Application of a CHILD WITH A DISABILITY, by his parents, of review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the White Plains City School District
Ebenstein & Ebenstein, attorney for petitioners, Barbara Ebenstein, Esq., of counsel
Plunkett & Jaffe, P.C., attorney for respondent, Marc E. Sharff, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent’s committee on special education (CSE) that petitioners’ child be placed in a public school program emphasizing life skills and academics. The CSE had previously placed the child in a private school emphasizing academics. Petitioners assert that their son's annual review was not properly conducted by the CSE, and that the recommended placement was inappropriate for their son. They request that respondent's CSE be ordered to conduct a complete evaluation of the child, and recommend a general education program for the child where he would be placed among children with similar needs. The appeal must be sustained.
Before addressing the merits of petitioners’ argument, I must first address a procedural issue that arose subsequent to submission of the petition and answer. By cover letter dated January 13, 2000, petitioners submitted additional evidence, which was not in the record which was before the hearing officer. The additional evidence consists of a hospital discharge summary dated December 3, 1999, a triennial psychological evaluation dated August 9, 1999, a neurologist's letter dated July 20, 1999, and a triennial psychiatric evaluation dated July 28, 1999. Respondent opposes petitioners' request for the inclusion for these documents in the record.
It is well settled that documentary evidence not presented at a hearing may be considered in an appeal from a 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 Handicapping Condition, Appeal No. 91-34; Application of a Child with a Disability, Appeal No. 93-20; Application of a Child with a Disability, Appeal No. 93-48). The documents in question were clearly not available at the time of the hearing. Therefore, I will accept them.
Petitioners’ child is 14 years old. The boy attended a preschool program for two years, prior to entering respondent's kindergarten in the fall of 1991. He was referred to respondent's CSE because of concerns about his delayed speech/language skills. A psychological evaluation had been conducted in June, 1991, when the child was 4 years 10 months old. The child achieved an IQ score of 82 on the Columbia Mental Maturity Scale. The school psychologist who evaluated him reported that the child’s speech was extremely difficult to understand. He recommended that the child be placed in a special education kindergarten class, with speech/language services two times per six-day cycle for thirty minutes. In an August, 1991 speech/language evaluation, the child was found to have moderately delayed speech/language skills. The child was also evaluated by an occupational therapist, who reported that the child had poor motor planning skills, decreased attention to detail, impaired manual dexterity, and impaired hand-eye coordination. Upon the recommendation of the school psychologist, the child was seen by a psychiatrist, who reported that the child evidenced signs of an attention deficit disorder (ADD) and developmental learning problems. The child was initially classified as emotionally disturbed, and he was placed in a special education kindergarten. In January, 1992, the child's speech/language services were increased to three times per cycle (Exhibit D5).
On March 20, 1992, the CSE recommended that the child’s classification be changed to speech/language impaired and that he be placed in a first grade special education class for the 1992-93 school year. Related services for the child included group occupational therapy one time per cycle for thirty minutes and group speech therapy three times per cycle for thirty minutes (Exhibit P8). The child’s IEP indicated that he had some difficulties with his social/emotional development (R. 51).
For second grade during the 1993-94 school year, the CSE recommended that the child's classification, placement and related services remain unchanged, except that he be mainstreamed for homeroom, music, art and physical education (Exhibit P9).
When re-evaluated on April 7, 1994, the child achieved a verbal IQ score of 70, a performance IQ score of 75, and full-scale IQ score of 72. Later that month, the CSE recommended placement in a special class with a 12:1 child to adult ratio for the third grade during the 1994-95 school year. The CSE also recommended he receive individual occupational therapy one time per cycle for thirty minutes. Speech therapy was to be provided in a group three times per week for thirty minutes, and the child was to be mainstreamed for homeroom, music, art and physical education. The child was described in his IEP as having serious difficulties with social/emotional development (Exhibit P10).
A speech therapist who evaluated the child in March, 1995 recommended that the child’s therapy continue unchanged during the 1995-96 school year. Although the CSE reportedly conducted its annual review of the child in March, 1995, a copy of the boy's IEP for the 1995-96 school year is not in the record. A subsequent evaluation indicates that the child was in a special education class for fourth grade (Exhibit P5). In March, 1996, the child achieved a grade equivalent score of 1.0 in vocabulary and 1.8 in reading on the IOWA Test. In June, 1996, the child’s teacher estimated that his vocabulary and reading levels were approximately at a first grade level (Exhibit P5). The child's behavior in school had reportedly deteriorated, and he began to receive counseling.
