Application of the BOARD OF EDUCATION OF THE WASHINGTONVILLE CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Shaw & Perelson, LLP, attorneys for petitioner, Lisa S. Rusk, Esq., of counsel
Michael H. Sussman, Esq., attorney for respondent
Petitioner, the Board of Education of the Washingtonville Central School District, appeals from the decision of an impartial hearing officer which directed its committee on special education (CSE) to develop an individualized education program (IEP) placing respondent's daughter in a regular education inclusion program for the 1998-99 school year. The appeal must be dismissed.
I note that the hearing officer's decision appears to reflect some confusion about the terms "inclusion" and "mainstream". Although he used the latter term, it is clear from the record that he meant the former. Inclusion is not defined in regulation, but it is generally understood to mean the placement of children with disabilities in regular education classes with their chronological peers where they are expected to achieve at a level which is commensurate with their ability and their IEPs, with appropriate special education and related services (Application of a Child with a Disability, Appeal No. 99-19).
Respondent's daughter was 10 years old and in the fourth grade at the time of the hearing. She has cerebral palsy and is wheelchair bound, but can ambulate with assistance for approximately 200-300 feet (Exhibit 13). She has a seizure disorder, for which she takes medication, but she reportedly has been seizure free for six years (Exhibit 14 and 15). The child attended an early intervention program at the Janet Lockwood school during the 1990-91 school year, where she received speech/language therapy, occupational therapy and physical therapy (Exhibit 14). In the fall of 1991, she was placed by the committee on preschool special education at the Newburgh Developmental Learning Center where she remained through June, 1993 (Exhibit 14). The child's entrance to kindergarten was delayed for one year at the option of her parents. She began kindergarten during the 1994-95 school year (Exhibit 16).
In June, 1994, the child was evaluated by a school psychologist, who reported that the child's adaptive functioning was in the mildly deficient range based upon the Vineland Adaptive Behavior Scales (VABS) results obtained from the child's mother (Exhibit 16). The school psychologist further reported that the child's daily living skills were her weakest area of performance, noting that she was equally weak in both fine and gross motor areas. The child was assessed to be performing in the mid two to three year old level in both receptive and expressive communication. She was unable to perform written tasks due to the severity of her fine motor deficits. He noted that the mother's description of her daughter's social behavior suggested that the child was functioning at a 3-5 to 3-9 year old level. However, the school psychologist reported that the descriptions of social competency reported by the mother were not observed by staff during the child's multiple visits to the school. He further noted that the child's mother indicated that her daughter had mastered some tasks which were performed either with support or hand over hand.
On the Peabody Picture Vocabulary Test (PPVT-R), the child was assessed to be performing at a severe level of deficiency in the area of receptive vocabulary, having achieved a standard score of less than 40 for an age equivalent of 2-3. The results of the Boehm Test of Basic Concepts suggested that the child lacked a grasp of abstract prepositional and relationship words. An assessment of the child's pre-academic readiness skills could not be determined using the Brigance Inventory of Basic Skills (Brigance) because the test materials were too small for the child to see or manipulate. However, the school psychologist noted that the child demonstrated knowledge of alphabet letters presented out of sequence.
The school psychologist also reported that the child's verbalization was limited to single word utterances. He noted that her speech was usually unintelligible due to the severity of her articulation problems and because her voice was barely audible. The school psychologist also noted that the child was not able to demonstrate sustained attention to task which further hindered performance. He described the child as generally uncooperative, noting that she refused to attempt tasks and withheld responses. He opined that such behavior could be interpreted as expressions of task performance difficulty and oppositionalism. The school psychologist noted that the child would require an adaptive chair and table because she was unable to sit unsupported at a small student desk.
Although the record does not reveal when the child was initially classified by the CSE, she was apparently classified as multiply disabled. The girl was placed in an inclusion program with consultant teacher services and a full-time aide through the third grade (Exhibits E, M, P, Q).
