive systematic instruction in basic reading skills, and that she acquire a basic sight word vocabulary. She also recommended that the girl use books on tape, and that she be encouraged to write with inventive spelling.
The child was also evaluated by a school district speech/language teacher, who reported that the child's hearing and speech articulation were within normal limits. However, the child achieved standard scores of 59 in receptive language, and 50 in expressive language, on the Clinical Evaluation of Language Fundamentals-Revised (CELF). The speech/language teacher explained that the child's CELF scores indicated that the child's receptive and expressive language skills were severely impaired. On the Language Processing Test, the child achieved a standard score of 25, which was three standard deviations below the mean for that test. The child's auditory discrimination skills were found to be normal on the Test of Auditory Perceptual Skills (TAPS). However, her TAP's scores for auditory number memory, word memory, and sentence memory, and auditory word processing were well below the mean. In her report, the speech/language teacher reported that the child exhibited extreme weakness in her ability to process linguistic information, and to express her thoughts verbally. At the hearing in this proceeding, the speech/language teacher testified that the child's language abilities were at the end of kindergarten - beginning first grade level when she was evaluated in February, 1995. In her evaluation report, the speech/language teacher recommended that the child receive as much 1:1 teaching as possible to increase her language skills, and that she receive speech/language therapy in a small group or individually three times per week.
On March 20, 1995, the CSE reviewed the child's evaluations, and prepared her IEP for the twelve-month period from March, 1995 to March, 19961. The CSE recommended that the child be classified as mentally retarded, and that she receive primary instruction in reading, writing, and mathematics in a 12:1+1 special education class. It further recommended that she be "included"2 in a regular education third grade class for all other subjects. The CSE also recommended that respondent's daughter receive speech/language therapy twice per week as a "push-in", i.e., within the classroom, and once per week as a "pull-out", i.e., with a small group in a separate location. The child's IEP included annual goals to improve her reading, writing, and mathematics skills, as well as her expressive and receptive language, and auditory processing skills.
The child remained in the Mountain Laurel Waldorf School, at respondent's expense, for the remainder of the 1994-95 school year. The hearing which respondent had requested regarding his claims against petitioner for the 1994-95 school year concluded on June 8, 1995. On August 22, 1995, the hearing officer rendered his decision. With regard to respondent's claim that petitioner had not complied with the State Review Officer's order to prepare an IEP for the 1994-95 school year, the hearing officer noted that the CSE had scheduled a meeting to be held within 30 days after the order, and that it had acted appropriately in adjourning the meeting at the parent's request. Nevertheless, the hearing officer found that the board of education had not offered the child an appropriate educational program during the 1994-95 school year because of the extensive delay in the preparation of her IEP. However, he denied respondent's request for tuition reimbursement on the grounds that respondent had not demonstrated that the educational program of the Mountain Laurel Waldorf School had addressed the child's special education needs, and that respondent had effectively precluded the preparation of an IEP for the child on a timely basis. Respondent appealed from the hearing officer's decision. His appeal was dismissed on the ground that he failed to meet his burden of proof with respect to the appropriateness of the private school's services for the child during the 1994-95 school year (Application of a Child with a Disability, Appeal No. 95-75).
On June 19, 1995, petitioner's CSE conducted its annual review of the child, and prepared her IEP for the 1995-96 school year. It recommended that she remain classified as mentally retarded, and that she receive primary instruction in reading, writing, and mathematics in a 12:1+1 special education class. The CSE also recommended that the child be included in a regular education fourth grade class for instruction in other subjects, and that she receive push-in speech/language therapy twice per week, and pull-out speech/language therapy once per week.
The IEP which the CSE prepared indicated that the girl's achievement in reading, writing, and mathematics was at the kindergarten level, and that she was able to understand and follow simple directions. The IEP further indicated that the child was able to express simple ideas, with the additional comment that her language expression was poor, although her spontaneity was improving. Her writing skills were described as "emerging", with the notation that the child could print her own name, but could not independently write sentences. The IEP indicated that the child's copying speed was slow, and that her letter formation and spatial organization were poor. The child's IEP also indicated that the child's socialization skills were her strength, notwithstanding her weak verbal communication skills. The child's rate of progress in learning new skills was described as slow, with the notation that she inconsistently retained new material, and did not always share her information with others. The IEP also indicated that the child would benefit from the use of manipulative material in developing her mathematics skills. Although the child was described as needing consistent monitoring and reinforcement to remain on task and persevere, her IEP indicated that her behavior did not interfere with instruction. It also indicated that she needed encouragement to be expressive in conversation. The social development portion of the IEP described how the child felt about herself, and how she interacted with her family and her peers. Her physical development was described as normal.
