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 Victor Central School District
Matthew R. Fletcher, Esq., attorney for respondent
Petitioner appeals from the decision of an impartial hearing officer which found that respondent's committee on special education (CSE) had adequately evaluated petitioner's son, and which declined to direct respondent to use a certain instructional methodology with the boy. The appeal must be dismissed.
The board of education argues that the appeal is untimely, and that it was improperly initiated because copies of the notice of petition and the petition were not served upon an individual authorized to accept service upon its behalf (cf. 8 NYCRR 275.8 [a] and 279.2 [b]). I find that neither affirmative defense has merit. Petitioner received the hearing officer's decision on September 8, 1997. By letter dated October 16, 1997, petitioner requested an extension of time in which to prepare and serve her petition because she had a serious health problem. However, extensions cannot be granted in advance of the commencement of an actual appeal. Nevertheless, I can excuse a petitioner's delay for good cause shown (Application of a Child with a Disability, Appeal No. 97-4). The record reveals that petitioner attempted to serve the petition upon the superintendent of schools' secretary on October 16, 1997. In a letter dated November 13, 1997, petitioner was advised by the Office of Counsel of the State Education Department that the petition had to be re-served. On November 20, 1997, the petition was served upon the school district clerk, who is one of the individuals who may be served with a petition. Given the circumstances, and the absence of prejudice to respondent as a result of the delay in properly serving the petition, I will excuse petitioner's brief delay.
Petitioner and her husband adopted the child at the age of 16 months from a Romanian orphanage in October, 1990. While he was in the orphanage, the boy reportedly had only very limited contact with adults. He could not walk or crawl when he was adopted. The child was identified as a preschool child with a disability by respondent's committee on preschool special education (CPSE) in 1994. The record does not reveal what his special education needs were, or the special education services he may have received during the 1993-94 school year. The boy was not identified as a child with a disability in either kindergarten, or the first and second grades. However, he reportedly received counseling while in the first grade.
In the Fall of 1996, the boy was referred by his second grade teacher to respondent's pupil services team (PST) because she was reportedly concerned about the boy's activity level and his inability to remain on task. Although the child's reading skills were developing very well, his mathematics skills were described as inconsistent, as were his writing skills (Exhibit 8). He was also described as having poor listening/speaking skills, and as exhibiting impulsive behavior. The teacher reported that the child disrupted the class with his actions and off-task remarks. The child reportedly had few friends in school.
On October 30, 1996 and November 6, 1996, petitioner's son was evaluated by respondent's school psychologist, who reported that the boy had achieved a verbal IQ score of 131, a performance IQ score of 117, and a full scale IQ score of 127. His scores on the various IQ subtests ranged from average to superior. Among those skills in the average range were his mental arithmetic skills, verbal concept formation, and auditory sequencing ability. He exhibited a relative weakness in his nonverbal reasoning ability while performing tasks requiring logical ordering. The school psychologist reported that petitioners' son had average visual motor integration skills. The boy earned grade equivalent scores of 3.5 for broad reading, 2.5 for broad mathematics, and 1.4 for broad written language. The school psychologist reported that the boy's writing skills were significantly below expectation, given his superior cognitive ability. Projective testing revealed that the boy was happy at home, but that he was acutely aware of the impact of his distractibility upon his relationships in school. The school psychologist recommended that the child be given preferential seating near his teacher, and counseling.
Petitioner's son was also evaluated by two speech/language pathologists in November, 1996, March, 1997, and April, 1997. The boy's scores on tests measuring his receptive language skills and vocabulary development were well above average. Although his score on the grammatical morphemes subtest was only at the 24th percentile, his evaluator opined that the low score might have been a reflection of the boy's poor attending skills, rather than a lack of understanding. She reported that the boy had good to excellent short-term and long-term memory skills. His auditory perceptual skills were found to be in the average to above average range. However, the boy's score on the Goldman-Fristoe-Woodcock Selective Attention Test was only at the 16th percentile. The boy demonstrated a consistent frontal lisp which impaired his speech articulation. The evaluator recommended that the boy receive speech/language therapy in a group twice during a six day cycle. Respondent began to provide speech/language therapy to the boy shortly after the evaluator completed her evaluation in April, 1997.
In December, 1996, the child was evaluated by a BOCES occupational therapist, who noted that the child was impulsive during the evaluation. She reported that his performance in tests measuring his fine motor and upper limb coordination was in the below average and low range, while his visual perception was above average. His visual motor integration skills were below average. The occupational therapist reported that the boy had some difficulty with gross motor skills involving balance and sequencing, but it was unclear to her whether his difficulty was caused by his inattention. She recommended that the child receive occupational therapy once per week, which was reportedly to him by respondent pursuant to the therapist's recommendation.
