Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Port Jefferson Union Free School District
Leon and Deffet, Esqs., attorneys for petitioner, Michael E. Deffet, Esq., of counsel
Ingerman Smith, L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which upheld a recommendation by respondent's committee on special education (CSE) to reduce the frequency of her son's 1:1 remedial reading instruction from five times per week to three times per week in February, 1998. The appeal must be dismissed.
Petitioner's son is nine years old, and is presently classified as learning disabled. He was initially identified as a preschool child with a disability because of significant delays in his speech/language skills. As of January, 1994, he began receiving specialized services at the St. Charles Educational and Therapeutic Center, while continuing to participate in his preschool program on a half-day basis. There is very little information in the record before me with regard to the child's education during the 1994-95 and 1995-96 school years. During those years, he apparently received special class instruction and speech/language therapy, while also enrolled in regular education kindergarten and first grade classes.
The child repeated the first grade during the 1996-97 school year. In his triennial psychological evaluation which was performed in October, 1996, the school psychologist reported that the child's teacher had indicated that the child was well motivated, and that she was working hard to keep him in the mainstream, i.e., a regular education setting. The teacher also indicated that the other children had difficulty understanding the speech of petitioner's son, and that he was having difficulty with reading and writing. The school psychologist reported that the child had achieved a verbal IQ score of 99, a performance IQ score of 108, and a full scale IQ score of 104.
The child's educational evaluation was completed in early December, 1996. The evaluator reported that the child continued to evidence severe delays in his language skills, and that his teachers had indicated that he required constant reteaching of new skills and ongoing reinforcement of learned material. On the Woodcock Johnson Tests of Achievement, the boy's letter-word identification skills were at the 14th percentile by grade level and the 5th percentile by age level, while his passage comprehension skills were at the 43rd percentile by grade level and the 18thpercentile by age level. On the Brigance Comprehensive Inventory of Basic Skills, the child's performance was below the pre-primer level. His overall listening comprehension was at the first grade level on the Durrell Analysis of Reading Difficulty. The evaluator reported that the child demonstrated only the most basic writing skills and was able to spell a few simple words. On the Woodcock Johnson Test of Cognitive Ability, the child's grade level percentile (and age level percentile) scores were 34th (21st) for picture vocabulary, 42nd (21st) for oral vocabulary, 31st (21st) for listening comprehension, and 34th (21st) for verbal analogies. The educational evaluator reported that although language processing difficulties continued to impact upon the child's learning in significant ways, his language skills had shown considerable growth. In summary, the evaluator reported that the child had above average skills in visual processing and short-term visual memory, and demonstrated good logical thinking skills. She opined that the child's weaknesses in reading and writing appeared to be related to significant deficits in auditory memory, auditory phonemic processing and language skills, combined with severe deficits in his ability to learn auditory-visual associations and retain them over time. She suggested that the CSE consider changing the boy's classification to learning disabled, but that he continue to receive the same mix of special education, regular education, and speech/language therapy.
At the end of the 1996-97 school year, the child's speech/language therapist, who had worked with him three times per week in a small group and twice per week individually, reported that petitioner's son exhibited severe delays in his receptive and expressive language skills as well as in his phonological skills. His speech intelligibility problems were described as being primarily morphological/syntactical, including the omission of final possessive, first person singular and past-tense word endings. The speech/language therapist further reported that the child had difficulty with word retrieval and semantic skills, and continued to have difficulty with his short-term memory skills. She noted that the child was cooperative and that his attention span had increased, and she recommended that he receive speech/language therapy in the 1997-98 school year.
The child's special education teacher reported that the child had begun to internalize reading decoding strategies. She noted that in the previous spring, the child was reading at the pre-primer level, and that he was able to identify words and read orally at the primer level by June, 1997. On the Stanford Achievement Tests, the child's percentile scores were 20th for word reading, 7th for reading comprehension, 26th for word study skills, 42nd for vocabulary, 54th for listening comprehension, 64th for concepts of numbers, and 39th for mathematical applications. His Stanford Achievement Spelling Test score was at the 4th percentile.
