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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 City School District of the City of New York


Winston & Strawn, attorneys for petitioner, Elizabeth A. Galani, Esq., of counsel

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Alan M. Schlesinger, Esq., Bryan D. Glass, Esq., of counsel


        Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation of respondent’s committee on special education (CSE) that petitioner’s son be educated in a Modified Instructional Services-I (MIS-I) class during the 1997-98 school year. The impartial hearing officer denied petitioner’s request for a publicly funded private placement for her son. The appeal must be sustained in part.

        Petitioner’s son was initially referred to respondent’s CSE in 1995, when he was in the third grade. The CSE classified the child as learning disabled. His classification is not in dispute. The CSE recommended that the child be placed in a general education classroom, and that he receive resource room services for 45 minutes each day. For fourth grade, the child was placed in a regular education classroom with 40 students and he continued to receive resource room services. At the end of the child’s fourth grade year in 1997, the child’s teacher recommended that he be reevaluated because he was not always able to complete his work.

        In an educational evaluation completed on April 15, 1997, the educational evaluator reported that the child was functioning on a first grade level, despite having received two years of resource room services and other educational interventions, such as tutoring, separate study sessions and reading assistance. The educational evaluator observed that the child was able to understand and follow directions, but that he had severe visual perceptual difficulties that required further evaluation. She indicated that the child’s vocabulary was above grade expectancy, but that he had difficulty writing due to spelling difficulties and disorganization with written language. She noted that the child was unable to read cursive writing, and that his letters were not well formed or adequately spaced. On the Kaufman Test of Educational Achievement (KTEA), the child received a grade equivalent score of 1.7 in spelling, 1.6 in reading decoding, 1.6 in reading comprehension, 6.1 in listening comprehension, 2.9 in math application and 1.8 in math computation. The educational evaluator indicated that the child appeared to be a mirror reader, but that because his decoding was so weak, he was essentially a non-reader. She recommended that the child continue to receive remediation in all academic areas.

        A social history, based upon an interview with petitioner, was conducted by a social worker on April 27, 1997. Petitioner advised the social worker that although her son was benefiting from the resource room services, his reading was still below grade level. She also advised the social worker that her son continued to see letters backwards. Petitioner indicated that she was interested in pursuing additional program modifications for her son.

        In May, 1997, the child was evaluated by the Vision Therapy Service at the State University of New York, State College of Optometry because of visual problems of loss of place, difficulty copying from the board, and academic difficulties in the areas of reading and letter reversals. The child’s eye movement skills were noted to be inaccurate and inefficient for his age, and were accompanied by frequent losses of fixation. The child’s performance on the Developmental Eye Movement (DEM) Test, an assessment of an individual’s ability to accurately identify and track a vertical and horizontal array of numbers, indicated that the child was deficient in automaticity in number calling and oculomotor functioning. The staff optometrist reported that the child had an overall perceptual deficiency and visual skills deficiency. The child’s level of perceptual and visual skills was characterized as below average. He had specific deficiencies in fine motor skills, laterality and directionality, visual-motor integration, perceptual speed, visual memory, spatial relations, auditory perceptual skills, focusing skills and eye movement skills of tracking and change of fixation. The staff optometrist observed that the child’s perceptual style was slow and inaccurate, and that he was poor in simultaneous processing and average in sequential processing. The staff optometrist recommended a regimen of individual visual therapy to improve the child’s visual and perceptual skills and enable him to process and organize information more rapidly and efficiently in a learning environment. The staff optometrist further recommended that the child be permitted to use his finger or a straight edge as a guide while reading, that he be seated near the chalkboard, that he take frequent rest periods during prolonged reading or studying, and that he be permitted to type reports.

        A physical therapist who assessed the child on May 21, 1997 reported that the child had adequate functional skills and was maintaining expected levels of function. Physical therapy was not recommended. An occupational assessment, also performed on May 21, 1997, found the child to be functioning at age level. Occupational therapy was not recommended.

