Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Rhinebeck Central School District
Family Advocates, Inc., attorney for petitioner, RosaLee Charpentier, Esq., of counsel
Shaw and Perelson, L.L.P., attorneys for respondent, Garrett L. Silveira, Esq., of counsel
Petitioner appeals from the decision by an impartial hearing officer which found that respondent had offered to provide an appropriate educational program to his daughter for the 1996-97 and 1997-98 school years, and which denied petitioner's request for an order requiring respondent to reimburse him for the cost of his daughter's tuition in the Kildonan School for those school years. The appeal must be dismissed.
Petitioner's daughter, who is thirteen years old, has attended the Kildonan School, at petitioner's expense, since September, 1995. Prior to that time, she had been enrolled in the schools of the Highland Central School District, as well as respondent's schools. Her prior schooling is described in a prior decision, Application of a Child with a Disability, Appeal No. 97-31, and will not be repeated in this decision. In that decision, I dismissed petitioner's appeal from an impartial hearing officer's determination that respondent had offered the child an appropriate educational program for the 1995-96 school year, and denied his request for tuition reimbursement for that school year.
Petitioner's child was initially classified as learning disabled by respondent's committee on special education (CSE) in May, 1995, reportedly because she had deficits in her reading, writing, and mathematics skills. At the time of her classification, the child was in the second grade. For the 1995-96 school year, the CSE recommended that petitioner's child receive both direct and indirect consultant teacher services to address the deficits in her reading, writing, and mathematics skills, while enrolled in a regular education third grade class in respondent's schools. Instead, petitioner unilaterally enrolled his child in the Kildonan School, which is a private school located in Amenia, New York. The school specializes in serving children with reading disabilities, but it has not been approved by the State Education Department to provide instruction to children with disabilities. Consequently respondent could not have placed the child in that school (Section 4402 [b] of the Education Law). As noted above, petitioner challenged the appropriateness of the educational program which the CSE had recommended for the child for the 1995-96 school year, but an impartial hearing officer and I each found that the recommended program was appropriate for the child.
In May, 1996, respondent attempted to arrange for its staff to observe the girl in class at Kildonan, and to have the child tested by one of its special education teachers, in preparation for the CSE's annual review of the child, which was scheduled to take place on June 18, 1996. Respondent was unable to observe the child at Kildonan before that school's academic instruction ended on May 31, 1996. Petitioner initially objected to having his daughter tested, but subsequently allowed her to be tested on June 5, 1996. On the Woodcock-Johnson Achievement Test-Revised, the child, who was in the final month of the third grade, achieved grade equivalent (and standard scores) of 2.8 (89) for letter-word identification, 3.4 (96) for passage comprehension, 3.1 (91) for broad reading, 2.3 (72) for mathematical calculation, 2.4 (86) for applied problems, 2.3 (77) for broad mathematics, 2.5 (84) for dictation, i.e., spelling, and 2.2 (86) for writing samples. Although her writing fluency was at the third grade level, the child's proofing skills were at the second grade level and her punctuation and capitalization skills were at the first grade level.
The annual review which was to take place on June 18, 1996 was cancelled at petitioner's request, and was ultimately held on August 15, 1996. At the hearing in this proceeding, respondent's present Director of Special Education, who was a CSE member for the August 15, 1996 meeting, testified that the CSE reviewed the child's June 5, 1996 test results, which were compared to the results which she had achieved on the same standardized achievement test on March 21, 1995. On the latter date, she had achieved grade equivalent (and standard scores) of 2.1 (98) for letter word identification, 2.0 (96) for passage comprehension, 2.0 (97) for broad reading, 1.9 (93) for mathematical calculation, 1.8 (93) for applied problems, 1.9 (92) for broad mathematics, 2.2 (98) for dictation, and 2.2 (97) for writing samples. As was the case in 1996, the child's writing fluency was well above her proofing and punctuation and capitalization skills.
