Application of a CHILD WITH A DISABILITY, by his 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
Metropolitan Parent Center of Sinergia, Inc., attorney for petitioner, Donald A. Lash, Esq., of counsel
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Amy F. Melican, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner’s child be enrolled in one of respondent's modified instructional services-I (MIS-I) programs in P.S. 238 for the 1998-99 school year. She requests that respondent be directed to place the child in a regular education class with appropriate supplemental supports and services. The appeal must be sustained in part.
At the time of the hearing, petitioner’s son was 12 years old and was being home schooled, at petitioner's choice. He was first evaluated by the committee on preschool special education upon the recommendation of his pediatrician, who believed that the child had limited social skills and that he was in need of stimulation. The child reportedly attended several preschool programs. Upon entering kindergarten in 1991, the child reportedly received special education and services for speech delays. At a meeting in April, 1992, the CSE review team and petitioner agreed that an SIE-VII program was not appropriate for the child. However, the CSE did not agree with petitioner’s request for an MIS-IV program for the child. The record is unclear about the child’s schooling for the 1992-93 and the first semester of the 1993-94 school years. The record does reveal that the child did not attend school in February, 1994 (Exhibit C-1).
In the fall of 1994, the child entered St. Mark’s, a private, regular education, parochial school for second grade, where it was recommended that he repeat the first grade. The child repeated the first grade during the 1994-95 school year. The child began the 1995-96 school year at St. Mark’s. His language delay and lack of ability in communication reportedly affected his ability to socialize. In December, 1995, petitioner removed her son from St. Mark’s and provided home schooling under the curriculum of Seton Home School for approximately six months. In 1996, petitioner relocated to Blacksburg, Virginia and placed her child in the Kipps Elementary School from February, 1997 to January 1998, where he was enrolled in the fourth and fifth grades. While he was living in Virginia, he was reportedly diagnosed as having a pervasive developmental disorder-not otherwise specified (PDD).
In February, 1997 the child was evaluated by the Montgomery County Public Schools in Virginia to determine his eligibility for special education services. A consultant teacher who observed the child in class reported that he was distractible and needed redirection, as well as individual instructions and demonstrations, and verbal assistance with written directions. The child's work pace was described as erratic. She indicated that the child's social conversation with peers and adults was off-target, and that his language difficulties were very apparent. A Montgomery County school psychologist reported that the child evidenced some fairly typical, but mild, behavioral characteristics of a child with a developmental disorder. He noted, however, that many of the child's assessed skills were within general age expectancies, or within the average range. The child demonstrated strength in areas associated with visual motor performance and visual memory. His weaknesses were directly related to difficulties with language, verbal expression and overall comprehension of standardized test directions.
A speech/language pathologist reported that the child had severe deficits in his pragmatic and semantic language skills, as well as weak vocabulary and recall skills. While the child frequently spoke to others, she noted that his comments were irrelevant and his conversational turn-taking skills were very limited. However, the child responded readily to verbal cues and was able to use written language to enhance his ability to produce oral language. An occupational therapist who tested the child on August 28, 1997 reported that the child did not present any need for occupational therapy.
In July, 1997, petitioner arranged for her son to be evaluated by the Spaulding Rehabilitation Hospital in Boston, Massachusetts regarding his diagnosis of PDD and his resultant educational needs. The evaluators noted that the child had been diagnosed with a language delay, but that he had subsequently developed excellent language skills, although he evidenced delayed echolalia. The evaluators also noted that the child's cognitive profile was uneven. He had excellent memory and an excellent sense of direction, with very good musical acuity. However, he demonstrated difficulties in some academic areas. On the Kaufman Assessment Battery, the child showed significant scattering in the level of his abilities. The evaluators cautioned that test results might have underestimated the child's abilities, and they asserted that the child's test scores were approximations of his ability. The child achieved age equivalent scores of 8.6 on reading decoding, 7.9 on reading understanding, 6.9 on number recall, and 10.3 on the spatial memory subtest. The evaluators noted that the child showed strength in spatial abilities and spatial memory, as well as auditory memory. A test measuring interactive language processing, language reasoning and general knowledge was not administered to the child because it was thought to be too taxing for the child's pragmatic and language processing abilities. His responses were primarily delayed echolalic phrases. The evaluators concluded that the child's social interactive and communicative profile was consistent with the general diagnostic category of PPD, and recommended that he be placed in a small, structured classroom. They further recommended that he receive both individual and group speech therapy several times per week, as well as play therapy. They also recommended an individual aide, a special education coordinator to assist with the adaptation of all curriculum especially involving language, an educational consultant, and the use of a computer. The evaluators suggested a hands-on, visual curriculum that minimized language demands. Additionally, the evaluators suggested that he receive music therapy and sensory integration training.