In April, 1996, the CSE recommended that the child remain classified as speech/language impaired for fifth grade during the 1996-97 school year. The recommended placement was in a self-contained special class with a student-teacher ratio of 12:1, with mainstreaming for art, music, physical education, and homeroom. The CSE also recommended that he receive 30 minutes of speech/language therapy in a group of no more than three children three times per week (Exhibit P6).
In July, 1996, the child was evaluated by a neurologist, who reported that the child manifested a global developmental delay, with particular problems with language skills. He opined that the boy should continue to receive counseling from Dr. Mark Schwartz, a private psychologist, and that the child’s issues with relating, anxiety and depression be more thoroughly explored. The neurologist also recommended a psychopharmacological evaluation because the child appeared to be receiving only marginal benefit from taking Ritalin for his ADD. The child was reportedly taking 50 mg. of Ritalin per day. The neurologist further recommended continued placement in a self-contained special class, an occupational therapy reevaluation, and tests for Fragile-X, thyroid function, CBC, and LFTs (Exhibit P5).
The child was evaluated by Dr. Schwartz between July 22 and 29, 1996. About the same time, another psychologist, Kellie Walker Ishmael, evaluated the child for the school district. Dr. Schwartz evaluated the child at the request of the parent. The school district was unaware that Dr. Ishmael was evaluating the child (R. 372). Dr. Schwartz administered the Wechsler Intelligence Scale for Children – Revised (WISC-R), and Dr. Ishmael administered the Wechsler Intelligence Scale for Children – III (WISC-III). On the WISC-R, the child achieved a verbal IQ score of 58, a performance IQ score of 52, and a full-scale IQ score of 51. On the WISC-III, the child achieved a verbal IQ score of 63, a performance IQ score of 69, and a full-scale IQ score of 63. Dr. Schwartz reported that the child seemed sad, but lacked the ability or desire to articulate why he was sad. Dr. Ishmael noted that the child’s IQ scores had decreased since he had been tested in 1994. She suggested that the child be examined by his physician to determine if physical factors caused this decline. Both Drs. Schwartz and Ishmael noted that the child exhibited poor adaptive functioning, and Dr. Ishmael recommended that the child’s adaptive functioning be evaluated to determine whether his educational placement was appropriate (Exhibit P5).
A speech/language evaluation was conducted in August 1996, at the request of the child's mother. The child displayed significant deficits in both receptive and expressive language skills. The evaluator noted that the boy's deficits in both skills suggested that he had a generalized language disorder. She recommended broad-based language intervention and audiometric testing for the boy.
The CSE reportedly met on August 15, 1996. There is no IEP from that meeting in the record. However, the CSE chairperson's testimony at the hearing indicates that the child's placement for the 1996-97 school year was reconsidered. The CSE reportedly concluded that placement in respondent's schools was no longer appropriate, and it began to search for an out-of-district placement for the child. He was reportedly placed by respondent in the Karafin School in December, 1996. The Karafin School, which is located in Mount Kisco, New York, has been approved by the State Education Department to instruct children with disabilities.
At its annual review on May 12, 1997, the CSE recommended that the child be classified multiply disabled, and that he remain at Karafin in a class with a student-teacher ratio of 6:1:1 for the 1997-98 school year. In addition, the CSE recommended group speech/language therapy two times per cycle, individual counseling one time per cycle, and group parent counseling one time per cycle (Exhibit D22).
In December, 1997, the boy was observed in his placement at Karafin by one of respondent's school psychologists who was assigned to be his service coordinator. She reported that he appeared to have profited academically and socially from his private school placement. The service coordinator indicated that the boy might be a candidate for a special education program in respondent's middle school (Exhibit H01D).
In January, 1998, a speech/language evaluation was conducted. The evaluator noted that the child’s overall receptive and expressive language skills continued to be delayed. On the Test of Language Competence-2, the boy achieved an age equivalent score of seven years and four months. She recommended speech/language therapy three times per week, with an emphasis on pragmatics, social interaction, expressive/receptive language skills, reading, written expression and articulation therapy (Exhibit D19).
On March 10, 1998, an educational assessment was performed to ascertain the extent of the child's progress since his placement in the Karafin School. The assessment was performed by respondent's service coordinator, who noted that the boy had middle first grade reading decoding and early second grade mathematics skills in the summer of 1996. When tested in March, 1998, the boy achieved grade equivalent scores of 2.1 in math, 1.6 in reading, and 1.6 in spelling on the Wechsler Individual Achievement Test (Exhibit D1). During the 1997-98 school year, the boy was counseled once per week by the Karafin school psychologist. She described the child as socially immature, with significant delays in academics. The Karafin School psychologist reported that the child felt comfortable and accepted in his classroom and he interacted with his peers. She recommended that the child return to Karafin for the 1998-99 school year (Exhibit P13).