Petitioner indicated to the CSE that he wanted to have the child independently evaluated. I note that respondent subsequently initiated an impartial hearing for the purpose of demonstrating the appropriateness of its evaluation (see 8 NYCRR 200.5 [a][vi]). The hearing officer in that proceeding found that the matter was essentially moot because of petitioner's representation that he would pay for the independent evaluation. Petitioner's appeal from that determination was dismissed by another State Review Officer in Application of a Child with a Disability, Appeal No. 96-88.
At the August 18, 1996 annual review, the CSE recommended that the child remain classified as learning disabled. It also recommended that she be enrolled in regular education fourth grade classes in respondent's Chancellor Livingston Elementary School, except that she would receive special education instruction in language arts (reading and writing) for 60 minutes per day, and that she receive consultant teacher services while enrolled in a regular education mathematics class. It did not recommend that she receive the benefit of any testing modifications or the use of any specialized equipment. The individualized education program (IEP) which the CSE prepared for the child included annual goals to improve her reading comprehension to a 4.5 grade level, her word identification skills to a 4.0 grade level, her mathematics skills to a 3.3 grade level, and her written language skills to a 3.2 grade level. Petitioner testified that he received a copy of the IEP on September 11, 1996, seven days after classes started in respondent's schools.
Petitioner was, however, already aware of the CSE's recommendation (see Exhibit SD 101). By letter dated August 29, 1996, petitioner informed the CSE chairperson that an independent evaluator would come to respondent's school to ascertain whether the proposed educational program would be appropriate for his child. The CSE chairperson responded that the evaluator could observe similar programs, but the program for this child did not exist because she was not attending respondent's schools. At the hearing, the CSE chairperson explained that petitioner's child would have been the only child in her grade to receive consultant teacher services in mathematics, so that service was not being provided to anyone. She also testified that the language arts teacher who was to have taught petitioner's child had been reassigned to the high school, but that she had offered to let the independent evaluator observe that teacher at the high school or to observe other teachers providing instruction in language arts at the elementary level. The CSE chairperson also testified that if petitioner's child entered the Chancellor Livingston School at the beginning of the 1996-97 school year, the program which had been recommended by the CSE would have been available to her.
On or about October 10, 1996, petitioner advised the CSE chairperson that he objected to his child's IEP for the 1996-97 school year, and he requested that the girl receive compensatory services. Upon the advice of its counsel, respondent deemed petitioner's letter to be a request for an impartial hearing, and appointed a hearing officer. The hearing began on November 26, 1996, when petitioner requested that it be merged with the then pending hearing regarding the child's IEP for the 1995-96 school year. However, respondent opposed petitioner's request. The hearing was thereafter held in abeyance at petitioner's request, pending the outcome of the other hearing. In April, 1997, petitioner challenged the validity of the hearing officer's appointment in the 1996-97 proceeding because he had allegedly been selected from an incomplete list of certified hearing officers. On or about April 9, 1997, the hearing officer withdrew from the hearing.
The CSE began to prepare for its next annual review of the child by sending a school psychologist to observe her at the Kildonan School on February 3, 1997. The child was observed in a mathematics class. The school psychologist reported that the child was attentive and motivated. Although the child appeared to understand the concepts which were involved in the class, the teacher reported that the child had trouble with number reversals which impaired her ability to perform numerical operations.
The CSE also sought petitioner's permission to test the child. Following an exchange of correspondence about the matter, petitioner permitted the child to be tested on April 7, 1997. Once again, she was tested with the Woodcock-Johnson Achievement Test - Revised. At that time, she was in the seventh month of the fourth grade. The child received grade equivalent (and standard scores) of 4.1 (95) for letter-word identification, 4.6 (100) for passage comprehension, 4.3 (96) for broad reading, 3.5 (84) for mathematical calculation, 3.3 (88) for applied problems, 3.4 (83) for broad mathematics, 2.9 (83) for dictation and 4.4 (99) for writing samples. Her proofing skills were at the 2.9 grade level (84), and her punctuation and capitalization skills were at the 2.0 grade level (74), while her writing fluency was at the 3.6 grade level (86).
