Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF KINGSTON for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Shaw and Perelson, L.L.P., attorney for petitioner, David S. Shaw, Esq., and Lisa S. Rusk, Esq., of counsel
Petitioner, the Board of Education of the City School District of the City of Kingston, appeals from the decision by an impartial hearing officer which held that petitioner had failed to demonstrate that it had offered an appropriate educational program to respondent's son for the 1997-98 school year. The Board of Education also appeals from the hearing officer's order directing it to pay for an evaluation which it had reportedly asked an independent evaluator to make, and to pay that individual for the cost of remedial mathematics instruction which she provided to respondent's son during the 1997-98 school year. Petitioner also appeals from the hearing officer's order requiring it to obtain an assistive technology evaluation for the boy. The appeal must be sustained in part.
In her answer, respondent asserts that there is an inherent conflict of interest in a State Review Officer of the State Education Department reviewing this appeal because the State Education Department is allegedly involved in improperly controlling the placement of students by school districts in schools which have not been approved by the Department to provide instruction to children with disabilities. She has not identified any specific policy of the Department or act of one of its employees in support of her assertion. In any event, I must note that 8 NYCRR 279.1 (c)(2) provides that:
"State Review Officers shall not have jurisdiction to review the actions of any officer or employee of the State Education Department."
I am aware that respondent is seeking to have her son placed in a private school which has not been approved by the State Education Department, and that Federal law provides that a school district may not place a child in a private school which does not meet the standards of the State educational agency (20 USC 1412 [a][B][ii]). The hearing officer in this proceeding held that she did not have the power to place the child in an unapproved private school. However, the issue of a prospective placement of respondent's son in an unapproved school is not before me, since respondent has not appealed or cross-appealed (see 8 NYCRR 279.4 [b]) from the hearing officer's decision. Under the circumstances, I find that respondent's assertion of an alleged conflict of interest is without any basis in fact or law.
Respondent's son is 18 years old. He has been classified as learning disabled because he has a form of dyslexia known as "dyseidesia". According to an optometrist who evaluated the boy in May, 1995, dyseidesia involves a deficit in one's ability to perceive whole words as visual symbols and to match words with auditory symbols. The optometrist indicated that respondent's son had some difficulty with his visual and auditory sequential memory and his visual-figure-ground skills. I note that dyslexia is commonly understood to mean an impaired ability to read. It is not a separate classification under either Federal or State regulations, but is a specific learning disability. There is no dispute as to the appropriateness of the boy's classification as learning disabled.
Respondent's son attended petitioner's Myer Elementary School for kindergarten, first, and second grades. He reportedly had some difficulty recognizing letters while in kindergarten, but was academically successful in the first and second grades. The boy was reportedly "home instructed" for the third and fourth grades. He then attended a private school for the fifth and sixth grades. There is little, if any, information in the record about the boy's educational performance in elementary school.
Respondent's son returned to petitioner's schools for the seventh grade during the 1993-94 school year. Respondent reportedly referred her son to petitioner's committee on special education (CSE) in March, 1994. One of petitioner's school psychologists who evaluated the boy in June, 1994 reported that the boy had achieved a verbal IQ score of 90, a performance IQ score of 90, and a full scale IQ score of 89, placing him within the average range of intellectual functioning. On the Woodcock Johnson - Revised, which is an academic achievement test, the boy achieved grade equivalent scores of 3.6 for letter-word identification, 3.5 for word attack, 6.9 for passage comprehension, 5.6 for mathematical calculation, and 5.8 for applied problems. The school psychologist reported that the boy's writing sample was extremely poor for his age, with limited content, and numerous spelling errors. She further reported that on a test of the boy's visual motor integration skills, the boy had completed the drawings hurriedly, which was more a reflection of his impulsivity than of perceptual problems.
