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 Monticello Central School District
Donoghue, Thomas, Auslander and Drohan, Esqs., attorneys for respondent, James P. Drohan, Esq., of counsel
Petitioner appeals from a hearing officer's determination which found that respondent had not met its burden of proving that the individualized education program (IEP) which its committee on special education (CSE) prepared for the use of petitioner's daughter during the 1997-98 school year, but which further found that petitioner could not obtain any compensatory relief. Petitioner asserts that she is entitled to some form of "restitution", given the hearing officer's finding with regard to her child's IEP. Respondent cross-appeals from the hearing officer's finding that the girl's IEP was inappropriate because it was not preceded by comprehensive evaluations. The appeal must be dismissed. The cross-appeal must also be dismissed.
Petitioner's daughter is 15 years old. She reportedly achieved her early developmental milestones satisfactorily, and attended a preschool. The girl entered kindergarten in an Arizona public school. She was reportedly initially evaluated and classified as learning disabled while in the third grade in Phoenix, Arizona during the 1992-93 school year. A psychological evaluation which was performed at that time revealed that the child had been referred because of her poor academic performance despite having received various forms of assistance (Exhibit P-G). The child achieved a verbal IQ score of 99, a performance IQ score of 89, and a full scale IQ score of 93. Her visual-motor integration skills were delayed by approximately two years. On the Woodcock Johnson Psychoeducational Battery: Tests of Achievement – Revised, the child earned grade equivalent (and standard) scores of 1.7 (69) for broad reading, 2.2 (81) for broad mathematics, and 1.7 (79) for broad written language.
Petitioner's daughter reportedly attended school in Arizona for the fourth grade during the 1993-94 school year. The record does not reveal what special education services she received while in Arizona. Thereafter, she moved with petitioner to Fallsburg, New York, where she was classified as learning disabled and enrolled in a self-contained 15:1 learning needs class, but was mainstreamed for special subjects, during the fifth and most of the sixth grade. The girl's IEP for the sixth grade indicated that although her handwriting was difficult to read and she had difficulty with spelling, she could write sentences at the fourth grade level in March, 1995. However, her reading and mathematics skills were reported to be at the second grade level.
In April, 1996, petitioner enrolled her daughter in the sixth grade of respondent's middle school. An updated social history was reportedly obtained, and a classroom observation was reportedly performed (Transcript, page 212). However, no psychological or educational evaluation was performed at the time of the child's entrance into respondent's schools. The child remained classified as learning disabled. She was reportedly placed in departmentalized special education classes for academic subjects, and mainstreamed for special subjects, in a program which was reportedly comparable to her educational program in the Fallsburg district. The child was reportedly successful in her sixth grade classes in respondent's middle school.
For the 1996-97 school year, respondent's CSE recommended that the child remain in departmentalized special education classes for English, mathematics, reading, science and social studies, and that she be mainstreamed for music, art, and technology. The IEP which the CSE prepared for the child indicated that she required carefully presented sequential materials in order to reduce her frustration (Exhibit P-L). Although the child's IEP reported her scores on a Brigance Diagnostic Inventory of Early Development which had allegedly been administered to her in March, 1996, respondent's Assistant Director of Pupil Personnel Services testified that the Brigance scores were obtained in 1995 when the child was in the Fallsburg district. The IEP listed various alternative testing techniques, among which was the statement that the girl needed the use of a word processor. However, the IEP did not reveal whether the child possessed the requisite keyboarding skills for word processing. Petitioner agreed to have her child's IEP implemented during the 1996-97 school year (Exhibit P-K).
Petitioner reportedly had concerns about her daughter's educational program during the 1996-97 school year. She asked an educational consultant to review her child's IEP. On February 25, 1997, the consultant opined that the IEP provisions relating to reading and mathematics instruction were generally appropriate, but the goals and objectives for science and social studies did not appear to be realistic for a child who was reading at the second grade level (Exhibit M). She suggested that alternative research and reporting forms, such as recorded books, be considered for the child because of her significant deficits in reading and writing. The consultant noted that the child's IEP referred to the use of a word processor, and she suggested that the child be trained in keyboarding skills. The consultant also suggested that " … it would be even better if she were given a computer for both class and home use … "
In March or April, 1997, petitioner discussed her child's possible need for an assistive technology device such as a computer with her child's teacher and case manager. It was reportedly agreed that an assistive technology evaluation would be performed. By letter dated May 7, 1977, the educational consultant suggested that the evaluation be performed at the Capital Region BOCES in Albany, or the Lower Hudson Valley Regional Technology Center in Valhalla, New York (Exhibit 9). Petitioner made a written request for an assistive technology evaluation to be performed at either of the facilities which the consultant had suggested (Exhibit 18). She was advised that an occupational therapy evaluation and/or psychoeducational evaluation were also needed for the CSE to have adequate information about the child (Exhibit 12). Petitioner agreed to have the occupational therapy evaluation performed. However, she did not agree until August 26, 1997 to have the psychological evaluation performed (Exhibit 20).
