Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York
Skyer and Most, Esqs., attorneys for petitioner, Regina Skyer, Esq., of counsel
Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Deborah Lee Stachel, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which found that respondent had offered an appropriate educational placement in its modified instructional services - I (MIS-I) program to petitioner's learning disabled son during the 1995-96 school year, and which denied petitioner's request that respondent be required to reimburse him for the cost of his son's private school tuition for a portion of that school year. The appeal must be sustained in part.
Petitioner's son, who is eighteen years old, reportedly required extra oxygen at birth, and was late in achieving his developmental milestones in early childhood. He was reportedly diagnosed as having an attention deficit disorder while in kindergarten during the 1983-84 school year. He was referred by his parents to respondent's committee on special education (CSE), which recommended that the child be classified as learning disabled because of his distractibility and delayed language skills. The boy has retained that classification since kindergarten. During the 1995-96 school year, the boy continued to have significant delays in his language skills, as well as his academic achievement. His classification as learning disabled is not disputed in this proceeding.
Petitioner's son was reportedly placed in respondent's readiness program, after he was classified. He began to receive occupational therapy at that time, and continued to receive it at least periodically thereafter. In an occupational therapy evaluation which was performed in February, 1991, the boy's cursive writing skills were described as slow and labored. He also reportedly had difficulty with the concept of directionality, and had trouble solving problems. The child also had difficulty remaining on task. I note that the boy's individualized education program (IEP) for the 1991-92 school year indicated that in 1990, the child was found to have a four and one-half year delay in the development of his visual-perceptual skills.
In September, 1985, the child entered respondent's modified instructional services - IV (MIS-IV) program. The next year, respondent placed petitioner's son in its MIS-I program. He reportedly began to receive counseling as a related service in 1986. The boy remained in the MIS-I program, which provided primary instruction in special education to him in a class of no more than fifteen children, for the remainder of elementary school, all of middle school, and three and one-half years of high school.
In the fall of 1992, when his son was in the equivalent of the eighth grade in respondent's I.S. 72, petitioner had the child privately evaluated by Dr. Elizabeth Auricchio, a psychologist. She reported that the boy had achieved a verbal IQ score of 73, a performance IQ score of 74, and a full scale IQ score of 71. Although the child's IQ scores were in the borderline range, Dr. Auricchio opined that the boy's potential was at least within the low average range. She noted that his sequencing skills were very poor, as were his fund of general information, and knowledge of social mores. Dr. Auricchio also noted that the child's auditory attention and immediate rote auditory memory were very weak. His visual memory was variable. On the Kaufman Test of Educational Achievement, petitioner's son achieved grade equivalent scores of 5.1 for reading decoding, 3.5 for reading comprehension, 5.6 for spelling, 4.3 for mathematical computation, and 2.2 for mathematical applications. On the Gray Oral Reading Test-Revised, the boy achieved an oral reading quotient of 67. Dr. Auricchio reported that the boy's thinking could become confused, when he was faced with emotionally charged stimuli, and that his self-esteem was quite low. She described him as a sensitive, fragile youngster in need of emotional support and structure. Dr. Auricchio opined that petitioner's son should be instructed in a small class, where he could receive individualized attention to academics, as well as emotional support. In view of the boy's age, Dr. Auricchio indicated that he needed to be taught basic reading, arithmetic, and life skills, and that he should begin to receive occupational training. She further opined that he required language therapy, counseling, and social skills training.
Notwithstanding his weak reading, spelling, and mathematical skills, petitioner's son advanced to high school. In September, 1993, he entered the ninth grade in respondent's Port Richmond High School on Staten Island. He received his primary instruction in a MIS-I class, and he also received the related services of occupational therapy and counseling.
In December, 1993, the child was evaluated by the CSE's educational evaluator, as part of the boy's required triennial evaluation. The evaluator noted that the child was cooperative, but was easily distracted. The boy's communication skills, which were informally assessed, were reported to be adequate. On the Woodcock Johnson Revised (WJR), which is an achievement test, the child earned grade equivalent scores of 6.7 for letter-word identification, 3.9 for passage comprehension, 5.0 for mathematical calculation, 2.0 for mathematical applied problems, 3.1 for general knowledge of science, and 4.3 for general knowledge of social studies. The evaluator noted that the child's low scores in the science and social studies subtests reflected his paucity of knowledge in school related topics. The boy could add and subtract whole numbers and decimals, but had difficulty with multiplication and division of whole numbers, and the computation of fractional numbers. The evaluator noted that the child had difficulty using word attack skills to pronounce unknown words, and that he often relied upon his visual memory of words. The evaluator noted that the child was unable to use contextual clues in the sentences which he read, and that he evidenced deficits in his literal and inferential reading skills. He recommended that a multi-sensory approach be used to instruct the child. The boy's brief writing sample revealed his deficient vocabulary skills, and his need for a great deal of instruction in writing.
