Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Weedsport Central School District
Legal Services of Central New York, Inc., attorney for petitioners, Susan M. Young, Esq., of counsel
Matthew R. Fletcher, Esq., attorney for respondent
Petitioners appeal from the decision of an impartial hearing officer regarding the development and implementation of their daughter's individualized education program (IEP) for the 1997-98 school year, as well as the development and implementation of an extended school year program for the child during the summer of 1997. Respondent cross-appeals from certain portions of the hearing officer's decision. The appeal must be sustained in part. The cross-appeal must be sustained in part.
Petitioners' daughter, who is ten years old, has been diagnosed as having spastic quadriparisis, athetoid cerebral palsy. As a result of this condition, the child has very little control in her trunk and stiffness in her arms and legs. Although she can walk with assistance for a short-distance, the child relies primarily upon a power wheelchair for mobility. The child is non-verbal and communicates with an augmentative communication device known as the Liberator. That device has a keyboard with icons which the child can activate to express herself verbally. She uses a writing splint to hold a pencil or crayon, and she can reportedly underline answers and use stencils with wrist and elbow facilitation. The child's classification as orthpedically impaired is not in dispute in this proceeding. At the time of the hearing in this proceeding, the child was being home schooled (see 8 NYCRR 100.10), at petitioners' choice.
The child attended a nursery school for two years prior to enrolling in respondent's kindergarten for the 1993-94 school year. She was placed in a regular education kindergarten class, where she received consultant teacher services, speech/language therapy, physical therapy, and occupational therapy. During the 1994-95 school year, the child attended a regular education first grade class, and again received consultant teacher services and related services in her classroom. She was enrolled in a regular education second grade class, with consultant teacher services and related services provided to her in the classroom, during the 1995-96 school year.
For the 1996-97 school year, respondent's committee on special education (CSE) recommended that petitioners' daughter receive primary instruction for reading, writing, and mathematics from a special education teacher for six hours per week. The location for that instruction may or may not have been in the child's regular classroom. The child's IEP (Exhibit NN) indicated that her special education instruction would be 15:1, but a discussion of the recommendation at a February, 1997 CSE meeting (Exhibit 58) indicated that it may not have been intended as a 15:1 self-contained class. In any event, petitioners requested an impartial hearing to review the CSE's recommendation for their child's educational program during the 1996-97 school year. Shortly after that proceeding commenced, an impartial hearing officer rendered an interim decision finding that the child's "pendency placement" (20 USC 1415 [j]; Section 4404  of the Education Law) was in a second grade classroom pursuant to her IEP for the 1995-96 school year. The hearing officer's decision was annulled by the State Review Officer in Application of a Child with a Disability, Appeal No. 96-64. The State Review Officer held that the term "current educational placement" referred to the general type of educational program in which a child is placed, rather than a specific location. The child was educated at home until petitioners' appeal was decided in December, 1996. She then returned to respondent's elementary school, where she was enrolled in a regular education third grade class, with "push-in" special education and related services. A special education teacher taught the child reading, writing and mathematics, while the third grade teacher taught the child science and social studies.
On February 7, 1997, respondent's CSE reviewed the results of independent psychological and speech/language evaluations. The independent psychologist noted that the child's motor and verbal limitations made her standardized test results less than fully reliable. She reported that the child's ability was in the low average range, and that her achievement in basic reading and spelling was consistent with her ability, while her achievement in mathematics was lower than would have been expected. The psychologist also reported that the child showed a strong motivation to learn, and she recommended that the child continue to receive the services of a 1:1 aide in the classroom, and have academic support and related services provided to her in her classroom. The speech/language pathologist, who worked with the child for a two-month period in the fall of 1996, reported on the child's use of the Liberator to communicate orally and in writing. She offered various suggestions for improving the child's performance. The CSE adhered to its prior recommendation (Exhibit 42) and did not revise the child's IEP for the 1996-97 school year, which was never implemented because of the pending due process proceeding. The child remained in her third grade class for the remainder of the 1996-97 school year. The due process hearing did not resume because the parties reportedly agreed to focus their attention upon creating an appropriate program for the child during the 1997-98 school year (Exhibit 1 to the answer).
