97-065

          Petitioner, the Board of Education of the Middle Country Central School District, appeals from an impartial hearing officer's decision which ordered the board of education to reimburse respondent for the cost of private tutoring which he had obtained for his daughter during the 1996-97 school year, and which directed petitioner's committee on special education (CSE) to amend the girl's individualized education program (IEP) for the 1997-98 school year to include consultant teacher services. The appeal must be sustained.

        Respondent, the child's father, cross-appeals from the hearing officer's determination that his daughter was appropriately placed in petitioner's Centereach High School for the 1996-97 and 1997-98 school years. The cross-appeal must be dismissed.

        At the outset, I note that in their subsequent pleadings, both parties have referred to a CSE meeting which occurred on September 18, 1997, after the hearing officer's decision had been rendered. Respondent asserts that the CSE recommended that his daughter attend the Knox School, and he requests that the board of education be compelled to comply with the CSE's alleged recommendation. Petitioner disagrees with respondent's interpretation of what happened at the CSE meeting on September 18, 1997. Its counsel has advised the Office of State Review that respondent has requested that an impartial hearing be held with regard to the CSE's alleged recommendation. Although I may consider matters which have occurred subsequent to a hearing officer's decision to the extent that they have a direct bearing upon the subject of that decision, I find that the recommendation which the CSE made on September 18, 1997 is beyond the scope of this proceeding.

        Respondent asserts that the board of education's appeal from the hearing officer's decision is now moot because the CSE, which had previously recommended that his daughter attend petitioner's Centereach High School for the 1997-98 school year, changed its recommendation on December 9, 1997, when it recommended that the girl attend petitioner's Newfield High School. Respondent had asked the hearing officer to find that his daughter should be placed in the Newfield High School. While respondent may now have achieved some of the relief which he initially sought in this proceeding, I find that the CSE's December, 1997 recommendation did not make petitioner's appeal moot.

        Respondent's daughter, who is fifteen years old, was diagnosed as having a pervasive developmental disorder - autistic disorder - residual, by a physician in 1991, when she was five years old. There is no dispute about her classification for educational purposes as autistic (8 NYCRR 200.1 [mm] [1]). In her most recent psychological evaluation, which was performed in May, 1997, the child achieved scores of 121 for vocabulary, 119 for matrices, and a composite IQ score of 122 on the Kaufman Brief Intelligence Test. Those scores were consistent with the results of previous IQ testing. The girl manifested some deficits in her fine motor visual perceptual integration skills, as she had done in prior evaluations. She wears corrective lenses. I note that the girl has had trouble with her handwriting, a condition known as dysgraphia. Petitioner's school psychologist reported that the child also exhibited certain behavior which was consistent with high functioning autism, including erratic eye contact, erratic relatedness to her environment and others in her environment, and difficulty coping with variations in her routine. She further reported that the child had poor social skills. The girl's most recent educational evaluation was performed in May, 1997, as she neared the end of the ninth grade. She achieved grade equivalent scores of 12.8 for reading, 12.9 for mathematics, and 7.5 for spelling. On the Test of Written Language - 3, respondent's daughter achieved an overall standard score of 102. She exhibited relative weakness in handwriting, spelling, and sentence structure.

        The girl was reportedly enrolled in a special education preschool program. In the early elementary grades, she was instructed in self-contained special education classes. However, she began to be mainstreamed, i.e., to attend regular education classes around the fifth or sixth grade (Exhibit D-11). I must note that there appears to be some confusion of the terms "mainstreaming" and "inclusion" in the record which is before me. Although not defined by Federal or State regulation, the term "inclusion" is generally recognized to mean the placement of a child with a disability with age-appropriate peers in a regular education class, in which the child receives appropriate special education services and is expected to achieve his or her IEP goals and objectives. A child with a disability who is mainstreamed may also receive special education services in a regular education class, but he or she is expected to achieve at the level of his or her non-disabled peers in that class. It is my understanding that respondent's daughter was mainstreamed, given the fact that the IEP for the 1996-97 school year indicated that the girl had minimal academic deficits and her IEP goals and objectives did not establish an individual standard of academic achievement.

