Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of Beacon
Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel
Shaw and Perelson, L.L.P., attorneys for respondent, David S. Shaw, Esq., and Pilar Sokol, Esq., of counsel
Petitioners appeal from an impartial hearing officer's decision finding that respondent had provided petitioners' son with a free appropriate public education, and which denied their claims for compensatory education and reimbursement for the cost of an assistive technology device which they had purchased their son. The appeal must be dismissed.
Petitioners' son, who is ten years old, was diagnosed shortly after his birth as having a genetic disorder known as Stickler's Syndrome. As a result of the disorder, the child has a hearing loss at 2000 decibels, and various skeletal abnormalities, including hypotonia, joint laxity, scoliosis, and frequent shoulder dislocations. He uses a wheelchair and a walker, but requires assistance with both. The boy also has a history of chronic ear infections and respiratory problems requiring the use of supplementary oxygen. He communicates by sign language or with the assistance of a communication device by pointing to pictures, and he wears a finger splint to prevent the hyper-extension of his finger while using the communication device. The child's classification as multiply disabled is not disputed in this proceeding.
Petitioners enrolled their son in an early intervention program when the boy was thirteen months old because they were concerned about the deficits in his gross and fine motor skills. In the early intervention program, he received the services of a special education teacher, an occupational therapist, and a physical therapist. The child attended the St. Francis Hospital Preschool Program from July, 1992 through August, 1995, although he was eligible to attend respondent's schools during the 1994-95 school year. While in the St. Francis program, the boy learned to use American Sign Language to communicate in school and at home, and also used augmentative communication devices such as language boards and a light and sound communicator (Exhibit 10). In the spring of 1995, he began to use an IBM Thinkpad which had speech output capability as a communication device to augment his communication during that school year.
In August, 1995, a St. Francis speech/language pathologist who had evaluated the child for respondent's committee on special education (CSE) reported that the boy was more animated and vocal when using the IBM laptop computer, but that he required hand-over-hand assistance to use the computer's mouse. However, he could accurately point to pictures on the computer screen. The speech/language pathologist recommended that the boy be provided with a laptop computer that had a "touch screen" device to enable him to make choices by touching the computer's screen. She also recommended that the boy's computer be capable of "growing" with him, so that it would not be outdated in a short period of time (Exhibit 24).
Petitioners' son was enrolled in a 15:1+1 class in respondent's Severe Communication Disorder Program at the Sargent Elementary School during the 1995-96 school year. The individualized education program (IEP) which the CSE prepared for the child indicated that he would receive individual and group speech/language therapy, individual occupational therapy and individual physical therapy, and would have an individual aide for one-half the school day (Exhibit 25). The IEP's description of specialized equipment and adaptive devices included augmentative communication, language boards, tactile aids and a wheelchair. In the "special notations" portion of the IEP, a laptop computer was mentioned, with the indication that the child's parent would follow up with a staff member. At the hearing, the child's mother testified that she was asked to provide the technical specifications for a computer that could provide a voice output because of her expertise with computers. I note that the CSE meeting minutes for that IEP indicated with respect to augmentative communication that an " ... assessment needs to continue to find appropriate device".
The record reveals that on October 10, 1995, the child's mother wrote to the CSE chairperson requesting that she be given information about the individual who was to evaluate her child's need for a communication device before she would agree to have the evaluation performed (Exhibit 27). The evaluation was apparently not performed. At the hearing, the child's mother testified that she requested a hearing, but that a mediation session was held and, in November, 1995, the school district agreed to purchase an Apple Macintosh PowerBook with a touch sensitive screen, a synthesized voice output and communication board software which could be customized for the boy's use.