In preparation for the CSE's annual review, the individuals who had worked with the child during the school year prepared reports concerning her progress. Respondent's speech/language pathologist reported on the child's progress in mastering some of her IEP short-term instructional objectives. She indicated that the child could comprehend much more than she could express, and that she was significantly limited in using her Liberator to express novel answers to questions. The speech/language pathologist reported that the child required considerable time, effort, and concentration to access her Liberator. She noted that the child could vocalize to gain attention, to engage in singing, and to express excitement or displeasure, but that she needed to work on listening attentively to others. The speech/language pathologist recommended that the child receive speech/language therapy twice per week for one hour during the summer to strengthen her skills and prevent substantial regression. She also recommended that the child receive speech/language therapy during the 1997-98 school year. An assistive technology consultant employed by the Ontario-Seneca-Yates-Cayuga-Wayne Board of Cooperative Educational Services (BOCES) reported that the speech/language pathologist had provided excellent support for the child's use of her Liberator, which interfaced with a computer, but noted that the child's teachers had commented that the child was at times reluctant to use the Liberator.
The child's physical therapist reported that her independent movement skills were limited by the increased muscle tone (spasticity) in her limbs and trunk. She indicated that the child could sit upright independently for 10-45 seconds. The child could use a gait trainer walker, but she had difficulty maintaining the correct posture for walking. Using a supine stander, the child could stand for 10 minutes. The physical therapist noted that the child could travel independently in the school hallways with her motorized wheelchair, but she needed to be reminded occasionally about not getting too close to the walls. She recommended that the child receive two 40-60 minute sessions of physical therapy during the summer to maintain her current levels of functioning in activities of daily living. For the 1997-98 school year, the physical therapist recommended that the child receive three 40-60 minute periods of individual physical therapy and 90 minutes of indirect (consultant) physical therapy per week.
The child's occupational therapist reported that the child had mastered some of her 1995-96 IEP objectives. She indicated that the child had maintained an active assistive range of motion, but an increase in spasticity had affected the child's functional skills. Noting that the child had not received occupational therapy during the summer of 1995 and 1996 and had not shown a significant regression in her skills, the occupational therapist opined that occupational therapy was not warranted during the summer of 1997. She recommended that the child receive indirect occupational therapy services, e.g., consultations with respondent's staff and petitioners, during the 1997-98 school year.
The CSE conducted its annual review of the child on May 15 and 29, 1997. On May 15, 1997, the BOCES assistant technology consultant, the physical therapist, and the occupational therapist discussed their reports and responded to questions about them (Exhibit 7). The CSE recommended for the 1997-98 school year, that the child remain classified as orthopedically impaired, and that she receive a 12-month program. During the 10-month school year, the child was to be placed in a regular education fourth grade class in respondent's elementary school, with consultant teacher services for reading, written language, and mathematics four hours per week, and resource room services for three hours per week. At the hearing in this proceeding, the CSE chairperson explained that one special education teacher would provide both consultant teacher services in the classroom and resource room services, with the latter to be provided as a pull-out in a group of no more than five children. He testified that "most" of the consultant teacher service would be direct, i.e., working directly with the child (8 NYCRR 200.1 ), but some of the service would be indirect, i.e., providing assistance to the child's regular education teacher (8 NYCRR 200.1 ). The CSE also recommended that the child have the assistance of an individual aide "as needed". The CSE chairperson testified that this was intended to reflect the fact that the child might not need help from an aide when the physical therapist was working with her, and was not intended to be a diminution of the aide's services from what the CSE had recommended in prior years (Transcript, page 92).
The CSE further recommended that the child receive direct speech/language therapy for 45 minutes five times per week, and indirect speech/language therapy for 60 minutes three times per week. It also recommended that she receive direct physical therapy for 40-60 minutes three times per week, and indirect physical therapy for 90 minutes per week. The CSE recommended that indirect occupational therapy be provided for 30 minutes five times per month, including quarterly contact with the child's parents. In addition, the CSE recommended that assistive technology support be provided by the BOCES as needed and by quarterly visits by the BOCES specialist to the child's class and for team meetings of the staff who would provide services to her. The child's IEP indicated that petitioners could consult with the BOCES specialist. The IEP (Exhibit 6) which the CSE prepared for the child indicated that the child's transportation included the use of a lift, and it prescribed the use of various testing modifications. Those included doubling test time limits, taking tests in a separate location, having test questions read to her and her answers recorded for her, and using a calculator. The IEP indicated that respondent would apply to the State Education Department for approval of having the child take State tests over multiple days.