Petitioner returned to New York in March, 1998, where she again provided home instruction to her son. In May, 1998, she referred her son to respondent's CSE. In a social history dated May 12, 1998, the child's mother advised the school's social worker that she had been instructing her son at home, but was interested in exploring the public school system because the child's socialization needs could not be met at home. Petitioner described her son as a sweet, well-behaved child who was well organized and enjoyed computers, puzzles, and tennis. She indicated that he had strong spelling, spatial and musical skills.
An educational evaluation was conducted on May 13, 1998. The CSE's educational evaluator reported that the child turned to his mother for reassurance and assistance in answering questions, and that he was distractible and had to be refocused. At times, the child required prompting to begin tasks, and he tended to work at a slow pace. He was cooperative and pleasant during the testing. In an informal language assessment, the child tended to be echolalic and sometimes perseverated. He was able to relate some biographical data, but had difficulty recalling his phone number and had some confusion in describing his family composition. He was able to name the days of the week and count by twos and fives to 50. Additionally, the child demonstrated language delays in an informal writing assessment. He was able to write his complete name and two independent sentences. He used capital letters appropriately, but omitted punctuation. The child's writing skills were assessed to be below grade expectancy and somewhat immature, but, he had adequate right-handed pencil grasp, and wrote in very neat, legible, large size manuscript lettering.
On the Kaufman Test of Educational Achievement (KTEA), the child achieved grade equivalent scores of 3.2 in reading decoding and 1.9 in reading comprehension, for a composite score of 2.5. The child had difficulty with syllabication of multisyllabic words containing vowel digraphs and dipthongs. When he was directed to read passages silently, the child read them aloud and tended to track words with his finger as he read. He also tended to read passages a second time before answering comprehension questions. The child had difficulty with both literal and inferential comprehension questions. On the KTEA mathematical subtest, the child achieved grade equivalent scores of below 1.0 in application, 2.3 in computation, for a composite score of 1.4. The child had difficulty understanding word problems. He was able to identify two-digit numbers and match equal sets, however he was weak in identifying ordinal numbers, a cube and interpreting information from graphs and the calendar. The child tended to use his fingers to compute written computation examples. He achieved grade equivalent scores of K.1 on the science subtest and K.5 on the social studies subtest of the Woodcock-Johnson Psychoeducational Test.
A psychological evaluation was conducted on May 14, 1998 by a school psychologist, who reported that the child's mother provided significant assistance in making the child comfortable and eliciting his best effort. The child required significant refocusing from both his mother and the evaluator. He often repeated questions aloud, and mild echolalic speech patterns were noted. The child answered some questions after time limits, but appeared to be eager to do his best. On the WISC-III, the child achieved a verbal IQ score of 55, a performance IQ score of 70, and a full scale IQ score of 59, placing his global functioning within the mildly deficient range. The psychologist noted that the child's current language and communication difficulties impeded the full expression of the child's higher potential. When questions were restructured or rephrased, the child could occasionally make an appropriate response. He was able to resolve some more complex items, often missing easier ones. The child was found to be deficient in his fund of general knowledge, arithmetic and word knowledge, and seriously deficient in verbal reasoning at the social-practical and more sophisticated levels. The school psychologist opined that the child had more verbal knowledge than he could adequately express. On visual tasks, the child achieved a low average score in spatial-perceptual reasoning and visual alertness. He demonstrated borderline ability to unite concrete parts into meaningful wholes. He had mildly deficient grapho-motor fluency with newly presented material. The school psychologist noted that the child was more seriously deficient in a visual sequencing task requiring "internal language" to arrange picture cards in appropriate cause and effect relationships. On the Bender-Gestalt Visual Motor Test, the child had two mild rotation errors. He achieved an age equivalent score of 9-11. His figure drawings were neat, detailed and appropriately executed. His perceptual motor functioning was assessed to be somewhat delayed. The psychologist noted that the child's receptive and expressive language difficulties may impede him in some social interactions.