The boy began to use the Macintosh computer in school in February, 1996. He used it on a daily basis to communicate with other children and to answer his instructors' questions. The same month, two staff members of the St. Francis Communication Disorders Program evaluated the boy's software, and reported that it provided excellent "functional/experiential vocabulary building and classification/description practice, as well as question processing experience" (Exhibit 52). In March, the child's mother, who has experience with computers and who assisted the boy's teachers by programming his computer to fit the instruction he was receiving (Transcript, page 211), recommended that respondent purchase additional software called the "Boardmaker," which provided a graphics database for over 3,000 communication symbols. Respondent agreed to the mother's request. She purchased additional software, "Speaking Dynamically," which, when combined with "Boardmaker" expanded the child's ability to use his computer as a communication device (Exhibit 10).
The child reportedly made satisfactory progress during the 1995-96 school year. At its annual review on May 17, 1996, the CSE recommended that petitioners' son remain in his 15:1+1 class at the Sargent Elementary School and continue to receive speech/language therapy, occupational therapy, physical therapy, and the services of an individual aide for four hours per day during the 1996-97 school year. The boy's IEP (Exhibit 16) noted "Assistive Tech. Utilized," and "Laptop computer - Printer access". The minutes of the May 17 meeting indicated that the computer was "...to be utilized as [a] writing tool." (Exhibit 17). The boy's IEP annual goals for speech and language during the 1996-97 school year indicated that his communication skills were to be improved by the use of sign language, language boards, and a communication device, while work continued on trying to develop his speaking ability.
The child made academic progress during the 1996-97 school year, and he improved his ability to communicate with other children. In November, 1996, petitioners bought a Tash-4 Message Communicator for their son to use, because the weight and limited battery life of the modified Macintosh laptop computer precluded the child from using the device when he moved with his walker. The Tash-4 device had the capability of storing up to 4 short prerecorded messages, which the boy could activate by pressing a portion of the device's screen. He used the device in school, in addition to using the Macintosh laptop and sign language.
The boy's triennial psychological evaluation was performed in February, 1997 by a school psychologist who reported that the boy was able to manipulate his wheelchair and walker with minimal assistance while in school. She also reported that he had demonstrated growth in his use of augmentative communication devices, but there were inconsistencies in his performance as a result of his disabilities, and he fatigued easily. She noted that it was difficult to assess the boy's cognitive ability because of his disabilities. Using information provided by the child's teacher and his mother, the school psychologist reported that the child was very social and demonstrated appropriate relationships with adults and peers, but occasionally resisted participating in activities. The school psychologist noted that the child was having difficulty pressing down on the correct key of his communication box (the Tash-4), and suggested that the device might be adapted or replaced by another device (Exhibit 14).
On April 24, 1997, the child's special education teacher reported that his fine and gross motor skills had improved to the 24 month and 12-24 month ranges, respectively. She estimated his cognitive skills to be in the 48-50 month range, and indicated he could point to and use sign language for 3-4 word phrases. She noted that he used a combination of augmentative communication skills to communicate and demonstrate cognitive understanding (Exhibit 7). The child's speech/language teacher also reported on the child's progress as of April, 1997. She indicated that his oral motor awareness had improved and he had increased the amount of sound imitation of peers and teachers, but he continued to exhibit significant oral motor delay. On the Battelle Development Scale, the child's age equivalent receptive language skills had improved by 12 months since the spring of 1996 to the 39 month level, while his expressive language skills had increased by 7 months to the 26 month level. He did not use his computer, but relied upon sign language for this test. An informal administration of the Preschool Language Scale-3 test to the child yielded age equivalent scores of four years for auditory comprehension and three years and one month for expressive language. The speech/language teacher also reported that the child's writing skills, i.e., drawing lines, circles, and tracing his name, had improved (Exhibit 15).
