Application of the Board of Education of the SMITHTOWN CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child suspected of having a disability
Peter G. Albert, Esq., attorney for petitioner
Leon & Deffet, attorneys for respondent, Michael E. Deffet, Esq., of counsel
Petitioner, the Board of Education of the Smithtown Central School District, appeals from the decision of an impartial hearing officer which found that the services it was providing to the child constituted special education and related services under the Individuals With Disabilities Education Act (20 USC 1400 et seq., hereinafter "IDEA"). The hearing officer ordered petitioner's committee on special education (CSE) to reconvene to classify the child and to prepare an individualized education program (IEP) for the child for the 1998-99 school year. The appeal must be sustained.
The child was 11 years old and in the sixth grade at the time of the hearing. When he was three years old, he was diagnosed as having a sensorineural hearing loss in his right ear. He reportedly was classified as hard of hearing by petitioner's committee on preschool special education, but was declassified in June, 1992. The child also exhibited some behavioral and organizational deficits suggestive of an Attention Deficit Disorder (ADD). His educational history and evaluations are described in a prior decision (Application of a Child Suspected of Having a Disability, Appeal No. 98-34), and will not be repeated here.
The child was referred by his parents to petitioner's CSE in the fall of 1997. The CSE recommended that the child not be classified as a child with a disability, but did recommend that an accommodation plan be developed pursuant to Section 504 of the Rehabilitation Act of 1973 (20 USC 794, hereinafter "Section 504"). Eligibility under Section 504 is more broadly defined than under the IDEA (compare 34 CFR 104.3 [j] with 34 CFR 300.7 [a] ).
The child's parents disagreed with the CSE's recommendation and requested an impartial hearing which was held in March, 1998. The hearing officer in that proceeding found that the child's hearing impairment did not adversely affect his educational performance, and that he was not classifiable under IDEA. The child's parents appealed from that decision as indicated above. Because the CSE had not considered certain evaluation data which were obtained after its meeting, and because it was not entirely clear from the testimony by the child's fifth grade teacher about what techniques she had used with the child, I ordered the CSE to reconvene to review the results of a December, 1997, central auditory processing evaluation (CAPE) and a January, 1998 evaluation for itinerant services for the deaf and hard of hearing, both of which are summarized in the my decision cited above. I also ordered the CSE to reassess the child with respect to his attentional difficulties. Neither party appealed that decision, which was rendered on August 21, 1998.
On September 15, 1998, the child was observed by a school psychologist while he was in his sixth grade social studies and English classes. The school psychologist noted that the child was seated in the front of his social studies classroom. She reported that he was able to spontaneously follow multi-step directions, copy the homework assignment into his planner, and ask several questions about the nature of the assignment. The school psychologist further reported that the child demonstrated good concentration while completing the written portion of the class activity. During a less structured activity, the child repeatedly asked for additional assistance while continuing to attempt the task. The school psychologist noted that the child asked for assistance more frequently than the other students, but performed as well as his classmates. The child also was seated in the front of his English class. The school psychologist noted that he demonstrated excellent attention as he followed multi-step directions, followed along with a lengthy story being read, and raised his hand to answer many literal and inferential questions. She reported that the child did not appear to have any difficulty hearing and responding to auditory information in class. She indicated that the child's teachers were aware of his needs and provided accommodations to account for them, and that they reported that the child was functioning well with his present accommodations.
The child's teachers completed school observation sheets on September 23, 1998. All of them reported that the child was performing well in school, and that he was an active participant in class. Some of his teachers noted that he needed to work on his organizational skills, but they reported that he was no different than any other sixth grade student.
The school's speech/language therapist observed the child on September 29, 1998 while he was in science class. She reported that the child advised her that the only time he had difficulty hearing was in a "big crowd with lots of noise . . . and in band." The speech language therapist observed that the child was seated in the front of the room, appeared to be attending to the teacher, and followed several directions. She noted that he responded to two oral directions, and concluded that the child appeared to be a capable student who actively participated in class with no apparent difficulty.
The CSE reconvened on October 6, 1998 in response to my August 21, 1998 decision. The minutes from that meeting indicate that the CSE reviewed the results of the audiological assessment conducted in December, 1997, and the evaluation for itinerant services for the deaf and hard of hearing conducted on January 9, 1998. The CSE also discussed the classroom observations which were made in September, 1998, and heard reports from the child's fifth grade teacher, as well as his sixth grade teachers. The minutes indicate that the CSE also discussed the child's attentional difficulties.
The CSE concluded that the child did not have a hearing disability or an attentional difficulty as defined under the IDEA. The minutes further show that the CSE determined that the services being provided to the child were appropriate, and constituted Section 504 accommodations rather than special education. The CSE expanded the child's Section 504 plan to provide a 30 minute training session to orient his teachers to strategies for working with a child with a unilateral hearing loss.
On November 6, 1998, the child's parents, through their attorney, requested an impartial hearing because of the CSE's recommendation not to classify their son. The hearing was held on January 6 and 20, 1999. The hearing officer rendered his decision on February 11, 1999. He found that the CSE appropriately complied with the order to consider the CAPE and the evaluation for itinerant services for the deaf and hard of hearing, and he concluded that the CSE acted appropriately in declining to follow the recommendations outlined in the CAPE. However, the hearing officer found that the CSE did not clarify the child's needs or describe the services being provided to determine whether such services constituted special education services. Rather than remanding the case to the CSE, the hearing officer found that the child was eligible for classification under IDEA because the CSE had determined that the child was in need of specific accommodations, related services and supplementary aids to benefit from his education. The hearing officer ordered the CSE to classify the child as hard of hearing, and to prepare an appropriate IEP.
