Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Westhampton Beach Union Free School District
Phyllis K. Saxe, Esq., attorney for petitioners
Kevin A. Seaman, Esq., attorney for respondent
Petitioners appeal from an impartial hearing officer's decision denying their request for tuition reimbursement for the cost of their child's tuition at The Pioneer School (Pioneer) during the 1999-2000 school year. The hearing officer denied petitioners' request because he found that respondent had offered petitioners' son an appropriate placement. The appeal must be sustained in part.
Prior to addressing the merits of petitioners' appeal, I will first address a procedural issue. Petitioners have submitted additional information about their child with their petition, including progress reports from the private school and the results of an evaluation performed subsequent to the hearing. It is well established 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, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 99-86; Application of a Child with a Disability, Appeal No. 98-55; Application of a Child with a Disability, Appeal No. 95-41). Because the information was unavailable at the time of the hearing, I will consider it in arriving at my decision.
Petitioners' son is 12 years old. He has been classified as learning disabled by respondent's Committee on Special Education (CSE). His disability is manifested by deficits in his memory, decoding, spelling, and writing. The student's classification as learning disabled is not in dispute in this appeal. At the time of the impartial hearing, the student was in an ungraded class at Pioneer, which is a private school serving students with dyslexia. Pioneer has not been approved by the State Education Department to provide instruction to children with disabilities.
The student initially began receiving extra help in kindergarten, when he was provided with speech/language services. During first grade, the student received individual support from a reading teacher, additional support for math in a small group, and individual speech services for expressive difficulties. He was initially referred to the CSE by his first grade teacher. At that time, the parents had the child privately evaluated. The private evaluator administered the Weschler Intelligence Scale for Children - Third Edition (WISC-III) to the student, who achieved a verbal IQ score of 107, a performance IQ score of 117, and a full scale IQ score of 113. The student's full scale IQ score was in the upper end of the average range of intelligence. He exhibited the greatest difficulty with skills related to memory, and he exhibited deficits in mathematical reasoning and reading comprehension (Exhibit B). The record does not indicate whether the student was evaluated by the CSE during first grade. During first and second grades, petitioners' son received remedial instruction pursuant to Chapter 1 of the Education Consolidation and Improvement Act, as well as private tutoring.
The student was privately evaluated again in September 1997. His full scale IQ score of 104 was in the average range of intelligence. The evaluator reported that the student had a very good memory for meaningful material, but experienced difficulty remembering more abstract material such as symbols, numbers, letters and shapes. The evaluator recommended that the student be referred to a specialist to implement intervention mnemonic strategies, that a reading program pairing sounds and symbols be implemented, and that an optometrist evaluate the student's ocular functioning. She also recommended that the student be given extra time to complete written and reading assignments, that he receive small group instruction for reading and mathematics, and that auditory material be paired with written material to help him retain information (Exhibit C).
An optometric evaluation was conducted in November 1997. The optometrist reported that the student's ocular-motor skills were inaccurate, inefficient and poorly developed. The student exhibited an inability to focus accurately at a near distance, and he also had difficulty changing focus from far to near and vice versa. The optometrist indicated that an office based optometric therapy program had been initiated (Exhibit E).
Subsequent to his optometric evaluation, the student was evaluated by a school psychologist, who reported that the student continued to display severe reading difficulties, despite receiving small group reading services and independent tutoring during first and second grades. He indicated that the student's weak memory interfered with his ability to read and comprehend. The school psychologist opined that the student had dyslexia, and recommended that he be provided with daily resource room assistance and phonic based remediation (Exhibit D).
On November 18, 1997, the CSE classified the student as learning disabled and recommended that he receive resource room services five times per week in a class with a student : teacher ratio of 5:1. The individualized education program (IEP) that the CSE prepared for the student included the testing modifications of flexible scheduling and setting, extended time, either individual or small group administration in a separate location, having directions revised, read and simplified, having questions read, and use of a spell finder (Exhibit H).
Certain standardized tests were administered to petitioners' son in February 1998. On the Woodcock Reading Mastery Test (WRMT), he achieved grade equivalents (and percentiles) of 2.0 (8th) for word identification, 1.7 (8th) for word attack, 1.8 (5th) for word comprehension, and 1.9 (5th) for passage comprehension. On the Test of Written Language (TOWL), the student achieved a quotient of 78. His scores on the Key Math Test were considerably better, with grade equivalents of 4.8 (81st) for basic concepts and 3.7 (53rd) for applications (Exhibit X).
