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 Goshen Central School District
RosaLee Charpentier, Esq., attorney for petitioner
Shaw and Perelson, LLP, attorneys for respondent, David S. Shaw, Esq., and Lisa S. Rusk, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which found that respondent had met its obligation to offer petitioner's son a free appropriate public education during the 1995-96 and 1996-97 school years. The hearing officer denied petitioner's request that she be reimbursed for the cost of her son's unilateral placement in the Camphill School during part of the 1995-96 and all of the 1996-97 school year. The appeal must be sustained in part.
Petitioner's son is ten years old. When the child was about two years old, petitioner noticed that her son's development appeared to be delayed. The child was evaluated by a psychologist in October, 1988. The psychologist noted that the child's expressive language skills had previously been found to be delayed by one year. On the Cattell Infant Intelligence Scale, petitioner's son, who was then two years and four months old, attained a mental age of 17.6 months. The psychologist recommended that the child be placed in a preschool program which offered both speech/language therapy and occupational therapy. An occupational therapist reported that the boy had low muscle tone and a one-year delay in his fine motor skills. A neurologist who administered an EEG to the child in March, 1989 reported that the EEG showed no abnormality.
The child began attending the Janet Lockwood preschool program in Goshen, New York in 1988, and remained in that program until the summer of 1989. The child was then placed in a preschool program in the Newburgh Developmental Learning Center in Newburgh, New York. He remained in that program until he became eligible for a school-age, i.e., Kindergarten, placement in the 1991-92 school year. While in his preschool placement, the child received occupational therapy twice per week. His occupational therapist reported in March, 1991 that the child's skills were at the two and one-half year old level. Petitioner's son also received physical therapy while in his preschool program. In April, 1991, his physical therapist reported that the boy generally followed directions, but needed verbal and sometimes physical assistance to follow the rules for games. She noted that he continued to be distracted by other activities within his environment. Although the child made progress in developing his gross and fine motor skills, those skills were still delayed by approximately two years.
In May, 1991, a school psychologist evaluated petitioner's son for respondent's committee on special education (CSE). She reported that the child's scores on the Stanford-Binet Intelligence Scale were in the deficient range and were consistent with his scores on the Vineland Adaptive Behavior Scales. The child was reported to be generally functioning at an early two-year-old level. He appeared to have good social adjustment, and his limited oppositional behavior was attributed to his developmental age and distractibility. The school psychologist noted that the child had previously been identified as speech impaired, and recommended that the child's classification be changed to reflect his pervasive developmental delays. She further recommended that he be placed in an educational program which would address those delays.
Respondent's CSE changed the child's classification to multiply disabled (see 8 NYCRR 200.1[mm]), and recommended that he be enrolled for the 1991-92 school year on a twelve-month basis in a self-contained special education class operated by the Orange-Ulster BOCES. He also received speech/language therapy, physical therapy, and occupational therapy in the BOCES program. The child continued in that program during the 1992-93 school year. In the Fall of 1992, the child's teacher in the BOCES program reported that the child could rote count to 12 and could count up to five objects, with assistance, and that he could follow two-step directions. His speech/language therapist reported that he had made some progress in his vocabulary, and minimal progress in his listening skills. The child's physical therapist, speech/language therapist and occupational therapist noted that the child was easily distracted.
The child continued to attend the BOCES program for the 1993-94 school year, during which he received speech/language therapy, physical therapy, and occupational therapy. His individual education program (IEP) for the 1993-94 school year indicated that he would be expected to copy shapes, count with a 1:1 correspondence, and learn basic calendar concepts. He was also expected to improve his ability to interact with others. Petitioner testified that her son began to take Ritalin to control his hyperactivity during the 1993-94 school year.