On January 6, 1994, petitioner's son was evaluated by a board of education school psychologist, who noted that the child had just passed each of his first semester courses. The school psychologist used the Stanford-Binet Intelligence Scale-4th edition to assess the boy's cognitive skills. She reported that his composite score of 72 was in the borderline range. He evidenced relative strength in abstract/visual reasoning, and relative weakness in his vocabulary, comprehension, and quantitative reasoning skills. Although the boy's short-term visual memory skills were intact, his short-term auditory memory skills were deficient. The boy's visual motor integration skills could not be formally assessed because of his age, but the school psychologist estimated that the boy's skills were below age-expectancy. Projective testing revealed that the boy evidenced signs of immaturity, dependency, and impulsivity, which could impair his ability to form relationships with his peers. The school psychologist recommended that the child remain in the MIS-I program to meet his academic needs, and that he continue to receive counseling to address his social and emotional needs.
Upon completion of the boy's triennial evaluation, the CSE recommended that he remain in the MIS-I program for all instruction, and that he receive individual occupational therapy once per week, and counseling in a group of no more than 5 children once per week. The boy's parents apparently accepted the CSE's recommendation.
In May, 1995, the boy was evaluated at his parents' expense by Dr. Jeanette Wasserstein, who is a psychologist. Dr. Wasserstein reported that on the Wechsler Intelligence Scale for Children III (WISC-III) the child had achieved a verbal IQ score of 72, a performance IQ score of 68, and a full scale IQ score of 68. She also administered the Ravens Standard Progressive Matrices (RSPM), which Dr. Wasserstein described at the hearing as a good nonverbal test of one's cognitive skills. She reported that the child had achieved an equivalent IQ score of 82 on the RSPM, which was in the lower end of the average range, but well above the child's other reported IQ scores. At the hearing, Dr. Wasserstein described petitioner's son as a child of low average to average aptitude who had language, attentional, sequencing, and processing speed deficits. She assessed the boy's academic skills with the Wide Range Achievement Test III (WRAT-III), and the Wechsler Individual Achievement Test (WIAT). On the WRAT-III, the boy achieved grade equivalent scores of 2.7 for reading, 2.8 for spelling, and 2.7 for mathematics. On the WIAT, he achieved scores of 3.4 in reading comprehension, 6.2 in numerical operations, and 1.8 in mathematical reasoning.
Although Dr. Wasserstein reported the results of the child's achievement testing in grade equivalent scores, she cautioned at the hearing that a comparison of those scores with the scores which the boy had received on other achievement tests was difficult because of the manner in which the various standardized tests were scored. Nevertheless, she testified that there was a discrepancy between the child's ability, as indicated by his score of 82 on the RSPM, and the standard scores which the boy had achieved on his achievement tests, e.g. 69 in reading comprehension, 75 in numerical operations, and 52 in mathematical reasoning on the WIAT. Dr. Wasserstein noted in her written report that on the WIAT, the child was better able to solve arithmetic problems on paper than when given to him orally, and when time limits were waived. She reported that the child evidenced pronounced weakness in both receptive and expressive language skills, and in his verbal short-term memory skills. Dr. Wasserstein reported that the child had neuropsychological impairments which affected his ability to sustain attention, control muscle motors, perceive things, and process language. She noted that the boy was struggling with his feelings, and that he could be easily overwhelmed by his feelings.
In August, 1995, petitioner's son was privately evaluated by a speech/language pathologist, who reported that the boy had evidenced age appropriate attending skills, and that his speech was also appropriately intelligible. However, the boy's receptive language skills were delayed. On a subtest of the Clinical Evaluation of Language Fundamentals-Revised (CELF-R) designed to assess the student's ability to follow oral directions, petitioner's son received a scaled score of 4, while the mean score for that subtest was 10. He received a scaled score of 3 on the CELF-R subtest for semantic relationships. On the Expressive One-Word Picture Vocabulary Test-Upper Extension, the child's age equivalent score was approximately three years below his age. His scaled score of 5 on the CELF-R subtest for formulating sentences was well below the mean of 10 for that subtest. The speech/language pathologist concluded that the boy exhibited marked difficulty in his language skills, and he recommended that he receive individual speech/language therapy per week.