On August 2, 1994, petitioner's CSE recommended that respondent's son not be classified as a child with a disability because he reportedly did not require special education services. However, the CSE did recommend that the boy undergo a speech/language evaluation. The speech/language pathologist who evaluated respondent's son in December, 1994 reported that the boy evidenced severe delays in his written language. She explained that the boy's weakness in the mechanics of language would affect his ability to write reports and do homework. The boy's spontaneous writing skills were also found to be very poor, which would also impair his ability to complete written assignments.
The record includes virtually no documentary evidence of the boy's academic performance while in the seventh and eighth grades. I note that his transcript reveals that he dropped a beginning Spanish course in the middle of the eighth grade. A subsequent individualized education program (IEP) for the boy indicates that in January, 1996, he passed the Regents Competency Tests in reading, mathematics, science and writing. Although the record also does not reveal when the CSE initially classified respondent's son as learning disabled, his transcript indicates that he was enrolled in a resource room program while in the ninth grade during the 1995-96 school year. His final grades for that school year included a 75 for Regents Competency Test (RCT) - level English, 73 for global studies, 51 for Regents - level Mathematics Course I, 73 for Regents - level earth science, 59 for introduction to the law, and 52 for keyboarding.
While in the tenth grade during the 1996-97 school year, the boy continued to receive resource room services to supplement the instruction he received in regular education courses. The boy was initially enrolled in a Regents - level English course where he received failing grades during the first two quarters of the school year, but he was reassigned to a RCT level English course for the remainder of the year. His final grade for RCT English was 94. He received a final grade of 70 in a tenth grade global studies/law course. Respondent's son repeated the Regents Mathematics Course I during the first quarter of the 1996-97 school year, but dropped that course. He attained a final grade of 72 for Regents biology, and was successful in two occupational education courses.
At a CSE meeting which was held on November 21, 1996, it was agreed that the boy would receive reading instruction until the end of January, 1997 from a private consultant who employed the Orton-Gillingham methodology. Such instruction was to be provided at petitioner's expense.
On December 19, 1996, respondent's son was evaluated by one of petitioner's school psychologists, who reported that the boy had achieved a verbal IQ score of 88, a performance IQ score of 102, and a full scale IQ score of 93. The school psychologist indicated that the boy had scored relatively low on one IQ subtest which measured his ability to use common sense solutions in practical social situations, and that his performance of tasks requiring visual organization, visual memory and perception was above average. On the Woodcock Johnson – Revised, the boy achieved grade level (percentile) scores of 6.7 (21st) for letter-word identification, 3.8 (12th) for word attack, 11 (54th) for passage comprehension, 3.3 (2nd) for dictation (spelling), 7.0 (17th) for mathematical calculation, and 8.0 (30th) for mathematical applications. The school psychologist opined that the boy had a "dyseidetic dyslexic learning disability" which was manifested by the difficulty which he had with discriminating and analyzing the visual and spatial aspects of the configuration of words and letters. He recommended that the boy continue to receive the Orton-Gillingham multi-sensory instruction which was being provided by the educational consultant. The school psychologist also recommended that the boy receive counseling.
The educational consultant who was using the Orton-Gillingham technique to instruct the child also evaluated him in December, 1996. On the Woodcock Reading Mastery Test, the boy achieved grade equivalent (percentile) scores of 6.1 (13th) for word identification 3.4 (17th) for word attack, 9.3 (41st) for word comprehension, and 16.9 (93rd) for passage comprehension. The consultant reported that respondent's son had difficulty on the high school level of the Slingerland Reading Test, which reportedly identifies strength and weaknesses in visual, auditory and kinesthetic learning modalities. She further reported that the boy transposed, inverted, and substituted letters, and that he had considerable difficulty on a test where he was required to write what he had previously been shown. The boy also had difficulty transcribing words which had been spelled for him. The consultant indicated that the boy had difficulty with multiplication, but she provided no test scores from the Key Math Test which she administered to him. She also indicated that he did not know how to form certain cursive letters and that his letter formations were immature. She recommended that respondent's son receive in-depth language training in a program which used a technique like the Orton-Gillingham methodology, through the remainder of the school year, the summer, and the next school year. She also recommended that he receive specialized training in mathematics (Exhibit 42).