The CSE met on April 28, 1998. Although the child’s classification was discussed, the CSE did not determine if his classification should be changed from multiply disabled. However, the CSE did recommend a change in placement for the 1998-99 school year. The CSE recommended a special class with a student-teacher ratio of 12:1 in the Strategies for Adult Independent Living (SAIL) program in respondent's middle school, with mainstreaming for music, health, technology, home economics, physical education, and art. The related services of group speech/language therapy three times per cycle and group counseling one time per cycle were recommended. In addition, an individual aide was to be assigned to assist the child for two hours per day. The IEP prepared at that meeting indicated that the CSE determined that the boy's placement at the Karafin School was too restrictive (Exhibit D10).
In a letter dated April 28, 1998, the parents’ then attorney requested an impartial hearing to appeal the decision reached by the CSE at the April 28, 1998 meeting. On May 18, 1998, petitioners' present attorney sent a letter amending the request for hearing, seeking review of classification, placement and other decisions of the CSE. Also in the letter, the parents attorney invoked the pendency provision of the Individuals with Disabilities Education Act (IDEA) and requested that the matter be resolved outside of a hearing (Exhibit D11). The parents and the school district agreed to place the child in a school district program consisting of self-contained language arts, reading class, and departmental special education classes for social studies, science and math until October 23, 1998, while maintaining Karafin as the child's pendency placement. At the end of that time period, the parties agreed to evaluate the child’s progress and determine the appropriateness of public school placement (Exhibit D7). Both parties ultimately agreed that the placement was inappropriate (Exhibit D4).
The CSE convened on October 22, 1998. Two IEPs dated October 22, 1998 were entered into evidence. Placement in the district’s SAIL program was recommended on one IEP (Exhibit D3). Placement in the Karafin school was recommended on the other IEP (Exhibit D1). The school district’s director of special education, explained that the IEP in which Karafin is the recommended placement was produced in error (R. 115). Petitioners do not dispute that explanation. Therefore, I will disregard Exhibit D1.
The CSE recommended that the boy remain classified as multiply disabled. The recommended placement resulting from the October 22, 1998 meeting was the ten-month SAIL program at White Plains Middle School. The student-teacher ratio was 12:1 and included mainstreaming for music, physical education, art, and technology. The CSE recommended the related services of individual counseling one period per cycle and speech/language therapy two periods per cycle.
The parents objected to the CSE’s recommendation and reinstated their request for an impartial hearing. The child returned to Karafin as his pendency placement (Parents' Petition). The hearing began on February 5, 1999 and ended on March 24, 1999. The parents challenged the CSE’s recommendation to place the child in the SAIL program on several grounds. They asserted that the school district had failed to conduct an annual review of the child at either the April, 1998 or the October, 1998 meeting, and had failed to evaluate the child before recommending a significant change in his placement. The parents also asserted that the April, 1998 IEP was inappropriate because no regular education teacher was present at the meeting, the special education teacher did not have the opportunity to provide input, the CSE failed to develop goals and objectives, and the CSE failed to insure parent participation in the meeting and parental consent to the preceding testing. The parents asserted that the IEP developed at the October, 1998 meeting was inappropriate because the CSE included members who observed the child during the interim agreement in violation of their agreement with respondent, and because no IEP goals or objectives were developed at the meeting. Petitioners also asserted that the school district should have evaluated the child between the April, 1998 and October, 1998 meetings. They asserted that placement in the SAIL program was inappropriate because it denied the child access to the regular education curriculum, violated the requirement that special education children be grouped according to their needs, and did not provide an environment where the child can meet his goals and objectives. Petitioners asserted that both the IEPs developed at the April, 1998 CSE and the October, 1998 meeting were inappropriate because they failed to provide the child with a functional behavior analysis, behavior intervention plan, group counseling, parent counseling and extended school year. They argued that the child was entitled to six weeks of compensatory education because the goals and objectives which their son worked on during the interim placement were not developed by the CSE.