The child's IEP annual goal in language arts was to " ... develop skills necessary to begin the writing process and improve spoken language skills." Her annual goal for reading was to " ... develop a sight vocabulary, comprehension skills, decoding skills and literature appreciation." The child's annual goal for mathematics was to " ... develop and improve skills for mathematics grade 1 instructional objectives". The IEP did not include annual goals for other academic subjects, e.g., social studies and science. It did have two annual goals to be achieved with her related service of speech/language therapy.
Respondent chose to educate his child at home during the 1995-96 school year, rather than to accept the CSE's recommendation. He requested that an impartial hearing be held to review the child's proposed IEP for the 1995-96 school year. When the hearing commenced on September 18, 1995, respondent identified the issues to be determined as 1) whether the child was appropriately classified as mentally retarded; 2) whether her placement in a 12:1+1 class for reading, writing, and mathematics was appropriate; and 3) whether he should receive "compensatory damages" for having to educate the child at home. The hearing was held on various dates during the 1995-96 school year, and did not end until May 15, 1996.
On August 9, 1996, the hearing officer rendered his decision. He found that the board of education had failed to meet its burden of proof with respect to the child's proposed IEP because of defects in the process by which it was prepared and defects in the IEP's contents. The hearing officer found that petitioner had not proven that each of the required CSE members attended the June 19, 1995 CSE meeting, and he noted an IEP prepared by an invalidly composed CSE has been held to be a nullity (Application of a Child with a Disability, Appeal No. 93-28; Application of a Child with a Disability, Appeal No. 96-8). The hearing officer also found that the child's IEP was "facially defective" because it did not include a "mainstream statement", a "least restrictive environment statement", a list of the evaluation or assessment reports upon which the CSE had relied, and an indication of the other programs or placements for the child which were considered by the CSE. The hearing officer noted that some of the information which was not on the IEP was provided at the hearing. He found that the IEP adequately described the child's current levels of performance (8 NYCRR 200.4 [c][i]), and that it identified her deficits. However, the hearing officer found that some of the child's IEP annual goals and objectives were general and vague, and that the IEP did not provide for the use of tests to ascertain if the child had mastered her instructional objectives. He rejected respondent's contention that the child's IEP should have included goals and objectives for social studies and science because those subjects were to be taught to her in a regular education class. The hearing officer did concur with respondent's assertion that the child's IEP should have indicated the amount of time per day she would receive special education services (8 NYCRR 200.4 [c][vi]). Notwithstanding his finding that the child's IEP for the 1995-96 school year was a nullity, the hearing officer determined that the child was appropriately classified as mentally retarded because she had deficits in her cognitive and adaptive behavior skills (8 NYCRR 200.1 [mm]).
The hearing officer denied respondent's claim for compensation for the time which he had spent tutoring his daughter during the 1995-96 school year. He noted that respondent had filed an individualized home instruction plan (8 NYCRR 100.10 [d]) with the superintendent of schools, and that respondent claimed that he had maintained a log of the time during which he had instructed the child. He considered two reports and the testimony of an independent teacher with regard to the child's academic progress during the 1995-96 school year. However, the hearing officer found that respondent had not demonstrated how he had addressed the needs caused by his daughter's disability, or how the curriculum he provided had been individualized to meet her needs. In addition, the hearing officer found that the education of the child at home was overly restrictive for her, and was inconsistent with Federal and State requirements that she be educated in the least restrictive environment. He also noted that respondent had not presented into evidence the log which he reportedly maintained to support his claim that he devoted at least 25 hours per week to instructing his daughter.
Petitioner asks that the hearing officer's determination that the child's IEP was invalid or otherwise inappropriate be annulled. With regard to the alleged invalidity of the IEP because of the composition of the CSE, petitioner correctly notes that neither Federal nor State law requires that the participants in a CSE meeting be listed on a child's IEP. Petitioner has annexed to its petition copies of the minutes of the CSE meetings on March 20, 1995 and June 19, 1995. The minutes of both meetings indicate that the required CSE members were in attendance at each meeting. Although she was invited to attend, the child's teacher from the private school did not attend either CSE meeting. One of petitioner's special education teachers attended the meeting as the "child's teacher" (see 34 CFR 300.344, Note 1 [b] and [c]). Respondent acknowledges in his answer that petitioner's evidence sufficiently rebuts the hearing officer's finding with regard to the CSE's composition. In view of the additional evidence which petitioner has presented, I find that the hearing officer's finding with regard to the CSE's composition must be annulled.