The CSE conducted the child's triennial evaluation beginning in January, 1997 when the child was in second grade. The child's occupational therapist reported that the child tended to be very resistant to structured activities, making it difficult to obtain an accurate assessment of the child's level of functioning (Exhibit B). She further reported that the child required many verbal cues to complete tasks, and that her progress was hindered by resistant behavior, and inconsistent attention to task and visual attending skills. The occupational therapist indicated that the child demonstrated active range of motion and functional ability to use her right upper extremity for some school related activities. Additionally, she noted some improvement in the child's tolerance to use of her left hand. She further noted that the child's visual motor skills were very limited.
In a speech/language report dated April, 1997 (Exhibit F), the evaluator noted that the child was participating in the speech program five days per week on an individual and group basis. She reported that the child's ability to interact with her peers had improved, and that she was beginning to direct her conversation toward other students and she had learned not to interrupt when others were speaking. The speech/language evaluator indicated that the child was generally able to respond to questions requiring a specific one- or two-word answer, but she was unable to elaborate on a specific statement or problem. She noted that the child could be very resistant to structured activities, refusing to complete the task presented. While such behavior was decreasing, the speech/language evaluator noted that it continued to have a negative impact on the child's progress. She reported that the child showed a preference for social rather than work oriented conversations, but often was unable to be heard because she reduced the volume of her voice. Additionally, she described the child's speech intelligibility as limited. The speech/language evaluator indicated that it was difficult to ascertain the level of the child's short and long term memory functioning because she did not respond to questions about school or home. Additionally, she was generally unable to respond to questions pertaining to a story that had been read to her. In April, 1997, the child's physical therapist reported that the child continued to improve in her tolerance and cooperation, however, her physical work output was small, and she tended to be resistant and distracted (Exhibit G).
The CSE met on April 29, 1997 and recommended that the child be placed in a third grade regular education inclusion program with consultant teacher services five hours per week and the services of a full-time aide during the 1997-98 school year (Exhibit E). It further recommended that the child receive the related services of speech/language therapy, counseling, visual training, occupational therapy and physical therapy.
The school psychologist reevaluated the child for her triennial review in June, 1997 (Exhibit 17). The psychologist reported that the child's motivation was variable, and that she would ignore questions posed and digress to unrelated topics. He indicated that the child's speech was limited to single word responses, and that articulation errors limited her intelligibility. On the VABS-classroom edition compiled by the child's consultant teacher, the child achieved an adaptive behavior composite of 62. Her communication skills and daily living skills were assessed to be low, and her socialization skills were assessed to be moderately low. The school psychologist noted that the child's motor deficits had many effects that limited her performance. On the VABS-interview edition compiled by the parent, the child obtained an adaptive behavior composite of 37, suggesting that her general adaptive functioning was in the low range. Daily living skills remained the child's weakest area of performance because of her motor deficits. Results could not be obtained on the Weschler Intelligence Scale for Children - III (WISC-III) because of the child's unwillingness to comply and her difficulty sustaining attention. The school psychologist concluded that ongoing delays in both motor and expressive language skills affected all areas of the child's communication and learning. He further concluded that the child's inattentiveness and tendency to withhold responses continued to compound her cognitive deficits and represented significant obstacles to performance.
At the end of the 1996-97 school year, the child's second grade teacher briefly reported that the child had made good progress with academics and social situations (Exhibit I). He further reported that she had strengthened her sight vocabulary, and could recognize some sound-symbol relationships. Additionally, he indicated that the child had demonstrated that she understood the concepts of addition and subtraction. The child's consultant teacher reported that the child had shown improvement in all academic areas. She indicated that the child was beginning to read Primary Phonic readers independently, and that her comprehension of stories was at a beginning first grade level. The child's math skills also were assessed to be at a first grade level. The consultant teacher further indicated that the child could calculate two digit addition and subtraction equations, tell time by the hour and half-hour when looking at a clock, recognize money and identify the value of each coin. With respect to the child's social skills, the consultant teacher noted that the child made many friendships with classmates, and worked well in group situations. She recommended that the child be placed in an inclusion third grade class for the 1997-98 school year (Exhibit Q).
