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 Rhinebeck Central School District
Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel
Shaw and Perelson, L.L.P., attorneys for respondent, David S. Shaw, Esq., of counsel
Petitioners appeal from the decision by an impartial hearing officer which found that respondent had offered to provide an appropriate educational program to petitioners' son for the 1997-98 school year. The hearing officer denied petitioners' request that respondent be ordered to reimburse them for the cost of the boy's tuition at the Kildonan School in which they had unilaterally enrolled their son. The appeal must be dismissed.
Petitioners' son, who is 12 years old, entered kindergarten at respondent's Chancellor Livingston Elementary School in September, 1992. Although the boy was reportedly tense during the screening for kindergarten, he did not manifest any sign of a disability. Nevertheless, the child was reportedly enrolled in respondent's Steps into Reading (STIR) program so that he could receive extra instructional assistance in kindergarten. His kindergarten teacher reported that the child had made notable strides in all areas during the 1992-93 school year. The child continued in the STIR program while enrolled in the first grade in the 1993-94 school year. In March, 1994, the child's STIR teacher reported that his reading skills had improved considerably. However, he scored below the reference point for reading and mathematics on the California Tests of Basic Skills in May, 1994. The child was placed in a "supportive" second grade class where he received Chapter 1 (see 20 USC 2701 et seq.) remedial instruction in both subjects during the 1994-95 school year.
The child reportedly showed improvement in his reading and mathematics in the fall of 1994, but his Chapter 1 teacher noted that the child was easily distracted. The child's second grade teacher reported that the boy tried hard, but continued to have difficulty with reading. She noted that he had trouble recalling sight vocabulary words. The boy's mathematics skills improved to the point of being on grade level. In March, 1995, the child was referred to respondent's committee on special education (CSE) by his teacher because of concerns about his academic performance.
Respondent's speech/language pathologist, who evaluated the child on March 21, 1995, reported that he had age appropriate speech articulation skills, and his speech was fairly intelligible. On the Clinical Evaluation of Language Fundamentals - Revised, the child received scores of 78 for receptive language and 84 for expressive language. The evaluator indicated that the child's scores were indicative of a mild to moderate receptive and expressive language disorder. She further reported that the child evidenced a one and one-half year delay in his rote auditory memory skills. The evaluator recommended that petitioners' son receive 30 minutes of speech/language therapy twice per week.
The boy was evaluated by a school psychologist on April 24 and 27, 1995. The school psychologist reported that the child had achieved a verbal IQ score of 105, a performance IQ score of 112, and a full scale IQ score of 109. Although there was not a significant discrepancy between the boy's verbal and performance IQ scores, his subtest scores were scattered. His lowest subtest score was on the similarities subtest which the psychologist noted required the use of language concept formation. She also noted that he had word retrieval difficulties, and a weakness in his auditory sequential rote memory. The school psychologist suggested that the latter weakness might be hindering the boy's progress in reading. The boy's visual perceptual and visual motor skills were adequate. The school psychologist noted that the child's kindergarten and first grade teachers had made reference to the child gaining confidence, and she opined that he was very sensitive about his performance in school and might need additional encouragement and accountability for tasks which required sustained effort.
The child's academic achievement was assessed by the CSE chairperson, who administered the Woodcock-Johnson Psychoeducational Battery - Revised (W-J-R) to him on April 28, 1995, as he neared the end of the second grade. The child achieved grade equivalent (and standard) scores of 1.5 (79) for letter-word identification, 2.2 (92) for passage comprehension, 2.5 (95) for calculation, 4.0 (119) for word problems, 1.7 (61) for dictation (spelling and punctuation), and 1.8 (91) for writing samples. He also achieved grade equivalent and standard scores of 3.1 (103) for science, 2.5 (44) for social studies, K.4 (81) for the humanities, 2.1 (93) for knowledge, and 2.1 (90) for skills.
The CSE recommended that petitioners' son be classified as learning disabled, and that he receive daily assistance in reading from a special education teacher and twice-weekly speech/language therapy for the remainder of the 1994-95 school year. At the hearing in this proceeding, the CSE chairperson testified that the child was placed in a structured reading group once each day and received twice-weekly speech/language therapy while in the third grade during the 1995-96 school year.
In the fall of 1995, the special education teacher who was instructing the child in reading and mathematics reported that the boy was doing well with sight words and spelling, and was learning to use strategies to decode words. The teacher reported in December, 1995 that the child's attitude about reading had changed dramatically. In January, 1996, the child's speech/language therapist reported that his ability to process oral information had improved, as had his expressive language skills. She noted that the boy struggled with written language, but was becoming more receptive to help.
