Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Lindenhurst Union Free School District
Lamb and Barnosky, LLP, attorneys for respondent, Robert H. Cohen, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which dismissed petitioner's claim that respondent had not provided a free appropriate public education (FAPE) to her daughter during the 1998-99 school year. In addition to requesting that the hearing officer's decision be annulled, petitioner asks me to order respondent to reimburse her for the cost of a private tutor who instructed her daughter during the summer of 1999. The appeal must be sustained in part.
I will first address a procedural issue raised in this appeal. Respondent asserts that the appeal should be dismissed because the notice with petition allegedly did not comply with the provisions of 8 NYCRR 279.3. I find that respondent's assertion is without merit. The notice with petition erroneously indicates that a decision in this appeal would be rendered by the Commissioner of Education, rather than the State Review Officer. However, that defect is not jurisdictional in nature, and it has not prejudiced respondent.
Petitioner's daughter was 12 years old and in the seventh grade during the 1998-99 school year. She was reportedly discovered to have hearing problems while in kindergarten in another school district (Joint Exhibit 31). She apparently has a mild bilateral conductive hearing loss (Joint Exhibit 31).
In January, 1994, petitioner had her daughter evaluated at the Child Development Center of the Nassau County Medical Center because she was reportedly having reading and spelling difficulties while in the second grade (Exhibit 31). The Child Development Center reported that the girl had achieved a verbal IQ score of 84, a performance IQ score of 94, and a full scale IQ score of 87. However, the Center's psychologist cautioned that attention difficulties, emotional conflicts, and excessive motor activity may have hindered the child's performance. He opined that the child evidenced signs of neurological difficulties and noted that her soft neurological evaluation was minimally positive. Educational testing at the Center disclosed that her reading, math and language skills were delayed by approximately one year. The child was reportedly receiving resource room services and speech language support at the time of her evaluation. The record does not reveal when she was initially classified as a child with a disability, or what other special education services she may have received prior to entering respondent’s schools in the fall of 1995.
During the 1995-96 school year, the child was classified as learning disabled by respondent’s committee on special education (CSE). She was placed in a self-contained class for academic instruction in the fourth grade. In February, 1996, the child achieved grade equivalent scores of 1.5 for word attack, 2.2 for word identification, 3.7 for word comprehension, and 2.0 for passage comprehension on the Woodcock Reading Mastery Test (Woodcock) (Parent’s Exhibit 1).
The child remained in a self-contained class for academics, but was mainstreamed for art, music, and physical education while in the fifth grade during the 1996-97 school year (Parent’s Exhibit 1). Additionally, the child received speech/language therapy in a group three times per week. In January, 1997, the child achieved grade equivalent scores of K.7 for word attack, 1.6 for word identification, 1.8 for word comprehension, and 1.8 for passage comprehension on the Woodcock (Joint Exhibit 1). On the Keymath Test, she achieved a grade equivalent score of 3.0 (Joint Exhibit 1). Her speech/language skills were assessed in March, 1997. On the Clinical Evaluation of Language Function (CELF), she received standard scores of 70 for both receptive and expressive language (Joint Exhibit 3).
The individualized education program (IEP) which the CSE prepared for the girl for the 1997-98 school year provided that she would receive sixth grade academic instruction in a 15:1 self-contained class, and be mainstreamed for special subjects. Her speech/language therapy was reduced to twice per week (Joint Exhibit 4). On October 30, 1997, the child was evaluated by a school psychologist, who reported that she had achieved a verbal IQ score of 85, a performance IQ score of 78, and a full scale IQ score of 80. The school psychologist further reported that the child evidenced an age appropriate attention span, and opined that the test results accurately reflected the child’s cognitive ability. The child manifested an approximately four-year delay on two tests of her visual motor integration skills. She was observed in the classroom by the school psychologist, who noted that she did not participate in class as fully as did her classmates. The school psychologist also reported that the child appeared to be emotionally well adjusted (Joint Exhibit 7).
