Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York
The New York Legal Assistance Group, attorney for petitioner, David Lindsay, Esq., of counsel
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Celena R. Mayo, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which upheld, as appropriate, the recommendation by respondent’s Committee on Special Education (CSE) that petitioner’s 13-year-old autistic child continue to be educated in one of respondent’s specialized instructional environment-III (SIE-III) classes during the 2000-01 school year. In doing so, the hearing officer also denied petitioner’s request for a "Nickerson" letter allowing petitioner to place her child in the Birch School, at respondent’s expense for the remainder of that school year. The appeal must be sustained in part.
At the outset, I will address the procedural issues raised in this appeal. Respondent contends that the appeal should be dismissed as untimely because the petition was not served within the time limitations set forth in the Regulations of the Commissioner of Education. State regulation requires that a notice of intention to seek review of an impartial hearing officer’s decision be served within 30 days after receipt of the decision and that the petition for review be served within 40 days of receipt of the decision (8 NYCRR 279.2[b]). Petitioner’s attorney alleges that he received the hearing officer’s decision on November 6, 2000. Petitioner’s notice of intention to seek review was timely served on December 1, 2000, but the petition for review was not served until December 27, 2000, 51 days after the attorney received the hearing officer’s decision.
The attorney asserts that the delay was occasioned by the fact that he was waiting for petitioner’s execution of an affidavit setting forth "procedural-issue evidence." However, I find that petitioner possessed such information on or before December 1, 2000 when, at the latest, she received the child’s revised individualized education program (IEP) (Exhibit A, attached to petition). Although the appeal is untimely, I will excuse the delay and accept the petition inasmuch as there is no evidence before me that respondent has been prejudiced by petitioner’s delay (Application of a Child with a Disability, Appeal No.97-36).
However, I will not accept petitioner’s reply to respondent’s answer. Section 279.6 of the Regulations of the Commissioner of Education provides that no reply is permitted, except in response to procedural defenses interposed by respondent or to additional documentary evidence served with the answer. Such reply must be served and filed within three days after service of the answer. Respondent’s answer, unaccompanied by additional documentary evidence, was served on January 26, 2001. Without seeking prior permission from my office for an extension of time, as she could have done, petitioner served her reply on February 9, 2001, or 14 days later, and has not proffered any reason for the delay. Even if the reply were timely, I note that it is peppered with substantive allegations, both new and in response to assertions made by respondent, which I will not consider because they are beyond the scope of a reply. Moreover, to the extent that the pleading contains arguments in response to the procedural objections raised by the answer, I note that those points were already made in the cover letter that accompanied the petition, and are merely cumulative.
Finally, petitioner has annexed to her petition several additional documents for the alleged purpose of completing the record and establishing her long-standing disagreement with respondent’s educational placement of her child. These documents include a copy of her son’s IEP, revised on November 16, 2000, following the completion of the impartial hearing; a copy of the IEP dated November 14, 1997; an affidavit, sworn to on December 26, 2000, in which petitioner reiterates her testimony at the impartial hearing regarding the inappropriateness of the recommended placements for the 2000-01 and prior school years, and alleges procedural irregularities in the IEPs dated November 14, 1997, June 2, 1999, November 18, 1999 and November 16, 2000; a letter dated August 14, 2000 requesting an impartial hearing; and a four-page transcript of the impartial hearing appearance on September 13, 2000, during which the initial hearing officer recused herself. Respondent argues that the information petitioner attempts to convey should not be considered because it was available at the time of the hearing and addresses issues that were not the subject of the hearing.