In a letter, which was dated January 22, 1997, to the chairperson of respondent's committee on special education (CSE), petitioner requested that her son receive HAILO testing and treatment, a central auditory processing evaluation (CAPE), attachment disorder testing, PRAXIS testing by a certified sensory integration occupational therapist and testing by a behavioral optometrist. HAILO is an acronym for Hierarchial Assessment and Intervention for Language Organization, which is a computer-based program designed for children with central auditory processing disorders. The HAILO program is now known as the Fast ForWord program (Exhibit 19). Petitioner further requested that the child receive therapy from appropriately trained individuals. Petitioner submitted various documents about the effects of institutionalization upon the behavior of children. On January 29, 1997, the boy's mother gave her written consent for the child to be evaluated by the CSE. On or about February 10, 1997, the CSE chairperson sent a questionnaire to the child's second grade teacher, asking her to indicate whether the child had exhibited certain kinds of behavior which were thought to be manifestations of a disorder resulting from long-term institutionalization. The questionnaire and the teacher's response (Exhibit 18) were shared with the CSE.
The parents were scheduled to meet with the CSE on March 11, 1997, but that meeting was deferred until March 19, 1997 because another CSE meeting on March 11 had taken longer than expected. On March 19, 1997, the CSE reviewed the results of the child's previous evaluations, and a report by the boy's teacher. An assistant principal reported that a behavior modification plan had been initiated to address difficulties which the child had encountered while riding the school bus. The parents advised the CSE that the boy's pediatrician had diagnosed him as having a reactive attachment disorder of infancy. It should be noted that the record includes a subsequent letter by the pediatrician which relates primarily to his diagnosis of this child's sibling (Exhibit F), as well as various articles describing the effects of long-term institutionalization upon children. In February, 1997, the child reportedly began to receive private counseling from a social worker who specialized in treating those with an attachment disorder. The CSE recommended that a CAPE be performed after the child received additional speech/language testing.
On March 26, 1997, the CSE reconvened. The child's mother asked respondent to assume responsibility for the cost of the private attachment disorder therapy which was being provided to him by a social worker. The CSE chairperson informed the parent that respondent could not pay for the cost of the boy's private therapy, because the boy did not meet the criteria for classification as a child with a disability. However, there is no evidence of a formal CSE recommendation that petitioners' son not be classified in the record (cf. 8 NYCRR 200.4 [c]). In any event, the CSE did agree to have its school psychologist consult with the child's pediatrician and his therapist, and it recommended that sensory integration PRAXIS testing be done.
On May 17, 1997, the boy's CAPE was completed. He was found to have normal auditory acuity, but he evidenced an auditory maturational delay. On the Screening Test for Auditory Processing Disorders, petitioner's son evidenced a delay of approximately one year. The child's evaluator explained that the boy could easily become distracted by extraneous speakers. The child evidenced a delay of approximately two years in auditory attention. His auditory conceptualization skills and his phonemic decoding skills were found to be at the kindergarten level. The boy's evaluator reported that the boy evidenced most of the characteristics of a child with an auditory processing disorder, and she made several recommendations to maximize the boy's auditory reception, minimize distractions, develop good listening skills and train him in decoding and blending phonemes.
On June 18, 1997, the CSE met again with the boy's mother. Although the child's CAPE and his PRAXIS evaluation had already been performed, the CSE had apparently not reviewed the report of either evaluation. The minutes of the CSE reveal that it recommended that the child be classified as emotionally disturbed based upon information provided to the school physician by the child's pediatrician and his attachment disorder therapist. However, because of a time constraint in the meeting, the CSE made no recommendation that the child receive any special education service. On July 1, 1997, the child's parent requested that an impartial hearing be held.
The parents reportedly met with respondent's superintendent of school on July 15, 1997. In his letter to the parents summarizing the results of the meeting (Exhibit 17), the superintendent stated that respondent would pay for the child's behavioral optometry evaluation, and that the CSE would recommend that the child receive additional occupational therapy as a result of his PRAXIS evaluation. He also indicated that the CSE would review the results of the boy's sensory auditory processing evaluation, but he cautioned that respondent was under no obligation to incorporate any particular teaching methodology into the child's educational program. He asserted that the child's communication deficits were being adequately being addressed by respondent's speech/language therapy program, so that the HAILO program sought by his parents would not be required, and would not be paid for by the school district. The superintendent further indicated that respondent would pay for 30 minutes per week of attachment disorder therapy, to be provided by the child's private therapist, upon the recommendation by the CSE. He informed the parents that their request for special transportation for their son would be addressed when the CSE reconvened on August 7, 1997.
