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 City School District of the City of New York
Neal H. Rosenberg, Esq., attorney for petitioner
Hon. Jeffrey Friedlander, Acting Corporation Counsel, attorney for respondent, Janice L. Birnbaum, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent’s committee on special education (CSE) that petitioner’s daughter be placed in a modified instructional services - I class (MIS-I) with a maximum student to teacher ratio of 15:1 at respondent's J-226 for the 1996-97 school year. In view of that finding, the hearing officer did not further address petitioner's request that she be reimbursed for the cost of her child's tuition at the private school in which petitioner had enrolled the child. The appeal must be dismissed.
When the hearing commenced, petitioner’s daughter was approximately thirteen years old and in the seventh grade. She reportedly had difficulty with her speech while attending a private preschool and kindergarten. The child repeated kindergarten when she entered respondent's schools in the Fall of 1989. She was referred to the CSE in March, 1991, when she was in the first grade. The CSE classified the child as learning disabled in June, 1991, and recommended that she receive resource room services and speech/language therapy, which the child received through her fifth grade year. For the 1995-96 school year, the child's sixth grade year, the CSE recommended that the child continue to receive resource room services and speech/language therapy.
Petitioner unilaterally placed her daughter in the Vincent Smith School (VSS), a private independent day school for grades three through twelve in Port Washington, New York, for the 1995-96 school year. The VSS has not been approved by the State Education Department to provide instruction to children with disabilities. Petitioner instituted a due process proceeding, which was resolved when the parties entered into a stipulation with respect to the CSE’s 1995-96 recommended placement. Pursuant to the stipulation, respondent paid for part of the child's tuition and transportation expenses at VSS during the 1995-96 school year.
The CSE evaluated the child in the spring of 1996 to determine her educational needs for the 1996-97 school year. A psychological evaluation was completed on May 10, 1996 by the district's school psychologist. On the Stanford Binet, Fourth Edition, the child achieved a full composite score of 77, placing her within the Slow Learner range of intellectual functioning. Her composite score was depressed by her score of 66 for abstract/visual learning. Noting that the girl had previously received a full scale IQ score of 83 when tested in 1994, the school psychologist suggested that the girl's cognitive skills were likely to be in the low average range. The school psychologist characterized the child as an auditory learner with significant perceptual motor delays which interfered with her actual potential. She reported that the child was somewhat immature in relation to her peers, and had a tendency towards impulsivity. The school psychologist recommended that the child would benefit from a small, structured class setting with intensive academic instruction given in short, continuously reinforced increments.
In an educational evaluation conducted by the district’s educational evaluator on May 10, 1996 when the child was in the sixth grade, the child achieved grade equivalent scores of 2.5 in broad written language, 2.7 in broad reading, and 4.7 in broad math on the Woodcock Johnson Tests of Achievement. The educational evaluator reported that the child showed progress in the areas of written language and mathematics, but her reading ability was unchanged, when compared to her last evaluation completed in July, 1994. The educational evaluator observed that the child was a sight reader with limited sight vocabulary which affected her comprehension skills. The educational evaluator noted that the child relied upon her visual skills for reading and writing tasks, and that the child’s academic difficulties were directly linked to attention difficulties and delays in visual motor skills, auditory and visual sequential memory, and auditory discrimination. The evaluator believed that the child would benefit from instruction that relied heavily on visual input combined with language experience exercises.
The child was observed in a class of seven children at VSS by the district's social worker on May 16, 1996. The evaluator observed that the child had difficulty copying written material and responding to the teacher in full sentences. The evaluator also noted that the child did not speak as clearly as the other students, but her speech was understandable.
The district's social worker also completed a social history in May 1996, based on a telephone interview with petitioner. Petitioner indicated that her daughter benefited from attending VSS, but that she continued to need speech/language services. Additionally, petitioner believed that her daughter had matured while attending VSS.
The district's speech/language therapist completed a speech/language evaluation on May 16, 1996. The speech/ language therapist reported that the child scored in the low average range in tests involving reading, recognizing letters in reading, and language formulation. Additionally, the district's speech/language evaluator noted that the child had a mild articulation disorder, but that it did not significantly impact upon the intelligibility of her speech. The speech/language evaluator recommended continued speech/language therapy twice per week for thirty minutes with a student to teacher ratio of 5:1.
