Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Rockville Centre Union Free School District
Long Island Advocates, Inc., attorney for petitioners, Christina M. Duffner, Esq., of counsel
Ingerman Smith, L.L.P., attorneys for respondent, MaryAnne Sadowski, Esq., of counsel
Petitioners appeal from an impartial hearing officer's decision which found that the individualized education program (IEP) which respondent's committee on special education (CSE) had prepared for their daughter for the 1998-99 school year was adequate. Petitioners had challenged their child’s IEP because it did not include myofunctional therapy, which is a form of oral motor training. The appeal must be sustained in part.
Petitioners' daughter is eleven years old. She has a chromosomal abnormality known as Eighteen-P Syndrome, which means that part of her eighteenth chromosome is missing. The girl also has a congenital heart abnormality, for which she has had surgery and continues to take medication. The child has also had eye surgery, and wears corrective lenses because of strabismus. She is small for her age, and has decreased strength, coordination, and motor planning skills. When evaluated in 1996, the child achieved a verbal IQ score of 70, a performance IQ score of 69, and a full-scale IQ score of 67. In 1998, she reportedly communicated her wants and needs in single words, phrases, and sentences, with articulation errors and grammatical and syntactical deviations (Exhibit 11). The child has been classified by the CSE as multiply disabled (see 8 NYCRR 200.1 [mm]). Her classification is not disputed in this proceeding.
The child entered the Long Island Infant Development Program at the age of three, and entered a half-day preschool program in September, 1992. She received speech and occupational therapy in the preschool program. Petitioners’ daughter reportedly entered kindergarten in respondent’s schools during the 1994-95 school year. She received 30 minutes of speech/language therapy three times per week during that school year (Transcript, page 75).
In March, 1995, the child was evaluated at respondent’s request by Ms. Sheri Daniels, who is a private, licensed speech pathologist. Ms. Daniels concluded that the child had a severe oral motor disorder which needed to be addressed by oral motor therapy (Transcript, page 34). At the hearing in this proceeding, Ms. Daniels testified that petitioners’ child was fearful of different food tastes, had difficulty orienting food in her mouth, chewing it, and initiating a swallow. She also had difficulty sequencing her oral motor activities.
Respondent’s CSE accepted Ms. Daniels’ recommendation. She began to provide the child with 45 minutes of individual oral motor therapy once per week in April, 1995. Ms. Daniels continued to provide that therapy for six weeks during the summer of 1995, and during the 1995-96 school year. The child, who was in first grade that year, also continued to receive speech/language therapy. Ms. Daniels testified that by the end of that school year, the child could better tolerate the smell and texture of different foods, and she was no longer eating pureed food (Transcript, page 38). Ms. Daniels further testified that the child was taking larger bites of food, and could clear food from her mouth with a verbal cue. She indicated that the child had become capable of making certain sounds, e.g., the letter "T", which she had been unable to do when evaluated in March, 1995.
The child continued to receive individual oral motor therapy from Ms. Daniels during the summer of 1996, and while in the second grade during the 1996-97 school year. Her eating skills improved, and she began to each lunch in the school cafeteria, with the assistance of an individual aide (Exhibit 9). The child’s production of sounds for speech also improved, but her speech continued to be affected by articulation errors (Ibid). Ms. Daniels recommended that respondent’s speech/language therapist work on the child’s oral motor skills as part of the child’s speech/language therapy, with Ms. Daniels consulting with the therapist once per month.
During the 1997-98 school year, petitioners’ daughter received speech/language therapy in a group twice per week. Respondent’s speech therapist, Ms. Carla Dellicarpini, testified that she worked on the child's receptive and expressive language skills, speech articulation, and oral motor techniques to facilitate her speech articulation and eating. Ms. Daniels consulted with Ms. Dellicarpini on a once per week basis. The child also received individual occupational therapy twice per week (Exhibit 18). Ms. Daniels testified that the child continued to make progress in developing her oral motor skills during the 1997-98 school year, with regard to moving her tongue, collecting food in her mouth and swallowing (Transcript, page 49). Although the child was more aware that she had food in her mouth than previously, she still required verbal reminders. She was also able to eat a greater variety of foods. Ms. Daniels recommended that the child continue to receive speech/language therapy which included continued work on the child’s oral motor muscles to move her tongue, lips, cheek, and jaw to help the girl make more sounds and to eat more foods in a timely manner (Transcript, page 51). Ms. Dellicarpini testified that the child made good progress with her oral motor skills. She noted that by the end of the school year the child had progressed to eating hard pretzels, and had learned to eat foods within a certain time frame and clean her mouth (Transcript, pages 79-80). The child reportedly ate lunch with her classmates in the school lunchroom during at least part of the year.
The CSE began its annual review of the child on May 28, 1998. At that meeting, petitioners submitted a report prepared by Ms. Leslie Davis, a private speech pathologist who had evaluated the child on May 13, 1998 at petitioners’ request (Exhibit 10). Ms. Davis indicated that the child had demonstrated an inability to chew a hard pretzel, and that she took a long time to chew and swallow her food. She also indicated that a great deal of residual food remained in the child’s mouth after swallowing. I note that Ms. Davis signed a letter prepared by the CSE chairperson in December, 1998, in which she agreed that the child could "functionally eat and participate in school", and did not specifically require myofunctional therapy (Exhibit 19).