On April 24, 1997, the CSE conducted its annual review of the child. The minutes of the CSE meeting indicated that the boy's teacher had reported that he had made good use of augmentative technology, and his occupational therapist had indicated that she would identify an appropriate supportive device for the child's arm to assist him in using a computer (Exhibit 5). For the 1997-98 school year, the CSE recommended that the child continue to receive a 12-month instructional program in the 15:1+1 class at the Sargent Elementary School. As in the two prior school years, the child was to receive speech/language therapy, occupational therapy, and physical therapy, as well as the assistance of an individual aide. His IEP for the 1997-98 school year referred to "Assist. Tech. Utilized" and "Laptop computer-Printer Access". It also included the following notation:
"Technology Review to be scheduled: Winter, 1997, with recommendations forthcoming" (Exhibit 5).
The CSE minutes did not refer to a technology review. At the hearing in this proceeding, the CSE chairperson for that meeting testified that the child's mother had raised the issue of a technology review to be done in November or December, 1997, in a letter to him dated April 24, 1997 (Exhibit 4). In that letter, the child's parent had written:
"Technology Review: to be scheduled Nov/Dec. 1987 with the following intent:
- review of KEYBOARD USE on a laptop for authoring/classroom use
- review of MOUSE use for navigating software
- review of existing speech/language/educational software - I expect that NEW software is required
- EVALUATION for additional or advanced communication device
- to include classroom staff, O.T. parents optional - Technology specialists" (Exhibit 4).
As a separate issue in the same letter, the child's mother had indicated that a review should be conducted of the positioning of her son's laptop and desktop computers by the occupational therapist, the physical therapist, and specialists from the Helen Hayes Hospital. At the hearing, the boy's mother testified that both issues, the possible need for a new communication device and software, and the boy's positioning while using a computer, were discussed at the CSE meeting. She also testified that the CSE discussed the issue of having a backup computer available for her son to use in the event his laptop malfunctioned. She explained that on April 7, 1997, the Macintosh laptop had become inoperable. The record reveals that she took the device to a computer dealer in Kingston, New York on April 14, 1997. The computer's power supply was replaced, and, at the request of the child's mother, its memory was upgraded. The laptop was repaired at petitioners' expense and returned to petitioners on April 16, 1997. The child's mother testified that her son had become very frustrated while his laptop was being repaired, and was happy when the device was returned to him.
On April 30, 1997, the boy's laptop malfunctioned again. The child's mother testified that she called the dealer in Kingston, and was advised that it would take at least four weeks to repair the boy's laptop. Shortly thereafter, petitioners rented a "DynaVox" augmentative communication device for their son to use. According to the child's mother, the DynaVox manufacturer limited the time the device could be rented to three weeks. Petitioners' son reportedly began using the DynaVox in school on May 15, 1997. The child's mother testified that her son did well with the new device, and that respondent's staff began to program the device because it was easier to program than the Macintosh laptop. The DynaVox was returned to its manufacturer at the end of the rental period, shortly before the Macintosh laptop was returned to petitioners' son on June 10, 1997.
Petitioner asked for a meeting with respondent's Director of Pupil Personnel Services, who agreed to meet with her on June 16, 1997. Prior to that meeting, the child's mother discovered that the touch screen device on her son's newly repaired Macintosh was not working properly. She testified that she was advised by the dealer in Kingston that the " ... they had tried to repair it, they sent it to the manufacturer of the technology and they tried to repair it, they did the best they could but they cannot restore it to accuracy ... " (Transcript, page 428). However, the president and chief technician of the dealership in Kingston testified that he had never told the child's mother that the boy's computer could not be repaired, but had advised her that the laptop and the special touch screen device would have to be sent back to the maker of the touch screen device in order to be accurately calibrated after the laptop had been repaired by its manufacturer. The child's mother denied having received that information from the dealer.