        Respondent's daughter reportedly had the services of an individual aide and was counseled while enrolled in petitioner's Dawnwood Middle School for grades six through eight. The school psychologist who had counseled the girl when she was in the seventh and eighth grades testified at the hearing that the girl had not had many behavioral outbursts while in the middle school, and that she had participated in a social skills group to develop her social skills. The girl participated in an adaptive physical education program while in middle school. She reportedly made satisfactory progress in what her cumulative record refers to as Regents track courses while in the sixth grade. Respondent's child continued in Regents track courses during the seventh grade. She achieved final grades of A for English, social studies, and mathematics, and A+ for science in the seventh grade. Her final grades for Regents track courses in the eighth grade were A+ for science, A for English and social studies, B+ for Spanish I, and B for mathematics.

        The girl reportedly received occupational therapy to address weaknesses in her sensory integration and motor planning skills. In a report dated January, 1996, the child's occupational therapist reported that the child had improved her awareness of her body movement in space, so that she was more confident and less awkward while walking in school. However, the girl continued to manifest some difficulty organizing sensory input to elicit an appropriate response. The occupational therapist noted that the girl continued to exhibit impulsive reactions to sensory input and frustration. She reported that the girl's organizational skills had improved, but indicated that the girl still required external organization, such as having her individual aide write organizational tips in the girl's master planner. The occupational therapist further reported that the child's handwriting had improved, but was still difficult to read. She noted that the girl used a computer to complete most written schoolwork, and she recommended that respondent's daughter continue to do so. The occupational therapist recommended that the child no longer receive occupational therapy on a regular basis, but that consultant occupational therapy should be provided upon request.

        On February 13, 1996, a subcommittee of the CSE conducted an annual review of respondent's daughter. The minutes of that meeting (Exhibit D-12) indicate that the subcommittee recommended that the child be educated in ninth grade regular education classes and an adaptive physical education class during the 1996-97 school year. It also recommended that the child continue to receive the services of an individual aide, and that she continue to receive small group counseling for 30 minutes once per week to improve her social skills. The subcommittee recommended that occupational therapy not be provided to the girl. Although the girl had used a laptop computer while in the middle school, the IEP which the subcommittee prepared for her indicated that she did not require the use of any special equipment or adaptive devices. Her IEP annual goals for the 1996-97 school year were related to improving her handwriting, classroom productivity, and social skills. The minutes indicate that the subcommittee had recommended that the girl attend petitioner's Newfield High School, which is one of two high schools in the district. Respondent's daughter lives within the attendance zone of petitioner's other high school, the Centereach High School. The girl's IEP for the 1996-97 school year and the notice of the CSE's recommendation (Exhibit P-1) also indicated that the CSE had recommended that the girl attend Newfield High School for the 1996-97 school year.

        In April, 1996, petitioner's Coordinator of Special Education, who had also chaired the February 13, 1996 CSE subcommittee, became aware of the designation of the Newfield high School on the IEP and notice of recommendation. She testified at the hearing in this proceeding that although the girl's mother had expressed a preference for the Newfield High School, the subcommittee had not in fact recommended that the girl attend that school. The Coordinator attributed the references to Newfield in the subcommittee's documents to a computer printing error. She reportedly sought the agreement of the girl's mother to reconvene the CSE subcommittee to rectify the error. However, another meeting was not held, and the references to the Newfield High School in the subcommittee's documents were manually altered to show that the girl would attend the Centereach High School. The girl's mother corresponded with petitioner's Assistant Superintendent of Schools about having the girl attend the Newfield High School, but by letter dated April 2, 1996, the Assistant Superintendent denied the request to have the girl attend school outside her attendance zone. By letter dated May 9, 1996, petitioner's Superintendent of Schools also informed the girl's parents that their request to transfer the girl to the Newfield High School would not be approved.