On May 30, 1997, the child was examined by a neurologist, who reported that the results of the examination were normal but that the child appeared to have a mild attention deficit disorder (ADD). In a subsequent letter to the child's physician dated July 15, 1997, the neurologist reported that the child's ADD was being successfully addressed with the use of Ritalin. He also diagnosed the child as having dyslexia and dyscalculia. The neurologist's report was not available to the CSE when it conducted its annual review of the child.
The child's annual review had been scheduled for May 7, 1997. That meeting and two subsequent meetings on May 15 and June 3 were cancelled at petitioner's request. The annual review was ultimately conducted on June 12, 1997. In addition to reviewing the child's test results from April, 1997, the CSE also considered certain narratives about the girl from the Kildonan School and an oral report by the child's mathematics teacher, who indicated that the child had achieved grade equivalent scores of 3.2 for concepts, 4.4 for computation, and 4.7 for application on the Stanford Achievement Test in May, 1997. The teacher also indicated that she had some concerns about the child's social interaction with her peers, and that the child appeared to have some difficulty engaging in vigorous physical activities. The child's teacher recommended that the testing modifications of having portions of tests read to the child, extending test time limits, and breaking down lengthy written passages be added to the child's IEP. At the meeting, petitioner handed a letter to the CSE chairperson, in which he requested that the child be independently evaluated, and that respondent place the child in the Kildonan School.
Ultimately, the CSE recommended that the child be classified as learning disabled in writing and mathematics for the 1997-98 school year. The CSE recommended that the child be enrolled in regular education classes in the fifth grade of the Chancellor Livingston Elementary School, but that she also receive primary instruction in language arts from a special education teacher for 40 minutes, five times per week, in what respondent calls "structured language arts". In addition, it recommended that she receive 40 minutes of direct consultant teacher services in reading five times per week and 40 minutes of direct consultant teacher services in mathematics five times per week, as well as 30 minutes per week of indirect consultant teacher services. The CSE also recommended that the child receive counseling on an as needed basis, and that she be enrolled in a 30-minute structured study hall five times per week. The testing modifications suggested by the child's teacher were added to the IEP. The girl's IEP goals for the 1997-98 school year included improving her reading and mathematics skills to a fifth grade level, and her writing skills to a fourth grade level. It also included a goal to improve her organizational skills, which was added at the suggestion of her Kildonan teacher, and a counseling goal of making a smooth transition back to the Chancellor Livingston Elementary School.
The hearing with respect to the child's educational program for the 1996-97 school year resumed before a new hearing officer on July 3, 1997. It was agreed that the hearing officer would receive the record of the hearing with regard to the 1995-96 school year as a part of the record in this proceeding. On July 14, 1997, it was agreed by the parties that the hearing officer should assume jurisdiction over petitioner's challenge to the child's IEP for the 1997-98 school year (see Application of a Child with a Disability, Appeal No. 95-51). The hearing continued for eight more days, ending on March 20, 1998.
In her decision which was rendered on April 4, 1998, the hearing officer noted that there was no dispute about the child's classification as learning disabled, but that petitioner believed that the term "dyslexic" more accurately reflected his child's disability. The hearing officer found that the child has a language processing deficit, and concluded that the label to be affixed to that deficit was immaterial. She noted that petitioner had challenged the child's IEP for the 1996-97 school year on procedural and substantive grounds. With respect to petitioner's claim that the CSE failed to observe the child at Kildonan prior to preparing her IEP for the 1996-97 school year, the hearing officer noted that the CSE was not required by regulation to observe the child as part of its annual review. She found that the CSE had based its review upon the child's IEP and other current information about her (see 8 NYCRR 200.4 [e]). The hearing officer also found that the CSE had failed to indicate the size of the child's special education language arts class on her IEP (cf. 8 NYCRR 200.4 (c)(2)(iv), but she noted that the testimony at the hearing established that there would be no more than five children in the class. She also dismissed petitioner's contention that he had been unable to observe the recommended program in 1996 before deciding whether to place the girl in a program, as well as his contention that respondent's staff was unqualified to provide an appropriate educational program to his daughter. The hearing officer found that respondent had met its burden of proving that it had offered to provide an appropriate program to the child for the 1996-97 school year.