I must also note with regard to the alleged facial defects in the IEP, i.e., the failure to include a "least restrictive environment statement", a list of the dates of the child's evaluations and the tests used, and a statement of the other program and placement options considered by the CSE, that neither Federal nor State regulation requires that this information be included in a child's IEP. The notice of recommendation which a CSE provides to a parent must specify the tests or reports upon which the recommendation is based (8 NYCRR 200.5 [a][ii][b]), and a description of the program and placement options considered and a rationale for rejecting those options not selected (8 NYCRR 200.5 [a][i]). However, I agree with the hearing officer's finding that the child's IEP did not indicate the amount of time per day that the child would receive special education, as required by 8 NYCRR 200.4 (c)(2)(vi).
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).
In his cross-appeal, respondent challenges the hearing officer's finding that the child's IEP adequately identified her special education needs. He contends that petitioner failed to demonstrate that the tests and procedures used in the child's evaluations were selected and administered so as not to be racially or culturally discriminatory, as required by 34 CFR 300.530 (b) and 8 NYCRR 200.4 (b)(4)(i)(d). Respondent argues that the hearing officer improperly foreclosed his questioning of petitioner's Director of Personnel Services about this matter. However, I note that the Director of Pupil Personnel Services, who is a certified school psychologist, testified that many of the standardized tests which petitioner's staff use to evaluate children are standardized on a multicultural basis (Transcript, page 664). Respondent nevertheless persisted in questioning the Director of Pupil Personnel Services about the performance of children of various racial groups on standardized IQ tests. Eventually, the hearing officer ruled that the issue had been sufficiently explored (Transcript, page 684). I find that the hearing officer did not abuse his power to limit repetitive or redundant questions. I further find that petitioner's reliance upon the results of the child's testing on the Stanford-Binet Intelligence Scale, together with other standardized tests, and an assessment of the child's adaptive behavior, to determine the nature of the child's disability was appropriate, and was not discriminatory (Parents in Action on Special Education v. Hannon, 506 F. Supp. 831 [N.D. Ill., 1980]).
Respondent also challenges the hearing officer's denial of his request that petitioner produce for his inspection the test booklet and his child's answer sheet for her IQ test. However, the United States Education Department's Office of Special Education Programs has informally opined that a school district is not required to provide a parent with copies of test instruments and interpretative materials which do not contain the child's name, but that it would be required to respond to a parental request to inspect and review a child's test answer sheet (20 IDELR 1159). Petitioner has provided a copy of its sales agreement with the owner of the Stanford-Binet Intelligence Scale, which precludes petitioner from disclosing any test items, in order to maintain test security. The record before me does not reveal whether production of the answer sheet would reveal any test items. In any event, I note that respondent may pursue any right which he may have pursuant to the Family Educational Rights and Privacy Act (20 USC 1232 [g]) in another forum (Application of a Child with a Disability, Appeal No. 94-28).
A CSE must obtain sufficient information about a child's special education needs and the child's current levels of performance that it can prepare an IEP which has appropriate annual goals and special education services to address the child's needs. The hearing officer found that the CSE had obtained adequate information, and that the child's IEP accurately reflected the results of the child's evaluations. Respondent contends that the CSE did not have sufficient information to ascertain what his daughter could and could not do. I disagree with his contention. The record reveals that the CSE obtained a wealth of information about the child's cognitive development, her academic achievement, and her linguistic deficiencies. Although respondent suggested on more than one occasion during the hearing that the CSE was unaware of any changes which may have occurred in the development of the child's skills and academic achievement in the interim between the March and June CSE meetings, there is simply no evidence in the record of any significant change in her skills and achievement. Indeed, I note that the CSE chairperson testified at the hearing that there was no reason to change the child's IEP annual goals and objectives in June, 1995 from those which were in the child's March, 1995 IEP, in view of the short period of time between the two IEPs, and the fact that there was no evidence that the child had received any special education to address the child's IEP goals and objectives. The child's evaluations revealed that she had deficits in her cognitive, perceptual and communicative abilities, with resulting delays in the development of her academic skills. I find that the CSE adequately evaluated respondent's daughter, and that the IEP which the CSE prepared for her adequately identified her special education needs.
The parties to this appeal disagree about the appropriateness of the child's IEP annual goals and her short-term instructional objectives. 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, Question 38). Short-term instructional objectives " ... are measurable, intermediate steps between the present levels of educational performance of a child with a disability and the annual goals that are established for the child" (34 CFR Part 300, Appendix C, Question 39). The hearing officer found that some of the child's annual goals and short-term objectives were general and vague, and that some of the objectives did not appear to be intermediate steps between her present levels of performance and her annual goals. However, he indicated that those deficiencies were not sufficient per se to invalidate the IEP.