The child's occupational evaluation was performed on June 10, 1997. The evaluator reported that the child had a significant deficit in vision and perception, but displayed excellent visual motor control (Exhibit N). Although she could accurately place letters on paper, petitioner's daughter had difficulty with speed and dexterity while writing. However, her writing was legible. The evaluator opined that the child did not require occupational therapy.
Although respondent's Director of Pupil Personnel Services had previously advised petitioner that the CSE would not conduct its annual review of the child prior to its receipt of the results of the requested evaluations, the CSE conducted its review on July 16, 1997. Petitioner did not attend the meeting. The record includes a written notice dated July 2, 1997 informing her of the meeting (Exhibit 13), although it does not appear to have been correctly addressed to her. In any event, respondent's Assistant Director of Pupil Personnel Services testified that she had spoken to petitioner before the meeting and believed that petitioner had received the written notice. The minutes of the July 16, 1997 meeting indicate that the child had successfully completed the seventh grade and had made progress in developing peer and adult relationships. The minutes also indicate that she needed to improve her ability to process information, and that she would require special education classes to progress academically in the 1997-98 school year. The IEP for the girl which was prepared at that meeting provided that she would be enrolled in 15:1 special education classes for English, health, mathematics, reading, science, and social studies, and be in regular education classes for music, art, technology, and home and careers, during the 1997-98 school year. The IEP included annual goals for the child's performance in each of her special education classes. It also included four testing modifications which were to be used with the girl during the school year. Those modifications were that she should have the benefit of flexible scheduling to take tests, and extended time in which to complete them, that revised test formats should be used, and that she should receive assistance in recording her answers "in any manner". Unlike the IEP for the preceding school year, the girl's IEP for the 1997-98 school year did not indicate that she should use a word processor (Exhibit 1).
Petitioner's daughter was tested by the educational consultant on August 27, 1997. On the Peabody Individual Achievement Test – Revised (PIAT-R), the girl achieved grade equivalent (and standard) scores of 5.3 (82) for general information, 2.0 (55) for reading recognition, 1.9 (55) for reading comprehension, 4.2 (68) for mathematics, and 5.1 (79) for spelling. She also achieved a standard score of 81 for writing.
On September 11, 1997, the child was evaluated by respondent's school psychologist. She achieved a verbal IQ score of 91, a performance IQ score of 83, and a full scale IQ score of 86. The school psychologist noted that the girl's cognitive functioning had declined slightly more than expected since the testing which was performed in Arizona. She opined that the decline might be due to her predominantly concrete rather than abstract level of processing. The school psychologist assessed the child's academic skills with the Wechsler Individual Achievement Test (WIAT). The child achieved grade equivalent (and standard) scores of 2.6 (70) for basic reading, 3.6 (79) for reading comprehension, 4.2 (76) for mathematics reasoning, 4.8 (76) for numerical operations, 2.6 (66) for spelling, and 5.1 (89) for written expression. The school psychologist opined that the girl's word recognition and spelling scores were low because of her poor phonics skills. On the Developmental Test of Visual-Motor Integration, the child achieved an age-equivalent score of 9.9, indicating that she had below average visual-motor integration skills. The school psychologist reported that projective testing suggested that petitioner's daughter had a low self-concept with regard to her popularity, physical appearance and academic abilities, but was generally happy. She opined that the child displayed a learning disability which was primarily in the language arts area, and that the girl was appropriately placed in special education classes.
On September 29, 1997, petitioner and the educational consultant met with the school psychologist and the Assistant Director of Pupil Personnel Services to discuss the results of the child's evaluation. Although there appears to have been some confusion at the hearing about whether the meeting was a CSE meeting, I note that a tape recording of the meeting reveals that it was not a formal CSE meeting (Exhibit P). Petitioner signed a form authorizing respondent to release personally identifiable information to the individual who was to perform her daughter's assistive technology evaluation at the Capital Region BOCES. The evaluation did not take place until December 3, 1997. Respondent's Assistant Director of Pupil Personnel Services attributed the delay in having the evaluation performed to difficulty scheduling a date which was convenient for petitioner (Transcript, pages 239-240). Although the evaluation was performed in December, 1997, the evaluator's report was not received by the parties until March 11, 1998. The report was delayed by an illness in the evaluator's family and the birth of the evaluator's child in January, 1998 (Transcript, page 99).