A CSE meeting which was to have been held on January 16, 1997 had to be rescheduled because of inclement weather. By letter dated January 27, 1997, respondent asked petitioner's Director of Special Education to promptly make new arrangements with the educational consultant to resume her instruction of respondent's son, which had reportedly ended in December, 1996 because of a scheduling problem. The CSE met with respondent and the educational consultant on February 11, 1997. The results of the boy's evaluations by the school psychologist and the consultant were discussed. The CSE recommended that the consultant provide multi-sensory instruction in reading and mathematics to the boy until the end of the school year. I note that a copy of the IEP which was prepared at the CSE meeting (Exhibit I) has a handwritten notation indicating that the Board of Education declined to approve the recommendation with regard to the boy's instruction in mathematics. However, the consultant continued to instruct the boy in mathematics "on a contingency basis".
On May 6, 1997, the CSE met with respondent and her son to prepare the boy's IEP for the 1997-98 school year. Respondent, who had been paying the consultant to instruct her son in mathematics, requested that the boy receive 1:1 instruction in both reading and mathematics during the summer and the 1997-98 school year. The CSE recommended that the boy receive multi-sensory reading instruction during the summer, and multi-sensory reading and mathematics instruction for 90 minutes per day during the 1997-98 school year (Exhibit J). It also recommended that he receive resource room services for one period per day while enrolled in petitioner's high school for eleventh grade academic instruction and the BOCES Vo Tec program for mechanics. The boy's IEP included the testing modifications of extended time limits, having questions read and answers recorded, having all chapter and unit tests read to him, and taking tests in a special location. His IEP annual goals were intended to improve his organizational and study skills, "reading readiness skills", and the mechanics of written language (spelling, capitalization and punctuation). The IEP also included a general goal related to transitional activities.
Respondent's son completed the tenth grade in June, 1997. He earned final marks of 94 for RCT English 10, 70.1 for global studies/law, 72.1 for Regents biology 89 for "ST CRAFTS", and 80 for "CHEF WKSP". By the end of the tenth grade, the boy had earned seven credits towards graduation, exclusive of the local credit given for physical education.
In a letter to a member of the Board of Education on August 14, 1997, respondent asserted that the educational consultant had been unable because of illness to provide all of the agreed upon services to her son. She further asserted that her son's IEP for the 1997-98 school year was inappropriate. Respondent requested that an impartial hearing be held, and indicated that she sought to have her son placed in the Kildonan School.
During the 1997-98 school year, the boy attended BOCES occupational classes in the morning, and returned to petitioner's high school for instruction in non-Regents mathematics and social studies courses, an alternative education course, physical education, and resource room services. In September, 1997, respondent's son was allegedly disrespectful to his English teacher on more than one occasion. Respondent and her son met with the Assistant Principal of the Kingston High School on October 8, 1997. It was agreed that the boy would be removed from his eighth period English class in order to receive instruction from the consultant four days per week, and to attend resource room on the fifth day of the week. It was further agreed that he would take English 11 in the evening from 5:30 to 8:30, and that he would have the assistance of a resource room teacher one evening per week. As a result of this schedule change, the boy would receive four periods of resource room per week during the school day, rather than the IEP mandated five periods per week.
The hearing in this proceeding began on October 21, 1997. Respondent was assisted by a lay advocate at the hearing. At the outset of the hearing, respondent's advocate indicated that the issues to be determined were as outlined by respondent in her August 24, 1997 letter, and that there was the additional issue of whether the consultant should be reimbursed for her mathematical instruction of the boy which had been done on a contingency basis (Transcript, page 33). Petitioner's attorney moved to have the matter remanded to the CSE because some areas needed to be addressed or strengthened in the boy's IEP. With respect to respondent's requested remedy of an order placing the boy in the Kildonan School, petitioner's attorney moved to dismiss that request because it was beyond the power of the hearing officer to place the child in an unapproved private school. Petitioner's attorney also moved to limit the scope of the hearing to issues relating to the boy's IEP for the 1997-98 school year. The hearing officer ruled that the hearing would continue, but she encouraged the parties to resolve what issues they could at a CSE meeting.
