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 Rocky Point Union Free School District
Pamela Phillips Tucker, Esq., attorney for petitioners
Kevin A. Seaman, Esq., attorney for respondent
Petitioners appeal from an impartial hearing officer's decision holding that their son's individualized education program (IEP) for the 1996-97 school year which provided that the child receive both push-in and pull-out resource room services and speech/language therapy while mainstreamed in the sixth grade was appropriate for the child. Petitioners contend that respondent should have provided all of their child's special educational services to him in his sixth grade classroom, and that his IEP should have included a social skills program and provided for the use of assistive technology. The appeal must be sustained, although not for the reasons asserted by petitioners.
Petitioners request that a copy of a report of a psychiatric examination of their son which was performed at the State University of New York Stony Brook School of Medicine on September 1, 1998 annexed to their petition be considered in this appeal, although the report was not part of the record which was before the impartial hearing officer. Respondent opposes their request, and asserts that the report is irrelevant to the issues presented in this appeal. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer's decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 95-41). Although the educationally relevant portions of the report appeared to principally relate to the 1997-98 school year, I will accept the report. I do so in part because respondent has also annexed additional documentary evidence, including the child's report cards for the 1996-97 and 1997-98 school years, to its answer.
Petitioners' son, who is 14 years old, reportedly began to exhibit regression in his language and behavior when he was approximately one and one half years old. At the age of three and one half years old, he was reportedly diagnosed as having a Pervasive Developmental Disorder - Not Otherwise Specified. I note that the child has been classified as autistic for educational purposes, and that his classification is not disputed in this proceeding. He reportedly received Early Intervention services (see Title II-A of the Public Health Law) as a young child. He was subsequently enrolled in a BOCES communications class at the Terryville Learning Center for kindergarten and first grade.
A BOCES psychologist who evaluated the child in April, 1991 reported that the child had earned a verbal IQ score of 114, a performance IQ score of 117, and a full scale IQ score of 118. The school psychologist reported that the child's academic skills were "on age level", and that the child appeared to be happy and to have a positive self-image. The child reportedly continued to exhibit some unusual behavior, but was described as having made tremendous progress in developing appropriate social skills. The psychologist recommended that the child's classification be changed from multiply handicapped to speech impaired, and that he be placed in one of respondent's 12:1+1 special education classes, with mainstreaming in appropriate subjects.
The child was enrolled in a self-contained special education class in respondent's Frank J. Carasiti Elementary School for the 1991-92 school year. His report card for that school year indicated that he made satisfactory academic progress and social development (Exhibit A-5). The child remained in that class for the 1992-93 school year. He was mainstreamed for reading and art, and was reported to have had a very good year in school (Exhibit A-6). During the 1993-94 school year, the child continued to be educated in the same self-contained class, but was mainstreamed for reading. His special education teacher reported that the child had blossomed both academically and socially during the three years in which he was in her class (Exhibit A-7). He achieved grade equivalent scores of 6.7 for reading, 4.5 for mathematics, and 10.4 for spelling on the Kaufman Test of Educational Achievement.
The child continued to earn excellent grades while in another self-contained class in petitioner's Joseph A. Edgar Elementary School for the fourth grade during the 1994-95 school year. The child's teacher reported that he had been shy and withdrawn at the beginning of the school year, but had become outgoing and a true leader within the class by the end of the year (Exhibit A-9). On the standardized DRP reading test, the child achieved a score which was at the 82nd national percentile. On the Iowa Test of Basic Skills, his total mathematics score was at the 74th national percentile.
A psychologist from the State University of New York at Stony Brook Medical School who served as a consultant to respondent during the 1993-94 and 1994-95 school year reported that the child was much less perseverative and anxious, as well as considerably better related, socially responsive and attentive when seen in the latter school year (Exhibit A-19). Another independent psychologist who evaluated the child in April, 1995 reported that the child had earned a verbal IQ score of 98, a performance IQ score of 115 and a full scale IQ score of 106. She reported that the child's visual problem solving skills and auditory processing skills were fair, while his memory skills were variable. The psychologist indicated that the child had considerable difficulty answering specific questions about linguistic information which he had heard, and that his immediate recall of visual material was poor. She also indicated that the child's academic skills were fair, with problems noted in both concepts and calculation in mathematics. The psychologist described the child as having normal intelligence, but having language-based difficulties which were pervasive in nature. She recommended that he continue to be placed in a special class, with mainstreaming for subjects such as reading, science, computer, and art. She further recommended that the child receive intensive speech/language therapy, and commented that the social skills group that he was attending was an excellent idea (Exhibit P-4).