        The child's parents also requested that the teachers who were to work with the child during the 1996-97 school year receive some in-service training by an individual knowledgeable about autism. On or about June 21, 1996, the teachers met with Dr. Laurie Stephens of the State University of New York at Stony Brook's Division of Child and Adolescent Psychiatry, who had been recommended by the child's parents to provide in-service training. One or more school psychologists attended that meeting, at which the girl's special education needs were reportedly discussed.

        In September, 1996, respondent's daughter entered the Centereach High School for the ninth grade. She was enrolled in Regents level courses in global studies (social studies), sequential mathematics, English, earth science, and Spanish-II. Her grades at the end of the first marking period were B or above, except for a C in earth science. At the end of the second marking period, her grades were similar to those of the preceding marking period, except that earth science had improved to an A, and mathematics had decreased from B+ to a C. She received at least a B on each of her mid-term exams, except for sequential math. I note that at the hearing, the girl's mathematics teacher testified that a number of his students had failed that examination. The girl thereafter received remedial mathematics instruction from another teacher, while continuing in the sequential mathematics course. She was also privately tutored in mathematics. For the third marking period, she received a D for mathematics. However, she received A's and B's for her other subjects. Her grades for the fourth marking period were essentially similar, except that her grade for mathematics improved to a C. On the Regents earth science examination, the girl achieved a score of 88, while her score for the Regents sequential mathematics I examination was 72. Although the girl brought her computer to the site of the sequential mathematics I test and was encouraged to use it for the examination (Transcript, page 460), she declined to do so. Her final marks for the 1996-97 school year were A for English and Spanish II, B+ for global studies and earth science, and C for mathematics.

        On March 7, 1997, the CSE subcommittee conducted its annual review of the girl's educational program. It recommended that the girl continue to receive the services of an individual aide and receive counseling for 30 minutes once per week during the 1997-98 school year in the Centereach High School. The girl's IEP for the 1997-98 school year (Exhibit D-27) provided that testing modifications should be used, but it indicated that she did not require the use of any special equipment or adaptive devices. Her proposed annual goals were limited to developing alternate ways of coping with anxiety and stress, forming closer interpersonal relations, and functioning in a socially acceptable manner. The minutes of that meeting indicate that the child's parents requested that the full CSE meet with them, as was their right (see Section 4402 [1][b][1][b] of the Education Law). On April 10, 1997, the girl's parents met with the CSE. The minutes of the CSE meeting (Exhibit D-35) indicate that the parents expressed concern about their daughter's earth science and mathematics teachers, and they reiterated their request that she be allowed to attend the Newfield High School. However, the CSE determined that the girl would be appropriately placed in the Centereach High School for the 1997-98 school year.

        By letter dated June 2, 1997, the attorney for the girl's parents requested that an impartial hearing be held because the girl's IEP had reportedly not provided her with a free appropriate public education. The hearing began on June 25, 1997. The parties stipulated that the girl's individual aide for the 1996-97 school year would be replaced by another aide for the 1997-98 school year. They also stipulated that her IEP for the 1997-98 school year would be amended to provide that she would use a laptop computer. Respondent asserted that his daughter should not have been placed in the Centereach High School for the 1996-97 school year because the CSE subcommittee had recommended that she be enrolled in the Newfield High School. He contended that the girl had significant emotional and social problems in school during the 1996-97 school year, and he challenged the adequacy of her instruction in the sequential mathematics I course. He sought reimbursement for the cost of the private mathematics tutoring he had obtained for her. Respondent also challenged the appropriateness of the Centereach High School as a placement for his daughter for the 1997-98 school year, in view of her difficulties in that school during the preceding school year. The board of education argued that the designation of the Newfield High School on the girl's IEP for the 1996-97 school year was a typographical error, and that the girl's parents were well aware of the fact that the CSE subcommittee had not recommended that she attend that school. It further argued that her placement for the 1996-97 school year had been appropriate for her as evidenced by the grades which she received. The board of education asserted that the Centereach High School continued to be an appropriate placement for the girl during the 1997-98 school year.