In December, 1983, an evaluator used a standardized achievement test to assess the child's academic skills. The evaluator reported that the boy reacted positively to visual clues, but exhibited a very short attention span. Although the evaluator reported test scores which were all at the beginning Kindergarten level, he cautioned that the scores were probably not valid indicators of the child's skill levels. The child's triennial psychological evaluation was performed in May, 1994. The psychologist reported that the child's verbal reasoning, abstract/visual reasoning, and short-term memory skills were in the mentally retarded range. The psychologist did not complete an attempt to assess the child's quantitative reasoning skills because the child didn't appear to understand what was required to complete that kind of testing. The child's adaptive behavior was again assessed on the Vineland Adaptive Behavior Scales, with information provided by his teacher. The psychologist reported that the child had earned standard scores of 59 for communications, 55 for daily living skills, and 61 for socialization. Although these scores were below those which he achieved three years earlier, the psychologist noted that the child's age equivalent scores had generally increased. The psychologist opined that the boy exhibited pervasive developmental delays, with relative strength in his verbal skills and relative weakness in quantitative and visual/spatial skills.
At the end of the 1993-94 school year, petitioner and her family moved from respondent's school district to the Warwick Valley Central School District (Warwick). Warwick continued the boy's placement at the Orange-Ulster BOCES for the 1994-95 school year. In the middle of the 1994-95 school year, the child's BOCES teacher reported that the boy could recognize his written name and could count well to 10. However, he needed frequent prompts to count with 1:1 correspondence. She further reported that the child had great difficulty with group activities and needed constant prompting to maintain his behavior in the classroom. The child's related service providers also noted that the child was highly distractible. In an end-of-year report, the BOCES teacher reported that the boy's skills were at approximately the same level as previously reported, but his behavior had been good and he was transitioning to his related services much better.
During the 1994-95 school year, the Warwick CSE reportedly recommended that the child's speech/language therapy and his physical therapy be decreased slightly. However, petitioner and her family returned to respondent's school district shortly after the Warwick CSE had made its recommendation, and respondent's CSE recommended that the child continue to receive speech/language therapy 5 times per week, and physical therapy twice per week for the remainder of the 1994-95 school year. The child also received occupational therapy twice per week.
On May 22, 1995, respondent's CSE conducted its annual review of petitioner's son. The CSE recommended that the child continue to attend the Orange-Ulster BOCES program on a twelve-month basis during the 1995-96 school year, and that he receive individual speech/language therapy once per week, speech/language therapy in a group three times per week, individual physical therapy once per week, and individual occupational therapy twice per week. Although petitioner did not challenge the CSE's recommendation by requesting that an impartial hearing be held, she began to explore other placement options for her son. Her child was interviewed at the Camphill School in Glenmore, Pennsylvania, in October, 1995. Petitioner asked respondent's CSE chairperson to consider having the CSE recommend that the child be placed in the Camphill School. However, the CSE chairperson apparently declined to do so.
The child returned to the BOCES program for the 1995-96 school year. A BOCES progress report for July and August, 1995 indicated that the child could recall two sight words, with prompting, and that his listening skills were sporadic. He was able to identify the numbers 1-5, with prompting, but was still having difficulty counting with 1:1 correspondence. His social skills reportedly diminished. The child's medication had been changed from Ritalin to Dexedrine. His teacher reported that the new medication caused drastic mood swings. A subsequent BOCES report (Exhibit 19) revealed that from November, 1995 through January, 1996, the child exhibited various unusual behaviors such as hand flapping, facial grimaces, and staring on a number of occasions. In a separate report dated January 4, 1996 (Exhibit 20), the boy's teacher reported that the boy's hand flapping, sudden jerking of his lower jaw, grasping at imaginary objects in mid-air, and day dreaming had been happening since mid-fall, but were increasing in frequency. In the child's mid-year report, the teacher noted that the child's listening skills had improved, and that he could recognize, but not consistently, 76 percent of the upper case letters of the alphabet. The child could rote count to 14, and was practicing counting with 1:1 correspondence. He was able to zip and unzip his coat, with some help. The child reportedly had difficulty remaining focused upon activities, and he preferred to play alone rather than with his classmates.