On April 16, 1996, the boy took the W-J-R again. His special education teacher reported that he had achieved grade equivalent (and standard) scores of 2.0 (78) for letter-word identification, 2.2 (82) for passage comprehension, 2.0 (78 for dictation, 1.8 (85) for word attack, and 2.2 (87) for writing samples. He also achieved grade equivalent (and standard) scores of 2.0 (80) for basic reading, 2.0 (77) for reading comprehension, and 2.4 (83) for basic writing.
In May, 1996, the child exceeded the Statewide reference point on the New York State Pupil Evaluation Program (PEP) third grade mathematics test, but scored below the reference point on the PEP third grade reading test, which meant that he would be provided with remedial instruction in reading (see 8 NYCRR 100.3 [b]). His third grade report card indicated that he had performed satisfactorily, although it noted that his performance in mathematics had been achieved with modifications. The child's speech/language therapist reported in June, 1996 that the child was functioning in the above average range in his ability to process and recall information in spoken paragraphs, and in the average range in formulating simple, compound and complex sentences. His ability to process semantic relationships was in the low average range.
For the 1996-97 school year, respondent's CSE recommended that the child receive five hours of "consultant teacher services" (Exhibit 3). I note that the CSE chairperson testified that the child was placed in a structured language program, and was grouped for instruction in reading with pupils with similar needs. The CSE also recommended that the child receive 30 minutes of speech/language in a group twice per week. On January 6, 1997, a subcommittee of the CSE amended the child's individualized education program (IEP) to provide that the child attend an organized study hall conducted by the child's special education teacher for 30 minutes each day. The amended IEP also clarified the fact that he was receiving special class instruction in reading. Although counseling was suggested as a way to address the child's anxiety about his school performance, the child's mother was opposed to the suggestion.
By letter dated January 15, 1997, petitioners requested that their son be independently evaluated at respondent's expense. It was agreed to wait for the results of an evaluation by the child's special education teacher before addressing the question of petitioners' request. On January 24 and 27, 1997, the child's special education teacher administered the Woodcock Reading Mastery Tests - Revised (WRM-R) to him. She reported that he achieved grade equivalent (and standard) scores of 1.7 (85) for visual-auditory learning, 3.2 (70) for letter-word identification, 2.5 (72) for word identification, 2.2 (82) for word attack, 2.8 (80) for word comprehension, and 3.0 (85) for passage comprehension. The special education teacher noted that the boy's performance during testing was inconsistent, because he was at times impulsive and careless in his responses.
The CSE met with petitioners on February 26, 1997 to discuss the results of the evaluations. They were reportedly satisfied with the results, and the CSE chairperson informed them that respondent would not pay for an independent evaluation (Exhibit 50). However, the child's father informed the CSE chairperson by letter dated April 8, 1997 of his disappointment with the CSE's denial of the parents' request for an independent evaluation, and indicated that petitioners intended to enroll their son in the Kildonan School in the fall of 1997 (Exhibit 52). The parents corresponded further with the CSE chairperson about possible placements for their son in an approved private school, upon learning that the Kildonan School was not approved by the State Education Department to provide instruction to children with disabilities and that respondent could not legally place the child in that facility (see Section 4402 [a] of the Education Law).
On May 1, 1997, the child's special education teacher administered the W-J-R to him, as he neared the end of the fourth grade. The child achieved grade equivalent (and standard) scores of 2.6 (90) for letter-word identification, 3.9 (94) for passage comprehension, 2.9 (82) for dictation, 3.3 (91) for writing samples, 3.0 (90) for word attack skills, 4.3 (97) for reading vocabulary, 2.9 (83) for proofing, 4.8 (100) for writing fluency, 2.9 (86) for punctuation and capitalization, 2.7 (78) for spelling, and 2.9 (87) for usage. The special education teacher testified that the child was very relaxed and confident during the testing.
In May, 1997, the child's speech/language therapist reported that he had achieved a receptive language score of 102 and an expressive language score of 108 on the CELF-3. The speech/language therapist indicated that the child's scores were within the average range. She reported that on the Auditory Sequential Memory subtest of the Illinois Test of Psycholinguistic Abilities, the child had achieved an age equivalent score of 6.3, indicating that he had a four and one-half year delay in his rote auditory memory skills. However, the speech/language therapist noted that the child's ability to recall meaningful auditory information fell within the average range. She reported that the child had been a cooperative participant in therapy, but at times appeared to be overly concerned about being correct. She recommended that speech/language therapy be discontinued at the end of the 1996-97 school year.