On June 16, 1997, the child's mother met with the Director of Pupil Personnel Services, the newly appointed CSE chairperson, her son's special education teacher and his speech/language teacher. The boy's teachers described how the DynaVox machine worked, and the child's mother provided the Director with written information about the machine. At the hearing, the child's mother testified that she expected the June 16 meeting to be a CSE meeting, and that she perceived the outcome of the meeting to be a CSE recommendation that respondent purchase a DynaVox unit for her son's use. The Pupil Personnel Services Director testified that he had simply met informally with the boy's mother and the staff to learn more about the device, and that he assumed that the technological review which the CSE had recommended at the April 24, 1997 meeting would still be conducted in November or December, 1997. He also testified that he had not been informed by the child's teachers that the boy's modified laptop computer was broken. The Director agreed to have respondent reimburse petitioners for the cost of renting the DynaVox.
During the summer of 1997, the boy was hospitalized and then had a lengthy recuperation at home. He reportedly communicated through sign language and his Tash-4 during this period. On September 5, 1997, the CSE reconvened to plan a transitional educational program for the child to include additional services he might require because of his medical condition. I note that the CSE minutes indicated that the student required oxygen and was more medically fragile than he had been during the 1996-97 school year. The revised IEP (Exhibit 11) provided for a modified school day program with services to be provided either in the Sargent Elementary School or the child's home. The references to the use of a computer and to a technology review to be conducted in the winter of 1997 which had appeared on the April 24 IEP also appeared on the September 5 IEP.
By letter dated November 20, 1997, the child's mother indicated to the CSE chairperson that the proposed augmentative communication evaluation was unnecessary because her son had been evaluated in May, 1997 and the school district had already decided to purchase the DynaVox device (Exhibit 8). She requested that the CSE reconvene. On December 2, 1997 and December 8, 1997, the child's mother reiterated her opposition to an evaluation of her son's augmentative communication needs, and stated that she was withholding her consent for an evaluation at least until the CSE met on December 16, 1997 (Exhibits 6 and 21).
At the meeting on December 16, 1997, the CSE and the child's mother discussed their respective interpretations of what had been agreed to at the April 24, 1997 CSE meeting regarding a technology review in the winter of 1997. The child's mother asserted that the review was intended to address how the boy should be positioned while using his laptop computer, while the CSE chairperson indicated that the review was also intended to ascertain what assistive technology devices the boy required. The CSE concluded that an evaluation should be performed to determine what assistive technology devices should be provided to the child.
In a letter to the CSE chairperson dated December 19, 1997, the child's mother requested that an impartial hearing be held because of the CSE's refusal to provide a DynaVox device to her son (Exhibit 3). A few days before the hearing began on January 26, 1998, the child's mother apparently met with the CSE again to review the child's IEP goals and objectives. However, no further action was taken by the CSE with regard to the boy's assistive technology evaluation. During the months of February, March, and April, 1998, the child's mother corresponded with the CSE chairperson about the location of the evaluation, qualifications of the evaluator(s), and the "goals and objectives" of the evaluation. In late April, 1998, it was agreed that the evaluation would be performed by Technology Resource for Education of Albany, New York. The evaluation was begun on May 7, 1998, but it had reportedly not been completed when petitioners prepared their appeal from the hearing officer's decision in October, 1998.
As noted above, the impartial hearing in this proceeding began on January 26, 1998. At that time, petitioners sought an order requiring purchase of the DynaVox device for their son. However, in February, 1998, petitioners purchased a DynaVox for the sum of $5,995. When the hearing resumed on March 3, 1998, petitioners indicated that they would seek reimbursement from respondent for the cost of the DynaVox. They also sought an award of compensatory education. The hearing continued for five additional days, ending on July 24, 1998.
In his decision which was rendered on September 5, 1998, the hearing officer noted that respondent had agreed to purchase the Macintosh laptop computer with modifications in 1995, largely upon the recommendation of the child's mother. He also noted her involvement in having that device repaired twice in the spring of 1997, and he found that her representation to respondent that the device could not be repaired after the second breakdown to be "at variance from the truth". He further found that she had interfered with and prevented its repair. The hearing officer determined that respondent had provided petitioners' child with an appropriate education during the period in question, and he denied their requests for reimbursement for the cost of the DynaVox and for compensatory education.
