01-077

         Petitioners appeal from an impartial hearing officer’s decision finding that the Board of Education had offered to provide an appropriate educational program to petitioners’ daughter, and denying their request for reimbursement of their daughter’s tuition at the Kildonan School (Kildonan) for the 1999-2000 school year. The appeal must be dismissed.

        When the impartial hearing began in January 2000, the child was nine years old and repeating second grade in a mixed second and third grade class at Kildonan, a private school in Amenia, New York for children with dyslexia (Transcript pp. 1208, 1276). Kildonan is not approved by the New York State Education Department to provide special education. The child was classified as speech impaired in kindergarten and that classification was maintained through the 1999-2000 school year. At the hearing in this matter, petitioners contended for the first time that their daughter should have been classified as learning disabled.

        The child’s mother first noticed her daughter had speech delays when the child was two and a half years old. She referred her to the Committee on Preschool Special Education (CPSE) in April 1994, when the child was four, after audiological testing revealed a hearing deficiency in the child’s right ear (Exhibits SD-44, 20; Transcript p.1346). In May 1994, an audiological evaluation revealed that the child had a mild to moderate conductive hearing loss in the right ear, atypically small ear canals, and a tendency to accumulate wax (Exhibit SD-22). The audiologist recommended removal of the wax and a further examination to rule out middle ear pathology. During the 1994-95 school year, the child attended a preschool program at St. Francis Hospital where she was provided with speech services (Exhibit SD-53).

        In June 1995, the CPSE referred the child to the Committee on Special Education (CSE) (Exhibit SD-16). The school psychologist found the child had normal receptive language skills, but deficits in articulation and expressive language, and some indication of processing deficits. Standardized tests confirmed weaknesses in auditory comprehension and expressive communication (Exhibits SD-53; P-24). The school psychologist recommended a year of developmental kindergarten and speech/language therapy for the 1995-96 school year before entering regular kindergarten (Exhibit SD-16). On the Woodcock-Johnson Tests of Achievement-Revised (WJ-R), administered to her at the end of developmental kindergarten, the child scored in the average range in calculation, writing samples, and broad written language, but below average in broad reading and letter-word identification (Exhibit P-37).

        In June 1996, the CSE recommended that the child be classified as speech impaired and attend a regular education kindergarten during the 1996-97 school year, with 30 minutes of individual and 30 minutes of group speech/language therapy three times a week (Exhibit P-24). A speech/language evaluation done midway through kindergarten indicated that deficits in the child’s word finding skills and poor organizational skills were affecting her academics. The evaluator recommended continued speech services, and consideration of additional support services. In April 1997, the child scored in the below average range on most subtests of the WJ-R (Exhibit SD- 25).

        At its annual review of the child in June 1997, the CSE recommended that she remain classified as speech impaired, and determined that the child required a small, structured class and intensive support for first grade during the 1997-98 school year. It proposed that she be placed in an ungraded 12:1+1 special education class in the Mill Road Elementary School, with individual speech/language therapy three times a week for 30 minutes and group speech/language therapy two times a week for 30 minutes. It also recommended a 12-month program, so that the child could receive speech/language therapy during the months of July and August (Exhibit P-26).

        A few days after the CSE meeting, the child was evaluated by a neurologist, at district expense. The neurologist described the child as well-behaved, but having difficulty following directions, completing simple tasks, and with numbers, letters and writing. He opined that she seemed to have a developmental language problem that had resulted in developmental dyslexia. He recommended placement in a special class, full scale psychological testing, and an EEG (Exhibit SD-20).

        An audiological examination that summer revealed that the child had a mild conductive hearing loss in the right ear and a small amount of wax in the ear canal. Her ability to discriminate words in the presence of background noise was normal in the left ear, but poor in the right. There was also evidence of weakness in her auditory processing skills. The audiologist recommended a pediatric followup, and the use of preferential seating in class, cues to attend to lessons, and an FM listening device (Exhibit SD-19). An otolaryngologist who examined the child in August 1997 reported that her hearing was normal (Exhibit P-21). In July 1997, respondent’s school psychologist evaluated the child and reported that she had a specific learning disability and needed speech/language services (Exhibit SD-15).