The CSE reviewed the child’s placement on December 11, 1997. It recommended that she remain in her then current placement, and that she be evaluated by an occupational therapist because of handwriting difficulties. The CSE also recommended a reading program with specialists and talking books, i.e., books on tape, for the child (Joint Exhibit 6).
On January 21, 1998, the child’s educational achievement was assessed on the Wechsler Individual Achievement Test (Joint Exhibit 9). She achieved grade equivalent scores of 1.2 for basic reading, 1.6 for reading comprehension, 3.8 for numerical operations, 3.1 for math reasoning, and 1.9 for spelling. On the CELF in February 1998, she achieved standard scores of 84 for receptive language and 96 for expressive language (Joint Exhibit 10). The CSE reviewed the child’s test results on February, 26, 1998, and concluded that the child was appropriately placed (Joint Exhibit 11).
On February 27, 1998, the child was evaluated by an occupational therapist (Joint Exhibit 14) who reported that the child had normal muscle tone and strength in her arms, but she had difficulty with distal control and dexterity. Her sensory skills and motor planning skills were reported to be appropriate. However, the child’s ability to write quickly and legibly was hampered by deficits in her visual motor integration skills. The occupational therapist recommended that the child receive occupational therapy to improve her handwriting and to develop her keyboarding skills.
The CSE met on May 21, 1998 for the child’s annual review, and to consider the occupational therapist’s report (Joint Exhibit 15). It recommended that the child receive individual occupational therapy twice per week through the rest of the school year. For the 1998-99 school year, the CSE recommended that the child be placed in a self-contained seventh grade class in respondent’s middle school. It also recommended that she be mainstreamed for art, music and physical education. The CSE further recommended that the child continue to receive speech/language therapy in a group of no more than five twice per week, and individual occupational therapy twice per week.
The IEP which the CSE prepared for the child provided that test time limits should be extended, that test directions be read to her and simplified, and that she be allowed to use a calculator and arithmetic charts. Very general annual goals for reading, English, social studies, math, science, and speech/language were included in the IEP (Joint Exhibit 13). On September 24, 1998, the CSE amended the child’s IEP for the 1998-99 school year to provide that test questions be read to her (Joint Exhibit 16).
The child’s occupational therapist reported on February 19, 1999 that the child’s cursive writing had improved to grade level norms, but she needed to be reminded to correctly form her letters. She further reported that the child had shown significant improvement in motor planning, finger dexterity, and visual motor control. The occupational therapist recommended that the child continue to receive occupational therapy for the remainder of the school year, but it then be discontinued (Joint Exhibit 24).
In academic testing which was performed in February, 1999, the girl achieved grade equivalent scores of 1.6 for word recognition on the Slosson Oral Reading Test, and 2.1 for paragraph comprehension on the Nelson Reading Test. On the Stanford Diagnostic Math Test, she earned grade equivalent scores of 3.2 for numeration, 3.0 for computation, and 2.4 for application (Joint Exhibit 23). The child received final numerical grades of 81 for English, 86 for math, 84 for social studies, and 74 for occupational education in the 1998-99 school year (Joint Exhibit 30).
The child’s parents requested a hearing on June 11, 1999, claiming that respondent had failed to provide a FAPE to their daughter. They sought an award of compensatory education for the child during the summer of 1999, as well as a 1:1 phonics based reading, spelling and writing program. The hearing was conducted on June 25, 1999. The hearing officer rendered his decision on July 1, 1999. He found that the district had provided services to the child to address her inability to read on grade level. He further found that the child had progressed with the modifications provided in her IEP. Accordingly, he found that there was no basis for awarding the child compensatory education for the summer of 1999. The hearing officer noted that it appeared that the child’s parents were seeking a 12-month instructional program, also known as an extended school year (ESY) for their daughter. However, he found that the child was ineligible for ESY because there was no evidence of regression by the child during the summer months. He ordered the CSE to amend the child’s 1999-2000 IEP to include, at a minimum, a 1:1 reading program provided by a certified reading specialist for one period, three times per week during the 1999-2000 school year. Additionally, he remanded the case to the CSE to complete a full battery of diagnostic testing to include appropriate reading diagnostics.