For the extended school year (ESY), i.e., the months of July and August, 1997, the CSE did not recommend that petitioners' child receive any academic instruction, but it did recommend that she receive 60 minutes of direct speech/language therapy twice per week and 40-60 minutes of direct physical therapy twice per week. The child's IEP indicated that her ESY services would be provided at a summer program of the BOCES special education department in the Casey Park Elementary School of the Auburn City School District. The CSE's recommendations for the child's ESY services were made at the CSE meeting which was held on May 29, 1997. The CSE chairperson testified that, at petitioners' request, he had contacted the Town of Brutus, New York, in which the Weedsport Central School District is located, about the Town's summer recreation program, but he determined that the Town's program was inappropriate for the child because it was not approved by the State Education Department. The CSE also considered petitioners' request that it recommend that the child attend a summer program at Camp Chatterbox in New Jersey, which was also not approved by the State Education Department. At the May 29, 1997 CSE meeting, petitioners also requested that their child be independently evaluated by the North Carolina Literacy Center at Duke University. The CSE indicated to petitioners that it would need more information about the nature of the proposed evaluation, and the CSE chairperson volunteered to contact the agency about its evaluations. The CSE voted against recommending that the requested evaluation be performed.
In a letter dated July 1, 1997 to respondent's Superintendent of Schools, petitioners announced their intention to educate their daughter at home during the 1997-98 school year because they believed that the educational program recommended by the CSE was inappropriate for the child. They requested that an impartial hearing be held to review the CSE's recommendations for the child's program during the 1997-98 school year and the summer of 1997. Petitioners also reiterated their request that their daughter be evaluated at respondent's expense by the North Carolina Literacy Center at Duke University.
Respondent appointed the hearing officer in this proceeding on July 14, 1997. The hearing began on August 28, 1997. On that date, petitioners' attorney indicated that petitioners challenged the CSE's recommendation concerning their daughter's ESY services on the grounds that the BOCES facility was a "segregated" setting, and that the CSE should have recommended academic instruction for the child. With regard to the CSE's recommendation for the 10-month school year, petitioners' attorney stated that petitioners objected to their child's removal from the regular classroom to receive resource room services and to an alleged reduction in the amount of consultant teacher service for her. They also challenged her IEP for failing to specify the amount of direct and indirect consultant teacher service, and for indicating that the individual aide would provide service on an as needed basis. Petitioners also asserted through their attorney that respondent had failed to properly train its staff, or to provide a backup aide. They contended that the CSE had failed to recommend an adequate amount of time for the assistive technology consultant from BOCES, and suggested that consultant services be provided by another agency. Petitioners also asserted that their child's IEP annual goals for physical therapy were inadequate, and that her IEP should have allowed her more than twice the normal time limit to compete tests. They contended that respondent should provide a bathroom for the child to use which was in closer proximately to her classroom, and that it had failed to build a ramp which would allow the child to have access with her motorized wheelchair to the school gymnasium. They contended that they were entitled to have the child independently evaluated.
The hearing continued for nine additional days, ending on December 18, 1997. In his decision which was rendered on March 11, 1998, the hearing officer identified 13 issues to be decided. The first issue which he considered was whether the removal of the child for resource room services was appropriate and consistent with the Federal and State requirement that each child with a disability be educated in the least restrictive environment (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a]). The hearing officer found that the contemplated resource room instruction would be supplemental to the instruction which the child received from her regular and special education teachers in the fourth grade classroom, and that the child's removal from class for three hours per week was both appropriate and consistent with the least restrictive environment requirement.
The second issue addressed by the hearing officer was whether the child's IEP was defective because it failed to distinguish between and delineate the direct and indirect consultant teacher service which she was to receive. He held that the IEP was not defective. The next issue he addressed was whether the amount of consultant teacher service recommended by the CSE was appropriate. The child had previously received a total of six hours of direct and one hour of indirect consultant teacher service per week, and was slated to receive four hours of consultant teacher service per week. However, she was also to receive three hours of resource room service per week in a combined consultant teacher and resource room program for which respondent had obtained a waiver of hour requirements by the State Education Department. The hearing officer found that the recommended consultant teacher service was appropriate for the child. The fourth issue was whether respondent's staff who were assigned to work with the child had appropriate skills and training, specifically with respect to the use of the Liberator augmentative communication device to address the child's needs. The hearing officer found that respondent's staff had the appropriate skills and training.
The next three issues which the hearing officer addressed were about the child's individual aide. He found that the IEP provision that the aide would provide services on an "as needed" basis was too indistinct, and he directed respondent's CSE to revise the child's IEP to specify the times or circumstances when the aide's services would not be necessary. The hearing officer rejected petitioner's challenge to respondent's practice of using more than one aide for their daughter. He accepted respondent's contention that the efforts required to address the child's needs were intensive and exhausting, and it should have the right to determine staffing assignments for the child. The hearing officer also rejected petitioners' contention that respondent should have in place a replacement aide who had been specifically trained to meet the child's needs, in the event the child's regular aides were unavailable.