On February 6, 1996, the child was evaluated by a neurologist. The neurologist reported that the results of the child's electroencephalogram were normal. Shortly after that evaluation, petitioner met with respondent's CSE. At that meeting on February 21, 1996, she asked that respondent place her son in the Camphill School. The CSE, which could not have recommended that the child be placed in the Camphill School because it has not been approved by the New York State Education Department to provide instruction to children with disabilities (Section 4402 [b]  of the Education Law), did not recommend that he be placed in that school. Instead, it recommended that the child continue to attend the BOCES program on a twelve-month basis for the 1996-97 school year. It further recommended that he receive occupational therapy once per week in a group and once per week individually, and speech/language therapy once per week in a group and twice per week individually - it did not recommend that he receive any more physical therapy because his therapist had reportedly advised the CSE that the child no longer required physical therapy and could participate in a regular physical education performance (Transcript, page 802). The child's IEP for the 1996-97 school year included annual goals to develop his reading readiness skills, his oral language and vocabulary, and his ability to interact appropriately with peers.
On March 1, 1996, petitioner contracted with the Camphill School to educate her son for the remainder of the 1995-96 school year. In June, 1996, she had her son privately evaluated by a psychologist, who reported that the child had achieved a composite score of 40 on the Stanford-Binet Intelligence Scale - 4th Edition, which was almost identical to the score he had achieved on that test in May, 1994. Although the boy's speech articulation was at times unintelligible, the psychologist reported that he was often spontaneously verbal and had used his verbal skills to solve problems. The psychologist also noted that the child was very distractible, but he opined that the test results were a valid and reliable measure of the child's current level of functioning. The child achieved a standard score of less than 55 on a test of his visual-motor integration skills. Although the psychologist did not report the scores which the child had achieved on the Peabody Individualized Achievement Test - Revised, he indicated that the had shown little academic growth since 1994. Using data provided by petitioner, the psychologist reported that the child had achieved standard scores of 31 for communication, 25 for daily living, and 46 for socialization, on the Vineland Adaptive Behavior Scales. The psychologist opined that the child should continue to be identified as multiply disabled, and that he should be instructed in a class with a low child to staff ratio. He further opined that the child required a "24 hour/12 month learning model."
The child did not attend Camphill during the Summer of 1996, but he returned to that school for the 1996-97 school year. Petitioner had requested an impartial hearing on May 27, 1996. The hearing began on October 16, 1996, and it concluded on March 10, 1997.
In his decision which was rendered on May 1, 1997, the hearing officer found that the child's IEPs for the 1995-96 and 1996-97 school years accurately described his present levels of performance, and included appropriate annual goals and short-term instructional objectives for him, albeit the goals were somewhat imprecise. He further found that the child had been making progress which was commensurate with his abilities while attending the BOCES program, notwithstanding certain inconsistencies in his performance. Therefore, he rejected petitioner's contention that the BOCES program was inappropriate for her son. The hearing officer further found that petitioner had not met her burden of proof with regard to the appropriateness of the special education services which she had obtained for him at Camphill.
Petitioner asserts that the hearing officer erred in finding that her child's IEPs for the 1995-96 and 1996-97 school years are appropriate. She asks that the hearing officer's decision be annulled, and that respondent be ordered to reimburse her for the cost of her son's tuition at Camphill since March, 1996. Respondent asserts that the hearing officer correctly found that it met its burden of proof for both school years. 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).
Petitioner contends that her son's IEP does not have a "useable" statement of the child's functional levels. She asserts that by merely listing her son's standardized test scores on the IEPs, the CSE failed to provide a meaningful description of the child's present levels of educational performance. An IEP description of a child's current levels of performance should accurately describe the effect of the child's disability on the child's performance in both academic and non-academic areas, and should be written in objective measurable terms to the extent possible (34 CFR Part 300, Appendix, Question 36). Test scores which are pertinent to the child's disability may be used, but they should be self-explanatory. Both IEPs in question (Exhibits 4 and 22) report that the child achieved a composite score of 41 on the Stanford Binet in May, 1994, and they list the results of his Woodcock Johnson Achievement testing in December, 1993. The IEPs also briefly describe his receptive and expressive language skills, articulation skills, written language and self-help skills. In addition, the IEPs describe his social development, management needs and physical development, as required by 8 NYCRR 200.4 © (2) (I). While I agree with petitioner that more detail could have been provided by the CSE, especially with regard to his behavior at the BOCES, I am not persuaded that the IEPs were fatally defective.