The child's physical therapist reported that the child continued to show improvement in her tolerance for stretching and cooperation with tasks (Exhibit I). The child's occupational therapist reported that the child was continuing at the same pace (Exhibit I). Her speech/language therapist reported that the child's expressive language skills continued to improve, and that her articulation skills were progressing (Exhibit I). However, the child continued to have difficulty with her auditory processing skills, and needed to have directions repeated to her.
In a June 30, 1997 health and social history update (Exhibit 15), the child's mother reported that her daughter received private physical therapy, and was continuing to take medication for seizures. She asserted that her daughter was beginning to read, and had developed some friendships over the past year.
The child was enrolled in the third grade during the 1997-98 school year. In October, 1997, her teacher reported that she had made a nice adjustment to the third grade, and that she was showing growth in her social relationships with other students (Exhibit J). The teacher noted that the child's consultant teacher made modifications to the third grade curriculum when possible. In an undated progress report (Exhibit L), the child's consultant teacher indicated that the child's retention of information was difficult to assess. In math, the child was working on one-to-one correspondence with the numbers one through three, as well as counting with accuracy. The child was also working on visually recognizing cursive lower case letters of the alphabet. The child's consultant teacher noted that all of the child's writing was done hand over hand. In reading, the child was working on single word vocabulary at a pre-primer level.
In an April, 1998 progress report (Exhibit 21), the child's third grade teacher indicated that the child required modifications to grade level instruction in math, reading and writing, and that social studies and science facts were simplified and recorded in a notebook for the child. She further indicated that the child's class participation remained minimal. The child's consultant teacher reported that she continued to work with the child on sight words, transferring spelling skills to written expression, counting beyond ten, and counting up to four objects. The consultant teacher indicated that language remained a major concern in the child's learning style. Additionally, she noted that it was hard to assess what the child understood. The child's physical therapist reported that the child continued to be cooperative and that the physical therapy activities appeared to be having a positive affect. The child's inclusion in a physical education class continued to work well. The child's occupational therapist reported that the child's behavior continued to interfere with her ability to complete some tasks. She indicated that the child was working on the computer, and was able to use the enter key with help. She further indicated that the child could hold a pencil well in her right hand. The child's speech/language therapist reported that therapy focused on improving articulation and pragmatic skills. She noted that the child was more verbal in group discussions, and that group sessions appeared to be more helpful. She further noted that the child had difficulty maintaining focus during the discussions.
In a progress report dated April 27, 1998 (Exhibit 11), the child's vision trainer reported that the child's performance was inconsistent, making it difficult to obtain an accurate assessment of her skills. Additionally, she noted that the child's attention span was generally short. The vision trainer further noted that while the child showed definite improvement in the area of left to right tracking, her eye movements were jumpy and she often resisted visually attending to the material presented to her.
In preparation for the CSE's annual review of the child, her consultant teacher prepared a summary on May 1, 1998 (Exhibit 7). She reported that the child could remember only 23 of the 71 sight words which she previously knew. The consultant teacher noted that the child had difficulty with visual discrimination, and she opined that the sight word approach to reading was more appropriate to the child's learning style than decoding and blending. The consultant teacher indicated that the child needed to be reminded to begin reading on the left with the first letter. She reported that she had not been able to identify a pattern to the child's reading difficulty.
The consultant teacher reported that the child could memorize the letters of words, but she could not read the words. She noted that the child scored well on spelling tests, but could not read the same words immediately following the test, or use the spelling patterns she had learned to decode words while reading. In math, the child could not recognize numbers past nine, and confused the numbers six and nine. The consultant teacher noted that the child appeared to see only one of the numbers in two-digit numbers. When attempting to count objects, the child did not know when to stop counting.