The eighth issue which the hearing officer addressed concerned the adequacy of the assistive technology support services which the CSE had recommended for the child. Petitioners challenged their daughter's IEP on the grounds that it did not indicate that the child would receive any direct assistive technology support, i.e. direct instruction in the use of assistive technology devices such as her Liberator, and that the IEP was impermissibly vague in indicating that the services would be provided on an "as needed" basis. The hearing officer found that there was no evidence that the child needed additional training to use her Liberator. He further found that the provision of indirect service on an as needed basis was appropriate because respondent's staff could best determine when they needed assistance. The hearing officer noted that petitioners had also questioned the appropriateness of having BOCES personnel provide assistive technology support services, but he found that there was no reason to require respondent to contract with another entity for such assistance.
Although petitioners had challenged the appropriateness of one of their daughter's IEP testing modifications, the hearing officer concluded that there was no reason to decide this ninth issue since the CSE had indicated its willingness to consider petitioners' request to change the testing modification. The tenth issue which he addressed was whether the child's IEP annual goals for physical therapy were appropriate. The hearing officer noted that the IEP had only two annual goals for physical therapy, both of which dealt with her use of a powered wheelchair, and he concluded that the goals were inadequate. He directed the CSE to prepare appropriate goals.
The next issue to be determined by the hearing officer was the appropriateness of the ESY services which the CSE had recommended for the child. With respect to petitioners' concern about the fact that the CSE had recommended less physical therapy and speech/language therapy for the child during the summer of 1997 than it had for previous summers, the hearing officer found that there was nothing in the record to support petitioner's concern that those services would be inadequate. He did so while noting that there was little evidence that the child's therapists or the CSE had made a reasonable evaluation or determination that such ESY services were necessary in order for the child to avoid a substantial regression in her skills during the summer of 1997 (see 8 NYCRR 200.6 [j]). The hearing officer further found that there was nothing in the record to indicate that the child would suffer a substantial regression in her academic skills without a summer academic program which petitioners had sought and the CSE had declined to recommend. Petitioner had also challenged the CSE's recommendation for ESY services because they were to be provided in a BOCES program which served only children with disabilities. The hearing officer agreed with them that the BOCES facility was not the least restrictive environment in which the child's speech/language therapy and physical therapy could have been provided to her during the summer of 1997. However, he denied petitioners' request for an order requiring respondent to reimburse them for their expenditures to have the child attend Camp Chatterbox in New Jersey for one week, upon a finding that equitable considerations did not support petitioners' claim.
The twelfth issue which the hearing officer addressed was whether respondent should have located a bathroom closer to the child's third grade classroom during the 1996-97 school year, and whether it should have placed a changing table where the child could change her clothes on the second floor of her school where her third grade classroom was located. The hearing officer noted that the child was no longer in the third grade by the time the hearing was held and there was no evidence concerning the proximity of a bathroom to whatever classroom the child would be placed in for the fourth grade. He also found that the increase in the child's toileting accidents during the 1996-97 school year was not attributable to the distance between her classroom and the bathroom she was required to use. The hearing officer further found that respondent's arrangements for the child to change her clothes in the school nurse's office were appropriate.
The last issue which the hearing officer addressed was whether respondent should be required to pay for an independent evaluation of petitioner's daughter at the Center for Literacy and Disability Studies of Duke University. He found that there was no evidence that petitioners had in fact disagreed with any evaluation performed by the CSE, and that consequently petitioners had no right to an independent evaluation. He further found that the Center for Literacy and Disability Studies would not be an appropriate site for an evaluation because of the nature of the evaluation which petitioners sought.
Having reviewed petitioners' appeal and respondent's cross-appeal, I note that neither party has appealed from the hearing officer's findings with regard to the third, sixth, seventh, or ninth issues. Consequently, I do not review those findings. Respondent objects to the scope of this proceeding. It alleges that the Individuals with Disabilities Education Act (20 USC 1400 et seq.) as amended on June 4, 1997 requires the parents of a child with a disability to notify their school district of the issues which are in dispute prior to the commencement of a hearing, and that petitioners failed to give respondent notice of all of the issues which they intended to raise at the hearing prior to the start of the hearing. It asserts that the hearing officer erred by allowing petitioner to raise issues at the hearing which were not specified in their July 1, 1997 letter requesting a hearing.