Petitioners asked the CSE to recommend that Ms. Daniels continue to provide oral motor training to their daughter during the 1998-99 school year. The CSE adjourned to review Ms. Davis’ report. When it reconvened on June 19, 1998, the CSE accepted Ms. Daniels’ recommendation that respondent’s speech/language therapist continue to work on the child’s oral motor skills during her speech/language therapy, and that Ms. Daniels serve as a consultant to the speech/language therapist during the 1998-99 school year (Exhibit 11).
The child’s mother requested that her daughter be independently evaluated at respondent’s expense. It was subsequently agreed that the child would be evaluated by Ms. Daniels, with petitioners reserving the right to ask for an independent evaluation. Shortly before the CSE received Ms. Daniels’ report, it received a report prepared by Dr. Leonard Flum, a speech/language pathologist specializing in myofunctional therapy. Dr. Flum had evaluated the child in August, 1998, at petitioners’ request. He reported that the girl had a severe swallowing disorder which primarily affected the initial or oral stage of swallowing. He further reported that the child had a severe speech articulation disorder affecting sounds produced with the tip of her tongue. Dr. Flum recommended that the girl receive a "specially designed Speech Therapy Rehabilitation Treatment program" two or three times per week to eliminate her articulation dysfunction, and also receive "Oral –Myofunctional Therapy in conjunction with Speech Therapy to both eliminate the swallowing disorder and associated oral-facial musculature dysfunction, and to establish normal functions in their place" (Exhibit 12).
In her written report which was prepared in September, 1998, Ms. Daniels indicated that the child could perform a wide range of tongue movements, but with decreased speed and strength (Exhibit 13). The child’s eating skills were affected by what Ms. Daniels described as mal-positioned teeth. She reported that the child often stopped during the act of chewing, but she was able to speed up her chewing and clear her mouth within a given time frame with the use of reinforcers. She also reported that the child displayed delays in bolus collection, i.e., the collection of food in the mouth preparatory to swallowing. She indicated that the child swallowed with no choking, gagging, or coughing. She also indicated that one of the child’s speech difficulties might be addressed through an oral motor exercise. Ms. Daniels recommended that oral motor strengthening techniques be used during the child’s speech/language therapy to improve her speech production and eating skills. She did not recommend that the child receive myofunctional therapy.
Shortly before the CSE met again on October 29, 1998, the girl’s nutritionist opined that she should receive occupational therapy to teach her how to chew and swallow solid foods at a normal pace (Exhibit 15). I note that the CSE chairperson testified at the hearing that the nutritionist had acknowledged never having seen the child eat food. On October 29, 1998, petitioners asked the CSE to recommend that Dr. Flum provide myofunctional therapy to their daughter as part of her educational program. The CSE declined to make that recommendation because it believed that Ms. Dellicarpini could address the child’s needs while providing speech/language therapy to her (Exhibit16).
The record does not reveal when petitioners requested the hearing in this matter. On December 15, 1998, respondent appointed the hearing officer. The hearing did not begin until February 26, 1999. It resumed on April 14, 1999, and it concluded on May 24, 1999. The hearing officer rendered his decision on July 21, 1999. He noted that the parties had agreed at the hearing that there was no dispute about the child’s classification as multiply disabled, or her placement in an integrated regular education class, i.e., a class with both regular education and special education students, at respondent’s Wilson Elementary School during the 1998-99 school year. Instead, the sole issue to be determined was whether the girl's IEP was inappropriate because it did not include myofunctional therapy.
The hearing officer found that the IEP adequately described the child’s needs and her present levels of performance, and that it included appropriate annual goals and short-term objectives. He noted that there were two annual goals for speech/language therapy. The first dealt with improving the quality of the child's voice, while the second involved improving her articulation and phonological skills. One of the supporting objectives for the latter goal was to improve the child's oral musculature. The hearing officer reviewed the testimony of Ms. Daniels, Ms. Dellicarpini, Dr. Flum, and the child's mother. He noted that the only witness who had expressed concern about the child possibly choking while swallowing was her mother. He found that the child was making progress in school in a manner which was consistent with her ability to learn, and that she had achieved many of her IEP goals and objectives. The hearing officer found that the child did not require myofunctional therapy in order to receive educational benefit from her education, and that respondent had met its burden of proving that it was providing a free appropriate public education (FAPE) to the child.
Petitioners challenge the hearing officer’s finding that the Board of Education had provided a FAPE to their daughter during the 1998-99 school year. They assert that respondent failed to provide their child with a functional curriculum because the child’s curriculum did not address her feeding deficits. Petitioners contend that their daughter’s oral motor skills have regressed, and that she requires myofunctional therapy, which respondent is not qualified to provide to her.
Respondent argues that the speech/language therapy which it provided to the child during the 1998-99 school year was appropriate to meet her educational needs. 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 .