At its annual review on April 29, 1998, the CSE recommended that the student be enrolled in a fourth grade inclusion class, with a total of 200 minutes of direct consultant teacher services per week, during the 1998-99 school year. In addition to the test modifications included on the boy's previous IEP, the CSE recommended that his answers be recorded for him in a test booklet, that he use a calculator, and that he not be penalized for spelling, punctuation or grammar errors. Small group test administration in a separate location continued to be included, but individual test administration was excluded from the student's IEP for the 1998-99 school year (Exhibit I).
In January 1999, the New York State English Language Arts Examination (ELA) was administered to the student. He achieved a score of 3, which indicated that he had an understanding of written and oral text beyond literal meaning, and that his writing was generally focused and organized (Exhibit a). It should be noted that the student's IEP testing modifications were reportedly used for the ELA. The student's academic skills were assessed at school in February and March 1999. On the Kaufman Test of Educational Achievement (KTEA), the student achieved grade equivalents (and percentiles) of 2.6 (14th) for reading decoding and 2.4 (10th) for spelling. For the Test of Written Language - Second Edition (TOWL-2), the student achieved a quotient of 81 (Exhibit X).
On April 20, 1999, the CSE recommended that petitioners' son be enrolled in a fifth grade inclusion class, with 200 minutes of direct consultant teacher services per week, during the 1999-2000 school year. In addition to the test modifications included on the previous IEP, the CSE recommended the following: revised test formats, use of arithmetic tables, test locations with minimal distractions, increased spacing between items on tests, and use of a voice activated computer. Instead of small group test administration in a separate location, the CSE recommended individual test administration (Exhibit J).
At petitioners' request, CSE met with them and reviewed their son's educational program on October 13, 1999. The CSE recommended that the student receive resource room services five times per week in addition to direct consultant teacher services. No change was recommended in goals and objectives or test modifications (Exhibit K). Petitioners accepted the CSE's recommendation (Exhibit O).
On November 3, 1999, the student's teachers reported on his progress to the CSE chairperson. The reading teacher indicated that the student was attentive in class, but had weak decoding skills and read slowly and without good fluency. The student's reading group met three days per week and focused on literary skills rather than the decoding process. His writing teacher reported that the student's writing skills were very weak, and that he was apprehensive about any writing assignment that appeared to be lengthy. As a result, the student's teachers would scribe for him. The teacher noted that the student had begun to use a computer speech recognition program (Exhibit V).
Petitioners had their son evaluated at Pioneer on October 30, 1999. On the WRMT, he achieved grade equivalent (and standard) scores of 2.3 (72) for word identification and 2.3 (83) for word attack. On the KTEA, the student achieved grade equivalents of 2.0 for reading decoding, 1.8 for reading comprehension, and 2.4 for spelling. On the Gray Oral Reading Test (GORT), the student achieved a standard score of 7 and a percentile of less than 1(Appendix 2 of petitioners' brief). In late October, petitioners withdrew their son from respondent's schools. They enrolled their son in Pioneer, where he began classes on November 15, 1999 (Exhibit 6).
The parents requested an impartial hearing seeking tuition reimbursement. The hearing began on January 4, 2000. During the course of the hearing, petitioners amended their request for relief to include a request that respondent implement a reading and writing program using the Orton-Gillingham technique. Orton-Gillingham is a structured multisensory approach to language instruction that is designed to improve students' phonological awareness. Petitioners also requested that their son be provided with individual tutoring or resource room instruction as compensatory education, beginning in July 2000 and continuing through June 2001 (Exhibit 2). The hearing continued over the course of four days and concluded on April 13, 2000.
In February 2000, the student's progress report from Pioneer indicated that he was receiving Orton-Gillingham based instruction in a reading tutorial. His instructor reported that the student had begun to read beginner books independently, with the assistance of books on tape to help him with unfamiliar words. The student's teachers for social studies, computer technology and math all reported that the student needed to improve his ability to focus (Exhibit 8).