        On January 20, 1998, the child’s speech therapist informed respondent’s director of special services that a classroom amplification system in the child’s classroom was not meeting her needs and that an individual auditory trainer was necessary (Exhibit SD-47). On April 21, 1998, the child’s parents withdrew a request for an impartial hearing regarding respondent’s alleged failure to provide the auditory trainer, when respondent agreed to provide 150 hours of tutoring by a special education teacher (Exhibits SD-5&6).

        At its triennial review of the child in April 1998, the CSE recommended that the child remain classified as speech impaired and proposed that she be placed in the ungraded 12:1+1 class at the Mill Road School for second grade during the 1998-99 school year. It further recommended that she be mainstreamed for math, lunch, recess, and gym, and that she continue with group speech therapy for 30 minutes three times per week, and individual therapy once a week (Exhibit SD-34). The CSE also recommended that she be provided both individual and group counseling once a week for 30 minutes. She was to have the use of an auditory trainer (Exhibits SD-12, P-3). A school nurse checked the child’s hearing on a weekly basis during the 1998-99 school year. She noted that the child had intermittent wax buildup that totally occluded the right ear at times and occasionally occluded the left ear (Exhibit SD-28).

        Petitioners’ daughter was independently evaluated by a psychologist at the North Shore University Hospital in February and March 1999. On the Wechsler Intelligence Scale for Children – III (WISC-III), the child achieved a verbal IQ score of 98 and a performance IQ score of 85 (Exhibit SD-14). On the WJ-R, she achieved grade equivalent scores of 4.1 for word attack, 1.6 for letter-word identification, and 1.6 for passage comprehension. Testing identified deficits in language organization, memory and word retrieval, as well as deficits in expressive language and spelling. Petitioners’ answers to a Behavior Assessment System of Children (BASC) questionnaire indicated the child had problems in conduct, aggression, depression, and attention. The evaluating psychologist opined that the child had a developmental language disorder with difficulty at the receptive and expressive levels, and a significant learning disability, most evident in her reading comprehension deficit. She recommended daily one-to-one reading instruction using a multisensory approach such as Orton-Gillingham (O-G), a daily language tutorial by a language therapist, a social skills group, remedial math, keyboarding, a psychological evaluation and an FM trainer.

        When respondent administered the WJ-R to the child one month later, she scored below grade level in all subtests but social studies. She achieved grade equivalent scores of 1.8 for broad reading, 2.2 for broad math, and 1.5 for broad written language (Exhibits SD-23, P-38). The child was found to have normal hearing in three separate hearing examinations in the spring of 1999 (Exhibits P-21, D-17, D-18). A teacher’s assistant noted that petitioners’ daughter was easily distracted in class, even when she wore her auditory trainer (Exhibit P-30).

        The mother met with the child’s second grade teacher in March 1999 for a preplanning meeting to review goals and objectives from the current year and to discuss whether the child would best be served by repeating second grade or proceeding to third grade (Exhibit P-34; Transcript pp. 192-94). The CSE’s annual review of the child was originally scheduled to take place on April 21, 1999, but was rescheduled at the parents’ request for June 3, 1999 (Exhibit SD-9). On June 3, 1999, the CSE recommended that petitioners’ daughter should be placed in a 12:1+1 ungraded inclusion class at the Mill Road Elementary School for third grade during the 1999-2000 school year (Exhibit SD-56). She continued to be classified as speech impaired (Exhibits SD-8, 10 & 11).

        The child’s individualized education program (IEP) provided that she would be mainstreamed for social studies, science and special subjects. The child would receive the related services of individual speech/language therapy once a week and group therapy twice a week, and counseling once a week for 30 minutes. In keeping with the independent evaluator’s recommendation, the CSE decided that a reading specialist with O-G training would work with the child for 30 minutes five times per week (Transcript pp. 171-72, Exhibit SD-10). The CSE chairman testified that the parents had several questions and concerns at the meeting, and the group discussed extensively what would be best for the child. He indicated that he would have tabled the meeting if a significant objection had been raised (Transcript pp. 2207-09, 2226-67). The chairman also testified that since there was no discussion of the child’s classification, he assumed there was no disagreement (Transcript p. 2209).