Petitioners assert that the hearing officer's attitude and treatment of them and their attorney "revealed motivations of bias and resentment", allegedly because their counsel had filed a complaint against the hearing officer with the State Education Department about a delay in his decision in another proceeding not involving either party in this proceeding. I note that at the outset of the hearing in this proceeding, the hearing officer specifically asked the parties' counsel whether they had any objection to his impartiality, and petitioners' counsel indicated that she did not (Transcript, page 8). An impartial hearing officer must avoid even the appearance of impropriety, and must render a decision based upon the record (Application of a Child with a Disability, Appeal No. 94-32). Inappropriate remarks by a hearing officer may afford a basis for concluding that the hearing officer was biased. I have carefully reviewed the entire transcript of the hearing, and I find that the hearing officer treated the parties and their respective counsel with courtesy and fairness, notwithstanding certain inappropriate remarks which were addressed to him (see Transcript, pages 228, 307, and 478). While I do not necessarily agree with the hearing officer's choice of words in his decision regarding what happened after the child's Macintosh broke down for second time in the spring of 1997, I am not persuaded that the hearing officer was biased against the petitioners or their counsel.
The central issue in this appeal is whether respondent provided an appropriate educational program to petitioners' son during the 1997-98 school year. Respondent has the burden of proving that it did provide an appropriate educational program, i.e., that its program was 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. I note that at the beginning of the hearing on January 26, 1998, petitioners' attorney indicated that the boy's IEP for the 1997-98 school year was not in contention, except for respondent's alleged failure to respond to the child's need for assistive technology and an effective communication device (Transcript, page 20). Although petitioners now request that I find that their son's IEP was defective because it failed to accurately state the child's current levels of functioning (see 8 NYCRR 200.4 [c][i]), I will not consider such a challenge to the IEP in light of their attorney's earlier representation about the nature of their complaint. It is apparent from the request for a hearing, the hearing transcript, and the petition that this proceeding is about the provision of an assistive technology device with a voice output.
A board of education must provide an assistive technology device to a child if it is required as part of the child's special education or related services, or it is a supplementary aid or service which is necessary for the child to be educated in the least restrictive environment (Application of a Child with a Disability, Appeal No. 95-2). State regulation requires that a child's IEP describe any specialized equipment or adaptive device needed by a child to benefit from instruction (8 NYCRR 200.4 [c][vii]). In this instance, there is no real dispute about the child's need for an assistive technology device to assist him to communicate. I note that the child could communicate by sign language or the use of sign boards, in addition to having a device such as the modified laptop computer. In any event, his IEP for the 1997-98 school year specifically listed a laptop computer in the portion detailing testing modifications, specialized equipment and adaptive devices. Although it was not otherwise identified, the laptop computer mentioned in the boy's IEP was clearly intended to be the Macintosh laptop with a touch screen and voice output which respondent had purchased for his use in 1995.
Petitioners contend that the CSE erred by not conducting an evaluation to determine their son's adaptive technology needs prior to drafting his IEP for the 1997-98 school year, and that the Macintosh laptop which their son had been using was no longer appropriate to meet his special education needs. I disagree with their contentions. With regard to an evaluation, I note that the CSE had the report which the child's former speech/language pathologist at the St. Francis Hospital Preschool Program had prepared for the CSE in August, 1995 (Exhibit 24), and that the Macintosh device was purchased as part of a mediation agreement in that year. Prior to preparing the boy's IEP for the 1997-98 school year, the CSE also had written reports by the child's current speech/language teacher (Exhibit 15), his special education teacher (Exhibit 7), and the school psychologist (Exhibit 14). Those reports indicated that the child had significantly improved his communication skills using a variety of means, including sign language, language boards, the Tash-4 Message Communicator, and the Macintosh laptop computer. The fact that the CSE agreed to petitioners' request to have the child evaluated with respect to positioning and the possible need for other equipment or computer software does not, in my judgment, afford a basis for concluding that the CSE should have obtained those evaluations prior to preparing the child's IEP.