At petitioners' request, the student was evaluated by his former tutor in February 2000. On the WRMT, the student achieved grade equivalents of 2.6 for word identification, 2.6 for word attack, and 2.8 for passage comprehension. The evaluator reported that the student displayed great perseverance during the word attack portion of the test. On multi-syllabic items, the student reversed all or parts of syllables. On the Wilson Spelling Test, he successfully spelled eight of twenty words, with significant errors in the substitution of short vowels, and reversal of syllables. The evaluator reported that it had taken the student about twenty minutes to write a seven-sentence paragraph, in which there were numerous misspellings (Exhibit 9). When re-evaluated at Pioneer in May 2000, petitioners' son achieved grade equivalent (and standard) scores of 2.8 (63) for word identification, and 3.8 (81) for word attack on the WRMT. On the KTEA, the student achieved scores of 2.2 (73) for reading decoding, 3.8 (90) for reading comprehension, and 3.7 (85) for spelling (Appendix 2 of petitioners' brief).
The hearing officer rendered his decision on August 1, 2000. He found that the student's IEP had been prepared in accordance with the requirements of the Individuals with Disabilities Education Act (20 USC § 1400 et seq.). He noted that although the parties appeared to agree that the student required a multisensory instructional program to address the deficits in his reading and writing skills, they disagreed about the specific program to be used. The hearing officer found that respondent had the right to select the specific instructional program for the student, and he concluded that the Board of Education had met its burden of demonstrating that it had offered to provide an appropriate educational program to petitioners' son during the 1999-2000 school year. In addition, he found that petitioners had not met their burden of proving that the services that Pioneer provided to their son were appropriate to meet his special education needs. He denied petitioners' request for tuition reimbursement.
Petitioners contend that the hearing officer erred in finding that respondent had offered to provide an appropriate educational program to their son. They assert that they discovered that their son would not have received the structured multisensory instruction he needed in the resource room program the CSE had recommended in October 1999. Consequently, they removed him from respondent's schools and enrolled him in Pioneer, where he received such instruction. They ask for an award of tuition reimbursement for the 1999-2000 school year, and two years of compensatory education and related services (Amended Petition).
A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 ). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 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 student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
Petitioners do not challenge the accuracy of the IEP's description of their son's special education needs. The IEP (Exhibit K) indicates that the student requires individual or small group instruction in reading and writing, and that learning materials should be presented sequentially to him. It also indicates that he would benefit from a multisensory instructional approach, and that he requires a highly structured, task oriented approach to learning. In addition, the IEP indicates that the student works best when a behavior modification system is related to completion of academic work. I note that the IEP indicates that the student has no physical or medical problem, which appears to be inconsistent with the November 1997 optometric evaluation indicating that he had ocular motor deficits requiring optometric therapy. However, it is unclear whether the CSE was aware of the results of that evaluation. The student's IEP does accurately present his present levels of performance, as required by 8 NYCRR 200.4(c)(2)(i).
Petitioners also do not challenge their son's IEP annual goals, which relate to improving his structural analysis and comprehension skills in reading, his spelling skills, and his writing skills. These are all deficit areas that reflect the student's need for specially designed instruction arising out of his disability. I must note that some of the objectives for the IEP goals include quantifiable measures of performance, while others do not, e.g., "will improve decoding skills." This may explain in part why seventeen of the objectives on the most recent IEP appeared on previous years' IEPs, including nine from his 1997 IEP.
The parties do disagree about the adequacy of the special education services that respondent's CSE recommended for petitioners' son as a result of its October 1999 meeting. I agree with petitioners that those services were inadequate to meet his need for intensive primary special education to address the significant deficits in his reading and writing skills. Indeed, they do not appear to be consistent with the IEP description of the student's instructional needs (Exhibit K). It is also apparent from the record that the services that were provided did not meet his needs.
The record shows that petitioners' son did receive small group instruction in reading in respondent's schools during the beginning of the 1999-2000 school year, but decoding was not emphasized. The special education teacher testified that the curriculum did not allow time to focus on decoding because it was assumed that students had appropriate decoding skills in fifth grade (Transcript p. 40). Although the student's reading fluency was poor, the special education teacher did not target improved fluency in her reading group (Transcript p. 45). The student did not always receive small group instruction for writing (Transcript p. 32). The student's resource room teacher employed a phonological approach to teaching reading (Transcript p. 233). She testified that the student used the Dragon Speak program and spell check to compose written work, although he sometimes had difficulty identifying the correctly spelled word. The student would sometimes use a scribe (Transcript pp. 244-246).
