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 Brockport Central School District
Western New York Advocacy for the Developmentally Disabled, Inc., attorney for petitioners, Roger G. Nellist, Esq., of counsel
Harris, Beach and Wilcox, Esqs., attorneys for respondent, Alfred L. Streppa, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which found that the individualized education program (IEP) for the 1996-97 school year which respondent's committee on special education (CSE) had prepared for their daughter was inadequate in certain respects, but which denied petitioners' request for an order directing respondent to place the girl in a private school for children with learning disabilities. Respondent cross-appeals from the hearing officer's directive that it obtain a laptop computer for the child's use. The appeal must be dismissed. The cross-appeal must also be dismissed.
Petitioner's daughter is fourteen years old. Prior to the 1994-95 school year, the child was enrolled in the Rochester public schools. Although her fine motor skills were found to be delayed when she entered kindergarten, the girl was academically successful in the lower elementary grades. In the spring of 1992, the child was referred to the Rochester CSE by her parents because she was reportedly experiencing difficulty with mathematics and writing. A psychological evaluation revealed that the child's cognitive skills were within the very superior range. However, her perceptual organization, freedom from distractibility and processing speed scores were in the average range, which the psychologist who examined the child attributed to the child's weaknesses in visual motor skills and her ability to perceive part-whole relationships, as well as the child's tendency to respond impulsively when confronted with difficult tasks. The psychologist reported that the child's visual motor skills were delayed by eleven to sixteen months, but her auditory perceptual skills were adequate. The child achieved standard scores of 107 for broad reading, 104 for broad mathematics, and 100 for broad written language. Nevertheless, the psychologist reported that the child had significant weaknesses in her reading decoding and basic writing mechanics skills, and that she was experiencing some anxiety and frustration related to her perceptual and academic weaknesses.
The child was classified as learning disabled by the Rochester CSE, and she began to receive supplementary instruction in a resource room program in the fourth grade during the 1992-93 school year. Her curriculum was reportedly modified during the fourth grade, pursuant to her IEP. The child's report card for the 1992-93 school year indicates that she remained on grade level in reading and mathematics, while receiving Bs and Cs in her academic subjects, and As and Bs in her special subjects.
During the 1993-94 school year, when the child was in the fifth grade, the child continued to receive three hours of resource room services per week. Her IEP for that school year indicated that she was to have access to a word processor and a calculator, and that she would be exempt from spelling requirements and have extended time limits on tests. The girl's IEP annual goals included improving her keyboarding skills, her organizational skills, and her writing skills, and developing effective strategies to improve her blending, spelling and study skills. She received final grade of B- for reading, D for mathematics, C+ for language arts and writing, C for science, and C- for social studies.
The Rochester CSE had recommended that petitioners' daughter continue to receive three hours of resource room services per week while in the sixth grade during the 1994-95 school year. The CSE meeting minutes indicated that the child had been working on her keyboarding, and using a calculator, to compensate for the deficits in her visual motor integration skills. Her spelling had reportedly improved during the 1993-94 school year, but it was still slightly below grade level. She reportedly needed to improve her capitalization, punctuation, and the use of descriptive adjectives when writing.
Although the girl briefly attended the Rochester schools for the sixth grade, in the fall of 1994, she entered respondent's Oliver Middle School in October, 1994. The child entered a "blended" sixth grade class, and received consultant teacher services, including an assisted study hall. At the hearing, respondent's CSE chairperson testified that an assisted study hall was comparable to a resource room. In December, 1994, respondent's CSE formally recommended that the girl receive consultant teacher services, and that she be given flexible scheduling and extended time for tests, while in the sixth grade. Petitioners accepted the CSE's recommendation.
When tested in March, 1995, petitioners' daughter received grade equivalent scores of 5.7 for word identification, 3.0 for word attack skills, and 7.4 for passage comprehension on the Woodcock Reading Mastery Tests - Revised. Although she failed one final exam and received the grade of D in two other final examinations, the girl achieved the final grade of C in sixth grade in social studies, mathematics, science and language arts, during the 1994-95 school year. In April, 1995, the CSE recommended that the child receive consultant teacher services for seventh grade - English, science, social studies, and mathematics. The CSE also recommended that testing modifications, including flexible scheduling, flexible location, and having test questions read to her, be used during the 1995-96 school year. The child's IEP annual goals were to improve her reading and writing skills, and to demonstrate her knowledge in the subject areas of social studies, science, and mathematics. In addition, the child's IEP indicated that she would interact appropriately with peers and adults, improve her attending skills, and improve her self-esteem. Her IEP did not indicate that she was to receive any related service, or that she required the use of any specialized equipment or adaptive device, such as a word processor. Petitioners did not challenge their daughter's IEP for the 1995-96 school year.