The child was also evaluated by another speech/language therapist in the Spring of 1996, at the request of the Head of VSS. That speech/language therapist, who had provided services to the child during the 1995-96 school year, reported that the child’s tests results indicated that she had below average receptive language skills, and that her primary areas of weakness were in oral expression and use of grammar. The speech/language therapist noted that the child also exhibited a moderate to severe expressive language delay in the areas of articulation, phonology, syntax and reading skills. She recommended that the child receive speech/language services twice per week for 40 minute sessions.
The child also was tested by her reading teacher at VSS in the Spring of 1996 in connection with a progress report. On the Woodcock Johnson Form A, the child achieved grade equivalent scores of 2.6 in word identification, 3.6 in word comprehension and 3.7 in passage comprehension. The child’s reading teacher indicated that the child had deficits in the areas of comprehension, oral and written language, and decoding.
On June 14, 1996 the CSE recommended that the child be placed in a self-contained MIS-I class with a maximum student to teacher ratio of 15:1, and that she receive speech/language therapy two times per week for 30 minutes each in a group of no more than 5, for the seventh grade during the 1996-97 school year. The individualized education program (IEP) which the CSE prepared for the child included the testing modification of extended time limits. The annual goals set forth in the child’s IEP included improving her listening, reading, expressive writing, handwriting, spelling and mathematics skills. The child was thereafter offered a placement in J-226. On September 3, 1996, petitioner requested a hearing to review the CSE’s recommendation.
The hearing began on October 8, 1996, and it ended on May 20, 1997. At the hearing, the district’s speech/language evaluator testified that the MIS-I program was recommended for the child because her reading levels were three to four years below grade level, and her visual motor problems and processing problems would be better served in the MIS-I program than in the resource room program in which she had previously been placed. The speech/language evaluator believed that the child could function in an environment with a student to teacher ratio greater than 6:1, and that the larger setting would provide the child with the opportunity to use the speech skills she learned.
Respondent's educational evaluator testified that the MIS-I class was recommended because of the child’s significant academic delays. She described the MIS-I program as a total program which focused not only on developing skills in the areas in which the child had deficits, but also on modifying and adapting the curriculum to meet the child’s needs. She testified that the goals set forth in the child’s IEP would be met in an MIS-I program. She indicated that the child’s needs had changed and acknowledged that the needs of students in an MIS-I class are generally greater than the needs of students in a resource room program. The educational evaluator indicated that as academic demands increase in higher grades, children with disabilities have a more difficult time because they need to apply the skills they were taught to compensate for their disabilities in a more demanding academic setting. She opined that the child’s specific needs would be better met in a self-contained classroom. The district’s psychologist testified that the child required a small classroom setting that was language oriented to enable her to develop strategies to compensate for her disability, and that the MIS-I program was appropriate for the child. She indicated that the child presented as fragile, but she was not in need of counseling beyond what was offered in the MIS-I program.
The special education supervisor at J-226 also testified at the hearing. He described the program recommended for the child. The supervisor indicated that students were grouped by functional ability, and that the child's functioning level was similar to the levels of the other children in the recommended MIS-I class. He testified that the class in question had a student to teacher ratio of 12:1, which was lower than an average MIS-I class which was 15:1, and was part of a program developed by the district to meet the needs of students who were not progressing in the traditional MIS-I class. The special education supervisor stated that the focus on language was greater in the recommended MIS-I class than in the traditional MIS-I class. He indicated that MIS-I teachers are certified in special education, and were specially trained in oral phonetic methodology that provided intensive language instruction, and that they were also trained to adapt the curriculum to meet the needs of the student’s based on their IEP’s. He stated that the text books used in the class were tailored for a lower functioning group, yet were consistent with the State curriculum for the seventh grade. The special education supervisor testified that due to its size, and because junior high school students are not ready for a high school setting , J-226 was broken down into "houses". The recommended program was in a house consisting of three classes adjacent to each other.