I have carefully reviewed the written report of the child's speech/language teacher, as well as her testimony at the hearing, in light of petitioner's contention that the Macintosh laptop computer was no longer appropriate for their son by the spring of 1997. In her report, the speech/language teacher suggested that creating a greater surface area for the child to touch on the computer screen to indicate his answer might increase his ability to respond. While she opined at the hearing that the DynaVox device was appropriate for the child, she did not testify that the Macintosh laptop was no longer appropriate. I find that the record does not support petitioners' contention that their son's laptop computer was no longer appropriate for him.
Petitioners argue that the CSE did not act within a reasonable time after their son's laptop computer failed in May, 1997 to ensure that he would have an assistive technology device to use in the summer of 1997 and during the 1997-98 school year. Respondent's Director of Pupil Personnel Services was aware that the laptop had been sent to the dealer for repairs in May, 1997, and had agreed to have respondent assume the cost of the DynaVox rental (Transcript, page 37). He also testified that he assumed that the child would continue to use the laptop computer when it was returned from the dealer in June, 1997, and that no teacher had advised him that the machine was not functioning correctly after its return (Transcript, page 57). The child's speech/language teacher testified on April 1, 1998 that the laptop had been repaired, but could not be used in the manner it had been used previously. However, it is not clear from the record whether and when she communicated this information to the CSE. In her December 15, 1997 chronology of her son's use of assistive technology devices (Exhibit 10), the child's mother indicated that the laptop " ... continues to serve as an appropriate educational assistive technology device for learning math, science, literacy, and authoring skills it is not an appropriate communication device", because the touch screen "cannot be calibrated to accuracy". Despite that information, respondent's CSE does not appear to have done anything to rectify that situation until May, 1998, when the CSE chairperson took the laptop to the dealer, and discovered that the touch screen could be recalibrated so that the device could function as a communication device.
I am concerned by the delay in having the machine properly repaired. I recognize that the CSE intended to have the child's assistive technology needs evaluated and determined well before May, 1998, and that it was delayed in its effort to do so by the objections of the child's mother to the proposed evaluation. Her claim that the only evaluation necessary involved the child's positioning while using an assistive technology device is not credible in view of her request to the CSE in April, 1997 (Exhibit 4) and the reports of respondent's staff concerning the child's use of the laptop device. Although the child's mother also claimed that the child's assistive technology needs had been determined by the child's teachers and herself in May, 1997, I find that the record does not support that claim (see e.g., Transcript, pages 240, 243). It must also be noted that respondent had the right to obtain its own evaluation of the child (Vander Malle v. Ambach, 673 F. 2d 49 [2d Cir., 1982]; Application of a Child with a Disability, Appeal No. 98-69). The protracted delay in completing the assistive technology evaluation has not been in this child's best interests.
In order to award petitioners the remedies of reimbursement for the cost of the DynaVox device which they purchased in February, 1998 and compensatory education, I would have to find that respondent had failed to provide a free appropriate public education to their son during the 1997-98 school year. As noted above, the laptop computer was usable as an educational device during the 1997-98 school year. However, it could not function as a communication device because of the misalignment of the touch screen device to the laptop after they were separated for the repair of the laptop in May, 1997. Nevertheless, the laptop with the voice output modification was only one of the means by which the boy communicated. At the hearing in this proceeding, the CSE chairperson testified that at a CSE meeting held on January 22, 1998, she asked the child's teachers whether the child's IEP goals could be implemented with the adaptive equipment which was then in place, e.g. sign language and picture boards, and that it " ... was the consensus that these goals could be implemented with what was currently there" (Transcript, pages 605-606). I find nothing in the record which refutes that statement.
I have considered petitioners' other assertions which I find to be without merit.
THE APPEAL IS DISMISSED.