As amended, 20 USC 1415 (b)(7) provides that a local educational agency must establish procedures which require that a parent or attorney for the parent filing a complaint must provide certain information including a description of the nature of the child's problem relating to the district's proposed "initiation or change" (in this case, the proposed IEP), and a proposed resolution of the problem to the extent known or available to the parents at the time. While I agree with respondent that petitioner's July 1, 1997 hearing request did not identify the specific portions of their child's IEP with which they disagreed, except for the ESY provisions, I must note that respondent has not offered evidence that it had procedures in place to require petitioners to provide specific information about their disagreement with the CSE's recommendation. Therefore, I will consider the issues which petitioners have raised in their appeal.
Petitioners assert that respondent failed to offer their daughter an appropriate educational program for the 1997-98 school year. 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).
Petitioners do not allege that their daughter's IEP did not accurately reflect the results of her evaluations to identify her needs. I have nevertheless examined the IEP, and I find that it contained a fairly detailed description of her academic development, learning style, social development, physical development and management needs, as required by 8 NYCRR 200.4 (c)(2)(i). With the exception of the child's annual goals for physical therapy, there is no dispute about her IEP goals. Respondent has cross-appealed from the hearing officer's finding that the child's physical therapy goals were inadequate.
The hearing officer believed that because the child's physical needs were so great, her IEP goals should be more extensive than those which appeared in her IEP. The first IEP annual goal provided that the child would become able to go from her classroom to another classroom in her electric wheelchair in seven minutes. There were three supporting objectives involving the child's ability to go through a doorway, traverse hallways without colliding with persons or objects, and stop at an adult's request. The second annual goal was that she would increase her independence in and out of her wheelchair, i.e., that she could learn to perform that maneuver with less assistance. I find that both goals were appropriate, but the question is whether there should have been other IEP goals for physical therapy, especially since the girl's therapist was to work with her for 40-60 minutes three times per week, and consult with respondent's staff for 90 minutes per week. The child's physical therapist during the 1996-97 school year testified that both of the 1997-98 IEP goals were designed to foster the child's independence in a school setting, and both involved a number of activities which had to be worked on with the child in order for her to have a chance of attaining her goals. Because of the severity of her motor disability, this child required time to prepare for and practice the various activities which were involved in the PT objectives. I must note that there is no evidence in the record that these activities could have been performed in less time than was allotted to the physical therapist. Consequently, I must disagree with the hearing officer's conclusion, and sustain respondent's cross-appeal from that portion of the hearing officer's decision.
Petitioners appeal from the hearing officer's finding that the CSE was not required to identify the portions of the consultant teacher's time which were to be spent providing direct and indirect services, respectively. The hearing officer indicated that stating the amount of time for each of those services on the IEP might be recommended, but he held that 8 NYCRR 200.4 (c)(2) did not require the CSE to do so on this child's IEP. I disagree. 8 NYCRR 200.4 (c)(2)(vi) provides that a CSE shall indicate on the IEP the "amount of time per day" the student will receive a special education service. Direct consultant teacher service is a special education service. So is indirect consultant teacher service. Therefore, I find that the hearing officer erred (Application of the Board of Education of the City School District of the City of Buffalo, Appeal No. 97-66).
Respondent cross-appeals from the hearing officer's determination that the child's IEP inadequately described the amount of the service which her individual aides would provide. The IEP indicated that a "1:1 aide as needed" would assist the child. The hearing officer recognized that respondent had a legitimate interest in not appearing to commit itself to having an aide with the child every minute of the school day, but he held that it was the CSE's responsibility to determine whether an aide was, at any time, unnecessary, and to amend the child's IEP to reflect that determination. I agree with the hearing officer. A CSE must not only determine what amount of a special education service or a related service is required, but it must also indicate the amount of service on the IEP (34 CFR Part 300, Appendix C, Question 51). In this instance, the CSE apparently believed that the aide might be unnecessary when the child was receiving physical therapy. The CSE could address this by providing that the aide would assist, except when the child is receiving physical therapy. I must therefore dismiss respondent's cross-appeal from this portion of the hearing officer's decision.