Respondent met with the CSE on October 23, 1997. The CSE discussed whether the boy should receive high school credit in English and mathematics for his study with the consultant, but it determined that he should not receive credit for that work. It recommended that the boy receive a speech/language evaluation, and it added an annual goal and supporting objectives for speech/language. However, it did not recommend that he receive a specific amount of speech/language therapy. I note that the boy's IEP indicated that his speech and oral language skills were age appropriate. The CSE amended the boy's IEP to provide that he should have access to a computer with a spellcheck program, and that he should have the services of a note taker. It also amended the IEP to include an annual goal for mathematics, and added three goals for reading and two goals for writing. The boy's IEP was further amended by the addition of one objective to his annual goal to improve his study skills, and two new goals for transitional activities. The CSE recommended that the boy continue to receive one period of resource room services per day, and that he continue to receive multisensory instruction in reading and mathematics from the educational consultant.
The impartial hearing resumed on November 12, 1997. Respondent, through her advocate, indicated that she was dissatisfied with her son's IEP for the 1997-98 school year. The parties agreed that the boy would return to his eighth period English class, and that the educational consultant would implement the boy's IEP annual goals for reading and mathematics.
On December 12 and 16, 1997, the boy was evaluated by a speech pathologist who administered the Clinical Evaluation of Language Fundamentals – Revised (CELF–R), as the CSE had requested. However, the speech/language pathologist noted that the CELF-R was only normed for children below the age of 17 and that respondent's son was 17 years and 3 months at the time of testing. She reported that the boy had scored within the average range for both receptive and expressive language, by achieving standard scores of 97 and 95 respectively. The boy displayed one area of weakness when trying to verbally create a sentence from words which were given to him. The speech/language pathologist also administered the Test of Written Language–2 (TOWL–2) to the boy, and compared his results to those which he had achieved on that test in 1994. She reported that there had been minimal growth in the boy's written language skills. She indicated that the boy had not demonstrated any maturity or growth since his last evaluation in both of his contrived and spontaneous writing skills. Noting that the boy had been working on the rules of grammar, she indicated that he continued to be unsuccessful in carrying over those rules to his every day written language. Although the mechanics of the boy's written language had not greatly improved, the content of his writing was found to be more mature and detailed.
The hearing in this proceeding was held on six days ending on January 22, 1998. On April 28, 1998, the hearing officer rendered her decision. She reviewed the boy's IEP for the 1997-98 school year as initially drafted on May 6, 1997, and amended on October 23, 1997. The hearing officer found that neither IEP indicated how the boy learns and how dyslexia plays a part in his total learning process. She further found that the IEPs did not indicate how the boy's regular education teachers would be apprised of his strengths, weaknesses, and learning style, as well as his testing modifications. In addition, the hearing officer found that the boy's IEPs did not indicate how the consultant's activities would be coordinated with the work the boy was doing in his resource room program. The hearing officer next considered whether the special education services which the CSE had recommended for the boy were appropriate. She concluded that the boy's educational program was inappropriate, after comparing his educational achievement test scores from 1994 and 1996, and considering his academic record in high school. The hearing officer recommended that the CSE consider placing the child in a day school which educates primarily dyslexic students and uses a multisensory alphabetic phonics approach to teach the language arts. With respect to respondent's request that she order the boy to be placed in the Kildonan School, the hearing officer held that she lacked the authority to place the child in an unapproved school (see Antkowiak v. Ambach, 838 F. 2d 635 [2d Cir., 1988]). The hearing officer also found that the educational consultant should be paid by petitioner for an evaluation which had reportedly been done at the request of petitioner's former Director of Special Education, and "recommended" that the consultant be paid for the remedial mathematics instruction which she had provided to the boy during the 1996-97 school year. She further recommended that the boy receive an assistive technology assessment. With the agreement of the parties, the hearing officer retained jurisdiction over respondent's claim for compensatory education.