Petitioner also challenges the IEPs on the ground that they failed to use measurable criteria for determining her son's progress. An IEP must include appropriate objective criteria and evaluation procedures and schedules for determining on at least an annual basis whether short-term instructional objectives are being achieved (34 CFR 300.346 [a] ). The child's IEP for the 1995-96 school year set forth fairly specific objectives to be achieved in quantifiable terms, such as with 60 percent success, as evaluated through teacher observation. However, the IEP did not include a schedule for ascertaining when the objectives were to be met. The child's IEP for the 1996-97 school year is more problematic. It appears to have been computer generated with a list of objectives which did not have a specific level of performance, a schedule for achieving the objectives, or a description of the methodology which was to have been used to measure the child's achievement. Under a separate heading of "Evaluative Methodology/Criteria", following each goal and its objectives there is a statement such as "all objectives for this annual goal will be completed with 70 percent accuracy." However, for the goal of developing the child's oral language and vocabulary, there is no indication of the methodology to be used, or the schedule for ascertaining when the objectives are to be achieved. I find that the IEPs should have included more complete objectives indicating what skills would be learned with what degree of proficiency at what intervals of time.
Petitioner asserts that her son's IEP short-term objectives were written as annual goals, rather than as "measurable, intermediate steps" between the child's present level of performance and his annual goals (34 CFR Part 300, Appendix C, Question 39). As noted by the hearing officer, this child's annual goals were exceedingly broad, e.g., the child will develop oral language and vocabulary. Although the child's specific short-term objectives are rationally related to his annual goals, I note that the BOCES special education supervisor testified at the hearing that the expected mastery date for the child's short-term objectives was the "school year" (Transcript, page 413). However, that is not what is contemplated in the Federal requirement for short-term instructional objectives.
The central question is whether the educational program which respondent provided through the BOCES during the 1996-97 school year was appropriate. At the hearing, petitioner's expert witness opined that the child required a 24-hour learning environment, with an emphasis on developing the child's attention and social and safety skills as precursors for the child to learn academic skills. The expert's testimony was disputed by respondent's school psychologist, who noted that the child had previously achieved some academic skills at the BOCES, which petitioner's expert witness did not believe that the child was ready to achieve. In essence, petitioner's expert witness, who was the psychologist who evaluated the child in June, 1996, asserted that the child required a more functional approach to education than was allegedly provided by the BOCES. It should be noted that the expert witness had not observed the child at the BOCES, and that when he evaluated the child in June, 1996, the child was no longer taking medicine to control his distractibility. I have reviewed the testimony of both psychologists with regard to the child's pre-readiness and readiness skills, and I find that the school psychologist's testimony that the child possessed readiness skills is better supported by the record than by the private psychologist's testimony that the child needed to develop pre-readiness skills. I also credit the child's BOCES teacher's testimony that the child was making academic progress in her class, although he had not mastered any of his 1995-96 instructional objectives.
Although I find that the CSE appropriately recommended that the child's program include functional academics, I am concerned about the adequacy of the child's IEPs to address his management needs. Petitioner testified that her son's behavior deteriorated while being transported to and from class and while in the BOCES class. The BOCES progress reports for the 1994-95 school year indicated that the child required constant prompting in class to maintain his focus, but the reports do not otherwise indicate that he had significant management needs. An August, 1995 BOCES progress report indicated that the child was beginning to have drastic mood swings which were apparently linked to his medication. A Fall 1995 progress report indicated that the child was much more subdued after he had taken his medication. However, the January, 1996 progress report described more significant behavioral difficulties. The child's BOCES teacher testified that in the Fall of 1995 she noticed that the child's behavior was impacting upon his behavior. The child was more unfocused, and he manifested tic-like behavior.