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 Disability, Appeal No. 99-3). I will accept the revised IEP because it was prepared pursuant to the order of the impartial hearing officer and thus was not available at the time of the hearing. I will also accept the September 13, 2000 hearing transcript, which constitutes a part of the record of the subject hearing, as well as petitioner’s August 14, 2000 letter, which was marked as an exhibit during that appearance. Petitioner’s affidavit will also be accepted, but only insofar as it discusses alleged deficiencies in the November 2000 IEP. However, I will not accept the copy of the IEP dated November 14, 1997, nor consider any of the allegations pertaining to it. The hearing concluded on September 22, 2000. The hearing officer specifically extended the record to September 29, 2000 to allow petitioner to submit copies of the IEP for the 1997-98 and 1998-99 school years for the limited purpose of supporting her claim that the IEPs for the past three years were similar. Petitioner’s attorney was instructed further to contact the impartial hearing office in the event that he was unable to locate those documents to enable the hearing officer to subpoena the documents if necessary. On September 29, 2000, petitioner submitted the June 2, 1999 IEP, but did not seek to submit the November 1997 IEP until three months after the record of the hearing had closed.
Petitioner’s son is 14 years old and attends a specialized instructional environment-III (SIE-III) program at J.H.S. 168 in P.S. 255, with related services of speech/language therapy and counseling. When he was five years old in 1992, a psychiatric evaluation indicated that the student had a pervasive developmental disorder (PDD) with manifestations of, among other things, poor eye contact, atypical interests and preoccupations and an aversion to being touched (Exhibit 6). He was initially evaluated by respondent’s CSE in 1997. The CSE recommended that he be classified as autistic, and placed in the SIE-III program with speech/language therapy and counseling services.
At its annual review on June 2, 1999, the CSE noted that the student was reading and decoding on a first grade level, spelling on a second grade level, writing on a kindergarten level, and doing mathematics on a third to fifth grade level (Exhibit A). The CSE reconvened on November 16, 1999 to develop the student’s IEP for the 1999-2000 school year. The record does not reveal the reason for this delay in developing the IEP. The CSE noted that the student had improved academically over the past six months and was now reading and decoding on a second grade level, writing on a first grade level and doing mathematics on a third to fourth grade level. However, his vocabulary and comprehension skills still needed to be improved.
The CSE recommended that the student remain classified as autistic, and that he be placed in an SIE-III class with a 6:1+1 child to adult ratio, on a 12-month basis. The student’s IEP included annual goals and short-term objectives designed to address and help improve his reading and comprehension, as well as speech and language skills. With respect to reading and comprehension, the IEP specifically provided that petitioner’s son would read at least six pages and answer five questions on three consecutive occasions, read at least thirty words or phrases relating to the community on three consecutive occasions, read and follow directions in order to make three cut and paste projects three out of five times, and read two pages of a library book and answer five questions related to the information on three consecutive occasions (Exhibit 9).
On or about July 19, 2000, petitioner informed the CSE that her son was capable of performing "above his limitation", and requested that the CSE review his educational program, and consider placing him in a private school (Exhibit 12). In response, the CSE conducted a social history update, and an educational, psychological and psychiatric evaluation.
In a letter dated July 24, 2000, Ellen Glass, the student’s teacher at P.S. 255, reported that petitioner’s son was bright and social, and read on a first to second grade level, but experienced difficulty pronouncing certain sounds and words in plural forms when he read. He also had difficulty with comprehension and with structured word problems. He could identify money in varying sums. The teacher opined that petitioner’s son was greatly benefiting from the small structured classroom environment in which he was being educated (Exhibit 2).
A speech/language evaluation was conducted on July 25, 2000, during which the speech/language pathologist administered the Expressive and Receptive One Word Picture Vocabulary Test to assess the student’s cognitive and basic vocabulary expression skills. The evaluator noted that the student could name common objects in his environment, but had difficulty understanding and naming categories of items. He also had a limited understanding of spatial and temporal concepts, which he did not use consistently in his conversation. He focused and maintained eye contact during conversation, correctly articulated all speech sounds, and readily engaged in conversation, but was significantly delayed in his receptive and expressive language skills. The student spoke in simple sentences, and asked and answered simple questions. His responses to more complex questions were illogical and at times unrelated to the questions asked (Exhibit 3).