Petitioners appeal from the hearing officer's determination that the CSE had recommended appropriate assistive technology support service for the child during the 1997-98 school year. The child's IEP indicated assistive technology support service from the BOCES would be provided " ... as needed and quarterly visits to class and team meetings. Direct consultation will be available to parents." Petitioners point out that the IEP did not reveal how a need for such services would be determined, and they assert that the CSE's recommendation was inadequate because it did not include "direct" assistive technology services for their daughter. By "direct", I assume that petitioners are referring to an assistive technology specialist working directly with the child. Petitioners also assert that the CSE disregarded their suggestion that another agency, known as ENABLE, might be equipped to provide direct assistive technology service. Assistive technology service is defined by Federal regulation to include the evaluation of a child's needs, selection of appropriate devices, and training and technical assistance for the child, the child's family, and the staff who work with the child (34 CFR 300.6). I note that the child's speech/language pathologist during the 1996-97 school year testified that the BOCES assistive technology consultant had provided ongoing support to the team working with the child by observing the child and respondent's staff working with her and offering suggestions. He also helped develop some of the parts of the programs which were used with the child's Liberator. Petitioners do not identify any specific training which they believe their child should receive in order to be more proficient in using her assistive technology devices. I find that there is adequate evidence in the record to determine that the nature of the services provided by the BOCES consultant was appropriate. The IEP description of the amount of time which the consultant will provide service should, however, have been more specific.
Petitioners' primary objection to the educational program which the CSE recommended is that a portion of the child's special education was to be provided on a "pull-out" basis, i.e., that she would have been removed from her regular education fourth grade classroom for three hours per week to receive instruction in reading, writing, and mathematics in what respondent calls a resource room. The hearing officer found that the removal of the child from her regular classroom would not contravene the least restrictive environment requirement (see 34 CFR 300.551 [b]) because he deemed a resource room placement to be a "supplementary service" (see 34 CFR 300.552, which makes a distinction between alternative placements and supplementary services).
I cannot accept the hearing officer's conclusion because a resource room is, by definition in New York, for supplemental instruction (8 NYCRR 200.1 [h][h]). When questioned by the hearing officer about the instruction which the child would receive in the "resource room", the school psychologist member of the CSE indicated that the child would be receiving primary instruction in reading, writing, and mathematics in the resource room (Transcript, page 597). She had received such instruction from the consultant teacher in her regular education classroom during the 1996-97 school year, and was to have received some of that instruction outside the regular classroom during the 1997-98 school year. I must note that there does not appear to be any dispute about the child's need for primary special education in those subjects. The question is where should that instruction have been provided?
By the end of the 1996-97 school year, this child's reading, writing and mathematics skills were at the first grade level, according to her special education teacher and her third grade teacher. The fact that her skills would be significantly below those of her fourth grade classmates during the 1997-98 school year is not dispositive of the question of where should she receive her primary special education in reading, writing and mathematics. In determining whether a child can be educated in regular classes, it is not necessary to establish that the child will learn at the same rate, or master as much of the regular education curriculum as his or her non-disabled peers (Daniel R. v. El Paso Indep. School Dist., 874 F. 2d 1036 [5th Cir., 1989]). Instead, the relevant question is whether the child can achieve the goals of his or her IEP within a regular education program, with the assistance of supplementary aids and services (Mavis v. Sobol and Bd. of Ed. South Lewis CSD, 839 F. Supp. 968 [N.D. N.Y., 1994]; Application of a Child with a Handicapping Condition, Appeal No. 90-17; Application of the Bd. of Ed. of Schalmont CSD, Appeal No. 90-19; Application of a Child with a Handicapping Condition, Appeal No. 92-15; Application of a Child with a Handicapping Condition, Appeal No. 92-29; Application of a Child with a Disability, Appeal No. 93-4). The CSE must also consider the unique benefits, academic and otherwise, which the child may receive by remaining in regular classes, e.g., language and role modeling with non-disabled peers (Greer v. Rome City Sch. Dist., 950 F. 2d 688 [11th Cir., 1991]). The fact that a child with disabilities might make greater academic progress in a segregated, special education class may not warrant excluding the child from a regular education environment (Oberti v. Bd. of Ed. Borough of Clementon Sch. Dist., 995 F. 2d 1204 [3rd Cir., 1993).
The school psychologist member of the CSE testified that some of the child's short-term instructional objectives in writing and mathematics couldn't be achieved if the child remained in the regular education classroom for all of her instruction by the consultant teacher (Transcript, pages 591-592). The child's special education teacher for the 1996-97 school year opined that the child would not acquire the skills necessary to become an effective reader, if she did not receive 1:1 instruction, or instruction in a different setting (Transcript, page 674). Although the child's IEP indicated that there could be as many as five children in the resource room, I note that respondent's witnesses made it clear that the child would be receiving 1:1 instruction in the resource room. The special education teacher testified that it took a long time for the child to produce information, which decreased the amount of time in which she could practice her skills (Transcript, 658). When asked to explain why reading instruction could be more effectively provided to the child in a separate location, the special education teacher testified that it was very difficult to teach petitioners' daughter in a regular classroom because of distraction caused by what other children were doing (Transcript, page 881). She further explained that:
"We want her to have the benefit of both worlds. We want her to be able to work with her peers and gain knowledge in science and social studies but also still work on developing her independent skills of reading and writing and mathematics" (Transcript, page 916).