In June, 1995, respondent's school psychologist performed the child's triennial evaluation. She reported that the child had achieved a verbal IQ score of 104, a performance IQ score of 90, and a full scale IQ score of 97, which she contrasted with the scores of 131, 123, and 130 respectively which the child received when tested in May, 1992. At the hearing, the school psychologist testified that while some decrease in the child's IQ scores was to be expected now that she was in middle school, she could not explain why the child's IQ score had declined so substantially. The child achieved a standard score of 72 on the Developmental Test of Visual-Motor Integration, indicating that she continued to have a significant deficit in her visual motor integration skills. She achieved standard scores of 91 for broad mathematics, and 80 for broad written language. In her report, the school psychologist noted that the child reversed letters, especially "b", "d", and "f", and she recommended that the child become familiar with a good word processor and spellcheck computer program to compensate for her visual motor deficits. She described the child as having great potential to be successful in school, given appropriate support, and she recommended that petitioners' daughter receive consultant teacher services in the seventh grade.
The consultant teacher services which the child received during the 1995-96 school year reportedly differed from the consultant teacher services which she received during the prior school year, in that her consultant teachers provided more direct instructional services in the child's seventh grade regular education classes than they had done in the prior school year. Respondent's school psychologist testified that during the 1994-95 school year, when the child was in the sixth grade, the consultant teachers gave direct instruction to the child in separate classes, rather than as a "push-in" service in her regular education classes. The seventh grade teams of students served by the same teachers were larger than those of the sixth grade teams. During the 1995-96 school year, the child's IEP was amended, with petitioners' consent, to provide that she should use a calculator, and that she should no longer study Spanish. I note that the record does not reveal whether the CSE formally approved those changes in the child's IEP.
The child received passing grades for each of her subjects during the first quarter of the 1995-96 school year. During the second marking period, she received the grade of F for language arts, and the grade of D for mathematics. Petitioners and their daughter met with some of the girl's teachers in early January, 1996, to discuss the child's failure to complete some homework assignments. It was reportedly agreed that the girl's teachers would ensure that the girl had entered the homework assignments correctly in a notebook, which the girl's father would then review and sign each day.
During the third marking period of the 1995-96 school year, the child's grade for language arts improved to a D and her grade for mathematics improved to a C. She received the grade of B in both social studies and science. On the Woodcock Reading Mastery Tests - Revised which were administered to her in February, 1996, the child achieved grade equivalent scores of 4.7 for word identification, 4.1 for word attack skills, and 4.9 for passage comprehension.
In March, 1996, petitioners applied for the admission of their child to the Norman Howard School, which is a private school for children with disabilities in Rochester, New York. Later in that month, the girl's language skills were evaluated at the request of her teachers. She achieved above average scores for speaking/vocabulary, speaking/grammar, and reading/vocabulary. Her listening/vocabulary, listening/grammar, reading/grammar and writing/grammar scores were all in the average range. Only her writing/vocabulary skills were found to be in the below average range. The child's evaluator indicated that the child did not evidence a significant language/learning disability, but noted that the child had needed to have test directions re-explained to her several times and that she appeared to become distracted.
During the fourth quarter of the 1995-96 school year, the child received the grade of B in mathematics, and the grade of C in her other academic subjects. However, she received failing grades on her final examinations for mathematics and science, and the grade of D for social studies and language arts. On standardized achievement tests which were group administered in April and May, 1996, the child's reading skills were reported to be at the twenty-eighth percentile. One year before, her reading skills had been reported to be at the twelfth percentile. Her total mathematics skills had improved from a grade equivalent of 5.4 in 1995 to 6.3 in 1996.
The child's academic skills were also assessed by an independent evaluator, Dr. Dana Packman, in April, 1996. Dr. Packman reported that on the Woodcock Johnson Achievement Battery - Revised, petitioners' daughter had achieved grade equivalent scores of 7.6 for word identification, 3.5 for word attack skills, 8.3 for passage comprehension, 5.0 for mathematical calculations, and 5.4 for mathematical applications. In her written report, Dr. Packman indicated that the girl displayed a strong vocabulary and an ability to recall information in detail, but that she read inaccurately because of visual sequencing difficulties. The child's visual motor integration skills were found to be delayed by approximately four years. On the Test of Written Language - 3, the child achieved percentile scores of sixteen for contextual conventions, six for contextual language, and twenty-five for story construction. Dr. Packman reported that the child had used simple vocabulary and simple sentences, and that her writing was difficult to read because the words were run together and her letters were poorly formed. She concluded that petitioners' daughter was learning disabled because of difficulties with visual spatial processing, which affected her performance in mathematics, handwriting, organization, and synthesizing details. Dr. Packman noted that the child's handwriting problems would become more significant as the requirement for written work increased in the upper grades of school. She recommended that the child have the use of a computer at all times for word processing, and a calculator for mathematics. She further recommended that the child be provided with an extra set of textbooks for use at home, and that school staff assist her at the end of the school day in selecting appropriate materials to bring home to complete her assignments. Dr. Packman opined that placement in a smaller class would be most appropriate for the child, and she suggested various teaching strategies, which might be used by the child's teachers. On May 15, 1996, petitioners' child was evaluated by an optometrist, who reported that the girl was mildly nearsighted, and that her eyes focused in front of the page when reading, instead of behind the page. She also exhibited difficulty with binocular coordination.