With respect to the educational program which the CSE had recommended for the 1997-98 school year, the hearing officer found that the IEP annual goals and short-term instructional objectives were directly responsive to the child's educational deficits, as were the special educational services which the CSE had recommended for her. She noted that the child was recently diagnosed as having an attention disorder (ADD), and she directed the CSE to review the child's IEP to ensure that it met her needs in this regard. However, the hearing officer found that respondent had also met its burden of proof with respect to the appropriateness of the child's recommended educational program for the 1997-98 school year.
Petitioner complains of the fact that neither the hearing officer in the proceeding regarding the 1995-96 school year nor the first hearing officer in the proceeding involving the 1996-97 school year would agree to consolidate the hearings into a single proceeding. I must note that the actions of the hearing officer in the proceeding involving the 1995-96 school year, which I reviewed in Application of a Child with a Disability, Appeal No. 97-31, are clearly outside the scope of the instant proceeding. Since that hearing officer did not take jurisdiction over the parties' dispute regarding the 1996-97 school year, there was no way that the hearing officer in the second proceeding could have consolidated the two proceedings. Although I appreciate petitioner's concern that his disagreements with respondent be resolved in an expeditious manner at low cost to him, I do not agree with his assertion that it as "a flawed procedure biased against parents". Therefore, I find that his claim of procedural unfairness is without merit.
Petitioner also contends that he should be reimbursed for the cost of his child's education in the Kildonan School during the 1996-97 school year because his daughter's IEP was not provided to him until after the school year had begun, and because the hearing officer allegedly found that the child's IEP could not have been implemented in September, 1996 because the district did not have such a program in place and would need some "lead time to put it in place". However, I find that petitioner has taken the hearing officer's finding somewhat out of context. At the August 15, 1996 annual review which would have taken place almost two months before, but for petitioner's requests for adjournments, petitioner indicated that he would not approve of anything until the child had been independently evaluated (Exhibit SD 101). Petitioner had previously contracted in April, 1996 with Kildonan for the child's education during the 1996-97 school year (Exhibit P-60C). The CSE chairperson testified that petitioner had requested that respondent transport the child to the Kildonan School for the 1996-97 school year (July 14, 1997 Transcript page 112). The CSE chairperson testified that since petitioner had not re-enrolled his child in respondent's schools since removing her in 1995, she and her colleagues believed that the child would not attend the Chancellor Livingston Elementary School during the 1996-97 school year. Consequently, the assignments of the staff members who would have worked with petitioner's child were changed. However, she testified that if "we had known she was coming," the child would have had an educational program available to her (July 14, 1997 Transcript pages 121-122). Her testimony has not been rebutted by petitioner. The CSE chairperson also testified that respondent was prepared to make the program available to the child at any time during the course of the 1996-97 school year, but "it would have meant hiring another teacher" (Ibid.). That was the context in which the hearing officer found that it would take some time to put the program in place. I also note that in his letter to the CSE requesting that the evaluator observe the program, which was received the day before classes began in respondent's schools, petitioner indicated that the evaluator would not be available on a number of days in September. In any event, petitioner's analogy to a "Nickerson letter placement" must fail since those placements must be in a State-approved school (see Application of a Child with a Disability, Appeal No. 97-74). I find that petitioner's argument that he is entitled to an award of tuition reimbursement because he did not receive the child's IEP until September 11, 1996 is without merit.
