Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Rhinebeck Central School District
Family Advocates, Inc., attorneys for petitioner, RosaLee Charpentier, Esq., of counsel
Shaw and Perelson, L.L.P., attorneys for respondent, Garrett L. Silveira, Esq., of counsel
Petitioner appeals from the decision by an impartial hearing officer which found that respondent had offered to provide an appropriate educational program to his daughter for the 1995-96 school year, and which denied petitioner's request for an order requiring respondent to reimburse him for the cost of his daughter's tuition in the Kildonan School for that school year. The appeal must be dismissed.
Respondent argues that the appeal should be dismissed as untimely because the petition was served 41 days after petitioner had received a copy of the hearing officer's decision. The Regulations of the Commissioner of Education provide that a parent shall serve a petition to review a hearing officer's decision upon the board of education within 40 days after receipt of the hearing officer's decision (8 NYCRR 279.2 [b]). Although petitioner has not offered an explanation for his brief delay, I will nevertheless excuse his delay in the absence of any evidence of harm to respondent caused by the delay (Application of a Child with a Disability, Appeal No. 97-36).
Petitioner's daughter is nine years old. She reportedly attended a private nursery school for two years. In September, 1992, the child entered kindergarten in the pubic schools of the Highland Central School District. An initial kindergarten screening revealed that the girl had some weakness in one-to-one correspondence and remaining focused. In November, the child's kindergarten teacher noted that the child had difficulty with the concepts of left and right, and that she had a very short attention span. The girl completed kindergarten in respondent's Chancellor Livingston Elementary School because her family moved into respondent's district in the middle of the 1993-94 school year. The child was briefly enrolled in the first grade of the Highland Central School District at the beginning of the 1993-94 school year, but she returned to the Chancellor Livingston Elementary School in October, 1993.
She was enrolled in a class for the "developmentally young", which was reportedly a combined first and second grade class which shared the services of an aide, and had flexible grouping of students for instructional purposes. The girl's first grade report card from the Chancellor Livingston School indicated that she had made good progress in reading, writing and mathematics, but she had not mastered the concepts of place value, time, money, and measurement in mathematics, and she was inconsistent in her spelling. Her teacher also indicated that the child did not pay attention consistently. The child's parents were notified by the school principal that the child would be eligible to receive additional help in reading while in the second grade, because of the scores which she had received on standardized tests at the end of the first grade.
Petitioner's daughter returned to the Chancellor Livingston Elementary School for the second grade during the 1994-95 school year. She was enrolled in a regular education second grade class taught by the same teacher as in the prior year. The teacher was assisted on a part-time basis by a certified reading teacher, who was referred to in the record as a Chapter 1 teacher. Petitioner's daughter was assessed by the reading teacher who assigned her to the higher functioning of the two groups which he instructed. She received 20 minutes of instruction per day from the reading teacher. While in that group, the child reportedly received more emphasis on phonetic analysis, repetition of assignments, vocabulary instruction and reinforcement of sight words (Exhibit 13). The child reportedly did well in that group, and she was reassigned to one of the regular education teacher's reading groups in November, 1994. At the hearing, the regular education teacher testified that the girl had "held her own" during most of the second marking period in her new reading group, but her performance began to slip near the end of that marking period. The girl was returned to the reading teacher's reading group at the end of the third marking period. At the hearing, the reading teacher testified that petitioner's daughter did not appear to be as highly motivated upon her return to his reading group as she had previously been. I note that the child's reading, writing and mathematics skills were described as satisfactory on her report card for the first two marking periods of the 1994-95 school year. However, her teacher indicated that the child sometimes had difficulty sometimes putting her drawings aside to concentrate upon class discussions.
On February 1, 1995, the child was privately evaluated by a psychologist, who noted in her report (Exhibit 28) that the child's parents had requested the evaluation in order to comply with the application requirements of a private school. At the hearing, petitioner acknowledged that the girl had been screened at the Kildonan School on October 26, 1994, upon the recommendation of the girl's optometrist. The girl achieved a verbal IQ score of 107, a performance IQ score of 120, and a full scale IQ score of 114 on the WISC-R. The psychologist reported petitioner's daughter demonstrated high average verbal comprehension and superior perceptual organization, but she was weak in her short-term memory for digits, her computational skills, and her ability to copy abstract symbols which were paired with other symbols. The psychologist noted that the child had been focused during her testing, which suggested to her that distractibility had not impaired the child's performance. Nevertheless, it appeared to the psychologist that the girl had a deficit in her short-term memory and/or sequencing ability. She also suggested that the child be further evaluated to ascertain whether the child had deficits in her visual tracking, visual motor integration, or fine motor coordination.