On June 3, 1997, respondent's CSE conducted its annual review of the child. For the summer of 1997, the CSE recommended that the child receive five hours of academic instruction and one and one-half hours of speech/language therapy per week. Petitioner accepted her son's individualized education program (IEP) for the summer of 1997 (Exhibit 8), which I therefore do not review. The CSE also prepared the child's IEP for the 1997-98 school year (Exhibit 9), in which the child continued to be classified as speech impaired. The IEP indicated that his special education program was to be in a special class with a 12:1:1 child to adult to adult ratio. However, the IEP also indicated that he was " … mainstreamed in an Inclusion Program and requires significant adaptations of content material." The IEP did not indicate the amount of time per day that the child would receive special education instructional services (cf. 8 NYCRR 200.4 [c][vi]). However, respondent's witnesses at the hearing testified that a special education teacher worked with petitioner's son and four other children with disabilities for writing and mathematics for 40 minutes in the morning, either within their regular education classroom, or by themselves in the special education teacher's classroom. The special education teacher returned in the afternoon to provide 40 minutes of instruction in reading. She testified that her instruction was either "push-in" within the classroom or "pull-out" to her room, depending on what she was teaching, and that pull-outs occurred on three or four days per week. The CSE also recommended that the child continue to receive speech/language therapy in a group three times per week, and individual speech/language therapy twice per week. Petitioner did not challenge that IEP by asking for a hearing.
On August 12, 1997, the boy was seen by a neurologist at Schneider Children's Hospital. The neurologist did not report finding any abnormal neurological signs. She indicated that on the Einstein Assessment of School Related Skills, the child had performed acceptably at the first grade level on language/cognition, reading comprehension, auditory memory, arithmetic and visual motor integration, but he had some difficulties with word recognition and oral reading. The neurologist opined that the child "probably" had a learning disability, specifically dyslexia, and alluded to the possibility of an attention deficit disorder. She did recommend that the boy receive psychological counseling to address his temper tantrums, which reportedly occurred mostly at home.
Petitioner met with the CSE on October 8, 1997 to discuss her concerns about her son's progress in reading and his participation in a 40-minute Spanish class once per week, which is part of respondent's regular education second grade curriculum. The CSE reviewed the neurologist's report from Schneider Children's Hospital, and agreed to recommend that the child's classification be changed from speech impaired to learning disabled. At the hearing, the CSE chairperson expressed some personal doubt about the necessity for a change in classification. Since the CSE formally recommended that the child be classified as learning disabled and petitioner does not challenge that recommendation, I will not review the appropriateness of the boy's classification (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y, 1987]). Petitioner requested that her son be provided with 1:1 reading instruction, but was told at the CSE meeting that this was not possible. The CSE reportedly agreed to consider whether the boy should be in the Spanish class. The IEP which was prepared at that meeting (Exhibit 12) referred to the child's educational program as "Special Class/Inclusion", which apparently did not involve a change in the program which the CSE had recommended in June, 1997. Respondent reportedly has no self-contained classes, and provides inclusion programs for all of its children with disabilities.
On October 29, 1997, the CSE met again at petitioner's request. Petitioner, who was accompanied by her attorney, reiterated her request for a 1:1 reading program. The CSE amended the child's IEP to provide that he would " … receive 1:1 daily remedial reading services for a 10-week period" (Exhibit 14). The "multidisciplinary report" which was annexed to the IEP indicated that the 1:1 reading program was for 10 weeks, and that there would be pre- and post-testing and the results would be reviewed in 10 weeks. Similarly, the CSE meeting minutes (Exhibit 15) indicated that the program was for 10 weeks, and that the CSE would review the matter on February 4, 1998. At the hearing, petitioner testified that she was never told that the agreed upon reading program was not a special education program, or that it was limited to 10 weeks.
The child's pupil progress report for the second quarter of the 1997-98 school year described him as an "emergent reader who is making progress" (Exhibit 16). It indicated that not only was he making progress with reading decoding and sight word vocabulary, but that he was also able to retell a story and express his opinions about a story. The child's remedial reading teacher prepared a report of the child's progress near the end of the 10-week period (Exhibit 17). She indicated that he had responded extremely well to his individualized reading program. Specifically, the remedial reading teacher reported that the boy was developing strategies for decoding words phonetically " … through a sequential, multisensory program", and he was learning to recognize word families and spelling patterns. The teacher also reported that the child's sight vocabulary was increasing. In her report, the teacher indicated that when the child entered her 1:1 program in December, his scores placed him on a "Primer/1-1 level, while on recent testing he scored at the 1-2 level." A data sheet which was annexed to her report revealed that on the Brigance Comprehensive Tests of Basic Skills, the child advanced from "Primer" to "Grade 1" for word recognition, and from "1-1" to "1-2" for oral reading, during the period from early December, 1997 to early February, 1998.