Petitioner appeals from the hearing officer’s decision. She claims that her daughter was denied a FAPE because she did not receive specially designed instruction to address her reading deficits. Additionally, she argues that her daughter’s IEPs were too general to be of value, that they failed to include all of the required elements, and that she was denied meaningful participation in their development. Petitioner seeks a daily 1:1 phonics based reading, spelling and writing program 12 months a year for her daughter. Additionally, she is requesting reimbursement for tutoring expenses she incurred for her daughter during the summer of 1999.
Although petitioner refers in her petition to her child’s IEPs for the years prior to the 1998-99 school year, I must note that she never requested a hearing to review those prior IEPs, and I will not address her challenges to those IEPs. Petitioner commenced this proceeding near the end of the 1998-99 school year to challenge the child’s educational program for that school year. My determination will be limited to whether respondent provided a FAPE to the child during 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 respondent has failed to meet its burden of proof. Federal regulation (34 CFR 300.344 [a]) and New York State Education Law Section 4402 (1)(b)(1) require that a child’s teacher be a member of the CSE which conducts a review or makes a recommendation for services to be provided to the child. The child’s IEP for the 1998-99 school year was developed at a meeting on May 21, 1998. The IEP, while listing other participants, does not list the child’s teacher as a member at that meeting (Joint Exhibit 13). The IEP was amended on September 24, 1998 to include additional testing modifications. The minutes from that meeting list the committee members, but do not include the child’s teacher (Joint Exhibit 16). In the absence of a required member, respondent’s CSE could not prepare a valid IEP for petitioner’s daughter (Application of a Child with a Disability, Appeal No. 96-87).
Additionally, the hearing officer found, and I agree, that the IEP reading goals and objectives were inadequate to address the child’s reading deficits. There is no dispute that the child had severe reading difficulties and that her decoding skills were quite delayed. However, her IEP includes only one reading goal and no specific goals or objectives addressing decoding. Based upon the information before me, I find that the child was denied a FAPE during the 1998-99 school year.
Having found that the child was denied a FAPE, I must now determine the appropriate remedy. Petitioner believes that her daughter should be provided 1:1 instruction for her reading difficulties for 12 months a year. Pursuant to 8 NYCRR 200.6 (j), a student shall be considered for 12-month special services or programs in order to prevent "substantial regression." That term is defined in 8 NYCRR 200.1 (aaa) to mean:
" ... a student's inability to maintain developmental levels due to a loss of skills or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the school year."
Petitioner did not offer any evidence to demonstrate that her daughter requires a 12-month program to prevent substantial regression. Accordingly, I find that the child is not entitled to ESY services.
Petitioner is also seeking reimbursement for expenses she incurred to have her daughter tutored during the summer of 1999. The child's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parent must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359, at 370 ), i.e., that they met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The only reference in the record to tutoring is a request for reimbursement in the petition. There is nothing describing how the tutoring met the child’s special education needs. Therefore, I have no basis in the record to find that petitioner has demonstrated that the tutoring services were appropriate. Accordingly, I must find that she is not entitled to an award of reimbursement for the cost of her child’s tutoring during the summer of 1999.
Although the hearing officer did not find that respondent denied the child a FAPE, he nevertheless ordered respondent to provide to the child at a minimum, a 1:1 reading program for one period three times per week, noting that she had had some success with 1:1 instruction during the school year. I agree with the hearing officer’s decision ordering respondent to provide 1:1 reading instruction. However, to remedy the denial of a FAPE for the entire 1998-99 school year, I am ordering respondent to provide the 1:1 reading instruction on a daily basis for at least one school year.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer’s finding that respondent provided the child a FAPE during the 1998-99 school year is hereby annulled, and;
IT IS FURTHER ORDERED that within 30 days from the date of this decision, respondent shall hold a properly constituted CSE meeting and prepare an IEP in accordance with the tenor of this decision.