On March 10, 1995, the girl's reading skills were assessed by a private evaluator, who noted that the child had remained on task while being tested. The evaluator reported that the girl's listening comprehension skills were at the fourth grade level, while her instructional reading level was at the second grade level. Her silent and oral reading skills were both at the second grade level. On the Spache Word Analysis and Phonics Tests, the girl demonstrated that she knew how to blend sounds, and that she was familiar with many common syllables or phonograms. The evaluator opined that the child had difficulty visually discriminating between letters of the alphabet which differed spatially, and that the child's reading accuracy was delayed because of her consistent reversal of letters. She recommended that the child be taught to read with a method which emphasized phonics and structural analysis.
On March 13, 1995, petitioner referred his daughter to respondent's CSE. He noted that the child had received specialized reading assistance in the second grade, and he asserted that her ability to read was virtually non-existent. Petitioner further asserted that his child had difficulty writing, and that her reading and writing skills were inconsistent with her cognitive ability. He alluded to the results of the child's two private evaluations. On March 17, 1995, the CSE received petitioner's written consent to evaluate his daughter. Petitioner also provided copies of the two private evaluations to the CSE.
On March 21 and 22, 1995, the child was evaluated by one of respondent's school psychologists. The school psychologist reviewed the results of the girl's IQ testing by the private psychologist in February, 1995, and the private reading evaluation done in early March, 1995. She reported that the girl had earned an age equivalent score of eight years and seven months when her visual motor integration skills were tested. On the Visual Aural Digit Span Test, the child's age equivalent score was from six years and nine months to six years and eleven months, which was a delay of almost one year. Her visual memory skills and her visual sequential memory were found to be at the 98th and 99th percentiles, respectively. On the Gardner Reversals Frequency Test, the girl did not make any errors. The school psychologist reported that the child displayed age- appropriate visual motor integration skills, and she disputed the private reading evaluator's opinion that the child could not visually discriminate between letters. The school psychologist did report that the child consistently reversed the letters b and d when observed by the school psychologist in her second grade class. She further reported that the child did not appear to carry over her correct spelling when writing in her journal. The school psychologist opined that the child's difficulty in doing so could indicate that she had deficits in her long-term visual recall. She recommended that the child also be evaluated by an occupational therapist.
The child was also evaluated by Ms. Vicki Hoener, who is one of respondent's special education teachers. Ms. Hoener reported that the child had difficulty understanding spoken directions, but her performance improved when she was also given visual cues. On the Woodcock-Johnson Diagnostic Achievement Battery Revised, petitioner's daughter achieved grade equivalent scores of 3.3 for word attack skills, 2.1 for sight word identification, and 2.6 for reading vocabulary. Her broad reading skills were reported to be at the 2.0 grade level for instructional purposes, while her independent reading level was reported to be at the 1.7 grade level. The girl reversed the letters b and d during an assessment of her writing skills. Ms. Hoener noted that the child's spelling appeared to mirror her pronunciation of words. She opined that the child did not appear to rely upon her visual memory except when spelling basic words. Ms. Hoener also reported that the child had difficulty locating errors in printed sentences, which she described as a task requiring a good visual memory for words. While the girl's writing fluency was at a 3.1 grade level, her proofing and punctuation/capitalization skills were at a low first grade level. On the Jordan Test of Left Right Reversals, the child earned an age-appropriate score of seven years and four months. Ms. Hoener concluded that deficits in the girl's long-term visual memory skills were impacting upon her ability to efficiently remember and recognize spelling and sight words, to spell in a standard way, and to avoid reversing the letters b and d in her writing. She suggested that the child might benefit from an multimodal instructional approach, i.e., multisensory instruction, and that the "teach-test-teach model" of chunking information be used with the child. Ms. Hoener recommended that the girl be given extra time to complete her school work, and that she should use a computer for creative writing.
On March 22, 1995, one of respondent's speech/language pathologists evaluated the child. The girl was found to have age-appropriate speech skills. Her scores of 112 for receptive language, and 101 for expressive language on the Clinical Evaluation of Language Fundamentals were indicative of age-appropriate language skills. However, the child reportedly had some difficulty on the subtest which required her to form sentences. The evaluator reported that the child had difficulty producing words which ended with a specific sound. On the auditory sequential memory subtest of the Illinois Test of Psycholinguistic Abilities, the girl's age equivalent score of 5.3 revealed a delay of approximately two and one-half years in her rote auditory memory skills. The evaluator opined that the child did not need to receive speech/language therapy, but she recommended that the child's teacher be made aware of the deficit in her rote auditory memory skills.