In September, 1995, petitioner's son returned to the Port Richmond High School, where he was again placed in a MIS-I class for the 11th grade. The child's parents met with respondent's CSE on October 10, 1995, to review his educational program. They were reportedly dissatisfied with their son's progress, and requested that an impartial hearing be held for the purpose of obtaining a placement for him in a private school. However, the parties apparently agreed to have the child evaluated by one of respondent's educational evaluators, and to thereafter reconvene the CSE.
Respondent's educational evaluator reported that after two years in high school, petitioner's son had earned 24 high school credits, but that he had not passed any of the Regents Competency Tests which are required to obtain a high school diploma (8 NYCRR 100.5 [a]). The boy had failed two of his seven courses during the 1994-95 school year. The evaluator, who observed the child in his history class, reported that the boy had remained on task, and that he had appropriately answered questions in class. He noted that the boy's teachers had reported that the boy was easily frustrated in class. The evaluator assessed the boy's academic achievement with the WJR, which had also been administered to him during his last triennial evaluation in December, 1993. He reported that the boy had achieved grade equivalent scores of 9.7 for word identification, and 5.1 for passage comprehension. The boy's composite grade equivalent reading score of 7.7 represented an improvement of 2.4 years during the 1 year and 10 months since his previous triennial evaluation. In mathematics, he achieved grade equivalent scores of 5.4 for calculation, and 4.0 for applied problems. Although his calculation skills had improved by only four months, his ability to do applied mathematical problems had improved by two years. His knowledge of science and social studies had increased by approximately one and one half years. The evaluator noted that the child's spelling skills were at a grade equivalent of 3.9, and he reported that the child's informal writing sample consisted of a single sentence listing the sports which he enjoyed. With respect to the boy's communication skills, the evaluator reported that he had achieved a grade equivalent score of 12.0 on the WJR cognitive picture vocabulary subtest, and a grade equivalent score of 5.3 for oral vocabulary. He noted that the boy's expressive language skills appeared to be approximately six years below his grade level. The evaluator suggested that the child could benefit by receiving one period per day of resource room services, in addition to his MIS-I program.
On November 3, 1995, the CSE reconvened with the boy's parents to revise his individualized education program (IEP). The CSE recommended that the boy remain in the MIS-I program, and that he continue to receive individual occupational therapy twice per week, and counseling in a small group once per week. However, it amended the boy's IEP to provide that he would receive individual speech/language therapy twice per week.
The boy remained in respondent's MIS-I program until February, 1996, when he was placed by his parents in the Maplebrook School, which is a private school in Amenia, New York. His parents also requested that an impartial hearing be held to review the CSE's recommendation. By agreement of the parties, the hearing commenced on May 8, 1996. Although they had placed their son in the Maplebrook School as a residential student because of the distance between the school and his home, the boy's parents asked the hearing officer to award them the relief of tuition reimbursement for the day portion of the child's placement from February through June, 1996. They also requested that respondent be required to pay for the child's tuition for a six-week summer program at the private school, as compensatory education.
The hearing concluded on June 17, 1996. In his decision which was rendered on October 31, 1996, the hearing officer rejected the parents' argument that their son's IEP was inadequate because it lacked appropriate annual goals, and it failed to include a transition plan. He found that the boy's IEP academic goals struck a reasonable balance between the boy's abilities and the objective of pursuing a curriculum which was parallel to the regular education curriculum. He further found that the boy's IEP maintained a balance between occupational and academic goals. He also found that respondent did not have a reasonable opportunity to prepare a transition plan for the boy because he was removed from respondent's schools well before the end of the school year. With respect to the appropriateness of the MIS-I program, the hearing officer found that respondent had presented substantial, if not overwhelming, evidence of the child's academic progress in that program. Having found that respondent had met its burden of proving that it had offered an appropriate program to the child for the 1995-96 school year, the hearing officer denied the parents' request for tuition reimbursement.