The Board of Education contends that the hearing officer erred by finding that it had not established the appropriateness of the boy's 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).
The boy's initial IEP for the 1997-98 school year (Exhibit J) and his amended IEP (Exhibit Q) reflect the results of his December 19, 1996 evaluation by petitioner's school psychologist, but do not show the results of his evaluation by the educational consultant in December, 1996. While the results of the latter evaluation were generally consistent with those which the school psychologist had obtained, the educational consultant's report provided somewhat more detail about the boy's learning problems. Nevertheless, I find that both IEPs accurately describe the boy's present levels of performance, as required by 34 CFR 300.346 (a)(1) and 8 NYCRR 200.4 (c)(2)(i). Contrary to the hearing officer's finding, I further find that the IEPs do provide some explanation of how the boy's disability affects his performance, e.g., letter reversals, difficulty with word problems in mathematics, and difficulty copying from the blackboard.
IEP annual goals are " … statements that describe what a child with a disability can reasonably be expected to accomplish within a twelve month period in the child's special education program "(34 CFR Part 300, Appendix C, Question 38). It is well settled that statements such as the boy " … will develop and demonstrate an improvement in reading readiness skills," and "will develop and demonstrate improvement in written expression" which appear in his IEP are inadequate because they are not sufficiently specific to provide a teacher with direction about the CSE's expectation (Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 96-27). The short-term instructional objectives which support the boy's annual goal do, for the most part, provide more specificity to enable the boy's teachers to prepare instructional plans. At the hearing, respondent and the educational consultant challenged the boy's IEP goals and objectives as not being individualized enough for the boy, and failing to reveal the grade levels at which he was expected to perform in order to attain his goals and objectives. While I agree that the goals and objectives could have been drafted with more precision, I find that the goals and objectives do address the boy's individual special education needs.
The central question in this appeal is whether the special education services which the CSE recommended and which petitioner provided to the boy were appropriate to enable him to receive educational benefits from his instructional program. The boy's IEPs indicate that he would receive primary special education instruction for reading and mathematics for 90 minutes per day. That instruction was to be provided by the educational consultant. Petitioner's CSE chairperson testified that the consultant was in fact providing two hours of instruction for four days per week, rather than 90 minutes of instruction five times per week, by agreement (Transcript, page 222). Although the IEPs do not indicate that the consultant would also provide primary special education instruction for writing, the record reveals that she also provided that instruction to the boy. The educational consultant testified that she was using a multisensory instructional program which she referred to as "Orton" to teach reading and spelling to respondent's son, and she was using the "Stern" program to teach mathematics. She further testified that the boy was a conscientious student who was beginning to acquire word attack skills and was learning how to spell. Since starting with her in March, 1996, the boy had completed the first level of the Orton program and was mid-way through the second of the three levels of that program (Transcript, page 828). The consultant noted that the boy already did well with reading comprehension, and she testified that completion of the Orton program would give him the basic skills of reading. She testified that she had been working on the parts of speech with him, and that he was doing beautifully with it and was learning about sentence structure (Transcript, page 829).
Although the consultant testified that "It would appear that [the boy] is not getting a program that he needs …" in petitioner's schools (Transcript, page 837), she did not testify that the boy required more primary special education instruction. Indeed, she predicted that he was not likely to need special instruction in mathematics by January, 1997. The consultant agreed that the boy needed the supplemental instruction provided by his resource room teacher pursuant to his IEP (Transcript, page 796). She asserted that the boy needed a "full high school program". When asked what a full or whole high school program would include, the consultant testified that it would include English, social studies, "and everything else" (Transcript, page 852). However, she conceded that she was not aware of what courses the boy was taking (Transcript, page 853). The consultant also asserted that the boy was not getting help in his other courses, but admitted that she had little or no factual basis for making that assertion (Transcript, pages 854-855).
