Application of the BOARD OF EDUCATION OF THE SOMERS 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
Donoghue, Thomas, Auslander & Drohan, Esqs., attorneys for petitioner, Daniel Petigrow, Esq., of counsel
Neal H. Rosenberg, Esq., attorney for respondents
Petitioner, the Board of Education of the Somers Central School District, appeals from that portion of an impartial hearing officer’s decision which found that it had failed to provide an appropriate educational program to respondents’ child during the 1998-99 school year because it did not fully implement the child’s individualized education program (IEP). Petitioner also appeals from the hearing officer’s order directing it to provide note taking services to the child during the 1999-2000 school year. Additionally, petitioner appeals from the hearing officer’s order directing it to conduct an evaluation of the child’s level of performance in reading/vocabulary, and to provide appropriate compensatory tutoring during the 1999-2000 school year if the evaluations identified a sufficient deficit in the child’s skills. Respondents cross-appeal from the hearing officer’s denial of their request to be reimbursed for the tutoring services which they obtained for their daughter. Additionally, they seek a determination that their daughter requires the services of a computer assisted real-time translation (CART) reporter. Respondents also appeal from the hearing officer’s determination to remand several issues to petitioner’s committee on special education (CSE). The appeal must be sustained in part. The cross-appeal must also be sustained in part.
I note that the parties were unable to provide me with copies of Parent Exhibits Q and D2, which are therefore not in the record before me. While I must decide the appeal and cross-appeal on the record which is before me, I remind petitioner of its obligation to provide a complete record to the State Review Officer (8 NYCRR 279.7[a]).
There is one other procedural issue raised in this appeal. Petitioner has annexed a copy of the child’s final report card for the 1998-99 school year to its petition, and asks that I consider it because the report card was not available at the time of the hearing. In their answer, respondents admit that the report card was unavailable at the time of the hearing, and they do not raise any objection to including the report card in the record. It will therefore be included in the record of this appeal.
Respondents’ child was 12 years old and in the seventh grade at Somers Middle School when the impartial hearing began in December, 1998. There is no information in the record with respect to the child’s early involvement with the CSE. At the age of two, the child was diagnosed as having a severe hearing loss in her left ear and a profound hearing loss in her right ear (Transcript, page 164). When evaluated in April, 1997, she achieved a verbal IQ score of 100, a performance IQ score of 102, and a full scale IQ score of 101. Her evaluator reportedly cautioned that those scores probably underestimated the girl’s cognitive skills. The child’s reading and mathematics skills were reported to be at least at grade level. Her writing skills appeared to be about one year below grade level. She has been classified as hard of hearing by the CSE. Her classification is not in dispute in this proceeding.
During the 1997-98 school year, the child was placed in a regular education sixth grade class. Her program apparently included a reading/vocabulary class. She also reportedly received various related services. The child’s IEP for the 1997-98 school year is not in the record before me. In a letter to the CSE dated April 27, 1998, the child’s parents questioned the quality of the services provided by their daughter’s note taker, and indicated that they would request CART services for her during the following school year (Exhibit O).
In early June, 1998, the parents’ attorney met with the school district’s attorney to discuss the child’s educational needs. By letter dated June 15, 1998 to the school district’s attorney, the parents’ attorney outlined the issues that had not been resolved at the meeting earlier that month, including reimbursement for the tutor the parents obtained because their daughter had reportedly been pulled out of her reading/vocabulary class in order to receive other services (Exhibit G).
On June 17, 1998, the CSE developed the child’s IEP for the 1998-99 school year, during which she would be in the seventh grade (Exhibit 3). The CSE recommended that the child continue to be classified as hard of hearing. It further recommended that she participate fully in the regular education program, while receiving individual speech/language therapy twice per week for 30 minutes. Additionally, the CSE recommended that the child receive direct services from a teacher of the hearing impaired (THI) for seven periods per week, and indirect THI services consisting of consulting with the child’s teachers four periods per week, and consulting with the child’s service providers once per month for 30 minutes. The child’s IEP provided for various testing modifications. It also provided for the use of an FM auditory trainer and a telephone amplifier as assistive technology devices. On the special alerts or notations portion of the IEP, the CSE indicated that the child’s note taker would have specific professional training. Additionally, the IEP provided for a "laptop or similar assistive device to be used by note taker to produce disk which will be sent home with student on a daily basis." The IEP included four annual goals to be worked upon by the THI, and three annual goals to be worked upon by the child’s speech/language therapist.