The child was placed in a self-contained class in the Edgar School for the fifth grade during the 1995-96 school year. His IEP (Exhibit A-26) indicated that he would be mainstreamed for reading, science, art, music, computer, physical education, and lunch. He was also to receive individual speech/language therapy once per week, and small group speech/language three times per week. The IEP also indicated that he would meet with a guidance counselor twice per month and a consultant teacher twice per month to develop his social skills. The boy's testing modifications included extended time, small group in a separate location, simplified test directions, and recorded answers. During the school year the child's "support team" i.e., the teachers and specialists who were working with him, worked out a plan to meet together once per week to discuss the week's activities and the goals which were to be targeted (Exhibit A-20). Some scheduling changes were instituted in the middle of the year to enable the boy to receive his mainstream instruction with one group of students and one teacher. The CSE chairperson testified that the child's mainstreaming was increased during the school year, with the consent of the child's mother, to the point where he was in the self-contained class for only two periods per day, one for mathematics and the other for general remediation.
The child was evaluated by his speech/language therapist in the spring of 1996. She reported that he had achieved standard scores of 93 for receptive language and 84 for expressive language on the Clinical Evaluation of Language Fundamentals (CELF), and a standard score of 88 on the Test of Learning Competence. In her report (Exhibit A-24), the speech/language therapist noted that she had been assisted throughout the year by speech pathologists who were trained in autism. Because of the child's below average performance in pragmatic speech, the speech/language therapist recommended that he continue to receive speech/language therapy five times per week. Three of those sessions would be in a small group outside the child's classroom, and the remaining two sessions would be "push-in" sessions in which she would be in the child's classroom to see if he was carrying over the social skills which she had taught him in the other three sessions.
In a memo dated June 16, 1996, the child's regular education fifth grade teacher reported that the boy had proven that he was capable of achieving academic success in a regular education class (Exhibit A-21). She indicated that he had maintained an average level of academic achievement, with little support from special education sources. The teacher noted that the boy required extra attention from her, and that he needed help packing up his belongings at the end of the day. He also required help with his homework log because he had difficulty carrying information of that nature from one setting to another. For that reason, he needed written directions for his assignments. The teacher reported that the child freely asked questions when he needed help. Although his reading decoding was excellent, he had difficulty comprehending what he had read. He also had difficulty recalling things over long periods of time. The teacher indicated that the child believed that people could read his thoughts, and did not understand the need to elaborate his ideas when writing. She also indicated that he had worked well in structured cooperative groups, but still had trouble giving appropriate social responses and initiating conversations. He reportedly annoyed other children as a means of getting their attention in unstructured situations. The teacher opined that many of the child's deficits could be addressed in a resource room setting. With the exception of two "Cs" and a "D" in science, the child achieved above average grades in each of his fifth grade subjects (Exhibit A-9). However, he failed to achieve a grade which was above the Statewide reference point on the Pupil Evaluation Program (PEP) Fifth Grade Writing Test.
The CSE began its annual review of the child on June 16, 1996. Its chairperson testified that the child's mother had requested that a person trained in autism be assigned to work with her son for ten periods per week during the 1996-97 school year. The CSE did not agree with the mother's request. The June CSE meeting ended without a consensus as to the child's educational program for the 1996-97 school year. The CSE did not meet again with the child's parent until August 19, 1996.
The child was taken by his mother to the Eden II School for Autistic Children for a clinical consultation on July 25, 1996, because the mother was concerned about the child's increased behavioral problems. The Eden II Director of Clinical Services reported that the boy repeatedly demonstrated a negative attitude with regard to himself, his social abilities, and his interactions with peers and adults. She opined that he demonstrated a lack of self-esteem, and an unwillingness to assert himself into peer interactions. She suggested that counseling could be beneficial to him, and that his peers in school might be made more sensitive in their interactions with him. She suggested that cooperative learning experiences might be used to accomplish this purpose (Exhibit P-11).