Petitioner asserts that the IEP which the CSE prepared for his son was inadequate, and that the recommended MIS-I program was inappropriate for the boy. As in the hearing, he acknowledges that the boy did not require a residential placement for educational purposes. He limits his request for reimbursement to the boy's tuition as a day student in the Maplebrook School. Respondent argues that the boy's IEP was procedurally and substantively appropriate, and that its MIS-I program would have provided petitioner's son with appropriate educational opportunities. 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).
The IEP which the CSE prepared for the boy on November 3, 1995 reflected the results of his current school district and private evaluations. He was described as functioning at the upper end of the mildly deficient range, with weaknesses in his quantitative and abstract visual reasoning skills, and his visual motor integration skills. Academically, he was reported to have significant delays in his reading, spelling, writing, and mathematic skills, each of which were at the upper elementary school level. Notwithstanding the boy's relatively low level of achievement, his IEP annual goals provided that he would successfully complete English, sequential mathematics, science, participation in government (social studies), Spanish I, and introduction to occupational education courses with curricula which were parallel to the regular education course curricula, for high school credit.
Petitioner argues that his son's IEP annual goals were vague, and inappropriate to address the boy's needs. Annual goals are statements of what a child can reasonably be expected to accomplish within a 12-month period in the child's special education program. They must be 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). I find that the boy's annual goals for his academic subjects were too vague to provide guidance to his teachers. Although the boy's short-term instructional objectives were more specific than the annual goals, they nevertheless do not appear to have been prepared to address his specific needs. The objectives for his annual goal for sequential mathematics provided the boy would " ... demonstrate proficiency in solving first degree equations by finding solutions to 10 algebraic equations by making substitutes for the variables with 80% accuracy", and that he would "... demonstrate proficiency in performing operations with polynomials by solving equations involving variables with 80% accuracy." Upon review of the results of the boy's various evaluations, as well as the transition plan (Exhibit 16) description of his academic achievement, I find that the boy's short-term objectives for mathematics did not address his specific needs. Similarly, I find that the boy's short-term objectives supporting his annual goal for English did not reflect his actual needs. He clearly had significant deficits in reading, writing, and spelling which the objectives did not address.
Petitioner contends that the hearing officer erred by finding that respondent had complied with its obligation to include a statement of needed transition services in the child's IEP (34 CFR 300.346 [b]; 8 NYCRR 200.4 [c][v]). Transition services are defined by Federal regulation as:
"(a) ... a coordinated set of activities for a student, designed with an outcome-oriented process, that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.
(b) The coordinated set of activities described in paragraph (a) of this section must...
(1) Be based on the individual student's needs, taking into account the student's preferences and interests; and,
(2) Include needed activities in the areas of:
(ii) Community experience;
(iii) The development of employment and other post-school adult living objectives; and
(iv) If appropriate, acquisition of daily living skills and functional vocational evaluation." (34 CFR 300.18 [a]+[b])
I find that the IEP which was prepared for the boy by the CSE on November 3, 1995 did not include a statement of needed transition services, as required by Federal and State regulations. At the hearing, respondent introduced into evidence a separate document (Exhibit 16) which, while labeled as an IEP, was described as the boy's transition plan. I note that respondent presented no evidence that the plan had been considered or discussed by the CSE, and that petitioner testified that he had never seen the plan before the hearing had begun. With regard to the hearing officer's finding that petitioner had precluded respondent from completing a statement for needed transition services by withdrawing the boy from school in February, 1996, I must point out that Federal and State regulations require that a statement of needed transition services appear in the IEP of each child by no later than age 16. Petitioner's son became 16 in December, 1994, six months before the IEP in question in this proceeding was prepared. Therefore, I find that the hearing officer erred by finding that respondent had complied with the requirement to include a statement of needed transition services in the boy's IEP for the 1995-96 school year. The omission of such a statement is significant in this case because the boy was reportedly within two years of graduation. However, the CSE apparently had no understanding of what his career objectives might be, or how those objectives could be attained. Without such an understanding, the CSE could not recommend an appropriate program.
In addition to its inappropriate short-term instructional objectives and its lack of a statement of needed transition services, the IEP did not provide for appropriate special education services to address the boy's needs. The IEP indicated that the boy was a candidate for a regular high school diploma. As noted above, petitioner's son had not passed any of the required RCTs after two years in high school. Respondent's educational evaluator opined at the hearing that the child would not be able to pass his RCTs without additional assistance, such as resource room services. However, the CSE did not recommend that the boy receive additional services to prepare him for the RCTs. The boy's English teacher testified that the RCTs would be difficult for him, because his reading ability was approximately three years below the grade level at which those examinations were written. I note that the English teacher testified that she taught the boy reading primarily by having him write. In any event, there was no evidence that respondent had provided the boy with a specialized reading program, or other assistance, to afford him a reasonable opportunity to pass the RCTs, and obtain a high school diploma.