In August, 1998, the coordinator of note taker services for the National Technical Institute of the Deaf at Rochester Institute of Technology conducted a day long training session for the child’s note taker and a back-up note taker (Transcript p. 61). At the training session, the coordinator of note taker services advised the CSE chairperson that taking notes on a computer presented difficulties when copying diagrams, graphs and word problems (Transcript p. 65).
The child began seventh grade in September, 1998. She was provided a trained note taker and her teachers were equipped with an FM auditory trainer. On September 10, 1998, two days after school had begun, respondents expressed concern to their attorney that the note taker and THI services set forth on their daughter’s IEP were not being properly implemented (Exhibit N). They asserted that their daughter was receiving handwritten notes, and could not read the note taker's handwriting. They also complained about the quality of the notes. Additionally, the child’s parents advised their attorney that they wanted their daughter to receive CART services, rather than the services of a note taker because of the quality of the notes. Respondents asked their attorney to request a hearing for them.
The CSE met on October 7, 1998 to further review the child’s educational program (Exhibit 2). The minutes of that meeting reflect that the child had an average of 81 in English, that she was a solid B+ student in math, that she received an A on an essay and a B- on a homework assignment in social studies, that she performed poorly on the only quiz in science, but had received other grades in that subject in the 90’s, and that she was doing fine in French. The child’s father reported that his daughter had been spending three to five hours every day on homework in order to maintain her present standing. The parents requested "real time captioning" or CART services. The chairperson of the CSE indicated that use of a computer for note taking and "real time captioning" were not options.
In an October 14, 1998 summary of the CSE meeting, the child’s parents outlined the issues that were discussed, and their concerns about their daughter's note taker and the THI. The parents also expressed concern about the CSE’s recommendation to discontinue their daughter’s reading class so that she could receive vocabulary instruction from her speech/language therapist (Exhibit P).
An audiologic evaluation was conducted on October 13, 1998 to assess the child with a new amplification device known as the Phonak E-Prom E-3 hearing aid/FM system (E-Prom). The audiologist reported that with her current Phonic Ear hearing aid/FM system, the child was hearing comfortably within the speech spectrum through 1500 Hz, and at the limits of the speech spectrum or outside the speech spectrum from 2000 Hz on. With the E-Prom, the child could hear comfortably through 4000 Hz. The audiologist reported that word recognition was significantly better in the child’s right ear with the E-Prom than in the left ear. She recommended that the child try the E-Prom for a few weeks to determine whether it was providing a sufficient benefit (Exhibit K).
In a letter to petitioner’s director of special education dated October 19, 1998, respondents expressed concern that an amplified phone had not been provided at the middle school (Exhibit NN). They also advised him of the ongoing difficulty of having the child’s teachers provide adequate information to allow their daughter to study at home. The parents followed up with several other letters in November and December indicating that the problems previously identified had yet to be resolved (Exhibits OO, PP, QQ, RR). For the first quarter of her seventh grade year, the child received grades of 80 in English, 86 in social studies, 70 in science, 85 in math, and 81 in French.
In a letter dated November 24, 1998, the child’s pediatric audiologist recommended that the child be fitted for the E-Prom amplification system because it would provide a "significant boost" to her academic learning (Exhibit F). The child’s parents purchased the E-prom system for their daughter at the end of November, 1998. By letter dated December 2, 1998, the child’s speech/language pathologist indicated that as a result of the child’s impairment, she has receptive and expressive vocabulary skills below her age level, and that her lack of vocabulary caused her to struggle with comprehension of written material (Exhibit J). She recommended that the child be permitted to use a dictionary to aid in her comprehension of test questions.