        The hearing continued for three additional days ending on July 2, 1997. In the decision in which he rendered on August 15, 1997, the hearing officer found that the CSE subcommittee had intended to designate the Centereach High School as the school which respondent's daughter would attend during the 1996-97 school year, and that the girl's IEP and its related documents had been altered to correct a transcription error. He further found that the girl's placement in that high school was consistent with a requirement that the child be placed in the least restrictive environment because it was the school which the girl would have attended if she did not have a disability (see 34 CFR 300.552 [c]). With regard to respondent's claim that his daughter had regressed socially and academically while in the ninth grade because of her teacher's unfamiliarity with/or failure to implement her IEP, the hearing officer found that there was no evidence of the girl's social regression. He also found that the child had benefited educationally from her placement in the Centereach High School during the 1996-97 school year, and he held that the board of education had met its obligation to provide the girl with an appropriate education. The hearing officer also dismissed respondent's claim that his daughter had been denied the use of an assistive technology device (her laptop computer), while noting that the girl may have believed that she could not use the laptop in her sequential math I class. He considered respondent's request that his daughter be allowed to attend the Newfield High School during the 1997-98 school year, but he declined to order the board of education to place the child there because there was no proof that she would do better educationally or socially in that high school.

        The hearing officer granted respondent's request that he be reimbursed for the private mathematics tutoring which he obtained for the girl. He found that poor personal chemistry between the girl and her mathematics teacher had precluded a favorable learning environment, and that situation had not been rectified when the board of education provided her with remedial mathematics instruction by another teacher. The hearing officer attributed the girl's improvement in mathematics during the latter part of the 1996-97 school year to the private tutoring which she had received, and he directed petitioner to reimburse respondent in the amount of $750. The hearing officer noted that petitioner had assigned a special education teacher to be the girl's "IEP teacher", but he found that there was no evidence that the teacher had provided either direct or indirect consultant teacher services during the 1996-97 school year. He found that the girl should receive indirect consultant teacher services during the 1997-98 school year, and he remanded the matter to the CSE to revise the girl's IEP to provide consultant teacher services. He also directed the CSE to refine the girl's academic and social annual goals and short-term objectives for the 1997-98 school year.

        I note that while respondent asserts in his pleadings that the CSE subcommittee recommended that his daughter attend the Newfield High School during the 1996-97 school year, he has not expressly cross-appealed from the hearing officer's decision with regard to that matter. In any event, I find that the hearing officer's decision about the subcommittee's intent and the subsequent correction of the clerical error is supported by the record. Respondent does challenge the hearing officer's determination that the board of education had satisfied its obligation to provide a free appropriate public education to his daughter. He points out that an appropriate educational program begins with an IEP which establishes annual goals and short-term instructional objectives which are related to a child's educational deficits and which provides for the use of appropriate special education services to address the child's special education needs. The hearing officer found that the girl's IEP for the 1996-97 school year included social and behavioral goals, but it failed to include meaningful criteria to measure her progress in achieving those goals. He further found that except for providing that the child would continue to participate in a social skills group, the CSE had not recommended specific "interventions", i.e., services, for the girl to achieve those goals. Although the 1996-97 school year has ended, I note that the hearing officer found that the girl's IEP for the 1997-98 school year was deficient for the same reasons, and I find that the issues about the 1996-97 IEP should be addressed.