In her report, the assistive technology evaluator, who had reviewed samples of the child's handwriting, suggested that the girl could benefit from the use of "skeleton outlines, notes prepared by a classmate, and tape recording her thoughts before writing or typing them. She also suggested that the girl could use "cue cards" to organize information for her writing assignments, and books on tape to assist her with her reading assignments. In addition to those "low tech" suggestions, the evaluator offered suggestions for the purchase and use of certain kinds of computers and accessories, as well as computer software which would help the child read, write, spell, and learn to keyboard, i.e., to type. She also opined that " … there is no indication of a need at this time for computer technology to be placed for home use" (Exhibit 2).
The evaluator's report was discussed with petitioner in a meeting with respondent's Assistant Director of Pupil Personnel Services held on or about March 23, 1998. By letter dated March 30, 1998, the Assistant Director advised petitioner that respondent's technology director had received a copy of the evaluator's report to aid in the implementation of its recommendations, and she would meet with petitioner and the girl's teachers to discuss the recommendation for the CSE's annual review of the girl's educational program (Exhibit 11). At the hearing, the Assistant Director testified that attempts were made to schedule a CSE meeting which petitioner could attend, but that proposed meetings were cancelled at petitioner's request. In any event, respondent proceeded to implement the assistive technology evaluator's recommendations, which included purchasing equipment and training the child's teachers (Exhibit 17). I note that two of the girl's teachers testified that they had received some training. At least some of the software which the evaluator had suggested was not installed until June, 1998.
In a letter dated May 12, 1998, petitioner requested that an impartial hearing be held with regard to her daughter's education (Exhibit IHO-5). Respondent appointed a hearing officer on May 19, 1998. The hearing in this proceeding began on June 22, 1998. At that time, it was agreed that the issues which the hearing officer would decide were whether respondent should have provided a computer for the child to use at home during the 1997-98 school year, and whether the child should have been educated in an "inclusion" setting during that school year. I will note for the record that the term "inclusion" is not defined by regulation, but it is generally understood to mean the placement of a child with a disability in a regular education class with his or her age-appropriate peers. Unlike mainstreaming, in which the child with a disability is expected to meet the same academic standards as his or her peers, the "included" child is expected to meet his or her IEP goals and objectives, with the assistance of appropriate special education and related services (Application of a Child with a Disability, Appeal No. 94-17). It was agreed that the initial focus of the hearing would be upon petitioner's request that respondent be required to provide some instructional program to petitioner's daughter during the summer of 1998, as compensatory relief for its alleged failure to provide an appropriate education to the child during the 1997-98 school year.
At the end of the first day of the hearing, it was agreed that the parties would attempt to reach agreement on the service which would be provided to the girl during the summer. It was also agreed that the CSE would conduct its annual review on July 22, 1998 to prepare the girl's IEP for the 1998-99 school year. The CSE met on that date and prepared an IEP. The provisions of that IEP are not part of this proceeding. The parties did not agree upon a summer program for the girl, and the hearing resumed on July 29, 1998. It continued on the next day, and it concluded on October 13, 1998. The hearing officer rendered his decision on December 9, 1998.
The hearing officer noted that by the time the hearing had been completed, the 1997-98 school year had ended, thereby precluding him from ordering respondent to change the girl's program prospectively for that school year. He further noted that petitioner in her post-hearing brief had challenged her daughter's IEP for the 1997-98 school year because it was allegedly prepared without her involvement and because the CSE had allegedly failed to consider other placement options (see 8 NYCRR 200.5 [a][i][c]). Petitioner also challenged her child's placement during the 1997-98 school year on the ground that it was inconsistent with the requirement that each child with a disability be placed in the least restrictive environment. The hearing officer found that the girl's psychological and assistive technology evaluations should have been performed before the CSE prepared her IEP for the 1997-98 school year. He further found that the IEP which the CSE had prepared lacked a comprehensive plan to remediate the girl's significant reading and mathematics deficiencies, or train her to compensate for them. However, he held that petitioner's failure to request a hearing until the school year was nearly over precluded him from making an award in her favor. Since he lacked jurisdiction with respect to the child's educational program for the 1998-99 school year, the hearing officer found that the only available remedy was an award of "compensatory damages". The hearing officer concluded that the child did not qualify for an award of compensatory education because there was no proof that the child had regressed because of respondent's failure to provide services to her.