        On June 10, 1999, a central auditory processing evaluation (CAPE) of the child revealed that she had significant difficulty with auditory memory and attending to a message in the presence of a competing message. The CAPE evaluator recommended a psychological evaluation to rule out the possibility of an attention deficit disorder (ADD) or an attention deficit hyperactivity disorder (ADHD). The evaluator also suggested that an FM auditory trainer be used, and recommended that certain techniques be used with the child in the classroom (Exhibit SD-17).

        On June 22, 1999, petitioners rejected the 1999-2000 IEP and requested that respondent provide them with a list of private schools (Exhibit SD-3). On August 16, 1999, the parents formally requested an impartial hearing, informing respondent of their intention to enroll the child in Kildonan for 1999-2000, and to seek tuition reimbursement and transportation (Exhibit SD-4). Attached to their request was a July 20, 1999 letter from the independent evaluator, who opined that the 1999-2000 IEP did not meet the child’s academic or social/emotional needs. Petitioners enrolled their child in Kildonan for the 1999-2000 school year.

        The independent evaluator re-evaluated the child at her parents’ request on March 8, 2000. The evaluator noted that the parents’ responses on an updated BASC indicated the student was happier and well adjusted, which the evaluator attributed to the change in school environment. The child received an above average score for word attack on the WJ-R, and scores in the average range average in basic reading skills and calculation. Her other scores were below average (Exhibits P-8; 43). The evaluator reported that petitioners’ child still had difficulty with receptive language and word finding, that auditory learning was a difficult task for her, and that she still had a developmental language disorder with a "concomitant developmental dyslexia." However, based on selected test results, the independent evaluator concluded the child had made more progress in six months at Kildonan than in several years in respondent’s schools, and recommended her continued placement at Kildonan.

        The child was privately evaluated by an educator on May 24 and June 26, 2000. The educator’s report, which was not prepared until four months after she had testified at the hearing in this proceeding, did not include standardized test scores (Transcript pp. 1690, 2137; Exhibit P-46). The educator opined that the child’s scores on subtests of decoding skills, which exceeded her subtest scores for comprehension of words and passages, indicated a form of dyslexia called "hyperlexia," in which phonological reading was in advance of semantic reading. She reported that the student’s listening comprehension was poor, and that if instruction was delivered orally, she "would be confused and in great stress." She concluded that the child’s academic performance and social and emotional state had improved at Kildonan, and recommended the student continue to attend Kildonan for at least three years because her needs were so great and progress would be slow.

        On November 1, 2000, an audiologist from Kean University in New Jersey examined the child. He reported normal hearing acuity, but noted that an accumulation of wax had resulted in temporary obstruction of the child’s hearing. An auditory processing test indicated that the child had difficulty following speech signals in the presence of auditory competition, weakness in short-term memory and sequencing skills, difficulty segmenting and decoding running discourse, and significant left ear weakness. The audiologist opined that those deficits interfered with the student’s ability to comprehend long phrases and sentences or extended stories. He recommended a small, non-competitive environment, with a multisensory, phonologically based program with an emphasis on auditory decoding and comprehension skills. He believed that Kildonan was an appropriate placement (Exhibit SD-61).

        The hearing, which continued for almost a year and a half, took place on 15 days between January 18, 2000 and April 17, 2001 and yielded 2265 pages of transcript. The hearing officer rendered his opinion on August 9, 2001. Citing the results of various evaluations, he concluded that the child was properly classified as speech impaired under the Individuals with Disabilities Education Act (IDEA) and Part 200 of the Regulations of the Commissioner of Education. He reasoned that there was substantial evidence of a language impairment that adversely affected the child’s receptive and expressive language skills.