On August 7, 1997, the CSE reportedly recommended that the child be classified as other health impaired. Although he had not yet been evaluated by a behavioral optometrist, the CSE recommended that the child receive behavioral optometry services for ten to twelve session if the evaluator ultimately recommended those services for the child. It should be noted that the record which is before me does not include an individualized education program (IEP) for the boy, or other written record of the August 7, 1997 CSE meeting. At the hearing in this proceeding, the CSE chairperson and the school psychologist testified that the CSE had recommended that the child be classified as other health impaired, but they further testified that they did not believe that the boy met the criteria for classification as a child with a disability.
The impartial hearing in this proceeding was held on August 15, 1997. Respondent's attorney asserted that the sole issue to be determined by the hearing officer was whether the HAILO evaluation of the child should have been performed, as his parents had requested. The parents contended that respondent had not complied with the regulatory time limits for recommending a classification and appropriate services the boy, and that it had not provided them with a copy of the publication A Parent's Guide to Special Education for Children Ages 5-21 (see Section 4403  of the Education Law) on a timely basis. They also asserted that the list of possible providers of free or low-cost legal services (see 8 NYCRR 200.5 [a][x]) which had been given to them by respondent was inadequate. The parents contended the CSE had not appreciated the significance of their son's disability, and they urged the hearing officer to order respondent to pay for the boy's HAILO evaluation.
In his decision, which was rendered on August 28, 1997, the hearing officer found that respondent's CSE had exceeded the regulatory time limit for making its recommendation to classify the child, while he noted that the additional evaluations which petitioner had requested may have delayed the CSE in making the recommendation. He further found that the CSE had adequately evaluated petitioner's son. The hearing officer indicated that while he did not necessarily concur with the child's classification as other health impaired, he was precluded by the parties' agreement to classify the child from addressing the issue of classification. He noted that there was no IEP for the child in the record which was before him, and he remanded the matter to the CSE to prepare an IEP for the child by no later than September 30, 1997. In doing so, the hearing officer found that respondent was not legally obligated to instruct the child with the methodology favored by his parents, and he dismissed the parents' claim for reimbursement for the cost of the information about children with central auditory processing disorders which they had provided to the school district.
Petitioner asserts that she and her husband were not treated fairly at the hearing in this proceeding because they did not have an attorney to represent them, and they were pressed by the hearing officer and respondent's attorney to finish the presentation of their case. She also asserts that certain evidence (the child's medical records and his social history) should not have been admitted into evidence, and that she and her husband were unfairly precluded from testifying about the nature of their son's disability and the appropriateness of the Fast ForWord program for the boy.
The parents of a child who has, or who is suspected of having, a disability are entitled to be accompanied by counsel at an impartial hearing (34 CFR 300.508 [a]; 8 NYCRR 200.5 [c]). In its due process notice to parents, a school district must advise them that they may be able to obtain free or low-cost legal services and provide the names and addresses of persons or agencies who could furnish those services (8 NYCRR 200.5 [a][x]). However, the school district is not a guarantor that free or low-cost legal services will be available to any parent. There is no evidence in the record that petitioner sought an adjournment to obtain counsel. When a parent is not represented by counsel, the hearing officer has the responsibility to assure that the parent has a fair opportunity to present his or her case (Application of a Child with a Handicapping Condition, Appeal No. 92-8). Petitioner's assertion that the hearing officer pressed her to conclude her case is troubling, but I find that it is not supported by the record.
The record reveals that petitioner and her husband were given some leeway in presenting their case. The hearing officer sustained respondent's objections to certain of petitioner's questions to her husband about a letter written by their son's pediatrician (Transcript, pages 200-202), and her questions which were intended extrapolate information from other documentary evidence. The hearing officer suggested that the parents pinpoint their references for him, and he allowed petitioner to read into the record previously prepared questions and answers about the information in the documents (Transcript, pages 215-221). He asked petitioner " … when might we see closing up?" (Transcript, page 221) in the context of her attempt to pinpoint the significant portions of the documentary evidence, all of which the hearing officer was required to read. The hearing officer nevertheless allowed her to continue pinpointing relevant portions of her documentary evidence for him (Transcript, pages 221-231), until respondent's attorney formally objected to having petitioner read selected portions of those documents into the record. Shortly, thereafter, the hearing officer had a discussion with petitioner and respondent's attorney about whether an additional day would be required to complete the hearing. Respondent's attorney indicated he had no objection to having an additional day for the hearing, while the hearing officer expressed some reluctance about doing so (Transcript, pages 241-242). Nevertheless, the hearing officer did allow petitioner to explain why she believed that the Fast ForWord program was necessary for her son. Petitioner has not indicated in this appeal what, if any, competent evidence she was prevented from introducing into the record. Any objection to the child's medical record or his social history should have been made at the hearing.