The CSE reconvened on February 10, 1998. The handwritten minutes of that meeting (Exhibit 19) indicated that the remedial reading teacher had briefly reported that the child had started at the "Primer" level and was now functioning at a "1.2 level – 6 months growth". Although the accuracy of the 6-month figure was very much at issue at the hearing in this proceeding, I must note that the reading teacher did not address that issue in her testimony. However, respondent's educational evaluator testified that the child's gain in oral reading while in the remedial reading program from December, 1997 to February, 1998 was no more than two or three months, which was comparable to the gain he had made in the months immediately prior to entering the program (Transcript, pages 187-188). In any event, the CSE determined, over petitioner's objection, that it would recommend that the child's 1:1 remedial reading instruction be reduced from five to three 40-minute periods per week. The CSE chairperson testified that the CSE intended to phase-out the child's 1:1 reading program because it felt he was being adequately served in the rest of his educational program, but the CSE had offered to continue the service three times per week as a "middle ground". The CSE chairperson further testified the child had made progress in improving his reading decoding skills while participating in the 1:1 program, but his reading comprehension skills had not significantly improved. She asserted that the benefits of having the boy remain in his second grade classroom for two more periods outweighed the benefits he would receive by having two periods of 1:1 remedial reading instruction. The IEP resulting from the February 10, 1998 CSE meeting (Exhibit 18) made no reference to the boy's 1:1 remedial reading program, unlike the preceding IEP (Exhibit 14). There were no other changes in the boy's IEP.
Petitioner reportedly requested an impartial hearing on February 11, 1998. The record does not reveal when respondent appointed the hearing officer, who initially scheduled the hearing to begin on April 1, 1998. Respondent's attorney indicated that he would be unavailable that day, and suggested that the hearing be held on April 6 or 7. The hearing officer was apparently not available on those dates, although I note that on page 6 of the hearing transcript, the hearing officer asserted that petitioner's attorney sought an adjournment. By letter dated April 13, 1998, the hearing officer indicated that petitioner had orally suggested that the hearing be deferred until after the CSE had conducted its annual review (Exhibit D to the petition). In a letter to petitioner dated April 21, 1998 (Exhibit 24), respondent's attorney suggested that the hearing officer should have jurisdiction over both petitioner's challenge to the CSE's February 10, 1998 recommendation and any challenge she might make to the CSE's recommendations from its as yet unheld annual review. Although the parties apparently discussed the matter further, it is unclear what agreement, if any, was reached.
On May 7, 1998, the CSE conducted its annual review of the child, and prepared his IEP for the 1998-99 school year. It continued the child's classification as learning disabled, and recommended that he be enrolled in a "Special Class/Inclusion" third grade class in respondent's elementary school. The CSE also recommended that the child continue to receive speech/language therapy in a group three times per week, but it discontinued his individual speech/language therapy. In addition, it recommended that the child receive a period of resource room services five times per week. The CSE reportedly recommended that the child's 1:1 remedial reading program be discontinued. The boy's IEP for the 1998-99 school year (Exhibit 23) made no reference to the program. I must note that the appropriateness of the boy's IEP for the 1998-99 school year is not an issue which is to be determined in this proceeding.
The hearing in this proceeding was held on June 11 and 12, 1998. Petitioner was not represented by an attorney. She objected to the introduction of any evidence which post-dated the February 10, 1998 CSE meeting. The hearing officer overruled her objection, but later indicated that it could be "prejudicial" to take testimony or evidence relating to the May 7, 1998 annual review. At the hearing, the CSE chairperson, the child's speech/language therapist, his second grade teacher, special education teacher, and remedial reading teacher testified that it was more important to focus upon improving the child's reading comprehension skills than his decoding skills, and that the CSE's recommendation that his 1:1 remedial reading program be reduced to three periods per week was educationally appropriate.
The hearing officer rendered his decision on July 12, 1998. After briefly summarizing the parties' respective positions, and noting that there was no dispute about the child's classification or placement, the hearing officer upheld the CSE's recommendation to reduce the amount of the child's 1:1 remedial reading services.