        A psychological evaluation was conducted on June 5, 1997 by the school psychologist to assess the child’s educational and social/emotional needs. The school psychologist reported that the child continued to have difficulty with reading skills, and that his copying skills were poor. She noted that the child’s school record indicated that he had a poor history of attendance and often was tardy. On the Wechsler Intelligence Scale for Children - Third Edition (WISC - III), the child achieved a verbal IQ score of 90 (25th percentile), a performance IQ score of 83 (7th percentile) and a full scale IQ score of 86, placing him in the low average range of intelligence and ranking him at the 18th percentile for students his age. The school psychologist reported that the child’s expressive vocabulary skills were adequate and that his overall perceptual organization skills were in the low average range. On the Bender Visual Motor Gestalt Test, the child showed mild weaknesses in form and angulation, and his visual short-term memory was not well developed. A brief personality assessment indicated that the child was well adjusted. The school psychologist noted that while the child was aware of his learning difficulties, it did not appear that such awareness was interfering with his academic functioning.

        A school report completed by the child’s teacher on June, 9, 1997 indicated that the child was reading at a pre-primer level and that he was performing at the second grade level in mathematics. The child’s teacher indicated that the child had made little progress during the school year. She also indicated that the child’s present class placement was not appropriate because he required one-on-one attention. She believed that the child needed to be placed in a smaller class.

        A classroom observation was conducted by the district’s educational evaluator on June 11, 1997 during a mathematics lesson in the child’s general education fourth grade class. The educational evaluator observed that the child had difficulty reading word problems and did not appear to be functioning at the grade or instructional level of his class. The educational evaluator observed that the child had difficulty attending to task. She noted that he did not pay close attention to the teacher’s directions and that he was distracted. She also reported that the child did not complete his homework assignment. The educational evaluator observed that the child had difficulty writing and forming letters and numbers, and that he needed extended time to copy written materials.

        The child’s resource room teacher completed a school report on June 16, 1997. She indicated that the child’s visual perceptual skills were inadequate. She opined that the child’s needs were not being met in the general education classroom or the resource room. The child’s resource room teacher believed that the child functioned well above the students that she had observed in an MIS-I placement.

        Petitioner arranged for a reading evaluation of her son at the Learning Disabilities Unit of the State College of Optometry, State University of New York, on June 17, 1997. The child achieved a grade equivalent score of 1 in word recognition on the Boder Test of Reading Spelling Patterns and a grade equivalent score of 1 on the Rosner Auditory Analysis Test. The evaluators noted that the child’s academic difficulties frustrated him and that he became more anxious in petitioner’s presence. The child exhibited sequential deficits and directional difficulties, and was unaware of the importance of letter position in words. The evaluators observed that the child’s sound symbol correspondence was not well developed, and that he lacked instant recognition of even the most common English words. It was also noted that the child lacked many of the sounds and conventions for spelling which made even the simplest word difficult for him to spell. The evaluators concluded that the child exhibited signs of dyslexia, as evidenced by difficulties in phonological processing, word recognition, reading, writing and spelling. They recommended that the child receive kinesthetic reinforcement as part of a daily multi-modal sequential program to address his reading, writing and spelling deficits. They further recommended that he receive remedial reading with a learning disability specialist as an adjunct to his daily multi-modal instruction.

        An assistive technology evaluation was conducted by district personnel on July 28, 1997. The evaluation team observed that the child was familiar with the computer keyboard, but that he was slow in scanning it for letters. It was noted that the child showed signs of visual perceptual deficits during the evaluation. He had difficulty copying text and occasionally omitted letters or entire words. Although he was able to stay on the line when writing, his letters were inconsistently formed and sloppy. He required black on beige zoom caps on the keyboard to enable him to see the letters with less difficulty. The evaluation team did not recommend a specific device for the child. It suggested that the child be reevaluated in six months to determine if his keyboarding skills had improved enough to use a word processing device in class, or to determine if any device would be necessary or appropriate. It also recommended that the child concentrate on his keyboarding skills in computer class.

        The CSE met on September 18, 1997 to develop the child’s 1997-98 IEP for fifth grade. It recommended that the child continue to be classified as learning disabled and that he be placed in an MIS-I program at P. 76. On October 6, 1997, petitioner requested an impartial hearing. The hearing was held on November 12, 1997. The hearing officer rendered his decision on December 10, 1997. He found that respondent had made an appropriate and timely placement offer to the child. Having found that the proposed placement was appropriate, the hearing officer denied petitioner’s request for a publicly funded private placement for her son.