In a psychological evaluation report completed on July 28, 2000, the school psychologist noted that psychopharmacological intervention, which had been administered to control the student’s aggressive behavior, had been discontinued because of the negative side effects. The evaluation indicated that the student’s language skills were impaired and idiosyncratic. While he could supply certain biographical information such as the spelling of his name, his birth date and phone number, his responses appeared rehearsed. The student could answer simple questions, but could not follow the directions to a nonverbal intelligence test, and he was challenged by other formal tests that required knowledge of basic information, categorizations and word definitions.
An administration of the Wechsler Intelligence Scale for Children – III test of cognitive functioning (WISC-III) yielded test results that depicted a wide range of abilities. For instance, the student’s full scale IQ score of 55 was in the mentally deficient range, but his performance IQ score of 70 was borderline, and significantly higher than his verbal IQ score of 46, which was in the deficient range. His verbal comprehension subtest score of 50 was also in the deficient range, while his perceptual organization subtest score of 75 was in the borderline range. The student also exhibited some scatter in the verbal sphere of cognitive functioning, and abstract reasoning was reported to be problematic. In mathematics, he demonstrated knowledge of simple addition and subtraction operations, although nonverbal or performance abilities ranged from average to deficient. His inductive reasoning was described as "nicely developed", and deductive reasoning was reported to be satisfactory until tasks became more complex.
The student’s handwriting skills, as measured by the Bender Visual Motor Gestalt Test, were approximately five years delayed, with errors in integration, distortion and rotation. The psychologist noted that the parents’ determination to improve their child’s ability to cope had provided the student with certain daily living skills. His score of 24.5 on the Childhood Autism Rating Scale (CARS) classified the student as non-autistic, but moderate indices of autism were noted in the areas of listening skills, abnormal fears and intellectual functioning. Emotionally, the student related well to others and to his external environment. The psychologist reported that the student had the capacity to develop relationships, and could predict consequences based on previous events. However, the psychologist concluded that the student was socially delayed, and observed that his verbal deficiencies contributed to his inability to socialize appropriately. The psychologist concluded that petitioner’s son no longer demonstrated the criteria presented in the CARS for identification as autistic. She observed that the student had improved greatly since entering special education in 1997, and that his aggression had diminished while his language and social skills had improved (Exhibit 4).
In an educational evaluation completed on July 25, 2000, the student’s expressive speech was informally assessed. The evaluator noted that, although the student spoke in a clear manner using phrases and simple sentences and knew his birthday, address and telephone number, he did not always understand what was asked and could not always follow verbal instructions. Questions had to be repeated. Other formal tests were administered to assess his cognitive and academic skills. The evaluator reported that the student was functioning below grade level in all academic areas. For example, he achieved a grade equivalent score of 2.1 in written spelling, as measured on the Kaufman Test of Educational Achievement (KTEA), indicating a delay in spelling skills and difficulty in auditory processing and phonics. In reading, he scored on a 2.0 grade level on the KTEA-Decoding Subtest, reflecting weak phonic knowledge and application. He read at a 1.6 grade level on the BASIS Cloze Reading Comprehension Subtest, during which he could not pair sentences to visuals and exhibited difficulty in reading primer passages. The student achieved a grade equivalent of 1.4 on the KTEA–Silent Reading Comprehension Subtest, demonstrating skills below grade expectancy. His decoding skills, as exhibited on the Roswell Chall Diagnostic phonic-word test, were inconsistent, and his written expression, as assessed on the BASIS, was also below grade level. Although able to write his first and last names correctly, the student could not write an intelligible sentence when asked to do so. In mathematics, he performed on a 2.4 grade level in computation skills, as demonstrated on the KTEA, exhibiting competency in basic addition and subtraction. However, he scored on a 1.0 grade level for conceptual skills in mathematics.
The evaluator concluded that the child showed good concentration, but needed physical prompting and repetition to assist him in processing information. She recommended that, in developing an IEP that would help the student succeed, the CSE consider other programs besides the SIE-III (Exhibit 5).