The CSE met with the child's parents on April 4, 1995. The school psychologist repeated her recommendation that an occupational therapist evaluate the girl. Ms. Hoener and the speech/language therapist reported on their respective evaluations, and the child's second grade teacher and her reading teacher described her performance in class. The CSE agreed to have the occupational therapy evaluation performed, and to have Ms. Hoener provide 45 minutes of reading instruction to the child each day, in addition to the instruction by the reading teacher. Petitioner reportedly advised the CSE that the Kildonan School would have a place for his daughter in September 1995.
The child received instruction from Ms. Hoener for less than one week because petitioner requested that her services be discontinued. He did so because the child was reportedly having nightmares and wetting the bed, which petitioner attributed to his daughter's anxiety about being singled out and removed from class for special reading instruction. Ms. Hoener testified that the child had appeared to be both comfortable and excited about coming to her for reading.
On May 16, 1995, the girl's occupational therapy evaluation was completed. The evaluator reported that the child's initial pencil grip was somewhat immature, but the girl had used a more refined grip for writing. The child evidenced slight confusion about bilateral integration, as exemplified by her use of her left hand to perform some tasks, despite being right handed, and a delay in her upper extremity coordination. However, the evaluator noted that the delay did not seem to impair the child's educational ability. The child's visual motor, visual perceptual, and overall fine motor skills were reported to be age-appropriate. The evaluator recommended that consultant services be provided on an as needed basis to the child's classroom and physical education teachers.
On May 17, 1995, the CSE reconvened to review the results of the girl's occupational therapy evaluations, and to make its recommendations. The CSE recommended that the child be classified as learning disabled, reportedly because of the discrepancy between her listening comprehension ability and her reading and writing skills (Transcript, page 234). For the remainder of the 1994-95 school year, the child was to receive 40 minutes of special education reading instruction by Ms. Hoener each day. The CSE recommended that during the 1995-96 school year, the child receive one period of direct consultant teacher services per day each for reading and mathematics and 30 minutes per week of indirect consultant teacher services (see 8 NYCRR 200.1 ) per week while enrolled in a regular education third grade class. Her individualized education program (IEP) annual goals were directed at improving her word identification, reading comprehension, mathematics, and writing skills. Although petitioner apparently objected to one portion of the IEP which indicated that the child should be held accountable for using compensatory strategies, he nevertheless gave his consent to the CSE's recommendation in a form which he and his wife signed on June 5, 1995 (Exhibit 38).
Ms. Hoener provided special education reading instruction to the child for the remainder of the 1994-95 school year. The child received the grade of "satisfactory" for both reading and mathematics for the fourth marking period. However, I note that the girl's report card indicated that she was "working on basic concepts", which was the lowest of three categories to describe her reading. Although she received a "satisfactory +" for writing, her learning of assigned spelling words and use of the learned conventional spellings were described as unsatisfactory. Her ability to pay attention in class was described as in need of improvement.
At the hearing, petitioner testified that he objected to his child's proposed educational program for the 1995-96 school year because he believed that the way in which the girl was to be taught to read depended upon her memory skills. However, he did not immediately request an impartial hearing to review the CSE's recommendations. On August 11, 1995, he enrolled the girl in the Kildonan School, which is a private school located in Amenia, New York. The school specializes in serving children with reading disabilities, but it has not been approved by the State Education Department to provide instruction to children with disabilities. Therefore, respondent could not have placed the child in that school (Section 4402 [b] of the Education Law).
Petitioner's daughter attended the Kildonan School for all of the 1995-96 school year. She was transported to the school by respondent. In addition to the academic subjects of mathematics, literature, social studies and science, the girl also received language training using the Orton-Gillingham methodology. In various progress reports by her teachers, the child was described as having made satisfactory or outstanding progress. However, her progress was not so apparent in the results of the standardized tests which were administered to her by the Kildonan School in May, 1996 (Exhibit 45), and by respondent's evaluator in June, 1996 (Exhibit 69). Her reading skills were reported to be at an early second grade level, as were her spelling skills. The girl's mathematics skills were at a high second to low third grade level.