I find there is no evidence that respondent had used, or intended to use on a consistent basis, a structured , sequential multisensory instructional approach to address the student's reading and writing deficits. Although assistive technology and curriculum modifications are educationally useful, they cannot take the place of specially designed instruction for a student with a need for primary special education. Resource room instruction is supplemental by definition, and is not intended to replace primary instruction. The record indicates that petitioners' son made little appreciable gain in his reading skills from February 1998 until October 1999, when petitioners removed him from respondent's schools. I find that respondent has not met its burden of proof with respect to the services that its CSE recommended for petitioners' son.
Petitioners bear the burden of proof with regard to the appropriateness of the services Pioneer provided to their son during the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of the Board of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the parents must show that the private school offered an educational program which met the student's special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 ; Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 94-20).
The student's private tutor observed the program at Pioneer. She described it as a "multisensory approach using the kinesthetic, visual, auditory and tactile mode" (Transcript p. 563). Individual reading instruction was provided and organizational skills were emphasized. Math was taught in a class with a student : teacher ratio of 2:1 (Transcript p. 564). The evidence shows that the student made progress at Pioneer. In October 1999, his grade equivalents in both word identification and word attack were 2.3 as measured on the WRMT. Approximately seven months later, the student's grade equivalent for word identification was 2.8. His grade equivalent for word attack was 3.8. When the student was administered the KTEA in October 1999, he achieved grade equivalents of 2.0 for reading decoding, 1.8 for reading comprehension and 2.4 for spelling. In May 2000, the student achieved a grade equivalent of 2.2 for reading decoding, 3.8 for reading comprehension, and 3.7 for spelling (Appendix 2 of petitioners' brief). I find that the private placement appropriately met the student's special education needs.
Respondent asserts that Pioneer is not the least restrictive environment (LRE) for the student. Students with disabilities must be educated in the LRE (20 USC 1412[a]). The LRE requirement applies to unilateral parental placements, but parents who unilaterally make private school placements will not be held as strictly as are boards of education to the requirement (M.S. ex rel S.S. v. Board of Educ., 231 F.3d 96, 105 [2d Cir. 2000]). This reflects the fact that the LRE requirement must be balanced against the requirement that each student receive an appropriate education (Briggs v. Board of Educ., 882 F.2d 688, 692 [2d Cir. 1989]).
Having considering the student's academic, management, physical and social/emotional needs, I find that his placement at Pioneer does not violate the LRE requirement. Although the student did not display management or physical needs requiring a private placement, he did exhibit academic and social/emotional needs that were addressed in the private placement. Academically, the student benefited from the multisensory approach used at Pioneer as evidenced by the increase in the student's test scores. Pioneer did not provide the student with the same opportunities for social interaction as the public placement, but it addressed the student's emotional needs associated with his disability.
The CSE included a statement on the student's IEP indicating that the student needed to "become more self-reliant and less dependent upon others" (Exhibit K). The student's mother reported that the special education teacher had stated that she could not continue to provide the level of support the student sought due to her work load with the other students (Transcript pp. 641-642). The parents also testified that the student needed help with his homework every night and he would call himself "stupid" (Transcript pp. 633, 694). While the student was attending the public school, the parents paid a teacher to assist their child after school three days a week (Transcript p. 647). After attending Pioneer, the student began to do his homework independently and his confidence level reportedly improved (Transcript p. 696). Although Pioneer afforded the student no opportunities for mainstream interaction, I find that Pioneer met the student's need to perform at an independent level.
The third criterion for an award of tuition reimbursement is whether equitable considerations support the parents' claim. There is no indication that petitioners failed to cooperate with the CSE when the IEP of the 1999-2000 school year was being developed. I find that equitable considerations support the parents claim and that they are entitled to tuition reimbursement for the 1999-2000 school year.
Petitioners seek compensatory education and related services for two years. A school district may be obligated to provide a student with compensatory education if the child has been excluded from school or denied appropriate services for an extended period of time (Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1980]; Lester H. v. Gill, 916 F.2d 865 [3d Cir. 1990]; Miner v. Missouri, 800 F. 2d 749 [8th Cir. 1986]). I find that petitioners' son is not eligible for an award of compensatory education under those criteria. Although I have found that respondent failed to offer an appropriate program to the student for the 1999-2000 school year, petitioners will be given adequate relief in the form of tuition reimbursement.
THE APPEAL IS SUSTAINED IN PART.
IT IS ORDERED that the hearing officer's decision is hereby annulled, to the extent that he denied petitioners' request for tuition reimbursement for the 1999-2000 school year; and
IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of their son's tuition at Pioneer during the 1999-2000 school year, upon petitioners' submission of proof of payment of such tuition.