On December 3, 1998, respondents requested an impartial hearing seeking, among other things, CART services, reimbursement for their purchase of the E-Prom amplification system and tutoring expenses, the provision of scripts or captioning or a preview of the films or movies shown in class, and amplified phones in the school building (Exhibit E). The hearing was held on December 10, 1998, and February 8, 1999. The hearing officer rendered his decision on June 7, 1999. He found that petitioner had developed an appropriate IEP for the child, but the IEP had not been fully implemented. Accordingly, the hearing officer found that petitioner failed to provide an appropriate program for the child during the 1998-99 school year. Finding that the note taking service was not provided in accordance with the terms of the IEP, the hearing officer ordered the CSE to provide note taking services as set forth on the IEP. Additionally, he ordered that note taking services be provided during the 1999-2000 school year to compensate for the inadequate and inappropriate services during the 1998-99 school year.
The hearing officer remanded the issue of reimbursement for the FM trainer purchased by the parents to the CSE to determine whether that device was appropriate, after reviewing the audiologist’s report. The hearing officer also remanded the issues of amplified phones and movie previews to the CSE. He denied the parents’ request for reimbursement for tutoring expenses, but directed the CSE to evaluate the child’s current reading/vocabulary levels of performance. He directed petitioner to provide compensatory remediation during the 1999-2000 school year, if the CSE’s evaluation of the child’s reading/vocabulary skills revealed that she had a deficit in those skills.
The board of education appeals from the hearing officer’s decision on a number of grounds. First, it argues that the child was provided and received an individualized program of educational services that was reasonably calculated to afford her the opportunity to benefit from a public education. Petitioner also challenges the hearing officer’s order directing it to provide note taking services during the 1999-2000 school year. Additionally, petitioner challenges the hearing officer’s order directing it to conduct an evaluation of the child’s reading/vocabulary abilities and to provide compensatory remedial services if the test results revealed a sufficient deficit.
Respondents cross-appeal from the hearing officer’s decision. They maintain that their daughter requires CART services to obtain an educational benefit. They also challenge the hearing officer’s denial of their request for reimbursement for tutoring services. Additionally, they appeal the hearing officer’s orders remanding several issues to the CSE.
I will first address the issues raised by the board of education’s appeal. 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, it 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).
For purposes of petitioner’s appeal, the issue is not whether the IEP should have contained additional items, but whether petitioner provided the services which it had indicated on the IEP would be provided. The child’s IEP provided that notes would be transferred to a disc for the child to bring home on a daily basis. However, the record shows that the child was provided with handwritten notes. The record also shows that at the October, 1998 review, the CSE chairperson indicated that computer note taking was not an option. However, the child’s IEP was never amended to reflect the fact that a computer would not be used to take notes, and that handwritten notes would be given to her. I find that petitioner failed to implement the child’s IEP as it was written, with respect to the note taking services.
Petitioner also challenges the hearing officer’s decision that the content of the notes which were provided to respondents’ daughter was inadequate. The hearing officer found that the notes were difficult to read, fragmentary, and lacking in detail with respect to class discussions, chalkboard notes, charts and graphs, vocabulary and assignment details. He ordered petitioner to provide note taking services during the 1999-2000 school year to compensate for the inadequate note taking services provided during 1998-99 school year. The hearing officer further ordered that in the event that petitioner did not have a qualified, trained note taker in place by the beginning of the 1999-2000 school year, petitioner would have to provide CART services until the note taking services were in place. Petitioner argues that services for 1999-2000 were not at issue at this hearing. The board of education also argues that CART services are not necessary for the child to receive a free appropriate public education (FAPE). While I agree that services for the child during the 1999-2000 school year were not at issue, it does not follow that the hearing officer exceeded his jurisdiction. He was asked to determine the adequacy of the services provided during the 1998-99 school year. If a program or placement is found to be inappropriate, a hearing officer has the authority to order a board of education to take corrective action in the future. I concur with the hearing officer’s finding with regard to the inadequacy of the notes provided to respondents’ daughter, and I find that the hearing officer did not exceed his jurisdiction by ordering petitioner to take corrective action in the next school year.
Additionally, petitioner challenges the hearing officer’s order directing it to provide compensatory tutoring to the child during the 1999-2000 school year, if necessary to address any significant deficits in reading/vocabulary. This portion of his order was in response to respondents’ request for reimbursement for tutoring expenses they incurred at the end of the 1997-98 school year. The hearing officer denied respondents’ request, and respondents cross-appeal from that portion of the decision. As these challenges are related, I will address them together.