On May 23, 1996, petitioners and their advocate met with respondent's CSE to discuss the child's educational program for the 1996-97 school year. Reports by the child's teachers and Dr. Packman's report were reviewed, and possible placements were discussed at the CSE meeting. However, the CSE adjourned without making a recommendation, so that a draft IEP which incorporated Dr. Packman's suggestions could be prepared. On or about June 4, 1996, a draft IEP was sent to petitioners in advance of the next scheduled CSE meeting, which was held on June 12, 1996. The draft IEP did not identify a specific placement for the child.
Dr. Packman and a representative of the Norman Howard School attended the CSE meeting with petitioners on June 12, 1996. Although the CSE reportedly discussed continuing the child's placement in a regular education program with consultant teacher services, as well as her placement in a self-contained special education class with a 15:1 child to adult ratio, the record which is before me does not clearly reveal what the CSE specifically recommended. The CSE chairperson testified at the hearing that the CSE had been "leaning towards" recommending that the girl receive consultant teacher services, but that the CSE had opted instead for placement in the 15:1 special education class. However, she also admitted that the child’s IEP had not been discussed at the May or June CSE meetings. In its answer to the petition in this appeal, respondent admitted petitioners' allegations that the June 12, 1996 CSE meeting ended before the child's IEP was discussed, and that petitioners had not received a written explanation of the CSE’s recommendation (Paragraphs 3 and 9 of the answer). In New York State, the CSE's recommendation must be set forth in the form of an IEP (8 NYCRR 200.4 [c]). There are at least two versions of an IEP in the record which were reportedly based upon the June 12, 1996 CSE meeting (District Exhibits 41 and 57). Each IEP indicated that the child was to be enrolled in a 15:1 special education class for instruction in all subjects except "special" subjects, i.e., art, music, physical education, and technology.
In a letter to the CSE chairperson, dated June 16, 1996, petitioners asserted that they were uncertain what the CSE was recommending, and they requested a meeting with the CSE chairperson. The requested meeting took place on July 3, 1996. However, petitioners and the CSE were unable to reach an agreement. On July 9, 1996, petitioners requested both mediation and an impartial hearing. Mediation was unsuccessful. The hearing in this proceeding began on November 8, 1996, and it concluded on November 21, 1996. In his decision which was rendered on January 24, 1997, the hearing officer found that petitioners' daughter could succeed in a regular school environment, provided that she received proper structure and support. He further found that an academically challenging IEP could be developed for the child, even if she were placed in respondent's 15:1 special education class. The hearing officer also found that the child would appear to be appropriately grouped for instructional purposes in the proposed 15:1 class. He rejected petitioners' request that respondent be ordered to place their daughter in the Norman Howard School. Nevertheless, he found that the child's IEP was too vague to easily measure her progress. In particular the hearing officer found that the child's IEP annual goals were "vague and minimal," and that the IEP failed to adequately provide for the development of the child's computer skills. He directed respondent to obtain a laptop computer for the child, and to train her and her teachers in the appropriate use of that device.
Petitioners ask that the hearing officer's decision be annulled on the ground that respondent failed to comply with the Federal and State regulatory requirement that its CSE explain what other options it considered, and why those options were not selected (see 34 CFR 300.505 [a]; 8 NYCRR 200.5 [a][c]). Respondent asserts that petitioners were fully aware of the options which the CSE considered, and why those options were rejected, because of their extensive participation in the CSE meetings involving their daughter. However, the Federal and State regulatory requirement for written notification applies regardless of whether a child's parents participate in the CSE meetings. I find that the notice which was sent to petitioners after the June 12, 1996 CSE meeting (District Exhibit 58) was inadequate.
Petitioners assert that their daughter's specific educational needs have not been met in respondent's schools, and that neither a regular education program with consultant teacher services nor a special education program in respondent's 15:1 self-contained class would adequately address the girl's needs. They contend that their daughter's academic performance slipped while in the seventh grade during the 1995-96 school year, and that she became increasingly frustrated. They challenge the validity of their child's final grades for the seventh grade. Petitioners contend that a continuation of consultant teacher services for the child in the eighth grade would therefore be of no avail educationally. With regard to the proposed placement of the child in a self-contained classroom, petitioners assert that the hearing officer's determination that the child would be appropriately grouped for instruction with the other pupils in that class (see 8 NYCRR 200.6 [a]) was without foundation in fact. They assert that two students in that class functioned intellectually in the mentally retarded range, and that the range of levels of achievement in that class exceeded 36 months (cf. 8 NYCRR 200.6 [g]).