        Having reviewed the girl's academic record, as well as the various evaluation reports which were entered into evidence, I find that respondent's daughter was able to achieve academically at a rate comparable to that of her non-disabled peers, and that she did not require curricular modifications to benefit from her educational program. The child's disability was manifested primarily by a certain rigidity which impaired her ability to accept change and hampered her ability to interact with her peers. Her IEP annual goals for the 1996-97 school year, while couched in general terms, were nevertheless relevant to her disability. Moreover, her short-term objectives were sufficiently precise to set the general direction to be taken by those who would implement the IEP. However, Federal regulation requires that a child's IEP shall include appropriate objective criteria and evaluation procedures, as well as schedules for determining, on at least an annual basis whether the child's short-term objectives are being achieved (34 CFR 300.346 [a][5]). This girl's IEP did not comply with that requirement. While not condoning petitioner's failure to include that information in the girl's IEP, I find that it does not afford a basis for concluding that her placement in the Centereach High School was educationally inappropriate.

        The next question is whether the board of education provided appropriate special education services to respondent's daughter during the 1996-97 school year to afford her a reasonable opportunity to achieve her IEP goals and objectives. As noted above, the girl's IEP goals and objectives were related primarily to improving her organizational ability and her ability to relate to her peers. I note that her IEP also addressed the girl's handwriting difficulties and established certain objectives for her participation in an adaptive physical education program, which neither party has addressed in this appeal, and which are presumably not at issue here. The girl's "behavior management" goals and objectives were to be addressed by one of petitioner's school psychologists, Dr. Carol Helmer, who counseled the girl in a group of five student for 30 minutes per week. At the hearing, Dr. Helmer testified that the girl had made good progress while participating in her weekly social skills group. She further testified that she had met with the girl's teachers individually, and in a group. Dr. Helmer also met with the girl and her individual aide to discuss how the aide could unobtrusively cue the girl when the latter was behaving inappropriately. However, Dr. Helmer conceded that she had not observed respondent's daughter in the classroom, and she had relied upon the reports of others to ascertain whether the girl was achieving some of her organizational skills objectives. In addition to Dr. Helmer, the girl's "IEP teacher", Ms. Linda Brown, testified that she had observed the child walking in the school hallways, but not in the classroom, and had discussed the girl's test modifications with her regular education teachers. However, she indicated that Dr. Helmer was solely responsible for the girl's behavioral management goals.

        Respondent contends that a consultant teacher should have provided services to his daughter. The hearing officer agreed, at least prospectively, that the girl should receive consultant teacher services. Consultant teacher services may be "direct" or "indirect". They are defined by regulation as follows:

"(1) Direct consultant teacher services means specially designed individualized or group instruction provided by a certified special education teacher pursuant to subdivision (11) of this section, to a student with a disability to aid such student to benefit from the student's regular education classes.

(2) Indirect consultant teacher services means consultation provided by a certified special education teacher pursuant to subdivision (11) of this section to regular education teachers to assist them in adjusting the learning environment and/or modifying their instructional methods to meet the individual needs of a student with a disability who attends their classes" (8 NYCRR 200.1 [1]).

        I find that there is no basis in the record to conclude that this girl required direct consultant teacher services during the 1996-97 school year. At least some of what Ms. Brown did was arguably indirect consultant teacher services, e.g., discussing the girl's test modifications with her regular education teachers. Although the girl apparently needed one adjustment of the learning environment, i.e., preferential seating, the record does not indicate that the girl's teachers needed to modify their instructional methods to meet the girl's individual needs. I note that Dr. Laurie Stephens, who testified as an expert witness for respondent, opined that the girl needed to have a behavior modification program, language therapy, and social skills training. However, those are not matters which could only be addressed by a consultant teacher. Dr. Stephens testified that social skills training could be provided by the school psychologist, if a trained aide helped the girl generalize those skills. I have considered respondent's assertion about the alleged deterioration of his daughter's social skills while she was in the ninth grade, but I find that there is little evidence to support that assertion, or to rebut the testimony of Dr. Helmer and the girl's aide about the girl's behavior in the ninth grade. Although I will separately address the issue of respondent's claim for reimbursement for tutoring expenses, I find that the hearing officer's determination that petitioner met its obligation to provide an appropriate educational placement during the 1996-97 school year should not be set aside.