The Head of VSS, who testified on behalf of petitioner, indicated that there were 92 students attending the school, 50% of whom were classified, mostly as learning disabled. She testified that the students at her school needed small classes and more individualized attention, and that the school offered a structured, quiet, controlled environment. The Head of VSS testified that there were 11 students and one teacher in the child’s seventh grade class. She indicated that the child received remedial reading in a group with a student to teacher ratio of 3:1, where the child worked on comprehension skills and abstract and inferential thinking. Additionally, she indicated that there were five other students in the child’s English, mathematics and science classes, none of whom were reading at grade level. The Head of VSS testified that petitioner's child needed small class sizes because she had difficulty understanding directions, and she opined that in a larger setting the child would get distracted and not ask for help. She also indicated that the child could complete seventh grade work when given directions in a small classroom setting with extra time. She opined that a 15:1 student to teacher ratio was too big a group for the child because the child was timid and would not necessarily feel safe, but she indicated that the child didn't have problems in large group assemblies of 60 students because the teachers sat with their classes. The Head of VSS opined that the child made progress while at VSS in that she became a more independent worker, knew what was expected of her and improved her organizational skills. With respect to mainstreaming, the Head of VSS testified that the child’s homeroom had 11 students, four of whom were not classified. She indicated that the child's homeroom was in a building with eighth graders, and that the child interacted with non-disabled students during lunch, physical education, art, music, computer, health and American history, as well as during changes of classes. The head of VSS testified that the child sat in the first or second row and was given extra time when necessary to address her visual motor perception weakness. She also indicated that the child received speech/language services on a one-to-one basis.
A speech/language therapist on contract with the district to provide speech/language services at VSS to the child testified that she saw the child twice per week for two half-hour sessions for the child’s articulation and language deficits. She indicated that the child had weak language skills because of the gaps in her knowledge and ability to sequence and understand language. Additionally, the speech/language therapist testified that the child had attention deficits and focusing problems because she did not understand language. The speech/language therapist also stated that the child needed more information transmitted to her on a one-to-one basis. She opined that it would be difficult for the child to function in a larger group because the child had difficulty understanding information coming to her, and her memory was very poor which had a negative effect on her ability to take directions. She testified that the child needed frequent repetition and frequent explanations in order to perform a task. This speech/language therapist believed that the program at VSS was appropriate to meet the child’s needs. She opined that a class size of 15:1 was inappropriate because of the child’s gaps in understanding language and her distractibility.
The hearing officer rendered her decision on June 24, 1997. She noted that there was no dispute as to the appropriateness of the child's classification. She found that the recommended MIS-I program had teachers who were certified to provide special education and trained to use an oral based approach which would benefit the child given her visual processing and language deficits. She further found that the child's IEP annual goals and short-term objectives were appropriate, and could be implemented in the MIS-I program. Additionally, the hearing officer found that the students who were in the recommended class had similar academic needs and comparable reading and math levels. She also found that the text books used in the recommended class were at the child's reading level and appropriate for the seventh grade curriculum. And, she found that the record demonstrated the need for speech/language services. Accordingly, the hearing officer found that the placement in an MIS-I program with the related service of speech/language therapy was appropriate to meet the child’s needs. She noted that petitioner's reported refusal to meet with respondent's placement officer might have precluded her recovery of tuition, but she did not reach that issue.
Petitioner challenges the hearing officer's decision on a number of grounds. She contends that the size of the MIS-I class recommended by respondent's CSE was inappropriate for the child; that the child would not have been appropriately grouped with her MIS-I classmates for instruction in mathematics; that there were no opportunities for mainstreaming; that greater weight should have been given to the testimony of the speech/language therapist on contract with the district; and that the recommended speech/language therapy in a group of no more than 5 students would not provide the level of services the child needed.