Petitioner argues that the child's IEP goals and objectives were related to the child's special education needs, and that they were sufficiently specific, when combined with the short-term objectives to provide the child's teacher with adequate direction to prepare instructional plans for the child (see Application of a Child with a Disability, Appeal No. 96-27). IEP objectives need not be as detailed as instructional plans, but they must " ... provide general benchmarks for determining progress towards meeting the annual goals" (34 CFR Part 300, Appendix C, Question 39).
I find that the child's IEP annual goals were related to the special education needs which were identified in her evaluations. Those needs include developing adequate oral and written expression, which her two annual goals for speech/language and one annual goal for language arts directly addressed. The child's annual goals for reading and mathematics addressed her need to improve her skills in both of those subjects. However, the question is whether the child's IEP established new levels of performance for the child to reach, with sufficient specificity that respondent and the CSE could objectively determine the extent of her progress at the CSE's next annual review. With the exception of her annual goal in mathematics, the child's IEP goals were not linked to a specific level of performance. Her annual goal for mathematics referred to the instructional objectives for grade 1 mathematics, but did not indicate the extent to which the CSE expected her to master those objectives. The child's short-term instructional objectives which support her annual goal, involved the child's development of specific skills, which if mastered, would be consistent with the general statements set forth in her annual goals. However, many of the child's objectives also lacked performance levels, which would make it difficult, if not impossible, for the objectives to be used as milestones for measuring her progress towards meeting her annual goals.
Although I agree with the hearing officer's finding that these defects in the IEP might not afford a basis for invalidating the child's IEP (see Application of a Child with a Disability, Appeal No. 95-15), I do not agree with his finding that the CSE was not required to prepare IEP goals in science and social studies for the girl. The hearing officer correctly noted that an IEP need only include those matters concerning the provisions of special education and related services, as well as a description of the extent to which the child could participate in regular education (34 CFR Part 300, Appendix C, Question 47). Therefore, an IEP need not list goals and objectives for the child's performance in a regular education class for which he or she does not receive special education services (Application of a Child with a Disability, Appeal No. 93-38). However, this child's placement in petitioner's regular education fourth grade class for social studies and science was an inclusion placement, i.e., she was not expected to perform at the level of a fourth grade student in those subjects, as would be the case for a child with a disability who is mainstreamed. Instead, she was in an inclusion placement, which as indicated above presupposes that she will receive special education services to assist her in learning those subjects at an appropriate level. Petitioner's school psychologist testified that the child would hopefully glean some information auditorially in both social studies and science, but the child's special education teacher and her regular education teacher, would decide what assignments were to be given to the child. While I agree that the child's two teachers would have needed to collaborate with respect to her assignments in those two subjects, I find that it was nevertheless incumbent upon the CSE to provide a clear indication of the extent to which the child was expected to derive benefit from exposure to the regular education curricula for science and social studies. The CSE failed to address this in the child's IEP, either with respect to her goals and short-term objectives, or with respect to identifying the supportive services to be provided to her in the inclusion setting. Accordingly, I find that petitioner did not meet its burden of proof with respect to demonstrating the appropriateness of the child's IEP, and I do not reach the issue of the appropriateness of the 12:1+1 class in which the child would have been instructed in reading, writing, and mathematics.
Respondent cross-appeals primarily from the hearing officer's denial of his request that the hearing officer order petitioner to pay respondent for instructing his child at home. The hearing officer held that as a matter of law he had the authority to require petitioner to pay respondent, pursuant to the decision of the United States Supreme Court in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985).3 In Burlington, the Court held that a board of education could be required to pay for educational services which were obtained for the child by the child's parents, if the services provided by the board of education were appropriate, and equitable considerations supported the parents' claim. The hearing officer denied respondent's claim because respondent had not demonstrated that the instruction which he provided to the child had met the child's special education needs (see Application of a Child with a Disability, Appeal No. 94-29). He also denied the request because respondent had not demonstrated that his decision to educate his child at home was consistent with the Federal and State requirement that children with disabilities be educated in the least restrictive environment (P.J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1972]; 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 [W.D. N.Y., 1994]).
Although parents clearly have the right to educate their children at home in conformity with the requirements of Section 100.10 of the Regulations of the Commissioner of Education, they do not meet their burden of proof with regard to the appropriateness of those services when they seek compensation under the Burlington decision merely by indicating that they have filed the required reports for home instruction. The fact that petitioner's superintendent of schools had accepted respondent's individualized home instruction plan does not establish that the syllabi, curriculum materials, and plans of instruction which were listed in the IHIP were in fact used, or that the child benefitted from instruction.