On June 4, 1997, the CSE conducted its annual review of the child. The CSE chairperson testified at the hearing that the CSE considered the results of the May 1 W-J-R test, the speech/language therapist's report and an oral report by the child's fourth grade teacher about the child's performance in her classroom. The CSE prepared the child's IEP for the 1997-98 school year, which provided that he would receive 50 minutes per day of structured language arts taught by a special education teacher and 30 minutes of structured study hall with that teacher per day, while enrolled in a regular education fifth grade class. The IEP also specified that he would receive 40 minutes per day of reading instruction provided by a reading teacher. At the hearing, the child's special education teacher testified that she would have used multisensory techniques to teach reading to the boy in a group of three students, and that the reading teacher would have focused upon literature and reading comprehension in her instruction of the child in a group of nine to eleven pupils. The child would also receive 30 minutes of individual counseling per week. Counseling was recommended to help the child recognize and reduce his feelings of frustration, and to learn anger management techniques. The CSE accepted the speech/language therapist's recommendation, and did not recommend that the child receive the speech/language therapy during the 1997-98 school year.
The child's fourth grade report card indicated that he received grades of "A" or "B" in each of his academic subjects, with one exception, in each marking period of the school year, but that he was working below grade level in reading and mathematics. I note that the CSE chairperson testified that in May, 1997, the child's score on a test of his mathematics skills was above the score used by respondent to determine who should receive Chapter 1 remedial assistance.
Petitioners corresponded with the CSE chairperson during the summer about the educational program which the CSE had recommended for their son for the 1997-98 school year. They also indicated that they were pursuing an independent evaluation of the boy. In August and November, 1997, they had their son privately evaluated by a special educator. The private evaluator reported that the child had achieved grade equivalent scores of 2.7 for letter identification, 2.9 for word identification, 2.3 for word attack, 3.7 for word comprehension, and 3.7 for passage comprehension on the WRM-R. The evaluator also administered the Slingerland Screening Test, and the Spadafore Diagnostic Reading Test. She reported that the child's performance on the Slingerland indicated that he had difficulty integrating visual and auditory modalities with writing, and that this difficulty had exacerbated his difficulties with sequencing. She further reported that the results on the Spadafore indicated that petitioners' son could read independently at the second grade level and with assistance at the third grade level. She opined that the boy had a specific language disability known as dyslexia. She explained that the child had problems with visual sequencing and memory for the internal details of words, numbers, and letter groups, and opined that the auditory modality was his stronger modality for learning. She indicated that the child's listening skills and auditory memory appeared to be good, but he had difficulty organizing and sequencing events or details. The evaluator asserted that the child would have learned more in school if he had received an in-depth Orton-Gillingham (O-G) approach to language arts in elementary school. She noted that petitioners had placed their son at Kildonan School, and she concurred with their decision to do so. The private evaluator did not complete her report until December 19, 1997.
On August 20, 1997, petitioners requested information about the procedures for obtaining reimbursement for their son's tuition at the Kildonan School (Exhibit 62). The requested information was sent to them on August 28, 1997 (Exhibit 63). On September 5, 1997, petitioners requested mediation, which took place on October 23, 1997. By letter dated December 3, 1997, petitioners requested that an impartial hearing be held. The hearing began on January 22, 1998. It continued for an additional six days, ending on June 23, 1998. The hearing officer rendered his decision on September 30, 1998.
The child attended the Kildonan School at his parents' expense during the 1997-98 school year. Respondent transported the child to the school, which is in Amenia, New York. The child was enrolled in fifth grade mathematics, literature, history, science, and art classes, as well as a language training class. The Kildonan School reports from October, 1997 through February, 1998 (Exhibits G-J) described the boy as a hard worker who achieved satisfactory grades. On April 11, 1998, the child was re-evaluated by the private evaluator, who again administered the WRM-R to the child. She reported that he had achieved grade equivalent scores of 4.8 for word identification, 8.0 for word attack, and 5.3 for passage comprehension. On the Spadafore Reading test, the boy's independent reading level in word recognition was reported to be at the first, second, and third grade level, while his instructional level was reported to be at the fourth and fifth grade level. The private evaluator also reported that the child's writing had improved significantly. She recommended that he remain in the Kildonan School.
In his decision, the hearing officer found that the IEP which the CSE had prepared for the child for the 1997-98 school year accurately identified his needs, included appropriate goals and objectives, and provided for appropriate special education services to address his needs. He held that respondent had met its burden of proof of demonstrating that it had offered the child a placement which was reasonably calculated to enable him to receive educational benefits, and denied petitioners' request for an order requiring respondent to reimburse them for the cost of their son's tuition at the Kildonan School during the 1997-98 school year.
Petitioners challenge the hearing officer's finding that their son had progressed at an acceptable rate while attending respondent's schools. They also challenge his finding that their son's IEP for the 1997-98 school year was appropriate. Petitioners contend that the IEP was procedurally and substantially deficient, and they ask that the hearing officer's decision be annulled. I note that while petitioners also challenge the hearing officer's finding that there was no dispute before him regarding respondent's obligations prior to he 1997-98 school year, they did not challenge the boy's IEPs for the school years prior to the 1997-98 school year, and that this proceeding concerns only the 1997-98 school year.