Respondent denies petitioners' assertions, and it contends that it could have provided the girl with an appropriate educational program consistent with independent evaluator's recommendation, in its 15:1 class. It also contends that the child has performed satisfactorily in the eighth grade with consultant teacher services during the pendency of this proceeding.
There is no dispute about the child's classification in this proceeding. 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). Although the record is replete with draft IEPs, there does not appear to have been a final recommendation by the CSE. Moreover, respondent has not cross-appealed from the hearing officer's findings regarding the annual goals in the draft IEP. I must find that respondent has failed to meet its burden of proof with regard to the appropriateness of the child’s educational program for the 1996-97 school year.
The next question to be determined is what is the appropriate relief to be granted. I note that this proceeding does not involve a parental request for tuition reimbursement for a unilateral private school placement pursuant to the decision in School Committee of the of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ). The 1996-97 school year has ended. During that year, the child reportedly remained in respondent’s schools for the eighth grade in a consultant teacher program. The appropriateness of the child’s educational program for the 1997-98 school year is not before me. Therefore, I will not direct respondent to place the child in a private school, as petitioners request. Nevertheless, the record reveals that there is a serious disagreement between the parties about the services which are required to address the child’s special education needs. For the benefit of the parties, I will briefly address that issue.
Petitioners’ daughter is of average intelligence, but she has a learning disability involving her visual motor integration skills, which is manifested primarily in her ability to write and to perform mathematical calculations. Her visual deficits also affect her ability to read accurately and quickly, although her reading comprehension remains adequate (Exhibit 39). She also has deficits in her organizational skills which have impaired her ability to complete her homework assignments. Although her need to learn keyboarding skills and to use a computer has been recognized for some time, there does not appear to have been sufficient follow through to ensure that the girl has a compensatory strategy to overcome the deficiencies in her written expression. The child must not only acquire good word processing skills, she must also be required to use those skills regularly in her school work. Consequently, an IEP which merely provides that the child will have access to a computer for word processing does not adequately address this child’s needs. The IEP must specify that the girl will become proficient in word processing, and that she will use that skill to complete most of her written school assignments. The use of a computer with a spell check program would also help the child compensate for her deficient spelling skills. She should also have the use of a tape recorder to assist her with "brainstorming" ideas prior to writing them. For mathematics, the girl should be instructed with a variety of techniques, including the use of manipulatives, and she should use a calculator, as well as graph paper, to minimize the effects of her visual motor difficulties. The CSE should also consider providing consultant occupational therapy services to the child, as recommended by the occupational therapist who evaluated the girl in the summer of 1996. The deficits in the child’s organizational skills should be addressed by providing her with study skills instruction, the use of a notebook organizer, and close supervision of her homework assignments. The record reveals that petitioners’ daughter has understandably become somewhat frustrated by her school difficulties, and that her self-esteem has been affected by her performance in school. The CSE should seriously consider recommending that petitioners’ child receive counseling as a related service.
The CSE must prepare an IEP which has annual goals and short-term instructional objectives which are closely related to the girl’s special education needs. While I do not pass upon the adequacy of the last draft IEP which is in the record (Exhibit (P-70), I note that its annual goals and short-term objectives are more closely related to the child’s needs than those of the preceding IEPs. Once the CSE has identified the child’s needs and prepared appropriate annual goals and short-term instructional objectives, it must then determine what is the least restrictive environment in which the child would have a reasonable chance of achieving those goals and objectives. From the record before me, I believe that a more restrictive setting than regular education classes with consultant teacher services may be necessary for this child, at least for her major academic subjects. If the child is to be placed in either a self-contained public school class, or a private school for children with disabilities, the CSE must carefully consider whether she would be suitably grouped for instructional purposes with the other children in the proposed placement.
With regard to respondent’s cross-appeal, I find that there is no basis for setting aside the hearing officer’s determination that it should obtain a laptop computer for the child. The girl’s difficulties with writing and completing homework assignments have been discussed above. Respondent contends that petitioners’ child does not need a laptop computer to achieve her IEP goals. It argues that the girl may achieve her goals by having access to one or more computers in a special education classroom, or in its computer laboratory. However, it is essential that this child consistently use a computer for writing assignments, not all of which will be completed in school. At the hearing, the child’s father testified that respondent has a policy prohibiting children from using computer disks in school which have also been used at home. His testimony was not rebutted, nor has respondent explained how the child would complete her school work, including written homework, without a laptop computer.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.