During a psychiatric evaluation conducted on July 31, 2000, the board psychiatrist noted that the student related in an atypical but cooperative manner. Eye contact was intermittent, and speech was reasonably well articulated and comprehensible, but lacked conventional inflections. The psychiatrist noted that the student’s impulse control was adequate and that his judgment was intact. He concluded that the student presented with a qualitative impairment in social interaction, atypical language development, repetitive and perseverant interests, and stereotypic body movements. He opined that the student no longer met the criteria for DSM-IV diagnosis of autistic disorder, and could be more appropriately diagnosed as having a pervasive developmental disorder. However, the psychiatrist noted that such diagnosis was more appropriately defined as autism by the board of education. The psychiatrist opined further that the student’s limited academic progress was commensurate with his cognitive skills, and recommended that more focus be placed on training him vocationally as he approached adolescence (Exhibit 6).
A social history update dated July 25, 2000 was prepared by a social worker based upon an interview with the student’s parents. During the interview, the social worker learned that the student was eager to learn, and was instructed in reading and mathematics by his mother for two hours each day. According to his mother, he was adept at memorizing the names of individuals and writing Chinese characters, loved to cook, paint and write letters, and enjoyed music and art. She reported that her son was generally well behaved, but would flap his hand and make noises when bored. The mother indicated that her son did not like to go to school. The social worker reported that the parents have long been dissatisfied with their son’s placement in the SIE-III program, which they believed did not meet their son’s needs. They thought that he was too high functioning for that program. While acknowledging his academic limitations, they believed that he could decode words on a much higher level. The mother asserted that her son was not learning in school because he was repeatedly taught material he already knew and spent his time assisting the teacher in instructing other students. The parents believed that the child needed to be taught more life skills, and that the Birch School would better meet his needs (Exhibit 7).
The CSE reviewed the results of the student’s evaluations at a meeting on August 2, 2000. It recommended that the student remain classified as autistic, and that he continue in the SIE-III program, with 30 minutes of individual counseling per week, 30 minutes of individual speech/language therapy three times per week, and 30 minutes of speech/language therapy in a group of two twice per week (Exhibit 10). The IEP developed at the meeting summarized the results of the re-evaluations, reports, and standardized tests described above. It noted that the student, who was significantly delayed in receptive and expressive language, needed to develop his phonics skills to improve his decoding and spelling. It also noted that his ability to read a passage or statement and then to recall data and make inferences also needed to be developed further. The CSE concluded that the student required a small highly structured class to address academic, social and emotional issues. On the student’s IEP, the CSE included very general annual goals to improve receptive and language skills, mathematics skills, and spelling and decoding skills. However, it failed to include any goal to improve his reading comprehension. Although the IEP reportedly included an attached behavior intervention plan, I note that there is no such plan with the document provided to me (Exhibit 10).
By letter dated August 14, 2000, petitioner notified the CSE that she was dissatisfied with the CSE’s program recommendation because the recommended program had not met her son’s needs, and she did not want him to continue in that program. She added that she had applied to private schools at which his needs would be better addressed.
The ensuing impartial hearing in this matter commenced on September 13, 2000. The hearing officer, who also has an autistic child, recused herself with the parties’ consent. A new hearing officer was appointed and the hearing resumed and concluded on September 22, 2000. The new hearing officer rendered her decision on October 31, 2000. Although the student’s classification had not been challenged by the parents, the hearing officer ruled that the CSE had appropriately classified him as autistic. She ruled further that the August 2, 2000 IEP accurately identified the child’s special education needs, but that it was deficient in not including any annual goal for improving his reading skills. The hearing officer also found that the SIE-III program provided the student with appropriate opportunities to achieve his IEP goals, and to interact socially with other students. She directed the CSE to reconvene and develop appropriate annual goals and short-term objectives addressing the student’s reading deficits.