In his decision dated May 3, 1999, the hearing officer dismissed petitioners' procedural and substantive challenges to the IEPs which the CSE developed for their son at its April 28, 1998 and October 22, 1998 meetings. He found that the CSE had conducted a proper annual review of the boy, and had afforded petitioners an opportunity to meaningfully participate in that review. He rejected their contention that the CSE should have evaluated the boy before recommending a change of placement for him. The hearing officer found that the boy's IEP annual goals and short-term instructional objectives were appropriate, and that the recommended SAIL program in respondent's middle school was an appropriate placement for him. He did find that the CSE should not have deleted parental counseling from the boy's IEP. Notwithstanding his findings about the appropriateness of the boy's IEP, the hearing officer ordered the CSE to have the requisite testing done prior to the boy's next triennial review, in order to make a determination as to the child's proper classification. He also ordered the CSE to perform a functional behavior analysis and create a behavior intervention plan prior to the boy's next triennial review so that the CSE could arrive at a correct placement for him.
In this appeal, petitioners challenge the April 28, 1998 and October 22, 1998 IEPs which the CSE prepared for their son. As noted above, the first IEP was not implemented and the parties agreed to a temporary placement in the fall of 1998. The April 29, 1998 IEP was then superseded by the October 22, 1998 IEP. I find that petitioners' assertions regarding the composition of the CSE on April 28, 1998, the alleged denial of input from the child's special education teacher, and the alleged inadequacy of the IEP from that meeting are moot because that IEP was replaced by the October 22, 1998 IEP. I am not required to determine issues which have been rendered moot by subsequent events. I note that some of the objections which petitioners raise with respect to the earlier IEP also apply to the October 22, 1998 IEP, and they will be addressed in this decision.
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).
Petitioners contend that the hearing officer erred by finding that the CSE had adequately evaluated their son prior to recommending that his placement be changed from the Karafin School to respondent's middle school. The Federal Regulations implementing Section 504 of the Rehabilitation Act of 1973 require that a school district evaluate a child before making a significant change in the child's placement (34 CFR 104.35 [a]). A CSE's failure to perform an adequate evaluation of a child prior to recommending a change of placement may afford a basis for annulling that recommendation (Application of a Child with a Disability, Appeal No. 93-15; Application of a Child with a Disability, Appeal No. 96-22). While not all changes in a child's IEP constitute a change of placement, I find that the October 22, 1998 IEP constituted a change in this child's placement, for which an adequate evaluation was required.
In this instance, there is no dispute that the child's speech/language skills were assessed in January, 1998 (Exhibit D19), and his academic skills were assessed in March, 1998 (Exhibit P13). Petitioners contend that the hearing officer erred in finding that the CSE could rely upon the results of the psychological assessments performed in the summer of 1996 by Drs. Schwartz and Ishmael, respectively (Exhibit P5). They assert that the results of both evaluations were compromised by the inadvertent administration of similar intelligence tests to the child by the two psychologists at approximately the same time. I have examined the record, and I find that there is no basis for concluding that the results of the two evaluations were invalid. However, that is not dispositive of the matter. The issue is whether those evaluations were current enough to support the recommended change of placement. The hearing officer relied upon the provisions of 34 CFR 300.534 (b) and 8 NYCRR 200.4 (e)(4) in finding that the CSE did not need to conduct a psychological evaluation before making its recommendation.
I find that the hearing officer erred. The regulations upon which he relied require that each child with a disability be re-evaluated at least once every three years to determine the child's continued eligibility for special education. Here, the regulatory requirement is that the child be evaluated before his placement is changed. The 1996 evaluations upon which the CSE relied were initially used to support the child's change of placement from respondent's schools to the Karafin School. Those evaluations concluded that the child was functioning in the mentally retarded/intellectually deficient range, whereas he had previously been in the low average to borderline range. Dr. Ishmael note that the boy viewed himself as the perpetual victim, and Dr. Schwartz reported that the boy's reasoning became compromised when he was stressed. Dr. Schwartz also indicated that the child lacked adequate adaptive coping mechanisms to control his emotionality. Presumably, these reports helped convince the CSE in 1996 that respondent no longer had an appropriate educational program for the child. In 1998, the CSE concluded that respondent did have an appropriate program. Its conclusion appears to have been premised upon a change in the boy's condition. While the CSE should not have relied upon any single source of information for making its determination, I find that it should have had a psychological evaluation performed. I must note that the transcript and the hearing officer's decision contain a number of references to the conditions which may affect the way this child learns, such as mental retardation, PDD, and emotional concerns. Indeed, the hearing officer ordered the CSE to perform additional testing to more accurately identify the nature and extent of the child's disability. Under the circumstances, I find that the hearing officer lacked an adequate basis for determining the appropriateness of the CSE's recommended placement.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer's decision is hereby annulled; and
IT IS FURTHER ORDERED that respondent's CSE conduct a complete evaluation of the child, determine an appropriate classification, develop appropriate goals and objectives, and recommend an appropriate placement for petitioners' son.