Before reaching the issues raised by petitioner, I will address respondent's request that I find that the hearing officer improperly refused to receive testimony and evidence concerning the recommendations which the CSE made for the 1998-99 school year at its meeting. Respondent also requests that I find that the hearing officer erred by declining to rule on whether the child's 1:1 remedial reading program had to be continued during the pendency of this proceeding because of the "pendency" provisions of Federal and State law (20 USC 1415 [j]; Section 4404  of the Education Law). I must point out that respondent has not cross-appealed from the hearing officer's decision, and it cannot therefore challenge his decision in this appeal (Application of the Board of Education of the Arlington Central School District, Appeal No. 98-7).
Petitioner, who is now again represented by counsel, challenges the hearing officer's decision on procedural and substantive grounds. She argues that respondent and the hearing officer violated her right to receive a decision by the hearing officer within 45 days after her request for a hearing (see 34 CFR 300.572 [a]; 8 NYCRR 200.5 [c]). Petitioner asserts that she never waived her right to obtain a decision within 45 days after her hearing request. The record does not reveal why the initial hearing date was set for April 1, 1998 which was more than 45 days after petitioner had requested a hearing, except that a March 16, 1998 letter which petitioner annexed to her petition as Exhibit C suggests that some of the delay may have been attributable to petitioner. There is also at least some indication that she did acquiesce in the subsequent delay of the hearing (Transcript, page 6). In its answer to the petition, respondent asserts that petitioner expressed her "tentative willingness" to agree to its attorney's proposal to defer the hearing until the CSE conducted its annual review. In her reply to the answer, petitioner asserts that she never waived the right to a timely hearing. While I am unable to conclude from the record that petitioner explicitly agreed to hold the hearing in abeyance until after the annual review had been held, I must nevertheless point out that a delay in the conclusion of this proceeding at the local level does not afford a basis for concluding that the hearing officer's decision should be annulled (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 64; Application of a Child with a Disability, Appeal No. 94-12). In the future, respondent should assure that hearings are promptly scheduled and conducted.
Petitioner contends that the hearing officer did not conduct the hearing properly because he did not allow her to ask basic and relevant questions of the witnesses, and he did not seek explanations from the witnesses of their testimony. I find that there is no merit to this contention. The single example petitioner gives of an instance in which the hearing officer allegedly did not allow her to question a witness (Transcript, page 62) does not support her contention. I note that the hearing officer questioned almost every witness at the hearing. I further find that petitioner's argument that the hearing officer should have excluded any evidence which was compiled or prepared after the date of the CSE meeting in February, 1998 is also without merit. The twin criteria for admission of evidence into the record are relevance and reliability (Application of a Child with a Disability, Appeal No. 94-6). The fact that an evaluation or other document was prepared after the date of a particular CSE recommendation does not afford a basis per se for concluding that it is irrelevant in reviewing the CSE's recommendation. Since petitioner has not challenged the admissibility of any exhibit on any other ground, I find that there is no basis to exclude any of the evidence in question, on which the hearing officer apparently did not rely.
Petitioner further argues that it was unfair of the hearing officer to allow respondent's educational evaluator to testify as a rebuttal witness after petitioner had presented her case. I cannot agree with that argument. Although each party should present its full case initially, there is no prohibition against rebuttal witnesses in impartial hearings. The board of education goes first in presenting its case at an impartial hearing. In doing so, it must anticipate in what direction the parent's case will go. After the parent has completed his or her case, it may be necessary for the board of education to present a rebuttal witness. In this instance, a disagreement arose during the hearing about the meaning and significance of a brief notation in Exhibit 19 about the child having allegedly achieved six months growth in his reading skills while enrolled in the remedial reading program. Given the technical nature of the issue, I find that it was appropriate for the educational evaluator to testify about the various evaluations or tests which were done in the 1997-98 school year to assess the child's progress in reading.
Petitioner argues that the hearing officer's decision should be annulled because it was allegedly full of inaccuracies and irrelevancies, and failed to discuss the evidence which had been adduced at the hearing. She does not specify any particular statement in the decision which she believes to be either inaccurate or irrelevant. Petitioner objects to the fact that the hearing officer concluded that " … the majority of the information provided [was] in support of the CSE recommendation", without revealing what information he had relied upon in reaching that conclusion. While I agree with petitioner that the hearing officer should have written a more detailed explanation of his conclusion, the question which I now have to decide is whether that conclusion was correct, based upon my review of the entire record.