On May 12, 1996, petitioner requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement for the 1995-96 school year. The hearing was reportedly scheduled to begin on June 12, 1996, but it was adjourned at the request of petitioner's attorney. The hearing began on July 12, 1996. The parties stipulated that the child's classification as learning disabled was not disputed, and that the issue before the hearing officer was whether petitioner was entitled to be reimbursed for his expenditures for the child's tuition at the Kildonan School during the 1995-96 school year (Transcript, pages 64-65). The hearing continued over the next six months. During the pendency of the hearing about the girl's educational program for the 1995-96 school year, the CSE made its recommendation for the child's program during the 1996-97 school year. Although petitioner's attorney attempted to raise the issue of the child's educational program for the 1996-97 school year in this proceeding, the hearing officer held that he could not accept jurisdiction over the girl's program for that school year because that matter was the subject of a separate hearing before a different hearing officer, and respondent would not agree to consolidate that proceeding with this proceeding. The hearing concluded on January 20, 1997.
In the decision which he rendered on March 14, 1997, the hearing officer found that that the child's IEP for the 1995-96 school year adequately identified her special education needs and described her current levels of educational performance. He further found that the girl's IEP annual goals and short-term instructional objectives were appropriate for her, and that the educational program which respondent was prepared to offer to the girl was reasonably calculated to confer educational benefit upon her (see Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 ). The hearing officer also found that the child had not educationally benefited from the Kildonan School's educational program for the 1995-96 school year, in view of the little gain shown in her standardized test results in May, 1996. The hearing officer rejected petitioner's contention that the Orton-Gillingham methodology was the sole method by which this child's reading skills could be improved, and he found that the Kildonan School was not the least restrictive environment for the child. He also denied petitioner's request for tuition reimbursement on the ground that petitioner's request was not supported by equitable considerations in view of the lateness of his hearing request.
Petitioner asks that the hearing officer's decision be annulled, and that I order respondent to reimburse petitioner for his tuition expenditures for the 1995-96 and 1996-97 school years. I will first address his claim for tuition reimbursement for the 1996-97 school year. As noted above, the hearing officer declined to accept jurisdiction over petitioner's claim for the 1996-97 school year because that matter was pending before another hearing officer. He did offer to accept jurisdiction, provided both parties agreed to consolidate the two hearings (Transcript, page 661). However, respondent declined to do so, pointing out that it had already rested, i.e., finished the presentation of its case, when this issue arose on the sixth day of the hearing on November 4, 1996. I have previously held that a hearing officer may consolidate issues to avoid needless duplication of hearings (Application of a Child with a Disability, Appeal No. 95-51; Application of a Child with a Disability, Appeal No. 97-4). Nevertheless, I am not persuaded that "judicial economy" would be advanced by now ordering the hearing officer to consider petitioner's tuition claim for the 1996-97 school year, given the fact that the matter is already before another hearing officer. I cannot grant petitioner the relief of an award of tuition reimbursement for that school year because respondent has not had an opportunity to present its case, and the record before me is inadequate to support the requested relief. Although petitioner alleges that the process by which hearing officers are appointed by respondent is so flawed that it creates violations to his procedural and substantive rights, he has failed to provide any specific information to support his allegation. Therefore, I will only consider petitioner's claim for tuition reimbursement during the 1995-96 school year.
A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7). 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 supra), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
I note that, at the hearing, petitioner raised three objections to the manner in which his daughter's IEP had been prepared. First, he asserted, and respondent appeared to concede, that the girl had been evaluated before he had been given a description of the tests to be administered to her (cf. 8 NYCRR 200.5 [a][i]). However, he had consented to the evaluation. The second issue which petitioner raised was the alleged impropriety of having the wife of respondent's president serve as the CSE's secretary. According to the school attorney, the individual in question is one of two "civil service" secretaries who perform the function of secretary for the CSE. I find that there was no impropriety in that arrangement. The third issue which petitioner raised was that the CSE had allegedly not discussed his daughter's proposed IEP annual goals and short-term instructional objectives at the CSE meeting which was held on May 17, 1995. However, I find that there is no merit to petitioner's allegation (see page 2 of Exhibit 35 and Transcript, page 1158).
Petitioner challenges the appropriateness of his daughter's IEP for the 1995-96 school year on the ground that it failed to address her specific disability in reading and writing, as well as her "superior ability interpreting and organizing visually perceived material and social reasoning". He contends that his child required a completely modified curriculum taught by teachers who are trained to employ the Orton-Gillingham methodology. Petitioner alleges that respondent's staff is not qualified to use the Orton-Gillingham methodology, and he contends that the educational program which the CSE recommended for the child must necessarily be found to be inappropriate for her.
