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 City School District of the City of New York
George Zelma, Esq., attorney for petitioner
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Isaac Kaufman, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which found that the educational program which respondent's committee on special education (CSE) had recommended for her daughter during the 1998 school year did not meet all of the child's needs, but which denied petitioner's request that she be reimbursed for the cost of the child's unilateral placement in a private school because that placement was too restrictive for the girl. Respondent cross-appeals from the hearing officer's determination that the resource room services, speech/language therapy, and counseling which the CSE had recommended for petitioner's daughter were insufficient to help the girl adjust to a regular education placement. It also cross-appeals from his finding that the annual goals and short-term instructional objectives which the CSE included in the child's individualized education program (IEP) lacked sufficient specificity. The appeal must be dismissed. The cross-appeal must also be dismissed.
Petitioner's daughter is 13 years old. During the 1998-99 school year, she attended the Eagle Hill School as a day student. The child was adopted by petitioner at the age of two months from Brazil. She attended nursery school, and was thereafter enrolled by petitioner in the Park East Day School. At the hearing in this proceeding, petitioner testified that her daughter began to have academic difficulty at the age of six. Petitioner had the child evaluated by an ophthalmologist, who diagnosed the child as having amblyopia. Petitioner testified at the hearing that her daughter continued to have academic difficulty at the Park East Day School, notwithstanding some private tutoring. In 1995, petitioner had the child evaluated by a psychologist who reported that the child's scores were in the low average range, and that the child was experiencing anxiety and restlessness. At the psychologist's suggestion, petitioner had her daughter evaluated by a speech/language pathologist, who reported that the child had various deficits in language comprehension and expression. In the summer of 1995, the child underwent a central auditory processing assessment, and was reportedly found to have weakness in auditory memory, auditory sequencing, auditory closure, and auditory figure ground discrimination. I note that the reports of the aforesaid evaluations are not included in the record which is before me.
Petitioner testified that she shared the results of her child's private evaluations with the CSE of Community School District 2 in the summer of 1995. The CSE recommended that the girl be classified as learning disabled, and that she receive daily resource room services and speech/language therapy twice per week while attending P.S. 87 during the 1995-96 school year. Petitioner enrolled her child in P.S. 87 and provided her with additional speech/language therapy and educational tutoring. She testified that her child had academic and social difficulties while attending P.S. 87. Petitioner had the girl further evaluated by a neuropsychologist, who reportedly found that her skills were significantly below average. Thereafter, petitioner arranged for her daughter to receive psychiatric counseling, and for petitioner and husband to receive family counseling. The child remained in P.S. 87 for the rest of the 1995-96 school year. Her academic performance during that school year was not documented by either party at the hearing.
In the summer of 1996, the CSE of Community School District 2 recommended that the child remain classified as learning disabled, but that she be placed in respondent's modified instructional services-I (MIS-I) program for the 1996-97 school year. However, petitioner chose to unilaterally enroll her daughter in the Eagle Hill School, a private school located in Greenwich, Connecticut. The Eagle Hill School has not been approved by the State Education Department to provide instruction to children with disabilities.
There is virtually no information in the record about the child's performance in school during the 1996-97 school year. She was reportedly evaluated by a psychologist in March, 1997, when she reportedly achieved a verbal IQ score of 85, a performance IQ score of 96, and a full scale IQ score of 90. It was noted in a subsequent evaluation that in March, 1997, the child was found to have weaknesses in her fund of basic factual information, verbal abstract reasoning, and visual analysis and synthesis, while her strength was in the area of visual sequencing. At the end of the 1996-97 school year, the child's case was reviewed by the CSE of Community School District 3, which recommended that her classification be changed to speech impaired. The CSE also recommended that the child be placed in respondent's modified instructional services-III (MIS-III) program for the 1997-98 school year.