I have reviewed the written reports which respondent filed with petitioner's superintendent of schools pursuant to 8 NYCRR 100.10, and have carefully considered respondent's testimony about the instructional services which he provided during the 1995-96 school year. In addition, I have reviewed the reports and testimony of Ms. Carol Femenella, a certified special education teacher who was hired by respondent to evaluate the child's progress in her home based education program. Respondent testified that he had tried to help the child develop her mathematics skills, and had encouraged her to begin to read. He testified that the child read aloud when she wished to do so, and estimated that she read aloud for approximately five minutes per day. In a written home instruction report, respondent had indicated that the child read silently for approximately one hour per day. While he asserted at the hearing that the child comprehended what she had read, he acknowledged that the child would usually not answer questions about what she had read. Respondent's father testified that the child "read" for approximately 30 minutes each evening. However, he qualified that statement:
" Please don't misunderstand what I am including as reading. If someone sits there and are [sic] turning the pages and they are looking at the pictures and following along, looking at words in the page, I call that reading. Whether she takes a story and follows the sentences along and extracts the plot out of it and characters out of it and so forth. I doubt that she does that" (Transcript, page 539).
Respondent testified that the child did some written work, and agreed to produce samples of her written work. However, there is no evidence of the child's written work in the record before me. He did produce a sample of her work in mathematics which he testified was taken from a third grade level mathematics book (Exhibit 19). The exhibit consists of a series of three and four-digit addition problems. Respondent also testified that the child could subtract numbers which were less than five from two-digit numbers, and could measure an angle within five degrees, using a protractor. He further testified that he had taught her to bisect an angle with a compass and a ruler. Respondent did not address the child's speech/language goals and objectives in his testimony.
Ms. Femenella testified that she met with the child for approximately one hour on three occasions in February, March and April, 1996. She did not formally test the child's academic achievement. Instead, Ms. Femenella randomly selected items from the learning material which respondent had reported that the child had been exposed to, and she observed whether the child could perform the tasks required by such material. In February, the child was able to read words on a computer screen which were taken from a second grade level phonics program, with which the child was obviously familiar. In April, the child was able to read a short book from the "BOB" series, which Ms. Femenella testified was at the first grade level. She further testified that the child did not appear to have a problem comprehending what she had read, because she could relate in her own words what she had read. Although she also opined that the child appeared to have some reading decoding skills, Ms. Femenella admitted that the child had read to her from books which the child had previously read, and that she had not observed the child attempt to read unfamiliar material. She further opined that the child was able to perform certain mathematical calculations which were at the second grade level. Ms. Femenella testified that she had not observed the child write anything other than her name.
Upon the record which is before me, I find that respondent has not demonstrated that he provided the child with a systematic instruction which addressed all of the special education needs which were identified in her IEP. Although the child appears to have made progress towards achieving some of her short-term instructional objectives in mathematics, I find that there is insufficient evidence of her progress with respect to her progress in reading and writing. I must note that although respondent indicated in his home instruction reports that various hours of instruction were provided to the child, he failed to produce the log which he and his wife reportedly maintained to document the nature and amount of instruction which was provided to the child. In the absence of evidence documenting the amount of time spent by respondent, I would have no basis for ordering petitioner to pay respondent any sum of money, even if I had found that respondent had proven that his tutoring services met the child's special education needs.
I have considered the other contentions of the parties, and find that they are without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is hereby annulled, to the extent that it found that the CSE was not validly constituted, and that the CSE was not required to prepare annual goals and short-term instructional objectives for the child's inclusion placement in fourth grade science and social studies.
1 I take administrative notice of the fact that the State Review Officer's decision in another proceeding indicates that the CSE chairperson had testified that the CSE intended to conduct a separate annual review to prepare a new IEP for the 1995-96 school year.
2 The term "inclusion" is generally recognized by educators to mean the placement of a child with a disability with the child's age-appropriate peers in a regular education class, in which the child receives appropriate special education services (Application of a Child with a Disability, Appeal No. 94-17).
3 In its Burlington decision, the Supreme Court held that the Federal statute which authorizes a reviewing court to "grant such relief as it determines is appropriate" was broad enough to include the power to order school authorities to reimburse parents for their expenditures on private special education. Here, respondent's expenditure is one of time, for which he believes he should be compensated. The hearing officer found that he had the authority to order "compensatory damages". Petitioner does not challenge that finding.