The child's IEP for the 1995-96 school year indicated that the child needed to develop appropriate social skills and behavior. It also included a "boilerplate" statement that a time out room might be used as part of the child's overall behavioral management plan. The IEP did not include a specific behavioral management plan, and I note that the CSE chairperson testified that the CSE was not made aware of the child's behavioral difficulties riding the school bus and attending school at the BOCES. The CSE appears to have become aware of the child's more significant management needs when it prepared his IEP for the 1996-97 school year on February 21, 1996. That IEP's description of the child's management needs indicated that he required a behavior modification system which was related to the completion of academic work, and he needed to develop self-control before reacting verbally or physically. However, the 1996-97 IEP did not provide a more intense program for addressing the child's more intense management needs. For example, the IEP did not include a specific behavioral management plan, nor did it make provision for the use of a 1:1 aide or counseling for either the child or petitioner. Under the circumstances, I find that respondent did not demonstrate how it would have appropriately addressed this child's management needs for the remainder of the 1995-96 school year and the 1996-97 school year. Therefore, I will annul that portion of the hearing officer's decision which found that respondent had met its burden of proof with respect to the appropriateness of the educational program which it provided to petitioner's son.
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). I have found that petitioner has prevailed with respect to the first of the three criteria for an award of tuition reimbursement pursuant to the Burlington decision.
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 Camphill (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, supra, 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20).
The Director of Camphill testified that the school served 59 residential and 4 day students between the ages of 7 and 20. The children in Camphill were generally mentally retarded, and were instructed with a "holistic approach," which the Director defined as concept learning. Formal instruction was provided between 9:00 a.m. and 10:30 a.m. and 11:15 a.m. and 12:15 p.m. There was an additional, less academically oriented period of instruction from 3:00 p.m. until 4:15 p.m. The child was initially placed in a combined third/fourth grade class of 10 children, but he had difficulty in that class, and he was transferred to a first/second grade class of only 2 other children. The child was preoccupied by obsessions and compulsions which interfered with his receptive language skills. He ran out of the classroom and climbed windowsills, but that behavior was less frequent by June, 1996. The Director testified that the child's frustration decreased, and he began to be interested in other children. He conceded that the child had made no noticeable academic progress during the period between his admission in March, 1996 and June, 1996. The child regressed over the summer, but he had reportedly settled down by mid-September, 1996. During the 1996-97 school year, petitioner's son was in a class of 7 students and 4 adults. He received speech/language therapy twice per week and occupational therapy once per week.
The child was observed in his class on or about October 18, 1996 by respondent's CSE chairperson, who reported that the child exhibited a high degree of distractibility and a high energy level. The chairperson also reported that the child had still not acquired the basic skills of counting and letter recognition, but was slowly acquiring life skills. She further reported that the child's interaction with his peers was minimal except during teacher directed activities. On January 29, 1997, the child was observed at Camphill by respondent's school psychologist. The school psychologist reported that the child displayed good pragmatic speech skills and an excellent attention span for his developmental age, which she estimated to be at the 2-1/2 to 3 year old level. He did not exhibit echolalic speech, which the private psychologist had observed in June, 1996. She noted that the child's house mother had indicated that the child was occasionally resistant to going to school unless the housemother walked him to school. In the classroom, the school psychologist observed the child write three letters of the alphabet for approximately 30 minutes. In her report, the school psychologist expressed concern that more frequent activity changes and a multimodal teaching technique were not used in the classroom.
At the hearing, petitioner's expert witness, the psychologist who evaluated the child in June, 1996, testified that he informally assessed the child in December, 1996. He indicated that the child had made good progress in improving his behavior, and he could follow 1-2 step directions. Although the child could initiate brief conversations, he did not demonstrate improved academic skills. Respondent's school psychologist testified that, in her opinion, the Camphill program provided a supportive, but unchallenging learning environment for this child.
Upon the record before me, I find that there is insufficient evidence to establish that the Camphill educational program addressed all of this child's special education needs. Although his distractibility appeared to have improved, there is no evidence of any academic growth while he attended the school. Therefore, I find that petitioner has not met her burden of proof with respect to the appropriateness of the special education services which she obtained for her son at Camphill, and is not entitled to an award of tuition reimbursement.
THE 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 respondent had offered the child an appropriate educational program.