In any event, I am not persuaded by the record before me that the boy needed to receive full-time primary special education as a day student in a facility serving learning disabled children, as the hearing officer had suggested in remanding this matter to the CSE. Pursuant to both 34 CFR 300.550 (b) and 8 NYCRR 200.6 (a)(1), petitioner was required to place respondent's son in an educational program which was in the least restrictive environment. That requirement must be balanced against the requirement that each child with a disability receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 889 F. 2d 688 [2d Cir., 1989]). The record reveals that this boy had achieved educationally in a regular education program with supplemental special education instruction prior to the 1997-98 school year. His educational progress to date has not been trivial. I note that he passed two Regents-level science courses. For the 1997-98 school year, petitioner provided the boy with a combination of primary special education to remediate the deficits caused by his disability and supplemental special education through the resource room to enable him to benefit from the regular education instruction which he needed in order to continue to make progress towards achieving a high school diploma.
Petitioner attempted to provide the boy with note taking assistance in his English class, but he chose to walk out of class. Although he is no doubt frustrated by the effects of his disability, respondent's son must nevertheless continue to work with those who have been assigned to help him.
The Board of Education also challenges the hearing officer's directive that it pay the educational consultant for the educational evaluation which she performed in December, 1996 and for the mathematics tutoring she provided to the boy from March, 1997 to the end of the 1997-98 school year. Petitioner contends that the hearing officer exceeded her jurisdiction because neither issue had been identified as an issue for her to determine prior to the hearing (see Exhibits 54 and B). However, I find that respondent's advocate raised the issue of payment for the consultant's tutoring in her opening statement (Transcript, page 36). Opening statements typically delineate the issues to be addressed at the hearing. Respondent testified that she had intended to ask for an impartial hearing in February, 1997 about petitioner's refusal to pay for the tutoring which its CSE had recommended, but she did not do so. The consultant testified about the service which she had provided to the boy in the spring of 1997, and the benefit he had derived from her services. Under the circumstances, I find that petitioner was placed on notice that the issue of payment for the boy's mathematics tutoring would be addressed by the hearing officer, and that her ruling is supported by the record. I agree with petitioner that there is no bill for the consultant's services in the record. However, I find that the consultant is entitled to reasonable compensation for her tutoring services, upon her submission of a bill for those services to petitioners. I reach a contrary conclusion with respect to the hearing officer's directive to pay the consultant for the evaluation which she performed and which she had never billed petitioner for. This issue arose on the final day of the hearing when the consultant mentioned during her testimony that she had not been paid for the time she spent analyzing the results of the evaluation and writing her report. It appears to have been a sua sponte determination by the hearing officer.
The final issue to be determined is whether the hearing officer exceeded her jurisdiction by directing the CSE to have an assistive technology evaluation performed on the boy. Petitioner asserts that the issue was not raised by either party at the hearing, and that the record is devoid of any evidence regarding the appropriateness of an evaluation. An impartial hearing officer may order that a child be evaluated at school district expense (8 NYCRR 200.5 [c]). However, that power is not unlimited. In this instance, the parties agreed that the boy should have access to a computer with the appropriate software to compensate for the deficits in his writing and spelling skills. In her decision, the hearing officer noted that there are many types of assistive technology devices which can benefit dyslexic people. Given the fact that the parties agree that the boy would benefit from the use of one form of assistive technology, I find that there is an adequate basis in the record to explore the possibility of other forms of assistive technology.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the hearing officer, to the extent she found that the Board of Education had failed to offer respondent's son an appropriate educational program during the 1997-98 school year, and to the extent that she required the Board of Education to pay the private educational consultant for her December, 1996 evaluation of the boy, is hereby annulled.