Upon review of the girl's IEP (Exhibit 40), I find that it accurately reported the girl's achievement testing in March, 1995, and it reported in very summary form the results of other evaluations. One can ascertain from the IEP that the child had weak auditory sequential rote memory skills, as well as an apparent weakness in her long-term visual recall. The IEP also indicated that her upper limb coordination was delayed, while her visual perception was appropriate. According to the IEP, the child was "non-attentive", and could be disorganized. The girl had average speech/language development, except for her ability to produce words from phonemes. Her broad reading, broad mathematics, and writing skills (except for writing fluency) were delayed by approximately one year. The girl's IEP included annual goals to address the delays in her word identification, reading comprehension, mathematics, and writing skills. I find that the girl's annual goals and their supporting short-term instructional objectives were reasonably related to her identified special education needs, and were sufficiently specific to provide guidance to the teachers who would have implemented the IEP. I have considered the testimony by petitioner's expert witness, who opined that the girl's IEP annual goals and objectives would not be appropriate if her progress was assessed by invalid testing (Transcript, pages 1077-1078). However, I find that there is little, if any, factual basis for her premise, i.e., that respondent would have used invalid testing. Although the expert discounted the results which were reported when the child was tested by respondent with the Woodcock-Johnson Diagnostic Achievement Battery-Revised, in June, 1996 (Exhibit 69), she offered no persuasive reason for doing so. Indeed, the scores which the expert witness reported that the child had achieved when tested with the Woodcock Reading Mastery Tests Revised in September, 1996 (Exhibit 79) were comparable to those reported by respondent in June, 1996.
The central question in this proceeding is whether the special education services which the CSE recommended for this child were appropriate to address her special education needs during the 1995-96 school year. The child has been described as having dyslexia. While that term is included in the definition of a specific learning disability (8 NYCRR 200.1 [mm]), it does not appear to have a very precise meaning. Petitioner's expert witness testified that the term meant "difficulty with words", and that not all dyslexics have exactly the same difficulties. While this child can accurately perceive letters in isolation, she appears to have difficulty processing them in groups, as indicated by her low scores for word identification and spelling. I find that this child's weaknesses in her auditory sequential rote memory and visual motor integration skills have impaired her ability to spell, read, and do mathematical calculations. Although her skills have generally improved, they have not improved at a rate which is commensurate with her ability. The parties appear to agree that she needs to be taught in a multi-sensory, sequential manner in order to improve her reading, writing and mathematics skills. They disagree as to adequacy of the direct and indirect consultant teacher services which the CSE had recommended that the child receive.
At the hearing, the dispute centered largely upon the teaching methodology which should be used with this child. Respondent insisted that its staff could provide the multisensory instruction which the child needed, while petitioner challenged the qualification of respondent's staff to use the Orton-Gillingham methodology. While Orton-Gillingham is one multisensory teaching methodology, it is not the only such methodology. Respondent's Director of Special Education testified that the Orton-Gillingham methodology addressed weakness in reading decoding skills, but it did not address all of this child's needs (Transcript, pages 300-307). Although petitioner's expert witness asserted that many children could benefit from instruction with the Orton-Gillingham methodology, she shied away from opining that only a teacher in that technique could remediate this child's deficits (Transcript, page 1040-1042). I am not persuaded by the record which is before me that only one teaching technique would be efficacious for this child (Application of a Child with a Handicapping Condition, Appeal No. 90-3), nor am I persuaded that not one of respondent's certified special education teachers is qualified to meet this child's instructional needs.
The question remains whether the CSE recommended an adequate amount of special education service for the child. While the IEP which is in the record before me has a handwritten notation which appears to indicate that the child would receive "5.5 hrs/wk" of direct consultant teacher services, I note that respondent asserts in its brief that the CSE had recommended that the child receive one period per day of direct consultant teacher services for language arts (reading and writing) and one period per day of direct consultant teacher services for mathematics, as well as one period per week of indirect consultant teacher services. I find that the latter description accurately represents what the CSE recommended. In determining whether respondent has demonstrated that the services which its CSE recommended for the child were adequate to afford her a reasonable opportunity of achieving her IEP annual goals, I have considered the fact that this child had not previously received special education for any appreciable period of time. I further note that respondent was obligated to try to meet this child's special education needs in her regular education classroom, before resorting to the all-day specialized instruction which petitioner sought (34 CFR 300.550 [b]). Given the nature of this child's needs, I find that the educational program which the CSE proposed for petitioner's daughter was reasonably calculated to allow her to receive educational benefit, and was consistent with the Federal and State requirement that she be placed in the least restrictive environment. In view of my finding about the appropriateness of respondent's program, I do not reach the other two criteria for an award of tuition reimbursement.
THE APPEAL IS DISMISSED.