A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ). Based upon the testimony of the child’s mother, the hearing officer found that petitioner unilaterally removed remediation of reading and vocabulary from the child’s schedule during the 1997-98 school year in order to accommodate her THI’s schedule. He concluded that petitioner had failed to provide an appropriate program to the child with respect to developing the girl’s reading and vocabulary skills. However, he was not convinced that respondents had met their burden of showing that the tutoring which they had obtained for the child was appropriate, and he denied the parents’ request for reimbursement. I agree with the hearing officer’s initial conclusion that there is not enough information in the record to award reimbursement for tutoring expenses. The child’s IEP for the 1997-98 school year is not in the record, which is necessary to establish what she should have received by way of instruction in reading and vocabulary skills. Petitioner apparently provided this instruction during part of the school year. The record lacks specific information about how much service the child failed to receive. There is no specific information in the record regarding the tutoring services that were provided to the child. Moreover, apart from standardized tests results listed on the child’s IEP for the subsequent school year and a note written by the child’s speech/language pathologist recommending testing modifications, there is little information in the record describing the nature and severity of the child’s reading/vocabulary deficit during the 1997-98 school year.
While I agree with the hearing officer’s initial conclusion that there is not enough information in the record to award reimbursement for tutoring expenses, I do not agree that the appropriate remedy in this case is to provide compensatory tutoring services. Rather, this issue should be addressed in a separate hearing. Under the circumstances, I will annul that portion of the hearing officer’s decision.
Respondents also are seeking the services of a CART reporter. They argue that CART would enable their daughter to fully participate in the classroom environment by providing her the opportunity to actively participate in class discussions and communicate with her peers. They also assert that CART services would lessen the amount of time their daughter spends on homework each night. Respondents’ expert, a certified realtime reporter, testified that a CART reporter has a computerized stenotype machine that is cabled to a laptop computer with software that translates each shorthand stroke into English simultaneously with the spoken word (Transcript p. 7). Text enhancement software that enlarges text is used to make it easy to read the computer screen at any angle and from a comfortable distance. A computer disc is generated for use at home. The result is a verbatim record of the dialogue in the classroom.
CART is an assistive technology device. A board of education must provide those assistive technology devices which are required in order for a child to receive a FAPE. This child’s IEP provided for the services of a note taker during the 1998-99 school year. Although the hearing officer found, and I concur, that the notes which were provided to the child were not adequate in content, it does not follow that she required a CART in order to receive a FAPE. The record shows that despite having received those notes, the child was achieving above average grades. Class notes provide information with respect to the lessons taught that day, assignments, tests, and projects. A verbatim transcript of the class goes beyond the purpose of providing notes. Under the circumstances, I am not persuaded that the child requires the services of a CART reporter in order to receive a free appropriate public education (Application of the Board of Education of the Smithtown Central School District, Appeal No. 95-2).
Respondents also request that I reverse the hearing officer’s decision on those matters which he remanded to the CSE. Specifically, the hearing officer directed the CSE to determine the appropriateness of the amplification system purchased by respondents, the request for additional amplified phones, and the request for movie previews. The record shows that the issues regarding the new amplification system and movie previews were never presented to the CSE. I agree with the hearing officer that those issues should be remanded to the CSE because they are more appropriately determined in the first instance by the CSE. With respect to the issue of whether there should be additional sites in the school building where the child could use an amplified phone before and after school, I find that the availability of amplified phones in the school building does not relate specifically to the child’s educational program, but it is an issue of accessibility which should be addressed under Section 504 of the Rehabilitation Act of 1973.
I have considered the other issues raised by the parties, and I find them to be without merit.
THE APPEAL IS SUSTAINED IN PART. THE CROSS-APPEAL IS SUSTAINED IN PART.
IT IS ORDERED that the decision of the hearing officer is hereby annulled to the extent that it denied respondents’ request for reimbursement for their tutoring expenditures during the 1997-98 school year and directed petitioner to provide compensatory tutoring. In the event that respondents request a hearing on the issue of such reimbursement, petitioner shall promptly appoint a hearing officer for that purpose.