The consultant teacher indicated that she was unable to determine whether the child knew how to demonstrate an understanding of many concepts. However, she noted that the child demonstrated a more accurate understanding of concepts when they were connected closely to her own life experiences. She further noted that the child's attention span was very short, requiring frequent changes of activities. She indicated that she often took the child to her classroom for instruction because the regular classroom environment was too distracting. The consultant teacher also noted that the child could not hold a pencil independently, and that all of her printing or cursive writing had been performed hand over hand. Additionally, the child needed to be reminded to look at what she was doing. The consultant teacher reported that the child's conversations with other students in her class were limited. Additionally, the child did not respond to people when in the hallways. The consultant teacher also reported that the child worked inconsistently with her related services providers. She concluded that the child's overall academic progress was minimal and inconsistent.
The consultant teacher's summary also summarized the results of the Brigance which was administered to the child in March, 1998. The consultant teacher noted that the child was asked questions in simplified language to ensure understanding. She was able to identify some body parts, knew all of the colors, was able to recite the alphabet with only one omission, could read numbers to nine and count orally to ten. However, she was unable to demonstrate an understanding of most quantitative, directional and positional concepts, and was unsuccessful with one to one correspondence in counting. The consultant teacher noted that assessment of certain skills was either inapplicable or limited because of the child's fine motor deficits.
In a May, 1998 progress report (Exhibit 12), the child's occupational therapist indicated that the child was receiving occupational therapy twice per week. She reported that the child's annual goals had not consistently been met. She noted that the child required many verbal prompts to remain on task, and was unable to complete most tasks independently. She further noted that the child's attention span remained limited, and that her resistant behavior continued to interfere with most activities. The occupational therapist reported that the child remained able to hold a pencil in her right hand in an approximate tripod grip, but was at a scribble stage for writing or coloring independently. The child was able to grasp medium to small objects with her right hand. She was able to strike keys on the computer, but could not lift her finger to avoid repetition of letters. The occupational therapist reported that the child showed increased tolerance to attempts to use her left hand and was able to lift her left hand to stabilize paper. On the Peabody Fine Motor Scales, the child scored at a baseline level of 18-23 months.
In a June, 1998 speech/language update (Exhibit 10), the child's speech/language therapist indicated that the child was participating in the speech program four times per week in both group and individual sessions, the focus of which was on improving articulation and overall language skills. She indicated that the Test of Auditory-Perceptual Skills was attempted, but the child was unable to successfully complete any of the subtests. The speech/language evaluator further indicated that she introduced the PPVT-R on several occasions, but the child was unable to complete the test. The speech/language evaluator noted that the child initiated conversations with other students, but was unable to go beyond basic questions and had difficulty elaborating on a specific subject. She further noted that it appeared that the child was unable to remember activities she participated in at home or in school. The child would at times choose not to respond when addressed. The child spoke in a whisper and had to be reminded numerous times to increase her volume. However, her speech during social conversations was more audible.
Additionally, the speech/language therapist indicated that the child continued to have a great deal of difficulty following multi-step directions and sequencing events in the correct order to tell a story. She noted that while the child's sentence structure was very basic, her vocabulary appeared to be increasing. The speech/language therapist reported that the child's resistant behavior had a negative impact on her progress, but that she appeared to be more motivated during group therapy.
In a June, 1998 report (Exhibit 13), the child's physical therapist noted that while the child's functional level remained the same, her cooperation and effort continued to improve. Nevertheless, she still required many physical and verbal cues and reminders. Therapy focused on the child's limited ability to control her trunk muscles and weight, in addition to teaching the child to take responsibility for her own support in functional situations, e.g., toileting. The physical therapist reported that the child required assistance to mobilize her wheelchair, which she used in class and in the cafeteria.