Petitioner challenges the manner in which the hearing officer conducted the hearing, as well as conclusions which he reached in his decision. I will consider her procedural objections first. Petitioner asserts that the hearing officer became annoyed with her advocate who was attempting to rephrase a question, and that he refused to allow her advocate to discuss decisional law during the hearing. She also asserts that he would not allow her to talk to her advocate during petitioner's testimony. When a party is not represented by counsel, a hearing officer must ensure that the party has an opportunity to present his or her case fully (Application of a Child with a Disability, Appeal No. 93-49). I have reviewed the transcript, and I find that the hearing officer met his obligation to petitioner. On a number of occasions, the hearing officer explained why certain questions could not be asked, and helped the advocate to rephrase her questions. Although the strict rules of evidence do not apply in impartial hearings, there are certain rules which should be enforced to ensure that there is an adequate record of competent evidence. The applicability of prior court decisions to the facts in a particular proceeding is a matter of legal argument, which is appropriately addressed in post-hearing memoranda of law. At the conclusion of the hearing, the hearing officer explained how prior decisions should be brought to his attention (Transcript, pages 497-499). I find that his instructions were clear and reasonable. Petitioner also asserts that the hearing officer failed to explain how his decision could be appealed. I find that the hearing officer's decision complied with the provisions of 8 NYCRR 200.5 (c)(11), which require that a hearing officer notify the parties of their right to seek review of his or her decision. A more detailed description of the procedure for appealing from a hearing officer's decision is to be provided to the parent by the school district in its notice of each CSE review (8 NYCRR 200.5 [a][viii]).
The central issue in this proceeding is whether the Board of Education provided an appropriate educational program to petitioner's daughter during the 1997-98 school year. If, as respondent urges in its cross-appeal, the Board of Education did provide an appropriate educational program, petitioner's appeal would necessarily fail. I will therefore determine if the hearing officer correctly determined that respondent had not met its burden of proving that the program was appropriate.
Respondent argues that the hearing officer erred in finding that the child's IEP for the 1997-98 school year was inappropriate because the child's psychological and assistive technology evaluations should have been performed before the IEP was drafted by the CSE. It asserts that it sought to obtain petitioner's consent for a psychological evaluation in May, 1997, but it was unable to obtain her consent until August, 1997. The Board of Education also asserts that completion of the assistive technology evaluation was delayed for reasons beyond its control.
Federal and State regulations require that each child with a disability be re-evaluated at least every three years (34 CFR 300.534; 8 NYCRR 200.4 [e]). This child was initially evaluated while attending school in Arizona during the 1992-93 school year. There is no evidence of another psychological evaluation having been performed until September, 1997. While neither the Federal nor the State regulation specify that a triennial evaluation must include a psychological evaluation, each triennial evaluation must include appropriate testing. In this instance, I find that a psychological evaluation was an appropriate component of a triennial evaluation which should have been performed before the girl's IEP was prepared.
I must also point out that one of a CSE's tasks at an annual review is to review current information about a child's performance, so that the CSE can accurately report the child's present levels of performance and indicate the child's individual needs on the child's IEP for the next school year (8 NYCRR 200.4 [c][i]). This child's IEP for the 1997-98 school year included the results of her June, 1997 occupational therapy evaluation, but its only academic performance data were the results of the Brigance Test which was administered to her in Fallsburg in March, 1995. Although the CSE may have had other information from the child's teachers when it prepared the IEP, the record does not reveal what that information was. Therefore, I must sustain the hearing officer's determination about the absence of adequate and timely evaluative data needed to prepare an IEP, and dismiss the cross-appeal.
Petitioner challenges the hearing officer's conclusion that her daughter was not entitled to an award of compensatory education because there was no evidence of the child's regression. She relies upon the results of two PIAT tests administered to her daughter by her educational consultant on August 27, 1997 and June 10, 1998 (Exhibit 22). Those results indicate that the child's reading recognition skills improved from a 2.0 grade equivalent to a 4.1 grade equivalent, and her reading comprehension improved from 1.5 to 4.8. The child's mathematics skills improved only slightly from 4.2 to 4.6, while her spelling decreased from 5.1 in 1997 to 4.7 in 1998. The child's level of general information remained at a 5.3 grade equivalent. The teacher further testified that the child had mastered most of her IEP annual goals and short-term instructional objectives (Transcript, page 103). An annotated copy of the child's IEP which is in the record confirms the teacher's testimony (Exhibit 4). The child's report card for the first three quarters of the school year also indicates that the child was making satisfactory progress (Exhibit 3).
In addition, I note that the child's special education teacher for social studies, health, and science testified that petitioner's daughter had made very good progress during the 1997-98 school year, and had improved her memory, decoding, and reading comprehension skills without the benefit of assistive technology for most of the school year. Upon the record before me, I am unable to find that a home computer which petitioner now seeks was necessary in order for this child to derive a meaningful benefit from her educational program (Application of a Child with a Handicapping Condition, Appeal No. 90-13). Therefore, the Board of Education's failure to provide a home computer to the child would not afford a basis for awarding her compensatory education. The child's entitlement, if any, to have a computer at home in future years will depend upon her needs in those years.
While I in no way condone respondent's failure to more promptly evaluate this child, I cannot conclude on the record which is before me that the child should have received an award of compensatory education (see Burr by Burr v. Ambach, 863 F. 2d 1071 [2d Cir., 1988]). I have considered petitioner's other contentions which I find to be without merit.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.