On July 10, 1996, the child's mother requested that an independent psychological evaluation be performed by someone with expertise with high-functioning children with autism. The evaluation was performed in early August, 1996. The psychologist who did the evaluation reported that the boy had exhibited some unusual behavior during the unstructured portions of the evaluation. The child earned a composite score of 108 on the Stanford-Binet Intelligence Scale: Fourth Edition, and a score of 111 on the verbal reasoning subtest. The psychologist attributed the increase in the child's verbal reasoning skills since his previous IQ test to the fact that he had been in a mainstreamed classroom where more age-appropriate language was used. On the Woodcock Johnson Test of Achievement, the child achieved standard scores of 113 for letter-word identification, 97 for passage comprehension, 88 for calculation, 94 for applied problems, 93 for dictation (spelling), 90 for writing samples, 110 for science, 100 for social studies, and 90 for the humanities. The child and his mother completed portions of the Social Skills Rating System. On the information provided by the child's parent, the child's score was in the borderline range. The child's responses identified social skills deficits, which the psychologist opined related to developmental and emotional difficulties, as well as a tendency toward concrete thinking. The psychologist recommended that the child be mainstreamed for all subjects, with resource room assistance especially for support in reading. He further recommended that the child receive counseling twice per week, and speech/language therapy in a group twice per week, as well as once per week as a push-in service. The psychologist suggested that the child could benefit from participation in structured activities.
On August 13, 1996, the child's mother requested that her son be evaluated to determine if he required the use of assistive technology. Two days later, she had the child privately evaluated by an occupational therapist, who reported that he evidenced a three-year delay in his visual motor integration skills, but that his eye-hand coordination was within normal limits. The occupational therapist administered a part of the Denver Handwriting Analysis Test to the child, who had only recently learned to use cursive writing. She noted that he printed letters twice as fast as he could write them, but that neither writing method produced work which was more legible than the other. She opined that he would be unlikely to be able to take clear handwritten notes efficiently, and recommended that the child receive an assistive technology evaluation.
The CSE reconvened on August 19, 1996 to continue its annual review. At the hearing, the CSE chairperson testified that the CSE rejected the parent's request that all of her son's resource room services be provided on a push-in basis because the CSE believed that the child worked better in a small group and his mathematics instruction had always been provided to him in a small group setting. However, the CSE offered to compromise its differences with the parent by recommending that the child receive five periods of pull-out and three periods of push-in resource room services per week, and four periods of pull-out and one period of push-in speech/language therapy per week. The chairperson further testified that she believed that the child's mother had agreed to the proposal, but that the mother then indicated that she would not assent to the proposed IEP unless the IEP included a statement that an evaluator had recommended that the child should use a laptop computer. The CSE did not agree to include that statement on the IEP. However, it did agree to have an assistive technology evaluation performed, and to promptly reconvene to review the results of that evaluation. The parent reportedly left the CSE meeting at that point, and thereafter reportedly declined the CSE chairperson's offer to hold another CSE meeting, or to engage in mediation (see Section 4404-a of the Education Law).
By letter dated August 20, 1996, the child's mother indicated that she did not agree with the CSE's recommendations, and requested that an impartial hearing be held. The hearing began on October 3, 1996. It continued for sixteen more days, ending on April 28, 1997. In accordance with the pendency provisions of Federal and State law, the child was placed in a self-contained sixth grade class in September, 1996. However, the child's mother agreed in January, 1997 to have her son placed in a regular education sixth grade class with the mix of push-in and pull-out services which the CSE had proposed at its August CSE meeting.
An assistive technology evaluation was begun at a local BOCES on November 8, 1996. The evaluator reported that the child had indicated a dislike for both writing and typing, and she noted that he did not want to appear to be different by having to use a keyboard in the classroom. She advised the child's mother that he did not require assistive technology. However, the child's mother contacted the evaluator several days later to request that she re-evaluate the boy. On January 23, 1997, the boy was observed taking notes by hand and with the use of a keyboard device in his special education classroom. The evaluator concluded that the child did not need to have assistive technology as part of his educational program (Exhibit A-30).
At his mother's request, the boy received another assistive technology evaluation at the St. Charles Hospital in April, 1997. The evaluator reported that the child had exhibited significant visual problems, and opined that the child could have difficulty with handwriting because of an inability to focus on an object, a lack of convergence/divergence, and excessive blinking. In any event, the evaluator recommended that the child use a laptop device to produce more legible school work (Exhibit P-26). The psychologist who evaluated the child in 1995 wrote a brief note in April, 1997 supporting petitioner's request for a word processor for the boy (Exhibit P-28). However, the psychologist acknowledged at the hearing that a word processor was not necessary in order for the child to learn (Transcript, page 1004).
In February, 1997, approximately one month after the boy was completely mainstreamed, the Kaufman Test of Educational Achievement was administered to him. He achieved grade equivalent (and standard) scores of 10.2 (116) for reading decoding, 6.1 (96) for reading comprehension, 12.9 (134) for spelling, 6.0 (90) for mathematics computation, and 7.1 (102) for mathematics application. I note that the boy received above average grades in each of his sixth grade subjects in June, 1997, except for a "D" in reading and "F" in mathematics.