Petitioner challenges the hearing officer's determination that it failed to comply with my decision, and that the accommodations which it was providing to the child pursuant to the Section 504 plan constituted special education services requiring that the child be classified as hard of hearing. As defined in State regulation, a hard of hearing child is defined as:
"A student with a hearing impairment, whether permanent or fluctuating, which adversely affects the child's educational performance but which is not included under the definition of deaf in this section" (8 NYCRR 200.1 [mm]).
In my August 21, 1998 decision, I ordered the CSE to reassess the child with respect to his attentional difficulties. I find that respondent complied with that order. As noted above, the school psychologist observed the child in class in September, 1998. The minutes of the meeting reveal that the school psychologist discussed what she had observed. The CSE also asked the child's teachers whether there was any evidence of attentional difficulties. The teachers indicated that there wasn't evidence of such difficulties. Although a private psychiatrist had opined in May, 1997 that the child might have ADD, there is no evidence that the condition, if it exists, has interfered with the child's education.
The CSE was also directed to clarify the child's educational needs and to describe the specific services which were being provided to the child to meet those needs to assist it in determining whether those services constituted special education services and programs. The hearing officer determined that the CSE failed to comply with this portion of the order, then determined that the services did constitute special education and related services. While I agree with the hearing officer that the CSE did not itemize the child's needs or the services which he received, I find that it did ask his sixth grade teachers to describe how he was doing academically, the degree to which he participated in class, and whether they had any recommendations as to how he could be helped. The responses which the CSE received did not identify any educational needs, or suggest that any specialized techniques or services were required to improve the child's performance.
It is undisputed that the child has a hearing impairment. However, in order to be classified as a child with a disability under Federal regulation (34 CFR 300.7[a]), or its State counterpart (8 NYCRR 200.1 [mm]), a child must not only have a specific physical or mental condition, but such condition must adversely impact upon the child's performance to the extent that he or she requires special education and/or related services (Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-42). The record shows that the child was performing at or above grade level in all academic subjects and that he was an active participant in his classes. The record also shows that the child had been receiving accommodations on an informal basis until the fifth grade, when the Section 504 plan was implemented. The issue that must be determined is whether the accommodations being provided to the child pursuant to the Section 504 plan constituted specially designed instruction and/or related services necessary for the child to benefit from his education. If so, then the child should be classified as a child with a disability.
Section 4401 (1) of the Education law defines "special education" as specially designed instruction which includes special services or programs to meet the individual needs of a child with a disability. Special services or programs as defined in Section 4401 (2) of the Education Law include special classes, transitional services, home instruction and special teachers. Related services include audiology, counseling, occupational therapy, physical therapy, speech pathology, medical services and psychological services. These definitions are based upon the definitions set forth in IDEA regulations (see 34 CFR 300.17 and 300.16).
The Section 504 accommodations designed to address the child's hearing impairment included seating the child close to the teacher; directing the child to move his seat at any time to insure hearing; encouraging the child to maintain appropriate physical aspects necessary for communication, such as eye contact; requesting the child to repeat directions before beginning independent activities when necessary; monitoring the child during initial practice of activities; and encouraging the child to inform the speaker of his auditory needs on an ongoing basis. I am unable to find that any of these accommodations constitute specially designed instruction. The child is not in a special class, nor does he have special education teachers. Additionally, he is not receiving related services. Furthermore, none of the accommodations require that the child's assignments be individualized to meet his needs or that the curriculum be modified (see Yankton School District v. Schramm, 93 F.3d 1372 [8th Cir., 1996]). The accommodations set forth in the child's Section 504 plan are common strategies that apply to students in general, not just students with disabilities.
Additionally, the Section 504 plan provided that the Child Study Team would update all special subject teachers regarding the child's needs so appropriate accommodations could be put in place. However, it does not follow that such updating constitutes special education or a related service. The Section 504 plan also provided for the child's teachers to receive a 30 minute orientation session focusing on the academic and communication difficulties associated with the child's hearing loss and to provide them with effective teaching strategies for the hard of hearing to make them aware of the importance of hearing conversation to a student with a hearing loss. Again, I am unable to find that this accommodation constitutes special education. Although providing specialized assistance to the teachers of a child with a disability falls within the definition of indirect consultant teacher services, I must note that Section 200.6 (d) of the Regulations of the Commissioner of Education provides that a child with a disability must receive such services for a minimum of two hours each week. In this instance, there is no suggestion that the child needs, or is being provided with, that amount of service. The accommodation is designed as a one time 30-minute session provided to the child's teachers.
The hearing officer found that but for these accommodations, the child's ability to learn and do the class work would be adversely affected by his hearing impairment. I cannot agree. The record shows that the child's performance in school is above average, and that he is an active participant in his classes and answers questions posed from anywhere in the classroom. Significantly, the child himself advised the speech/language therapist that the only time he had difficulty hearing was when he was in a "big crowd with lots of noise . . . and in band." Based upon the information before me, I find that the services being provided to the child do not constitute special education and related services. Accordingly, I find that the child is not a child with disability under IDEA because his condition does not adversely impact upon his performance to the extent that he requires special education and/or related services as those terms are defined under he IDEA, or its State counterpart, Article 89 of the Education Law.
I have considered the parents' assertions, including their claim that petitioner failed to provide them with information about the hearing officer's appointment. I remind petitioner that it has an obligation to provide such information. However, I find on the present record that petitioner's failure to do so does not afford a basis for granting them the relief which they seek, i.e., the classification of their child.
THE APPEAL IS SUSTAINED.
IT IS ORDERED THAT the hearing officer's decision is hereby annulled.