Petitioner chose to have her daughter remain at the Eagle Hill School, at her expense, for the 1997-98 school year. On the Stanford Diagnostic Reading Test (SDRT) which was administered to her in August, 1997, the child achieved grade equivalent (and percentile) scores of 3.9 (17) for auditory vocabulary, 2.9 (15) for reading comprehension, 1.8 (15) for phonetic analysis, 3.6 (12) for structural analysis, and 3.6 (8) for reading rate. In September, 1997, she achieved grade equivalent scores of 5.5 for accuracy and 3.1 for comprehension on the Gilmore Oral Reading Test, and 6.0 on the Slosson Oral Reading Test, which measures a child's ability to read sight words in isolation. The child also achieved percentile scores of 24 for number system and numeration, 7 for computation, and 36 for applications on the Stanford Diagnostic Math Test (SDMT) in September, 1997. She reportedly received intensive remedial instruction in language arts at the Eagle Hill School during the 1997-98 school year (Exhibit 6), and also received counseling at the school.
Petitioner's daughter was evaluated by the CSE in the spring of 1998. On March 7, 1998, she was evaluated by a speech/language pathologist, who noted that the child was receiving speech/language therapy in a group of three, three times per week. The evaluator reported that the child had received percentile scores of 9 for receptive language and 1 for expressive language on the Clinical Evaluation of Language Fundamentals (CELF-3), with weaknesses in identifying concepts and directions, word classes, formulating sentences and recalling sentences. The evaluator described the child as functioning with moderate to severe delays in her language skills.
The CSE's educational evaluator also tested the child on March 7, 1998, when the child was in the seventh month of the sixth grade. She used the Wechsler Individual Achievement Test. The girl achieved grade equivalent (and percentile) scores of 4.9 (30) for basic reading, 5.6 (47) for reading comprehension, 4.3 (23) for mathematics reasoning, 5.0 (23) for numerical operations, 4.9 (34) for listening comprehension, 5.0 (50) for oral expression, 5.5 (42) for language, 4.5 (21) for spelling, and 5.9 (39) for writing. The evaluator reported that the child's rate of delay in reading and math was comparable to that of the previous year, i.e., she was about one year below grade level in both the 1996-97 and 1997-98 school years. She opined that the child had demonstrated adequate oral and written expression skills to enable her to learn age and grade appropriate curriculum material, but she required some remediation because she lacked some knowledge of sixth grade mathematics and reading vocabulary words (Exhibit 3).
A CSE school psychologist who evaluated the child on April 6, 1998 reported that she had achieved scores of 106 for verbal reasoning, 92 for abstract visual reasoning, 108 for quantitative reasoning, and 92 for short-term memory on the Stanford-Binet Intelligence Scale. The child's scores were in the average range on all parts of that test. She also achieved a score which was in the average range on a test of her visual motor integration skills, and an age appropriate score on a test requiring her to draw a design from memory. The school psychologist noted that the child appeared to be surprised that she had achieved correct answers during parts of the evaluation, and she suggested that the child could benefit from positive feedback in school. She also noted that the child's verbal ability appeared to have improved since her previous cognitive testing, but cautioned about the significance of that matter since a different test had been used in 1998. She also suggested that the significance of the speech/language pathologist's finding of speech/language difficulties would have to be assessed in light of the child's educational evaluation and teacher reports (Exhibit 2). The school psychologist also observed the child in a language arts class at the Eagle Hill School on April 3, 1998. She reported that the child had answered each of her teacher's questions correctly, expressed herself well, and easily followed the teacher's directions. She noted that the child was friendly and appeared to be well liked by her teacher and six classmates (Exhibit 5).
The CSE of Community School District 3 conducted its annual review of the child on June 4, 1998. One of the child's teachers at the Eagle Hill School participated in the CSE meeting. Although petitioner alleged at the hearing that the CSE did not include one regular education teacher (cf. 20 USC 1414 [d][B][ii]), I note that the requirement that a regular education teacher be a member of the CSE did not take effect until July 1, 1998 pursuant to the 1997 amendments to the Individuals with Disabilities Education Act. The CSE recommended that the child remain classified as speech impaired, and that she receive resource room services for one period per day, speech/language therapy in a group of three twice per week, and counseling in a group of three once per week during the 1998-99 school year. The CSE recommended that the child receive counseling because she reportedly had some difficulty with peers and socialization in the classroom at the Eagle Hill School. The CSE reportedly considered placing the child in respondent's MIS-III program, but concluded that it would be too restrictive. On June 22, 1998, petitioner was offered a placement for her child in Intermediate School 44.