        In challenging the hearing officer’s denial of her request for a publicly funded placement for her son, petitioner asserts that respondent did not to meet its burden of proving that its recommended program was appropriate. 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 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). 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 son’s IEP in terms of its description of the child’s needs. I have nevertheless reviewed the IEP, and I find that it accurately reflects the results of the evaluations. I have also reviewed the child’s IEP annual goals and short-term instructional objectives because it is important to establish that the goals and objectives are appropriate before determining what special educational services are required in order to afford the boy a reasonable chance of achieving his goals and objectives. The IEP described the child as a non-reader. It indicated that the child’s decoding skills were very weak, and that he had difficulties with phonological processing and word recognition. However, the child's IEP included a single, generic goal for reading: "will improve reading skills". Annual goals are statements of what a child can reasonably be expected to accomplish within a twelve-month period in the child's special education program. They must be sufficiently specific to provide the child's teacher with directions about the CSE's expectations (Application of a Child with a Disability, Appeal No. 94-8). I have examined the short-term objectives to determine whether they provide sufficient information to clarify the child's vague annual goal. Of the four short-term instructional objectives for reading, only one, which addressed letter directionality and sound-symbol relationships, was specific to the child’s needs. An objective for improving word analysis skills was arguably related to the child’s decoding difficulties, however, the objective lacked the requisite specificity. One of the short-term objectives provided for the child to identify four to five new words. In contrast, another objective provided for the child to identify the main idea of four to five reading selections. Neither objective specifies the level of difficulty, i.e., were the new words and reading selections to be at a first, second, third, fourth, or fifth grade level? Absent such specificity, these objectives cannot serve as general benchmarks for determining the child's progress toward achieving his annual goal (see 34 CFR Part 300, Appendix C, Question 39). While identifying four new words is a modest short-term objective, reading four to five selections and identifying the main idea in each selection appears to be unrealistic, given the child’s reading level. The annual goal to complete the fifth grade library curriculum included a reading related objective to select and read an appropriate book and present a book report explaining two outstanding events in the story. Again, no level of difficulty was specified in the IEP. Given the child’s current level of functioning in reading, this objective also appears to be unrealistic.

        The IEP included the results of an evaluation which recommended that the child receive remedial reading. Although respondent was not obligated to adopt every recommendation made for the child, the IEP does not provide for any additional instruction in reading, or otherwise focus upon his primary academic deficiency. The IEP was developed for the child’s fifth grade year, but he was only reading at the first grade level. I find that the annual goals and short-term instructional objectives do not address the severity of the child’s reading disability. Accordingly, I find that the child’s IEP is deficient with respect to his reading difficulties.

        The IEP described the boy’s spelling skills as far below grade expectancy. At the end of the fourth grade, the boy achieved a grade equivalent score of 1.7 in spelling on the KTEA. The IEP did not include a specific goal for improving the child's spelling. Under the annual goal of improving written expression, the IEP included a short-term objective to spell 4-5 new words. Given the severity of the child’s difficulty with spelling, I find that this short-term objective was not sufficient to address his needs.

        The child’s IEP included a goal for improving math skills. The short-term instructional objectives for that goal included translating a story problem into a number example, demonstrating awareness of measurement concepts and demonstrating improved computational skills. However, I find, as I did with respect to the child's IEP goal for reading, that his annual goal for mathematics and its supporting objectives are too imprecise to indicate what the child was actually expected to accomplish.

        The IEP also described the child as having visual perceptual deficits. Specifically, he had deficits in fine motor skills, directionality and laterality, visual-motor integration, perceptual speed, visual memory, spatial relations, auditory perceptual skills, focusing skills, and eye movement skills. The record shows that these deficits related to the child’s difficulties with reading, reversals and copying accuracy. However, there are no goals in the IEP to address any of the child’s visual perceptual deficits.

        Upon the record which is before me, I find that respondent did not meet its burden of proving that it had offered an appropriate special education to petitioner’s son for the 1997-98 school year. Although the IEP accurately reflected the results of the evaluations and identified the special education needs of the child, the annual goals and short-term objectives do not match his needs. The record shows and the IEP identified the child as a student with visual perceptual difficulties who was reading on a first grade level. The IEP goals and objectives do not reflect the severity of the child’s disability. In the future, the child’s IEP must set forth more meaningful annual goals and short-term instructional objectives before a definitive determination can be made about the nature of special education services which the child requires and the place[s] in which such services should be provided. Therefore, petitioner's request for a publicly funded private school placement must be denied.


IT IS ORDERED that the decision of the hearing officer is annulled; and,

IT IS FURTHER ORDERED that within 30 days from the date of this decision, respondent’s CSE shall revise the child’s IEP in accordance with this decision.

Topical Index

Annual Goals
Educational PlacementNonpublic School
Parent Appeal