Petitioner challenges the hearing officer's determination that respondent had offered to provide his daughter with appropriate educational programs for the 1996-97 and 1997-98 school years. He contends that the IEPs which the CSE prepared for his daughter were inappropriate to meet her learning needs because she needed to have all of her learning taught to her in a hands-on experiential manner, which he asserts was only available at the Kildonan School.
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).
I have examined both IEPs (Exhibits SD 102 and SD 120 B). Both IEPs included the results of respondent's testing, as well as that which was done by the Kildonan School. Both IEPs described the child's educational achievement, physical development, social development and management needs as is required by 8 NYCRR 200.4 (c)(2). The IEP for the 1996-97 school year indicated that the child had deficits in written language, reading and mathematics, while the IEP for the 1997-98 school year indicated that the girl continued to have trouble with mathematics and writing. Although the latter IEP did not specifically refer to reading as a need, it nevertheless included an annual goal for reading and provided that she would receive direct consultant teacher services for reading. In any event, I must note that respondent's testing of the child in May, 1997, as well as that performed by a private consultant in August, 1997 (Exhibit P 137) indicated that the child's total reading skills were not significantly below grade level.
I have also considered the IEP descriptions of this child's needs in terms of petitioner's contention at the hearing that the generic classification of learning disabled did not adequately reflect his daughter's diagnoses of dyslexia and ADD. I must first note that the term dyslexia is included in both the Federal and State definitions of a learning disability for educational purposes (34 CFR 300.7 [b]; 8 NYCRR 200.1[mm]). Petitioner submitted a written definition of that term by the Academy of Orton-Gillingham Practitioners and Educators at the hearing (Exhibit P 141). That definition indicated that the word is of Greek origin, meaning difficulty with words, and more specifically difficulty in the use of and processing of arbitrary linguistic/symbolic codes. Respondent’s expert witness, Dr. James Lennon, testified that there were two types of dyslexia, one involving phonological coding, and the other involving reading comprehension. He further testified that the use of the term dyslexia did not add clarity to the diagnosis of a child's learning problem (March 20, 1998 Transcript page 739). The child's diagnosis of ADD was not made until almost the end of the 1996-97 school year, and was not shared with the CSE until September 1, 1997 (Exhibit P 140). Given the neurologist's July 15, 1997 report that the child was responding well to Ritalin (Exhibit P 135), I find that there is no evidence that her ADD would have had a significant impact upon her educational performance during the 1997-98 school year. With regard to the prior school year, I have examined the record and found that there is very little evidence of the child's mild ADD impacting upon her educational performance. In any event, the 1996-97 IEP noted that she was non-attentive at times. I find that both IEPs accurately and adequately described the child's educational needs.
I've also reviewed the annual goals and short-term objectives which appear in the child's IEPs. Respondent's CSE chairperson testified about the child's goals and objectives for the 1996-97 school year. Those goals and objectives address the child's specific needs with regard to reading comprehension, word identification, mathematical calculation, and writing skills, and they were appropriately keyed to the child's then current levels of performance. Although petitioner's private educational consultant criticized the IEP goals because they allegedly failed to disclose how the child's performance would be improved, I disagree with the consultant's opinion, which appears to be consistent with her belief that IEP's are generally not very helpful (November 24, 1997 Transcript page 553). Neither Federal nor State law requires the degree of specificity which the consultant wished to have. I find that the child's 1996-97 IEP annual goals and objectives were appropriate for her. The CSE chairperson also testified about the child's annual goals and short-term objectives for the 1997-98 school year. She testified that the goals and objectives were discussed with the child's teacher at Kildonan, who participated by telephone in the CSE's annual review. Her testimony that the child's teacher at Kildonan agreed with the goals and objectives has not been refuted. My review of them leads me to conclude that the goals and objectives were appropriate for the child.