        The hearing officer determined that the student’s proposed IEP for the 1999-2000 school year was reasonably calculated to enable her to receive educational benefits, and that respondent had complied with the procedural requirements of IDEA in developing the IEP. In doing so, he found that the IEP adequately described the student’s special education needs and her present levels of performance, included appropriate annual goals for her, and provided appropriate special education services to address her needs. The hearing officer further found that petitioners’ daughter would have been suitably grouped for instructional purposes (see 8 NYCRR 200.6[a][3]) with the other students in respondent’s Independent Learning Center (ILC) program, because the needs of those students were substantially similar to those of petitioners’ daughter. He also found that the proposed placement would have been consistent with the requirement that a student with a disability be educated in the least restrictive environment. Having determined that the Board of Education had met its burden of proving that it had offered to provide an appropriate educational program to the student for the 1999-2000 school year, he denied petitioners’ request for an award of tuition reimbursement.

        The Regulations of the Commissioner of Education governing appeals to the State Review Officer provide that the petition for review shall identify the part(s) of the hearing officer’s decision the petitioners challenge (8 NYCRR 279.4[a]). Petitioners ask that the hearing officer’s decision be annulled in its entirety. In doing so, they are apparently challenging the appropriateness of their daughter’s classification as speech impaired, although their petition fails to specifically raise the issue. I will first address the issue of the student’s classification.

        A board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 92-37; Application of a Child with a Handicapping Condition, Appeal No. 91-11).

        At the time in question, the Regulations of the Commissioner of Education defined a speech impaired student as:

A student with a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, which adversely affects a student’s educational performance

(8 NYCRR 200.1[mm][11]).

        At the hearing, petitioners asserted that their daughter has dyslexia, which literally means a disturbance of the ability to read. The term dyslexia is included in the Commissioner’s definition of a learning disabled student (8 NYCRR 200.1[mm][6]). There is no dispute that petitioners’ daughter has difficulty reading. However, the record is also clear that the child’s disability is language based and pervasive, involving more than just difficulty reading. The individuals who evaluated the child, including the private evaluators, found that she has a language based disorder. The classifications of learning disabled and speech impaired are not mutually exclusive. Petitioners claim that their daughter should have been classified as learning disabled so that she could receive O-G instruction (Transcript pp. 1431, 2091). However, it is not necessary that she be classified as learning disabled in order to receive such instruction. I find there is sufficient evidence in the record to support the student’s classification of speech impaired during the 1999-2000 school year.

        Petitioners also challenge the hearing officer’s finding that respondent had offered to provide an appropriate educational program to their daughter. 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 [1983]). 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 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). 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 contend that their daughter’s IEP is procedurally defective because the annual goals and short-term objectives for reading were added to the IEP after the CSE meeting on June 3, 1999, and were not discussed at the meeting. As noted above, the student’s mother met with her daughter’s second grade teacher in March 1999 to discuss the student’s progress towards achieving her IEP goals and objectives (Transcript p. 886). At the hearing, respondent’s director of special education explained that reading goals were initially drafted by the second grade teacher, but a second set of goals and objectives were prepared by respondent’s reading specialist after it was decided at the CSE meeting that the reading specialist would instruct the student in reading during the 1999-2000 school year. The director acknowledged that the second set of goals and objectives were "most likely" written by the reading specialist after the CSE meeting (Transcript p. 1135).

        A CSE is required to afford a child’s parents a meaningful opportunity to participate in the development of the child’s IEP (Application of a Child with a Disability, Appeal No. 96-31). It may not satisfy its obligation by merely listening to the parents’ concerns, and then unilaterally preparing the child’s IEP (Application of a Child with a Disability, Appeal No. 93-42). In this case, the child’s reading goals were initially discussed with her second grade teacher in March 1999. Those goals were subsequently modified to reflect the fact that, in June, the CSE agreed to provide a more intensive level of services involving O-G instruction to the child in the third grade. Some of the modifications to the goals involved incorporating O-G methodology. Petitioners had sought O-G instruction for their child. Under the circumstances, I agree with the hearing officer that the parents were given a meaningful opportunity to participate in the development of their child’s IEP (Application of a Child with a Disability, Appeal No. 99-55).