The CSE convened on June 10, 1998. A parent member was not present at the meeting, so the CSE reconvened on June 22, 1998 with all of the required members. It recommended that the child be placed on a 10-month basis in a 12:1+4 special class which focused upon life skills instruction during the 1998-99 school year (Exhibit 10). By letter dated June 29, 1998, the child's mother advised petitioner that she disagreed with the CSE's recommendation for a change of her child's placement, and requested an impartial hearing. For fourth grade during the 1998-99 school year the child continued in an inclusion program with consultant teacher services as a pendency placement.
In a fourth grade progress report dated December 21, 1998 (Exhibit 20), the child's consultant teacher reported that the child was receiving direct consultant teacher services for three hours per day and indirect consultant teacher services for two hours per day. With respect to the child's reading skills, the consultant teacher indicated that the child's retention of sight words was inconsistent. While the child could remember the sight words in isolation, she had difficulty using the same words meaningfully in speech or comprehending meaning in written sentences. The child did not use phonics or picture clues to identify words. The consultant teacher noted that the child continued to be highly distractible, and would only tend to a task for approximately 10 to 30 seconds before requiring refocusing. Her comprehension on average was 20% accurate. Additionally, the consultant teacher indicated that the child continued to have word finding difficulties, and was not successful with oral sentence formation. She opined that the child memorized isolated facts and did not cognitively connect them with meaning or integrate them in a different context. With respect to math skills, the child was unable to demonstrate that she understood the concepts of more/same/different. The consultant teacher noted that she was working on identifying numbers past nine and counting objects to five. While the child could identify colors, she could not sort by color. She was able to repeat one sentence directions, but was unable to follow them. The consultant teacher further indicated that she was teaching the child some social behaviors appropriate for her age. She noted that the child required reminders to get a tissue to wipe her mouth when she drooled and to verbalize her needs by asking for a drink or telling someone if she dropped something.
By agreement of the parties, the child was evaluated over a five day period in January, 1999 using the Brigance (Exhibit 23). The child's mother was present during the evaluation sessions and was allowed to intervene to secure a response when the child was unable to respond. The child's spelling skills were assessed to be at a third grade level, however, the examiner noted that there was no consistent evidence that she had conceptualized the words and could use them in a passage. The examiner further noted that the child's spelling skills appeared to be rote memorization of sounds and their letters, making comprehension almost impossible. In general knowledge and language, the child's scores were at a kindergarten grade equivalent . The child's reading skills were assessed to be at a beginning kindergarten level. She achieved a first grade level on the word recognition grade placement subtest, but was unable to complete the reading vocabulary comprehension subtest. She achieved at the kindergarten level in instruction for comprehension and at the pre-kindergarten level in instruction for listening comprehension. In math readiness, the child's scores placed her at a pre-kindergarten to kindergarten level for working with numbers. While one to one correspondence was virtually impossible for the child, rote counting was a relative strength. The examiner noted that standardized test procedures were not adhered to on the administration of the test, and cautioned that the assessment did not reflect the child's independent functioning in the classroom due to the assistance that her mother provided.
The hearing began on January 7, 1999, and continued for three days in February, concluding on February 24, 1999. In his decision which was rendered on April 10, 1999, the hearing officer noted that the child's mother challenged her daughter's IEP annual goals and objectives on the ground that they were prepared by the CSE without her participation. The child's mother also challenged the proposed removal of her daughter from an inclusion placement because she believed that the child had made consistent educational progress in attaining her IEP annual goals while in inclusion placements during the preceding school years, and because she believed that the child would make more social and academic progress in an inclusion fourth grade class than in the special education class which the CSE had recommended. The Board of Education asserted that the disparity between the child's skills and those of her regular education classmates had broadened, and that the child would benefit more from a placement in the more restrictive 12:1+4 special education recommended by the CSE.