The child's speech/language therapist, who had worked with her since kindergarten, testified that the child would be unable to learn to read independently in a regular fourth grade placement (Transcript, pages 977-978). The child's IEP goal in reading for the 1997-98 school year was to develop independent reading and comprehension skills toward a second grade level. The child's third grade teacher opined that the child could not achieve her reading and mathematics IEP goals in a regular education fourth grade class, but that she might be able to achieve her writing annual goal in that class (Transcript, pages 1254-1255). The speech/language pathologist who had privately evaluated the child in the fall of 1996 testified that the child enjoyed learning in a group, but acknowledged that she had not seen the child in a classroom since kindergarten. The psychologist who had privately evaluated the child in the fall of 1996 testified that maintaining the child in an inclusive setting was important for the child's self-esteem and motivation to communicate. She acknowledged that she had not seen the child work in a classroom, and testified that it was a long and tedious process for the child to make and indicate her choices to test questions during her evaluation. Although the private speech/language pathologist also testified that the child's special education services could be provided to her in a group, I find that neither of petitioners' expert witnesses effectively rebutted the testimony of respondent's witnesses about the child not being able to achieve her IEP goals for reading, writing, and mathematics unless she were removed from her regular classroom for three hours per week to receive 1:1 instruction from her consultant teacher. Accordingly, I find that respondent has met its burden of proof with respect to the appropriateness of removing the child from her classroom on a part-time basis to receive special education instruction.
Petitioners also challenged the appropriateness of their daughter's IEP on the grounds that it allegedly failed to adequately address her physical and social needs because the CSE declined to add certain language suggested by petitioners to the IEP. They wished to have the IEP indicate that the child's self-esteem had been affected by having to wear pull-ups; that she was bored with homework; that she had "voiced" not being happy with her teacher, and that she liked to be left alone without an adult present. I find that these phrases would have added virtually nothing of significance to the child's IEP.
At the hearing, petitioners raised the issue of the location of their daughter's bathroom during the 1996-97 school year. They contended that it was too far from the child's third grade classroom. Although the record included a floor plan of the child's school, I must note that there was virtually no evidence about the length of time it took for the child and her aide to travel to a bathroom which was compatible with her physical needs. In any event, the 1996-97 school year had ended by the time the hearing began, and the location of the child's fourth grade classroom for the 1997-98 school year was not identified at the hearing. The proximity of the child's classroom to a bathroom in any future school year is a matter which should be discussed with the CSE.
Both parties have appealed from the hearing officer's findings with regard to the CSE's recommendation for ESY services during the summer of 1997. A child with a disability who is not placed in a special class during the 10-month school year may be eligible for ESY services, if the child exhibits " ... the need for a 12-month special services and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression as determined by the committee on special education" (8 NYCRR 200.6 [j][v]). The term "substantial regression" is defined to mean " ... a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to re-establish and maintain IEP goals and objectives mastered at the end of the previous school year" (8 NYCRR 200.1 [nn]).
Petitioners challenge the CSE's refusal to recommend that their daughter receive academic instruction during the summer of 1997. The CSE based its decision upon the recommendation of the child's special education teacher, who had tested the child's reading and mathematics skills in June, 1996 and again in January, 1997 shortly after she returned to school for the first time since June, 1996. The special education teacher testified that the child had not shown substantial regression in either subject. She further testified that the child had to "brush up" on a few things in mathematics, and that she went forward in reading and writing. Although the teacher was closely questioned about the test results, I find that the special education teacher's testimony was not rebutted. I note that the child's mother testified that the child's teachers over the years had always told her that the child would be still working in September on what she had started in the preceding June. However, that is not evidence of substantial regression. I find that the record supports the CSE's decision.