The hearing in this proceeding began on October 3, 1996, and it concluded on April 7, 1997. The parties reportedly submitted post-hearing briefs on June 27, 1997. On September 1, 1998, petitioners commenced an appeal to the Commissioner of Education pursuant to Section 310 of the Education Law because the hearing officer had not rendered his decision. The hearing officer reportedly responded by asserting that any decision which he could issue was unlikely to provide meaningful assistance to the student, given the passage of time. The Commissioner of Education held that petitioners were entitled to receive a written decision from the hearing officer, and he directed the hearing officer to render a decision within ten days after December 23, 1998 (Appeal of a Student with a Disability, 38 Ed. Dept. Rep. 386). The hearing officer rendered his decision on January 11, 1999. He found that the educational program which the boy had received after his mother agreed in January, 1997 to implement the CSE's recommendations, i.e., placement in a regular education sixth grade class with a combination of push-in and pull-out resource room services and speech/language therapy, had been appropriate to meet the child's needs. He acknowledged that there may have been weakness in the boy's educational program, but not to the extent that the program was inappropriate.
Respondent argues that the matter is moot since the 1996-97 school year is ended, and the disputed IEP for that school year has been replaced by the boy's IEPs for the 1997-98 and 1998-99 school years. Petitioners' son is reportedly attending a BOCES alternative learning center in East Northport during the current school year. Respondent asserts that petitioners did not challenge their son's educational programs for the 1997-98 or 1998-99 school years. It contends that the issue which petitioners raised in this proceeding i.e., push-in versus pull-out special education services, is not capable of repetition, and that the appeal should be dismissed.
Although petitioners' child may no longer be attending respondent's school, it does not follow that they are precluded from challenging the hearing officer's decision (see Essen v. Board of Education of the Ithaca City School District et al., 24 IDELR 30, [U.S. D.C. N.D. N.Y., 1996]; Hiller v. Brunswick CSD, 687 F. Supp. 735 N.D. N.Y., 1988]). Respondent has not alleged that the child no longer resides in the district, or that its CSE is no longer responsible for conducting an annual review of the child's educational program and placement. While the issue of whether the child should have push-in or pull-out services may or may not arise again, there are other issues, such as the manner in which the CSE conducted its annual review, which are not moot (see Heldman v. Sobol, 962 F. 2d 148 [2d Cir., 1992]; Hiller v. Brunswick CSD, supra). Accordingly, I will not dismiss the appeal on the grounds of mootness.
Petitioners contend that the educational program which respondent provided to their son during the 1996-97 school year was not reasonably calculated to meet the boy's educational needs because it did not include a comprehensive social skills program, and it failed to address his need for assistive technology. They also contend that the child should have received all of his special education services in a mainstream setting. I note that the petitioners refer in their petition to respondent's alleged failure to provide an adequate social skills program during the school years which proceeded the 1996-97 school year. However, they did not challenge their son's educational program during those school years, and I find that their appeal must be limited to the 1996-97 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 reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
I find that respondent cannot meet its burden of proof for two reasons. First, the child's teacher did not attend or otherwise participate in the second of the two CSE meetings at which the annual review was conducted. The teacher did attend the first meeting which was held on June 16, 1996, but she was not at the second meeting which was held on August 19, 1996. Federal regulation (34 CFR 300.344 [a]) and New York State Education Law Section 4402 (1)(b)(1) require that a child's teacher be a member of the CSE which conducts a review, or makes a recommendation for services to be provided to the child. The second reason is that the CSE did not complete its review on August 19, 1996. At the hearing, the CSE chairperson testified that the boy's IEP was not complete (Transcript, page 115). She explained that the CSE could not stay later than 6:00, and that she had intended to reschedule another meeting, but the child's mother declined to participate. The CSE chairperson also testified that the matter was not pursued because the child's mother had requested an impartial hearing. I must point out to respondent that the pendency provisions of the Federal and State law do not preclude its CSE from conducting an annual review and recommending an appropriate program for a child (Application of a Child with a Disability, Appeal No. 97-13). Since the child's IEP was not completed, respondent cannot carry its burden of proof (Application of a Child with a Disability, Appeal No. 97-22).
My finding with respect to the manner in which the child's annual review was conducted compels me to annul the hearing officer's decision. While that is dispositive of the appeal, I note that petitioner's contend, with justification, that the hearing officer's decision was not only untimely, but that it failed to address the issues which they had raised in this proceeding. Under the circumstances, I will briefly address those issues.