The hearing officer found that the child did not have behavioral or management needs which adversely affected her participation in an inclusion setting. He recognized petitioner's concern that the child should receive life skills training, but he found that there was no evidence presented about why such training could not be provided to the child in the time she spends outside of the regular classroom, or by a special education teacher in her regular education class. The hearing officer noted that there is a preference for each child with a disability to receive instruction in the least restrictive environment. He directed the CSE to prepare a new IEP for the child which would be implemented in a regular education classroom, with the equivalent of one period per day of life skills training if a class for that purpose existed in the child's school building, or in the alternative, the content of a course in life skills training was to be included in her IEP. The hearing officer found that there was a "vagary" with regard to when the girl's IEP goals had been developed, but noted that the issue was moot in light of his directive that a new IEP be prepared for the child.
Petitioner appeals from the hearing officer's decision on a number of grounds. It claims that the recommended program was appropriate because the child failed to make academic and social progress in the inclusion program. The central issue in this appeal is the appropriateness of the educational program which the CSE recommended for the 1998-99 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 the IEP prepared by petitioner's CSE is inadequate.
The former 34 CFR 300.346 (a)(1) (now 34 CFR 300.347 [a]) and its State counterpart 8 NYCRR 200.4 (c)(2)(i) require that each child's IEP include a statement of the child's present level of educational performance. The State regulation requires that the IEP include a description of present levels of performance and needs with regard to academic achievement, social development, physical development, and management needs. While the child's IEP includes information with respect to each required category, the information is very general and does not reflect the child's level of functioning with respect to her academic achievement as reported in the evaluations. I recognize that the child was difficult to assess because her performance was inconsistent, and because she was resistive and highly distractible. I also recognize that there is disagreement with respect to the child's level of functioning academically. However, the evaluations and teacher reports provide specific information that should have been reflected on the child's IEP. The consultant teacher prepared a comprehensive report for the child's annual review in May, 1998. While no grade level equivalents were reported, the consultant teacher described the tasks that the child was able to perform in reading, math, spelling, and language with great specificity. Additionally, she described the child's social skills. The results of the Brigance administered in March, 1998 were also summarized in the report. However, none of that information is reflected on the child's IEP. I note that a majority of the goals and objectives established for the child are clearly academically oriented, but the child's present levels of performance with regard to academic achievement are not set forth in the IEP.
Additionally, the record shows that the child had significant deficits in her activities of daily living skills. The child's general adaptive functioning was assessed to be in the low range. However, it is difficult to determine from the record the extent of the child's needs in this area. The child's consultant teacher for fourth grade reported that she was working with the child on developing appropriate social behaviors such as wiping her chin and making her needs known. The CSE chair testified that the child required help with toileting and eating (Transcript p. 45), yet there is no indication in the record what assistance is provided to the child and what tasks, if any, she is able accomplish independently. Further, there is no indication of the child's functional level in the IEP, nor are there any specific goals set forth in the child's IEP to address this area of need. Given that petitioner recommended an independent life skills program, there should be some indication in the child's IEP of her present level of functioning and goals to address her deficits. Despite the extensive record in this appeal, there is insufficient information regarding the child's functional skills.
It is critical to establish a child's present levels of performance so that appropriate annual goals and objectives can be prepared. Once the present levels of performance and appropriate annual goals and objectives are established, the CSE must then consider what educational program would afford the child a reasonable opportunity of achieving her goals during the next school year. In doing so, the CSE must consider the extent to which the child could benefit from placement in a regular education (Mavis v. Sobol and Bd. of Ed. South Lewis CSD, 839 F. Supp. 968 [N.D. N.Y., 1994]). I find that the IEP fails to adequately identify the child's needs. Accordingly, I must find that petitioner has not met its burden of proof in establishing the appropriateness of the CSE's recommendation for the 1998-99 school year.
I note that petitioner has annexed reports from the CSE's annual review of the child conducted in May, 1999 to its petition. It asserts that the reports are necessary to complete the record and support its position that the child had made little or no academic progress in the inclusion setting . I have accepted the reports, but they do not alter my conclusion.
THE APPEAL IS DISMISSED.