The CSE also recommended that the child receive 60 minutes of direct speech/language therapy per week during the summer of 1997. Petitioners contended that the recommended services were inappropriate because they were to have been provided at a BOCES facility which reportedly served children with disabilities exclusively. The hearing officer agreed with their contention. Respondent cross-appeals from his determination. The recommended services were to be provided by BOCES at the Casey Park Elementary School in the adjacent Auburn City School District. The site is approximately seven miles away from respondent's school. Respondent's CSE chairperson testified that he believed that the BOCES summer program at Casey Park was specifically for children with disabilities (Transcript, page 300). The school psychologist member of the CSE agreed that the program was for children with disabilities. I note that respondent does not operate its own summer program, and it is not required to establish its own summer program to comply with the ESY requirement (Application of a Child with a Disability, Appeal No. 96-10). I further note that the U.S. Department of Education has indicated with respect to the least restrictive environment and ESY requirements that it does not require states to ensure that a full continuum of placements is available solely for the purpose of providing ESY services (16 EHLR 290). In this instance, the child was to receive highly individual training on the use of the Liberator to maintain her skills on that device during the summer of 1997. Those services were not to be provided in connection with any summer instructional program. Under the circumstances, I disagree with the hearing officer's finding that the child's receipt of speech/language therapy at the Casey Park Elementary School during the summer of 1997 would have violated the least restrictive environment requirement. Therefore, I will sustain respondent's cross-appeal from that finding.
Petitioners appeal from the hearing officer's decision denying them reimbursement for the portion of the cost of their child's attendance at Camp Chatterbox during the summer of 1997 which was attributable to the speech/language therapy she reportedly received while attending the camp for one week. In order to be eligible for reimbursement, it would be necessary to show that the services offered by respondent were inappropriate, that the Camp Chatterbox speech/language services were appropriate for the child, and that equitable considerations supported petitioners' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ). The hearing officer had agreed with petitioners on the first two criteria, but had denied reimbursement on the third criterion. He found that their claim was not supported by equitable considerations because the child would have attended Camp Chatterbox regardless of the appropriateness or inappropriateness of respondent's ESY services. While I am not persuaded by the hearing officer's reasoning, I must point out that it is a moot point in view of my finding that respondent had offered to provide the child with appropriate ESY speech/language therapy.
Petitioners also appeal from the hearing officer's decision denying their request that respondent be ordered to provide for an evaluation of the child by the Center for Literacy and Disability Studies at Duke University. He did so because he found that there was no evidence that petitioners had ever disagreed with any evaluation obtained by respondent. Federal and State regulations provide that the parents of a child with a disability are entitled to obtain an independent educational evaluation at public expense if they disagree with the school district's evaluation. However their right to an independent evaluation is subject to the right of the school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If a hearing officer finds that the school district's evaluation is appropriate, the parents may have an independent evaluation, but not at public expense (34 CFR 300.503; 8 NYCRR 200.5 [a][vi][a]). There is no requirement that a parent must first notify a board of education of his or her intent to seek an independent evaluation (Application of a Child with a Handicapping Condition, Appeal No. 92-21).
When questioned about this at the hearing, the child's mother testified that she had requested an independent evaluation at one of the May, 1997 CSE meetings. The CSE meeting minutes indicate that the request was made on May 29, 1997. The child's mother was also asked at the hearing whether she disagreed with the evaluations which respondent had obtained. She testified that: "I think this would actually be a first", by which she meant that she did not think that the child had been "evaluated for reading, as I think Duke University would do" (Transcript, page 1476). I note that the child's mother, as well as the two individuals who had performed the private psychological and speech/language evaluations, agreed that the results of the school district and the private evaluations were substantially similar. The question then becomes what, if any, additional useful information from the sought for independent evaluation at Duke? The private psychologist testified that "it might be helpful", but she did not explain what information which the CSE now lacked might be gained from the evaluation. I have considered petitioners' contention that their daughter's reading skills have not been adequately evaluated in light of her disability. However, I can find no objective basis in the record which supports that contention. I must also note from the correspondence between the CSE chairperson and a Duke representative that it is unlikely that the independent evaluation would be performed at Duke (Exhibits 46, 51, 59, and 60).
At least some of petitioners' interest in obtaining an independent evaluation was their belief that respondent's staff was not adequately trained to teach a non-verbal, technology-dependent child like their daughter. At the hearing, respondent's staff testified about the training which they had received on more than one occasion from a representative of the Liberator's manufacturer, as well as the ongoing support and assistance they had received from the BOCES assistive technology consultant. The child's mother testified that the staff of the private agency which had evaluated the girl appeared to have the experience and ability to customize the child's computer software for her. Petitioners also contended that respondent's staff should be better trained in the ways in which the child's Liberator could be used to address her unique needs. However, I must note that educators routinely adapt new tools and techniques to meet their students' needs. I find, as did the hearing officer, that respondent had demonstrated that its staff was adequately trained.
I have considered petitioners' other contentions, which I find to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's findings with respect to the adequacy of the child's IEP goals for physical therapy, the CSE's failure to identify the amount of direct and indirect consultant teacher services, or to specify the amount of time the assistive technology consultant would spend and the inappropriateness of providing ESY services at the Casey Park Elementary School are hereby annulled.