Petitioner asserts that the evidence which is in the record demonstrates that her son's 1:1 daily remedial reading program had a profoundly positive impact upon the child's reading skills, and that the CSE had no basis in fact for decreasing the frequency of such instruction to three times per week. She contends that the CSE should have evaluated her son prior to recommending that the frequency of the boy's remedial reading instruction be changed. Petitioner asserts that the CSE did not change her son's IEP with respect to a description of his needs, or his annual goals and objectives to correspond with the change in his remedial reading program.
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 reviewed the IEP which the CSE prepared at its meeting on February 10, 1998 (Exhibit 18). It listed the pertinent scores from the standardized achievement tests which were administered to the child in his November, 1996 triennial evaluation and in other tests, e.g., the Brigance Inventory of Basic Skills, Stanford Achievement, and Test of Written Language, which were administered to him in May, 1997. The IEP included a description of the child's academic development, learning styles, social development, physical development, and management needs, as required by 8 NYCRR 200.4 (c)(2)(i). That description was consistent with the testing results and with his teachers' testimony about him at the hearing. The IEP annual goals and objectives appear to be directly related to the child's ability and needs. The question then becomes whether the CSE recommended an appropriate set of special education services to afford the child a reasonable opportunity of achieving his annual goals.
In this instance, petitioner does not challenge the appropriateness of her son's inclusion placement, involving direct consultant teacher services in the child's second grade classroom and in a separate location and individual and group speech/language therapy. However, she does contend that her son required daily 1:1 specialized reading instruction, in addition to the services provided by the consultant teacher and speech/language therapist in order to make significant progress in reading. Petitioner asserts that her son's progress in reading had been minimal prior to receiving the 1:1 remedial reading instruction on a daily basis.
Respondent asserts that its remedial reading program is not special education, and it is intended to be a temporary program for children who are having trouble reading. If at the end of the 10-week program, a child continues to have trouble reading, he or she may be referred to the CSE for possible classification and provision of special education services. Although respondent's remedial reading program is taught by a special education teacher, the program is not restricted to children who have been classified. Each of respondent's witnesses testified that the remedial reading program was not a special education program. Absent evidence to the contrary, I find that the remedial reading program was not special education, as that term is defined in 20 USC 1401 (25).
Since it was not a special education program or service, the remedial reading program did not need to appear on the child's IEP (see OSEP opinion at 18 IDELR 1234). The program had been referred to in the "Comments" portion of the child's October 29, 1997 IEP (Exhibit 14), but was not referred to in the subsequent February 10, 1998 IEP (Exhibit 18). Although respondent's remedial reading program was not a special education service, that is not dispositive of the central question presented in this appeal, i.e. whether the educational program which respondent provided to the child pursuant to its CSE's recommendation afforded the child a free appropriate public education.
While no one suggests that the child did not derive some benefit from being in the 1:1 remedial reading program during the 1997-98 school year, the parties strongly disagree about the necessity for providing that program to him. As noted above, the child repeated the first grade during the 1997-98 school year. His language skills, which are an important element in the development of a child's ability to read, were still severely delayed during the 1996-97 school year. Respondent's educational evaluator testified that by the start of the 1997-98 school year, the child was beginning to have first grade level receptive and expressive language skills to support the development of his reading skills. The evaluator, who had tested the child for his triennial evaluation in November, 1996, testified that the boy had made approximately five to seven months growth in reading from November, 1996 to June, 1997, and that his reading proficiency in September, 1997 was "fairly close" to his proficiency in June, 1997. The evaluator, who had reviewed the boy's test results during the 1997-98 school year, testified that he made approximately 2-3 months progress in reading from September, 1997 to December, 1997, when he began the 1:1 remedial reading program. She further testified that in the period from December, 1997 to February, 1998, when the CSE recommended that the frequency of the remedial reading program be reduced, the boy's reading skills improved at a similar rate, i.e., 2-3 months. While the 6-month gain notation on Exhibit 19 is troubling, I am persuaded by the evaluator's unrebutted testimony that the notation did not accurately reflect the boy's progress. Upon the record before me, I find that the daily remedial reading program was undoubtedly useful, but it was not necessary in order for this boy to receive a free appropriate education. I have considered petitioner's other arguments, which I find to be without merit.
THE APPEAL IS DISMISSED.