Petitioner contends that the hearing officer erroneously concluded that respondent had attempted to be cooperative with her and her husband, even though its CSE had not complied with the regulatory time limit for making a recommendation. I will briefly note that 8 NYCRR 200.4 (c) provides that a CSE shall provide a recommendation to its board of education within 30 days after the CSE's receipt of parental consent to evaluate a child, or within 40 days after receipt of the child's referral to the CSE, whichever period ends first. In this context, the term "day" means school day (see 8 NYCRR 200.1 [m]). Although the CSE may have made its initial determination on March 26, 1997, there is no evidence in the record of a formal CSE recommendation. In any event, respondent has not appealed from the hearing officer's finding that the time limits had been exceeded, and I will not review his finding. Due to the nature of his suspected disability, this child required more extensive testing than is typically performed. Nevertheless, there was a substantial delay in completing the testing, and reviewing the results of the testing. Although I do not condone the CSE's delay in this matter, I find that no useful purpose would be served by reviewing the hearing officer's finding that the CSE attempted to cooperate with the child's parents, and I reject petitioner's request that respondent or its staff be fined or censured, and that the competence of respondent's staff be investigated.
Petitioner also requests that all references to the classification of emotionally disturbed be stricken from her son's records. As noted above, the classification was adopted at the June 18, 1997 CSE meeting, but it has subsequently been changed to other health impaired. The validity of the child's initial classification as emotionally disturbed is not an issue for me to determine (Application of a Child with a Disability, Appeal No. 96-50). The relevant Federal regulation (34 CFR 300.570) prescribes a specific procedure for challenging the accuracy of student records, which is a hearing conducted pursuant to the Family Educational Rights and Privacy Act. The decisions resulting from those hearings are not subject to review by the State Review Officer.
Petitioner challenges the hearing officer's determination that the CSE appropriately evaluated her son, on the ground that no member of respondent's staff was a specialist in the boy's disorder. I note that in her referral of the boy to the CSE petitioner stated that she had not found anyone in the area who was an "attachment disorder psychologist". The record reveals that petitioner's son was evaluated by individuals who held appropriate certification or licenses. With respect to the proposed HAILO/Fast ForWord program, there is no evidence in the record that the child was not tested in all of the relevant areas by respondent's speech/language therapists and by the private audiologist who performed the boy's CAPE. Under the circumstances, I find that petitioner's challenge to the adequacy of the child's evaluations is without merit.
The central issue in this appeal is whether this child requires the Fast ForWord program in order to receive the free appropriate public education to which he is entitled. Petitioner contends that the Fast ForWord program is absolutely necessary for the boy. Respondent contends that the program is not necessary, and the hearing officer has upheld respondent's position. In essence, petitioner argues that because of her son's early isolation in a Romanian nursery, he did not have the opportunity to hear and practice fundamental language sounds. As a result, the boy demonstrates weakness in auditory decoding of individual phonemes and correctly combining them into words. The Fast ForWord program would address the boy's weakness by providing intensive practice in recognizing these individual language sounds.
Although the CAPE revealed that petitioner's son had this weakness, I must note that there is no evidence that it has significantly impacted upon his academic performance. I have carefully considered the testimony by respondent's speech/language therapist, Ms. Bonanni, and by the audiologist who performed the boy's CAPE, Ms. Evans. Neither individual testified that the boy's deficiency could only be remediated by the Fast ForWord program. Indeed, Ms. Evans, in her report of the CAPE, recommended the use of an audio-taped program, rather than an audio-visual program, suggesting that an audio program would direct his attention to listening to individual sounds without the distraction of visuals. Fast ForWord is an audio-visual program. I am not persuaded by the record which is before me that the child's language needs could not be met without the Fast ForWord program. There is no reason to believe that respondent could not address the boy's language needs with speech/language therapy.
Petitioner also seeks reimbursement for the cost of the information about reactive attachment disorders and the HAILO/Fast ForWord program which she obtained at her expense and provided to respondent. In addition, she asks that the board of education be ordered to reimburse her for the cost of the boy's reactive attachment disorder counseling for the period from February, 1997 until July, 1997, when the superintendent agreed that respondent would pay for that counseling.
Parents are encouraged to share relevant information about their children with the CSE (see 8 NYCRR 200.5[a][v]). Petitioner and her husband have clearly taken a great interest in their son's education, and they have made it their business to provide information to the CSE. However, it does not follow that respondent has a legal obligation to compensate them for providing that information. A board of education may be required to pay for educational services, such as counseling, obtained for a child with a disability 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 ). In this instance, the child had not been determined to be a child with a disability for most of the period in question. Moreover, there is no report by the private counselor, or other evidence of the appropriateness of her services.
THE APPEAL IS DISMISSED.