On June 16, 1998, the CSE recommended that the child be classified as autistic, and that he be placed in a Specialized Instructional Environment-III (SIE-III) program for autistic students. Petitioner requested that an inclusion program be considered for her son. The CSE reconvened on August 5, 1998, and recommended that the child be placed in an inclusion SIE-III program. Petitioner opposed that placement as being too restrictive, and submitted a physician's letter recommending a general education placement. The CSE met again on October 8, 1998, when it recommended that the child be placed in a MIS-I program with speech/language services, and have a paraprofessional to address the child's needs for focusing and to provide assistance in making transitions. The CSE also developed an interim services plan for home instruction to address the child's educational needs until his placement was resolved. Petitioner rejected the interim service plan. No regular education teacher was present at the October 8, 1998 meeting.
On October 28, 1998, petitioner requested a hearing which was held on December 2 and 14, 1998. The hearing officer rendered her decision on February 17, 1999. She found that the failure of the CSE to have a regular education teacher present at the meeting at which the child's individualized education program (IEP) was developed did not render the IEP invalid, and that the child should be placed in the MIS-I program at P.S. 238, as the CSE had recommended. She further found that the CSE had appropriately evaluated the child, and she denied petitioner's request for an independent evaluation at respondent's expense. The hearing officer directed respondent to determine whether the child needed the assistance of a bus matron, or transportation aide.
Petitioner argues that a regular education teacher should have been present at the CSE meeting at which her son's IEP was developed. Pursuant to the Individuals with Disabilities Education Act (IDEA), as amended effective July 1, 1998, at least one regular education teacher of such child, if the child is, or may be, participating in a regular education environment, must participate in the CSE meetings at which the child's IEP is prepared (20 USC 1414 [d][B][ii]). The record shows that petitioner had requested an inclusion program for her son. The record also shows that no regular education teacher was present at the October, 1998 CSE meeting at which the challenged IEP was prepared. Upon the record before me, I must find that respondent failed to ensure that the CSE was properly constituted, and that the recommendation of its CSE must be annulled.
Respondent argues that if the matter is remanded to its CSE, the MIS-I program recommended in the child's IEP should be considered the child's pendency placement. I disagree. With respect to interim placements, the United States Education Department's Office of Special Education Programs advised that it had no policy with regard to children who moved into a school district of a different state (EHLR 213:267). In 1995, that Office opined that a school district which receives a transfer student from another state is not required to adopt the child's most recent evaluations, or to implement the child's most recent IEP from the school district in which the child previously resided (OSEP Memorandum 96-5, 24 IDELR 320; Application of a Child with a Disability, Appeal No. 96-56). The child's new district of residence must determine if the child has a disability, and if the child's evaluations and IEP from the other state meet the education standards of the new state of residence. If the child's new school district of residence elects not to adopt the child's previous evaluations, as is the case here, it must evaluate the child without undue delay and provide proper notice to the child's parent, who must consent to the evaluation before it can be performed. The CSE meeting must be convened no later than 30 calendar days after the child has been found to need special education services. If the child's parent wishes to challenge the CSE's recommendation, and the parent and the school district cannot agree on a placement during the pendency of the proceeding, the school district is not required to implement the child's prior IEP, or to approximate the services contained in the former school district's IEP during the pendency of the review proceedings. Instead, the Office of Special Education Programs opined that the school district must place the child in its regular education program.