Respondent's obligation to provide a FAPE means that it must provide special education and related services which address the child's educational needs, in conformity with her IEP. The term "related services" means such developmental, corrective, and other supportive services "… as may be required to assist a child with a disability to benefit from education" (20 USC 1401 ). Myofunctional therapy was defined by Dr. Flum as a regimen of protocols to evaluate, diagnose and treat certain oral muscle motor dysfunctions (Transcript, page 175). There is no State licensure or certification for myofunctional therapy. I note that the U.S. Department of Education has opined that training to reverse a child's pattern of aspirating, i.e., choking, during feeding could be considered a school health service as that term is used in the regulatory definition of related services, if the service is necessary to assist the child in benefiting from special education and is required to be performed during school hours (20 IDELR 174).
Petitioners claim that myofunctional therapy is necessary for their daughter to protect her against the danger of choking during or after feeding, as well as to allow her to complete a meal in a reasonable period of time so that she may participate in other activities. Their expert witness, Dr. Flum, suggested that myofunctional therapy could be used to train her tongue to make certain sounds associated with the letters "D", "T", "A" and "L". However, he also testified that it would not be "educationally impactful" (Transcript, page 204). In view of that testimony, as well as that by Ms. Daniels and Ms. Dellicarpini, I am not persuaded that the child needed myofunctional therapy to improve her speech articulation. I have considered petitioners' claim that their child's receptive and expressive language skills regressed between 1997 and 1998, as reflected by her performance on the OWLS test. However, there is no showing that myofunctional therapy would have any direct effect upon those skills. Indeed, Ms. Davis testified that the child’s eating difficulties were not the cause of the delay in her speech and language skills (Transcript, page 308).
At the hearing, the child's mother testified that she had witnessed her daughter choke and gag while eating (Transcript, page 240). She did not indicate when or how frequently it had happened. Ms. Dellicarpini testified that she had never observed the child choking, and Ms. Dawn Risse, the child's special education teacher during the 1998-99 school year, testified that the child had not evidenced difficulty swallowing food. Dr. Flum testified that the child's oral muscle dysfunction was related to the first phase of swallowing, and that it was unlikely that she would aspirate, i.e., choke on her food during the last two stages of swallowing. He did express some concern about the child possibly aspirating if she retained food in her mouth after eating. However, it is unclear from the record whether the child retained food in her mouth because of oral muscle difficulties which myofunctional therapy might address, or for other reasons. I note that in his testimony at the hearing, Dr. Flum described various irregularities in the way the child chewed her food and moved her tongue. However, he also testified that she could get rid of her food, "provided she wants to" (Transcript, page 195). Ms. Daniels conceded that the child still had "issues" with regard to clearing food from her mouth, but asserted that the child could perform that task (Transcript, pages 60-61). Ms. Dellacarpini's testimony supported that given by Ms. Daniels (Transcript, page 92). Ms. Risse testified that the child had come to school with food still in her mouth on two occasions during the 1998-99 school year, and that she on occasion had to remind the child to clear her mouth. Ms. Davis testified that the child could clear certain foods from her mouth, but she had difficulty with cashew nuts and granola bars, neither of which was an appropriate food for her (Transcript, page 303). Upon the record, before me, I cannot conclude that myofunctional therapy was required in order to enable the child to clear her mouth of food.
The girl's mother testified that her child required prolonged periods of time in which to eat her meals. Since this could have an effect upon her ability to participate in activities during the school day, I have carefully considered the record. Respondent's witnesses did not indicate that the child required an inordinate amount of time to eat lunch. The child was observed by the CSE chairperson and Ms. Dellicarpini during lunch on October 16, 1998 (Exhibit 14). Their written report indicated that the child chewed very slowly, and stopped periodically while chewing. I note that they observed her for approximately nine minutes. The child's mother testified that dinner took one to two hours to complete. However, she also testified that her child needed to be doing something else in addition to just eating, and that the girl left the table during dinner, but would come back later. Dr. Flum was unaware of whether the child ate in her classroom or the school lunch room. He testified that there had been no objective study of how long it took for the child to chew and swallow her food (Transcript, page 196). Nevertheless, he insisted that it did take her a long time to eat. Ms. Davis testified that the most she could say for "feeding" therapy was that it would allow the child to finish her meal more quickly, making her more socially available (Transcript, page 298). She also testified that while beneficial to the child, feeding therapy was not essential to her educational program (Transcript, page 307).
Given the conflicting testimony and absence of any objective evidence, I cannot rule out the possibility that the child may have a school related need which has not been addressed by respondent's program of speech/language therapy. I will annul the hearing officer's decision to the extent that he found that respondent had met its burden of proof. I will not, however, order respondent to provide myofunctional therapy. I will direct the CSE to obtain an objective assessment of the effect of her oral motor difficulties upon her ability to consume a meal within a reasonable period of time. The CSE should use this information in preparing future IEPs for the child.
I have considered petitioners' other contentions, which I find to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is hereby annulled for the reasons indicated above; and
IT IS FURTHER ORDERED that the CSE shall promptly arrange for an objective evaluation of the child's eating ability in accordance with the tenor of this decision.