The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 ), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a]). An appropriate program begins with an IEP which accurately reflect 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 boy's IEP for the 1997-98 school year (Ex. 5), and I find that it accurately reflects the results of his evaluations. An IEP must also indicate what a child's needs are with respect to academic development, learning style, social development, physical development, and management needs (8 NYCRR 200.4 [c][i]). I find that the child's needs across the four areas are adequately described on pages 5 and 6 of his IEP, and that his present levels of performance (see 34 CFR 300.346 [a] and 8 NYCRR 200.4 [c][I]) are reflected in the evaluative data which appear on pages 4 and 5 of the IEP.
Petitioners suggest that the IEP should have included more detail about the various subskills of reading, such as vocabulary, in order to be able to establish accurate short-term objectives and to measure the boy's progress in achieving those objectives during the year. The IEP lists broad reading scores on the W-J-Rs from 1995, 1996, and 1997. However, the child's special education teacher testified that the boy's IEP goals and objectives for the 1997-98 school year were based upon the May 1, 1997 W-J-R results. Those goals and objectives also reflect his achievement of certain goals and objectives on his 1996-97 IEP. An annotated copy of that IEP, which indicates which objectives had been achieved is included in the record as Exhibit 4. When read together with the W-J-R results, the annotated IEP for the 1996-97 school year provides adequate information to establish appropriate goals and objectives for the 1997-98 school year. The boy's IEP goals are too general, e.g., "improve reading skills" and "increase writing skills." However, I find that the boy's short-term instructional objectives, e.g., "will build up automatic recognition of sight words to 4.0 [with] 80% accuracy," provide sufficient specificity to afford his teachers a basis for developing a detailed instructional plan for him (Application of a Child with a Disability, Appeal No. 95-15).
Petitioners contend that, despite respondent's best effort to provide specialized reading instruction to their son in a mainstreamed setting, it failed to meet the child's needs, and that the educational program which respondent would have provided to the boy during the 1997-98 school year was essentially a continuation of that unsuccessful instruction. They assert that their child's language skills at the end of the fourth grade were significantly below the fourth grade level. Respondent asserts that the educational program which it proposed to provide to the child during the 1997-98 school year was a continuation and strengthening of the program which had produced academic benefit to him during the 1996-97 school year. Both parties rely upon the testing data from the child's school district and private evaluations and assessments.
Having reviewed the child's W-J-R scores in 1995, 1996, and 1997, I note that he made a limited amount of progress during the 1995-96 school year, which was his first full year of multi-sensory, sequential reading instruction by a special education teacher in respondent's schools. However, it is not unusual for there to be a modest progress during the first year of such instruction, while the student learns very basic language skills. During the 1996-97 school year, the child's reading and writing skills improved significantly, not only in terms of grade equivalents, but also standard scores, with certain exceptions, such as proofing and spelling. Even with those exceptions, the child's standard score for written expression improved from 85 in 1996 to 94 in 1997. His letter-word identification skills improved from 78 in 1996 to 90 in 1997. Although petitioner's expert witness at the hearing discounted the significance of the letter-word identification skills subtest, I find that she failed to offer a persuasive basis for doing so. Petitioner's expert witness also testified that there had been a "severe regression" in the child's passage comprehension skills between 1995 and 1997. I must note that in 1995, the child achieved a standard score of 82, while in 1997 his standard score for passage comprehension was 94.
Petitioners challenge the validity of the 1997 W-J-R results, largely upon the basis of the WRM-R results which were obtained by the child's special education teacher in January, 1997 and by the private evaluator in August and November, 1997. Although the private evaluator chose not to report standard scores, the boy's teacher did report standard scores on the WRM-R. His standard score of 70 for letter-word identification was significantly lower than the 90 which he achieved approximately four months later on the W-J-R. However, it does not follow that the WRM-R results are more valid than those which the boy achieved on the W-J-R. I note that respondent's special education teacher testified that the W-J-R was more comprehensive because it measured achievement as well as reading. Upon the record which is before me, I find that there is no reason to conclude that May 1, 1997 W-J-R results should be disregarded as petitioners urge me to do.
While I have considered the results of the private evaluator's subsequent testing of the child in April, 1998 indicating that the boy had made progress while attending the Kildonan School, I agree with the hearing officer that it does not follow that the child would not have made satisfactory progress had he remained in respondent's schools for the 1997-98 school year. As noted above, respondent's obligation was to offer an educational program which was reasonably calculated to allow the child to receive educational benefits in the least restrictive environment. Upon the record which is before me, I must concur with the hearing officer's determination that respondent has demonstrated that it was prepared to do so for petitioners' son during the 1997-98 school year.
I have considered petitioner's other arguments, which I find to be without merit.
THE APPEAL IS DISMISSED.