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 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 has not challenged her daughter's IEP, in terms of its description of the child's needs. I have nevertheless reviewed the IEP and I find that it does accurately reflect the results of the child's evaluations. Petitioner also has not challenged her daughter's IEP annual goals and short-term instructional objectives. I have reviewed them, however, because it is important to establish that the IEP goals and objectives are appropriate before determining what special educational services are required to afford the child a reasonable chance of achieving her goals and objectives. The record shows that the child was classified as learning disabled with deficits in the areas of reading and visual and language processing. She is in the slow learner range of intellectual functioning, with reading scores three to four years below grade level. I find that the IEP identifies the child’s needs with respect to her learning disability, and establishes annual goals and short-term objectives which are related to her special education needs.
The issue in this appeal is whether the special education services recommended by the CSE were appropriate to meet the special educational needs of the child. I note that neither party suggests that the child was capable of functioning successfully in a regular education class with supplemental services. I concur that this child's needs could not have been appropriately met in a placement which did not provide full-time primary instruction in special education. This child has significant deficits in her ability to process language which have impaired her ability to learn to read and write. The district recommended an MIS-I program which was described as a self-contained class, with a student to teacher ratio of 12:1, where the students were grouped based on academic functioning. The teachers were specially trained in a direct instruction oral based approach to teaching, as well as in adapting the curriculum to meet the students’ needs as set forth on their IEP’s. During the day the class was broken down into groups of three to four students for mathematics and other academic subjects. I find that the MIS-I program would have been appropriate for the child. It is an intensive, language based program for students who have difficulty looking, listening and writing at the same time, which is precisely the nature of the child's learning disability. The proposed class had a student to teacher ratio of 12:1 and was broken down into smaller groups for academic subjects. The setting of the proposed class is consistent with the opinions of the evaluators, each of whom concluded that the child required a small, structured class, and it would have provided the child with the specialized instruction which she required.
Petitioner argues that the testimony of the speech/language therapist on contract with the district to provide speech/language services to the child should be given the greatest weight because she knew the child better than anyone else. The record shows, however, that the child only saw the speech/language therapist twice per week for 30 minutes each session. I note that the child’s teacher, who arguably knew the child’s educational needs best, did not testify. Additionally, petitioner contends that the mathematics class recommended for the child did not have any students functioning at her child's level, i.e., at a grade equivalent of 4.7. However, the school’s special education coordinator testified that there was a student in the class functioning at a 4.5 grade level, just below that of the child. In addition, I note that the class profile which is in evidence (Exhibit 5) indicates that the mathematics skills of four of the children in the class were between 3.6 and 4.5. Although the mathematics skills of the other children were below that level, they were nevertheless within a three-year range (see 8 NYCRR 200.6 [g] ). I am persuaded that the child would have been appropriately grouped for instructional purposes.
Petitioner also argues that there was only a limited opportunity for the child to interact with regular education students at J-226. The record shows that the child would have had gym, lunch and assemblies with regular education students at J-226. As noted above, this child requires primary instruction in special education. Therefore, I find that the recommended placement was consistent with the requirement that the child be placed in the least restrictive environment.
Petitioner further argues that the ratio of 5:1 in the related service of speech/language therapy would not provide the intensity of services the child required. The record shows that the child was receiving speech/language therapy for articulation and language processing deficits. The district’s speech/language therapist testified that VSS claimed that the child was learning in classes with a student to teacher ratio of 6:1. She opined that a 5:1 ratio for speech/language services was preferable because it would provide the child more opportunity to practice new skills than a more restrictive setting.
Based on the above, I find that the MIS-I program recommended by the CSE was reasonably calculated to allow the child to receive educational benefits. Accordingly, I find that the board has met its burden of proof with respect to the first Burlington criterion. As such, I do not find it necessary to address the remaining Burlington criteria.
Finally, I note that respondent suggests that the amendments to the Individuals With Disabilities Education Act (IDEA) effective June, 1997, place additional limitations on a parent's right to seek tuition reimbursement. I find that the June, 1997 amendments to IDEA are not applicable to this proceeding as petitioner requested an impartial hearing in September, 1996, prior to the effective date of the amendments. In doing so, I do not reach the question of whether the statutory amendments have in any way limited the authority of a hearing officer to grant relief pursuant to Burlington, supra.(Application of the Board of Education of the City School District of the City of New York, Appeal No. 97-92).
THE APPEAL MUST BE DISMISSED.