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 ). 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). Upon the record which is before me, I must find that respondent has failed to meet its burden of proof.
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 Maplebrook 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).
At the hearing, the Dean of Students of the Maplebrook School testified that the school was intended to serve children who had non-specific learning and social difficulties, and lacked self-esteem. She further testified that the school offered a very structured program to its students in classes which ranged from three to ten children. The Dean testified that children were grouped in classes by their ability, and that there was a two-year grade level range in the boy's English and mathematics classes. Multi-sensory teaching techniques were used to instruct students in the Maplebrook School. The Dean testified that petitioner's son had been placed in an educational program which was focused upon providing students with functional academic instruction, rather than training them to pass the RCTs, and move on to a community college program. She explained that the boy had received instruction in practical writing skills, such as writing letters and filling out job applications, and in mathematical exercises involving money, time, and measurement skills.
Respondent contends that petitioner failed to meet his burden of proving that the Maplebrook School provided his son with appropriate special education services. It asserts that the Maplebrook Dean's testimony suggested that the boy was not pursuing a sufficiently demanding academic curriculum. In essence, it argues that having the child concentrate on mathematical activities such as making change was well below his potential. However, I must note that respondent's transition linkage coordinator acknowledged at the hearing that petitioner's son had trouble making change, and that respondent's educational evaluator also testified that the boy had that difficulty. The educational evaluator further testified that the child had difficulty with some kinds of multiplication and division problems. The Dean of the Maplebrook School testified that the child had been instructed in multiplication and division. In his English class at the Maplebrook School, petitioner's son was instructed in reading, writing, and spelling, all of which were areas of academic need. The Dean testified that the boy had made academic progress during the spring semester of 1996, and that he had passed each of his courses. Respondent offered nothing to refute the Dean's testimony.
Respondent asserts that the services provided by the Maplebrook School did not address each of the boy's identified special education needs, in that he did not receive speech/language therapy, occupational therapy, or counseling. The Dean of the Maplebrook School testified that the private school's speech/language therapist had determined that the boy's language needs were not as severe as those of his fellow students, and had not provided services to him because she was available only on a part-time basis. Nevertheless, the Dean testified that most of the boy's IEP annual goals for language had been addressed in the language-based curriculum which the school used. The Dean indicated that the school did not provide occupational therapy, but the parents could arrange for that service to be provided at their expense. She acknowledged that the boy had not received counseling, but she asserted that his counseling needs had been met in twice-weekly meetings with a faculty member who was the boy's mentor.
Having reviewed the Dean's testimony as well as the child's written progress report (Exhibit I), in the context of the boy's speech/language evaluation and the CSE's recommendation that he receive individual speech/language therapy twice per week, I am not persuaded that petitioner has demonstrated that the boy's language needs were adequately addressed at the private school. The boy's language deficits appeared to have played a significant part in his slow academic growth. It is critical that those deficits be addressed. The child reportedly required occupational therapy because he had impaired graphomotor (handwriting) skills, as well as impaired visual perceptual skills. The record does not reveal how either of those deficits were addressed by the private school. My review of the boy's IEP goal and objectives for counseling leads me to conclude that his counseling needs could have been addressed by the individual mentoring which he received at the private school. However, I find that the omission of speech/language therapy and occupational therapy from his educational program at the private school was a serious defect in his program.
There is another reason why I must find that petitioner has not met his burden of proof regarding the private school's services. As noted above, petitioner's son was a junior in high school during the 1995-96 school year, but there had been little, if any, planning for his post-high school career. At the hearing, the Dean of the Maplebrook School testified that the boy had been assigned a school job, but that the Maplebrook School proposed to focus its program upon improving the child's functional academic skills until January, 1997. Although she testified that the boy would be enrolled in occupational education classes in January, 1997, I must note that the issue before me is the appropriateness of the services provided during the spring semester of 1996. Accordingly, I find that petitioner has not demonstrated how the private school addressed his son's vocational needs during that semester. Therefore, I find that he has not demonstrated that the school's services were appropriate (Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 94-32).
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 offered the child an appropriate education program for the 1995-96 school year, is hereby annulled.