This child moved to respondent's district from out-of-state, and therefore, the child's referral to the CSE should be treated as an initial referral. The record shows that there is no agreed upon placement as petitioner rejected the interim placement as well as the MIS-I placement recommended by the CSE. Absent an agreed upon placement, I find that the CSE must place the child in a regular education program until a valid IEP is developed. I have considered respondent's argument concerning the decision in Logsdon v. Bd. of Ed. Pavilion CSD, 765 F. Supp. 66 (W.D. N.Y., 1991). However, I am unable to find on the facts in the record before me that this child's temporary placement in a regular education class pending the CSE's reconsideration of the child's program and placement pursuant to this decision, and any subsequent due process proceeding, would be inappropriate.
Petitioner also appeals from the hearing officer's determination denying her an independent evaluation at respondent's expense. Federal and state regulations provide that the parents of a child with a disability are entitled to obtain an independent educational evaluation at public expense, if they disagree with the district's evaluation of the child. However, their right to an independent evaluation is subject to the right of the school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If a hearing officer finds that the school district's evaluation is appropriate, the parents may have an independent evaluation, but not at public expense (34 CFR 300.503; 8 NYCRR 200.5 [a][vi][a]). Petitioner argues that since respondent did not initiate an impartial hearing to demonstrate the appropriateness of its own evaluation, it must be held financially responsible for the cost of an independent evaluation. The Board of Education may not unduly delay the initiation of a hearing to demonstrate the appropriateness of its own evaluation (Application of a Child with a Handicapping Condition, Appeal No. 90-1; Application of a Child with a Handicapping Condition, Appeal No. 92-19; Application of a Child with a Handicapping Condition, Appeal No. 92-35). In this instance, there is no indication in the record as to when petitioner requested an independent evaluation. Therefore, I am unable to determine whether respondent unduly delayed the hearing to demonstrate the appropriateness of its evaluations.
The record shows that petitioner initiated the hearing, and respondent did attempt to defend the adequacy of its evaluations at the hearing. The record further shows that respondent considered the private evaluation of the child, as well as the evaluations from Virginia. I note that the results of the evaluations are reasonably consistent with respect to the child's performance and level of functioning. Although petitioner questioned the manner in which the CSE's evaluations had been performed, I find that there is no basis for concluding that those evaluations were inappropriately conducted, or that the results of the evaluations are not reliable. Therefore, it must be determined what, if any, additional useful information would be gained from an independent evaluation. Petitioner is seeking an inclusion program for her son. While inclusion is not defined in either federal or state regulation, it is generally understood to mean the placement of a child with a disability with the child's chronological peers in a regular education class, in which the child is expected to achieve at a level commensurate with the child's ability and IEP requirements, with the assistance of appropriate special education and related services (Application of a Child with a Disability, Appeal No. 94-17; Application of a Child with a Disability, Appeal No. 94-19). The evaluators consistently reported that the child had severe language and communication difficulties, and that those difficulties affected his performance on the standardized tests. Based upon the information before me and given the nature of the child's disability, I am not persuaded that an additional independent evaluation would provide additional useful information about the child's level of functioning.
Petitioner also contends that the hearing officer erred in refusing to accept into evidence a videotape which showed the child functioning in a variety of settings. Having found that the CSE's recommendation is invalid, I find that this issue is moot. However, I note that the central issue in this proceeding is whether an inclusion program is appropriate for the child. While I have not reviewed the videotape because it is not part of the record, evidence of the child functioning in a regular education environment may well be relevant to a determination of the appropriateness of an inclusion program.
Additionally, I note that the child has been classified as autistic. I remind respondent of its obligation to comply with Regulations of the Commissioner of Education with respect to educational programs for students with autism (see 8 NYCRR 200.13).
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the hearing officer, to the extent consistent with this decision, is annulled, and;
IT IS FURTHER ORDERED that within 30 days from the date of this decision, respondent shall hold a properly constituted CSE meeting and prepare an IEP in accordance with the tenor of this decision.