Petitioner disagreed with the recommended placement and chose to re-enroll her child in the Eagle Hill School for the 1998-99 school year. On September 23, 1998, she requested an impartial hearing to review the CSE's recommendation. The hearing was scheduled to begin on October 21, 1998, but was adjourned by mutual request until November 3, 1998. It was held on the latter date. At the hearing, respondent contended that the child's special education needs would have been addressed by resource room services plus the related services which the CSE had recommended for her. Petitioner asserted that the CSE had failed to adequately evaluate her child's language-based learning disability, and had ignored the severity of the child's disability in making its recommendation.
In his decision dated December 10, 1998, the hearing officer found that the CSE had adequately evaluated the child to determine her educational needs, and further found that the child would be able to function in a regular education setting if provided with additional support and services. However, he disagreed with the CSE's determination that resource room services plus related services would be adequate to enable the child to function in a regular education setting on a full-time basis, and suggested that at a minimum, the child would require consultant teacher services. The hearing officer also found that some of the child's IEP goals and objectives lacked sufficient specificity, and that respondent had failed to demonstrate that the child would have been appropriately grouped for instructional purposes with the other students in the proposed resource room. He concluded that respondent had failed to meet its burden of proving that it had offered an appropriate educational program to petitioner's daughter for the 1998-99 school year. However he denied petitioner's claim for tuition reimbursement on the ground that her daughter's placement at the Eagle Hill School was inconsistent with the requirement that each child with a disability be educated in the least restrictive environment, because the record demonstrated that the child was capable of participating to a significant extent in regular education classes. He remanded the matter back to respondent's CSE for reconsideration of its recommendation for the child's educational program for the 1998-99 school year.
Petitioner contends that the hearing officer erred in his decision, and asks that I award her tuition reimbursement for the 1998-99 school year. A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7). 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]). Since the first criterion for an award of tuition reimbursement is the appropriateness of the educational services offered by the board of education and respondent has cross-appealed from the hearing officer's findings about the recommended educational program, I will consider respondent's cross-appeal first.
I note that the appropriateness of the child's classification as speech impaired has not been challenged in this proceeding, so I do not review the child's classification (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]). However, I have considered the child's special education needs as reflected in the evaluation reports which are in the record before me, as well as the testimony of the witnesses at the hearing. I find that the child's IEP accurately reflects the results of the most recent evaluations performed by the CSE. It does not reflect the results of the standardized tests which were administered to the child at the Eagle Hill School in May, 1998, which were included in an end-of-year report from the school dated June, 1998 (Exhibit C). On the SDRT, the child achieved grade equivalent (and percentile) scores of 4.0 (12) for auditory vocabulary 2.9 (14) for reading comprehension, 5.1 (44) for phonetic analysis, 2.5 (2) for structural analysis, and 4.1 (11) for reading rate. On the Gilmore Oral Reading test, she achieved grade equivalent scores of 6.2 for accuracy and 5.1 for comprehension and she received a grade equivalent score of 5.9 on the Slosson Oral Reading test. On the SDMT, the child achieved percentile scores of 35 for number system and numeration, 12 for computation and 30 for applications. However, I must note that the record does not reveal whether Exhibit C was shared with the CSE when it met on June 4, 1998.
An appropriate IEP must include annual goals and short-term instructional objectives which are sufficiently specific to provide a child's teacher with adequate direction about the CSE's expectations for the child's educational achievement during the school year. I agree with the hearing officer that annual goals for this child such as " will participate in resource room to improve study skills... to improve reading skills " are simply too vague to provide any meaningful direction to the child's teachers .However, the supporting short-term instructional objectives for these goals provide far more detail, e.g.," will use skills in phonetic analysis by distinguishing long/short vowel sounds in 10 words with a 75% level of accuracy." On balance, I find that the girl's IEP annual goals, as amplified by her short-term objectives were sufficiently specific to provide guidance to the child's teachers, and I disagree with the hearing officer's determination with regard to the girl's goals and objectives. In doing so, I remind respondent that its CSE should ensure that each child's objectives are sufficiently specific to serve as general benchmarks for determining the child's progress towards achieving his or her annual goals.
The central question in this appeal and cross-appeal involves the nature and amount of the services the child required to be offered a reasonable opportunity to achieve her IEP goals and objectives. The parties present sharply divergent positions concerning the severity of the child's educational disabilities. The record reveals that petitioner's daughter is of average intelligence, but has some significant deficits in some of her language skills. Her percentile scores of 5 for concepts and directions, 2 for word classes, 5 for formulated sentences, and 1 for recalling sentences on the CELF-3 which was administered to her in March, 1998 were well below normal.