Petitioner contends that the hearing officer erred in finding that the August 2, 2000 IEP and the recommended SIE-III placement were appropriate. She asks that I reverse the hearing officer’s decision, and direct respondent to issue a "Nickerson" letter (see Jose P. et al. v. Ambach et al., 79-C-270 U.S. D.C. E.D. N.Y., 1982) authorizing her to place her son in an approved private school for children with disabilities for the remainder of the school year. I note initially that since the school year in question is now over, petitioner’s prayer for relief cannot be granted. However, the basic dispute between the parties about the continuing appropriateness of respondent’s SIE-III program for this student continues to exist, and I will consider petitioner’s challenge to the CSE’s recommendation for the 2000-01 school year. I will not, however, consider petitioner’s claims with respect to her son’s IEPs for the prior school years because those claims are both moot and untimely (Application of a Child with a Disability, Appeal No. 99-86; Application of a Child with a Disability, Appeal No. 93-27).
In an affidavit attached to the petition, petitioner asserts that she was not given notice of the August 2, 2000 CSE meeting, and was only contacted after the meeting to discuss her son’s IEP for the 2000-01 school year. Respondent objects to my consideration of petitioner’s assertion because it was not raised at the hearing. I am troubled by petitioner’s assertion because parental participation in the preparation of a student’s IEP is an important part of the process of ensuring that each child with a disability receives a free appropriate public education. However, I must agree with respondent that the issue should have been raised at the hearing in order for me to consider it in this appeal (Application of Child with a Disability, Appeal No. 01-010).
The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 98-32; Application of a Child with a Disability, Appeal No. 93-9; Matter of Handicapped Child, 22 Ed Dept Rep 487 ). 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 Educ. 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, however, 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. 93-12; Application of a Child with a Disability, Appeal No. 93-9).
In this instance, the hearing officer found that the student’s IEP should have included at least one annual goal to address his reading deficits. I must note that the IEP did include a goal relating to decoding, which is part of reading. However, there is no dispute that the IEP did not include any goal for improving the student’s reading comprehension, notwithstanding the fact that the IEP indicated that the student’s ability to read a passage or statement and then recall data and make inferences needed to be developed further. At the hearing, one member of the CSE suggested that reading comprehension goals could have been omitted because "decoding precedes comprehension". She agreed, however, that comprehension goals should have been addressed (Transcript, p. 68).
Petitioner argues that the hearing officer erred as a matter of law by upholding the appropriateness of the SIE-III program while simultaneously finding that the IEP needed to be amended to include a goal relating to the student’s reading comprehension. I disagree with petitioner, and find that the defect could have been promptly corrected by the CSE, as the hearing officer directed. Petitioner has annexed to her petition a copy of the IEP for her son that was prepared by the CSE on November 16, 2000. The amended IEP includes a goal that the student "will increase his reading, comprehension and math skills". That goal is too vague to be of use to school staff in understanding the CSE’s expectations (Application of a Child with a Disability, Appeal No. 94-8), or to enable the student’s parents to ascertain whether the child has made meaningful progress while in the recommended program. Only one of the three supporting short-term objectives relates to reading, and that objective appears to be a benchmark rather than an objective, but it is unclear when it was expected to be achieved.
I have reviewed the testimony of the student’s teacher during the 2000-01 school year. She testified that the student was suitably grouped for instructional purposes with children of similar needs and ability (Transcript pp. 39-46). She also briefly described the activities that occur in her classroom. However, she was not asked how the student’s IEP goals would be addressed in her classroom, nor did any of respondent’s other witnesses address that issue. I am aware that the student’s SIE-III teacher for the 1999-2000 school year testified that the student had thrived in her class, but I find that such testimony lacks the specificity required in order for the Board of Education to meet its burden of proof about the appropriateness of the program recommended by its CSE.
In view of the passage of time since the commencement of this proceeding, I find that the appropriate remedy is to direct the CSE to re-evaluate the student, and then recommend a program which is appropriate for his needs.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer’s decision is hereby annulled; and
IT IS FURTHER ORDERED that within 45 calendar days after the date of this decision, the CSE shall re-evaluate petitioner’s son and recommend an appropriate program for him.