The central question in this appeal is whether the CSE recommended an appropriate set of special education services for the child to receive in the 1996-97 and 1997-98 school years. The parties appear to agree that the child required specialized multisensory instruction for at least part of the school day to improve her language arts skills, as well as specialized instruction to improve her mathematics skills. In addition to disagreeing about the amount of such specialized instruction which should have been provided, the parties also disagreed about the nature of the multisensory instruction. Petitioner insisted that his child should be instructed with the Orton-Gillingham methodology, a form of which was used at the Kildonan School, and he questioned the qualifications of respondent's staff to provide that kind of instruction. I must note that Federal regulations authorize each State to establish the standards for training and/or experience of the professional persons who will provide services to children with disabilities (34 CFR 300.12, 300.153 [b]). The Regulations of the Commissioner of Education require that respondent's special education teachers hold appropriate teacher's certification (8 NYCRR 200.6 [b]). Although petitioner would prefer that his child's teachers be certified as "academic language therapists" which is a designation awarded by a private organization, there is no legal requirement that respondent employ teachers with that designation (Application of a Child with a Handicapping Condition, Appeal No. 91-19).
In petitioner's previous appeal involving his child's educational program for the 1995-96 school year, I noted that Orton-Gillingham was one, but not the only, method of providing multisensory instruction. I found that it was not the only teaching methodology which would have been efficacious for the child. In the present proceeding, petitioner's educational consultant was asked by the hearing officer whether Orton-Gillingham was the only teaching approach which would work with the child. The consultant stated that in her experience, Orton-Gillingham had been the only program which worked, but she acknowledged that the hearing officer's question was very hard to answer (November 24, 1997 Transcript page 559). The CSE chairperson, who was in the process of obtaining a doctorate in reading, testified that there was no scientific research showing that only one method worked for remediating language-based reading deficits. Her testimony was supported by Dr. Lennon, respondent's expert witness. I find that the record does not afford a basis for concluding that petitioner's child needed to be taught with the Orton-Gillingham methodology in order to receive educational benefit from her educational program. The CSE chairperson testified that respondent had multisensory programs which provided a structured and consistent approach to language instruction (January 21, 1998 Transcript page 610). The CSE chairperson's testimony has not been refuted.
As noted above, petitioner insisted that his child required specialized instruction on a full-time basis, while the CSE had recommended that she receive special education for only part of the day. Respondent was required to place the child in the least restrictive environment, i.e., it could not remove her from the regular educational environment, except if the nature or severity of her disability was such that she could not be satisfactorily educated in regular education classes with the use of supplementary aids and services. While I recognize that deficits in the basic academic skills of reading and writing will clearly have an effect upon the child's performance in most, if not all, the child's academic classes, it does not follow that the child must be totally isolated in special education classes. The consultant teacher services which the CSE recommended that the child receive during both school years were clearly a less restrictive alternative to full-time special education, and I have no reason to believe that those services would not have been efficacious. Where a more intensive, i.e., restrictive, level of service was required, the CSE recommended that the child receive special class instruction. I note that there was some confusion about the size of those classes because of the format of respondent's IEPs. On the first page of each IEP the words "none specified" appeared after the heading: "Class Size Ratio" (cf. 8 NYCRR 200.4 [c][iv]). However, I note that the second page of the child's IEP for 1997-98 school year indicated that her structured language arts class would have no more than five children. Nevertheless, that IEP should have also indicated the group size for the child's recommended counseling and structured study hall. I have considered the CSE chairperson's testimony about how the recommended services would have been provided to the child, and I find that those services would have been appropriate for the child. Therefore, I will not invalidate the child's IEPs merely because the CSE failed to specify the size of the instructional groups. However, respondent must ensure that its CSE complies with the regulatory requirement in the future.
I have considered petitioner's other assertions, which I find to be without merit.
THE APPEAL IS DISMISSED.