One of the issues which petitioner raised was whether the CSE had accurately identified all of their son's special education needs because it did not recommend that the boy use a laptop computer for his written school work. They note that in April, 1997, an evaluator at the St. Charles Hospital recommended that the child use a laptop computer (Exhibit P-26). However, a BOCES evaluator had reached a contrary conclusion in January, 1997 (Exhibit A-30). State regulation requires that a child 's IEP describe any specialized equipment or adaptive device needed by the child to benefit from instruction (8 NYCRR 200.4 [c][vii]). The question then is whether petitioners' son requires a laptop in order to benefit from his instructional program (Application of a Child with a Handicapping Condition, Appeal 90-13). I have considered the St. Charles Hospital evaluator's report and her testimony, as well as the report and testimony of the occupational therapist who evaluated the child in July, 1996. However, I find that while the child's handwriting is not the neatest, it is legible. The teachers who have worked with him on a daily basis testified that the child did not need to have a computer. Upon the record which is before me, I find that the boy did not need a laptop computer in order to benefit from his instructional program.
One of the significant difficulties which a high functioning child with autism may have is a deficiency in social skills involving inappropriate behavior and delayed development of pragmatic language skills. Petitioners' son has manifested both inappropriate behavior and inadequate pragmatic language skills, although the latter appears to have been the more serious of the two during the 1996-97 school year. In 1993, respondent employed a psychologist who was affiliated with the University Hospital at Stony Brook to act as a consultant. The consultant, Dr. Laurie Stephens, testified that her work for respondent had primarily involved the development of a social skills training program for petitioners' soon. She presented in-service training to respondent's staff in the years following 1993. During the 1994-95 school year, the child's fourth grade special education teacher provided social skills training which was based upon two formal training programs which Dr. Stephens had recommended. Social skills training continued during the 1995-96 school year, and was apparently provided largely by the boy's speech/language therapist.
The boy began the 1996-97 school year in a sixth grade self-contained class as his pendency placement. His teacher, who had also been his fourth special education teacher, testified that the boy had integrated many of the social skills which he had worked on with her while in the fourth grade. Dr. Stephens provided in-service training to respondent'' teachers and support staff in seven sessions beginning in October, 1996. Dr. Stephens suggested various formal programs for use with the child. She testified that the child'' speech/language therapist had selected a social skills training program which Dr. Stephens believed to be appropriate for the boy. The child's resource room teacher for the second half of the school year testified that the child's speech/language therapist was primarily responsible for providing his social skills training, but that she reinforced what the speech/language therapist taught him and monitored his use of those skills when she was in the child's regular education sixth grade class. She also testified that she had not observed the child exhibit any negative behavior in his regular education class, although he did manifest some of that behavior in her resource room. While petitioners' point appears to be that respondent's staff should have used a more formal approach to teaching social skills to the child, I am not persuaded by the record before me that the instruction which the child's teachers provided to him was inadequate or inappropriate.
Much of the hearing was devoted to the issue of whether the child's resource room services and his speech/language therapy should have been provided to him exclusively within his regular education class, i.e., as push-in services, or partly as push-in and partly as pull-out services during the 1996-97 school year. As noted above, respondent was obligated to provide special education services to the child in the least restrictive environment. However, the individual needs of the child must be considered in determining the appropriateness of those services. Petitioners contend that their child should have received his resource room services and speech/language therapy in his sixth grade classroom. The Executive Director of the Eden II School, who had been engaged by respondent to serve as a consultant about this child, testified that she would be concerned about the effect which moving the child in and out of his regular class to receive those services might have upon him. Nevertheless, she also testified that it was appropriate on occasion to remove the child from class to provide him the educational support he needed. The psychologist who had evaluated the child in spring of 1995 opined that it would be less disruptive to the child if he received his special education services as push-ins, but she appeared to believe that the service providers would be in the child's classroom to observe him and intercede when he had difficulty, rather than to instruct him. She also opined that the child needed mostly push-in services, but conceded that pull-out small group instruction could be helpful to deal with social issues.
Respondent's staff, who had worked with the boy over extended periods of time, unanimously opined that the child required at least some pull-out instruction because he resisted attempts to help him in the classroom because of a strong desire not to appear different from his classmates. Dr. Stephens concurred with that opinion. She opined that he was not likely to take full advantage of the support services which were provided to him in the classroom because he would be embarrassed. Dr. Stephens also opined that the combination of push-in and pull-out services which the CSE had proposed appeared to be benefiting the child's needs (Transcript, page 1224). Upon the record which is before me, I find that it was appropriate to provide a combination of push-in and pull-out services to the child.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing officer is hereby annulled.