Nevertheless, the evaluator noted that the child was capable of responding to certain questions accurately in complete sentences. Respondent's school psychologist also observed the child functioning in class, and noted that she successfully participated in discussions and answered questions. The standardized test results reported by the Eagle Hill School (Exhibits 6 and C) suggest that the girl was performing well below grade level, while the CSE's educational evaluator, who used a different but equally reliable standardized test, reported that the child's skills were only slightly below grade level. Although I know of no reason why I should accept the private school's test results over those obtained by respondent's educational evaluator, I find that even if I did so, I would not be persuaded that the child required a full-time special education placement in order to receive a free appropriate public education. I am aware that the child reportedly had difficulty functioning while attending P.S. 87, but I find it highly significant that no documentary evidence describing the nature and extent of her difficulty was introduced at the hearing. Upon the record before me, I am unable to find that the child was incapable of benefiting from regular education instruction in at least some academic subjects, and in special subjects such as art, music, and home and careers, during the 1998-99 school year.
To determine respondent's cross-appeal, I must decide whether the child would have benefited from regular education instruction in all subjects, with supplemental special education instruction provided in a resource room, as the CSE recommended. I am not persuaded by the evidence in the record that resource room services plus the recommended related services would have adequately addressed each of her special education needs, nor am I persuaded that the addition of consultant teacher services would have been appropriate. A CSE must consider various alternative placements along a continuum ranging from the least restrictive to the most restrictive (see 34 CFR 300.551). In making its selection of a placement, the CSE should consider the extent to which a child requires at least some primary special education instruction. I find that the CSE should have recommended a part-time program of primary special education, such as placement in a MIS-I class for instruction in language arts. While agreeing with respondent about the appropriateness of the child's IEP goals, I find that it should have offered to provide her with part-time primary special education to enable her to achieve them. Therefore I must dismiss the cross-appeal.
Petitioner bears the burden of proof with regard to the appropriateness of the services which she obtained for the child at the Eagle Hill School during the 1998-99 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, petitioner must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra, 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor had its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20).
Petitioner asserts that her daughter was appropriately placed in the Eagle Hill School because the school's program is designed for children who have a language based learning disability. She further asserts that her child has made significant progress developing her language processing skills while attending the private school, and has adjusted well socially in the school's environment. The child's advisor at the Eagle Hill School for the 1998-99 school year testified at the hearing that the school provided a "transitional placement" for children with learning disabilities in classes of approximately five students taught by special education teachers. She further testified that petitioner's child did not receive speech/language therapy, but that the teacher of the child's daily study skills class was a trained speech/language pathologist. However, I note that the two written progress reports from the school which are in the record do not describe what was attempted or accomplished in the study skills class.
The child also had a "tutorial" class during the 1998-99 school year. The written progress reports indicate that instruction was provided for reading decoding and comprehension, spelling and vocabulary. As noted above, the child was tested with the SDRT in August, 1997 and May, 1998 (Exhibits 6 and C). Although these test results relate to the school year prior to the school year in question in this appeal, I must note that they do not support petitioner's position that her daughter had made significant progress developing her reading skills while attending the Eagle Hill School. While petitioner contends that her child requires specially designed instruction throughout the curriculum, I note that one of her witnesses testified at the hearing that some of the school's teachers were trained to use multi-modal, specialized instructional programs, but that those programs were sometimes "... integrated across the child's program, but not necessarily consistently" (Transcript page 49).
Even if I were to assume that petitioner's child had received specialized instruction throughout her curriculum at the Eagle Hill school during the 1998-1999 school year, petitioner would still have to prove that her daughter required such specialized instruction throughout the school day in a school which serves children with disabilities. The hearing officer found that she did not require such instructional program. I agree with petitioner that the requirement that children with disabilities be placed in the least restrictive environment must be balanced against the requirement that they receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 882 F. 2d 688 [2d Cir., 1989]). However, I find, as noted above, that an appropriate program for this child during the 1998-99 school year would have included primary special education instruction in language arts and regular education instruction in other subjects. Therefore, I find that petitioner has not met her burden of proof with respect to the second criterion for an award of tuition reimbursement.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.