        Before considering the girl's placement for the 1997-98 school year, I will address the board of education's appeal from the hearing officer's determination that respondent should be reimbursed for the cost of the private tutoring in mathematics which he obtained for his daughter from March 2, 1997 until June 16, 1997. 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 [1985]; Application of a Child with a Disability, Appeal No. 95-17). I note that the mathematics instruction provided by petitioner was regular education, not special education. In determining whether that instruction was appropriate, I must further note that I am not persuaded that a student's like or dislike for her teacher is a legitimate criterion for determining whether the student has received appropriate instruction. However, I am aware that in this instance, the child's performance in her ninth grade mathematics course was not consistent with her ability as revealed by the 12.9 grade equivalent score which she achieved during her educational evaluation in May, 1997. Nevertheless, the question is whether the disparity between the score which she achieved in her educational evaluation and the marks she received in her ninth grade mathematics course affords a basis for concluding that the girl received inadequate instruction in her mathematics course. I note that the girl's tutor, who did not testify at the hearing, prepared a brief written statement in which she opined that respondent's daughter would have been unable to pass her Regents exam at the end of the year without the tutor's help (Exhibit P-15). However, the tutor did not indicate areas in which the child's mathematics skills were weak, or what she had done to address those weaknesses. Respondent's daughter testified that she received help from the tutor in algebraic skills and geometry. Nevertheless, I find that the fact that this girl who received a B for mathematics in eighth grade got a C for ninth grade mathematics is not proof that she received inadequate instruction. Upon the record before me, I am unable to find that the services which the board of education provided were inappropriate, or that the services provided by the tutor were appropriate. Therefore, I will sustain the board of education's appeal, and annul that portion of the hearing officer's decision.

        With regard to the CSE's recommendation for the 1997-98 school year, respondent argues that the girl's continued placement in the Centereach High School would be inappropriate because her IEP for that school year has the same defects as did her IEP for the 1996-97 school year. While I agree with the hearing officer that the girl's annual goals and objectives need to be revised in light of the requirement that objective criteria should be used and evaluation procedures should be listed on the girl's IEP, it does not follow that the recommended placement would have been inappropriate. Respondent asks me to consider a letter dated August 27, 1997, by a social worker who has been seeing the child (Exhibit A). The social worker alludes to certain incidents in which respondent's daughter was allegedly harassed by other students in the Centereach High School. I find that the matter should have been raised at the hearing. The social worker also asserts that the girl has regressed because her self-stimulatory behavior has increased. I note that the girl's mother testified to that effect at the hearing. However, I am not convinced that such evidence affords a basis for concluding that the hearing officer erred in finding that the Centereach High School would have been an appropriate placement for the 1997-98 school year. Therefore, I must dismiss the respondent's cross-appeal.

        The last matter to be addressed is petitioner's appeal from the hearing officers determination that the girl should receive indirect consultant teacher services during the 1997-98 school year. For the reasons which I have indicated above with regard to consultant teaching services during the 1996-97 school year, I find that indirect consultant teacher services were not the only way in which appropriate special education services could be delivered to this girl in the 1997-98 school year. However, it is clear that petitioner needs to insure that the girl's behavior is monitored throughout school, and that her social skills are improved. I agree with respondent's expert witness, Dr. Stephens, that a behavior management plan would be appropriate for this girl. The girl's regular education teachers should be apprised of the content of the girl's behavior management plan, which could be done by the school psychologist, who should also train the girl's new aide. Therefore, I will sustain this portion of petitioner's appeal as well.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the decision of the hearing officer, to the extent that it ordered the board of education to reimburse the child's parents for the private tutoring which they provided and ordered that consultant teacher services be added to the child's IEP for the 1997-98 school year, is hereby annulled.