        Having reviewed the entire record, I find that the IEP accurately reflects the results of the child’s evaluations. It presents the results of three years of testing, including cognitive, achievement, and language tests. The IEP also describes her present levels of performance in the four prescribed areas (8 NYCRR 200.4[c][2][i]). In addition, the IEP indicates that she has an auditory processing disorder, is easily distracted, has some difficulty understanding concepts, requires additional time to complete tasks, and would benefit from multisensory instruction.

        Petitioners assert that the 1999-2000 IEP includes many goals and objectives from their daughter’s prior IEPs. They contend that this is evidence of the inappropriateness of the 1999-2000 IEP. I must disagree with them. While several of the goals and objectives from the prior IEP were repeated in the child’s IEP for the 1999-2000 school year, the latter IEP also contained new goals and objectives for spelling, speech/language, reading, writing, phonic analysis, and keyboarding. I note that keyboarding was suggested by the independent psychologist. The CSE chairperson testified that the child’s goals for the 1998-99 school year were reviewed and, where appropriate, were continued for the 1999-2000 school year. The mere fact that a goal or objective from a prior IEP is carried over to a subsequent IEP is not evidence per se of the IEP’s inappropriateness.

        I agree with the hearing officer that respondent’s proposed educational program was appropriate for the child and provided her with an educational benefit. Although the parents claim that their daughter made little or no progress in respondent’s schools, test results show that she made slow, if inconsistent, progress in academic skills. Her scores on the WJ-R seemed to decrease from developmental kindergarten to kindergarten, then increased in first grade, but decreased again in second grade (Exhibits SD- 24, 25, 35, P-37, 38). When the CSE recognized the child had not done as well in second grade, it responded by recommending a more intensive level of services for 1999-2000, including the daily reading tutorial with a teacher trained in O-G. In addition, respondent’s CSE proposed an inclusion class where the special education teacher would accompany the students to their mainstream classes and consult closely with the regular education teachers regarding the content of their respective courses (Transcript pp. 594-95). The CSE also proposed that the child continue to receive speech/language therapy to address her language and communication deficits.

        The parents contend that their daughter needs to be taught by a fully trained O-G teacher in every subject. I note that respondent’s staff who would have been working with the child were trained in O-G. The child’s proposed reading instructor had O-G training, and was recommended by Kildonan’s founder to be a member of the O-G Academy (Transcript pp. 901, 904, 908; Exhibit SD-59). The special education teacher had such training, and had ongoing access to Kildonan’s founder, who was working as a consultant for the district (Transcript pp. 584-85, 787; Exhibits P-4 & P-5). Respondent’s speech/language therapist testified that she had 45 hours of O-G training and used O-G every day in her therapy (Transcript pp. 271, 366).

        Respondent’s proposed program would have provided the child with almost full-day support by qualified teachers trained to use the O-G technique and thereby assist her in all language related tasks. There is no evidence that this child requires special education assistance for subjects like art, music and physical education. Respondent’s CSE proposed that the child also be mainstreamed for science and social studies, with the support of a trained special education teacher to help her with language related tasks like reading and writing in those classes. The CSE was required to propose a program that would adequately address the child’s needs in the least restrictive environment. I find that the CSE offered a cohesive program that was calculated to meet the child’s needs in the least restrictive environment.

        Petitioners expressed concern that the students in the proposed ILC class had a large range of IQs and different types of handicaps, and claimed that their daughter had no friends in the group (Transcript p. 1430). The mother appeared to prefer the Kildonan placement because the children were "smart" and were all reportedly dyslexic (Transcript p. 1598). However, students may be grouped together for instruction whether they have the same or different disabilities, as long as they have similar individual needs (8 NYCRR § 200.6[a][3][I] & 200.6 [g][3]). The classroom teacher testified that the students in her class had needs which were substantially similar to those of petitioners’ daughter, and that the needs of petitioners’ daughter could have been addressed in the ILC class (Transcript pp. 577, 584; Exhibit SD-57). I find her testimony to be credible and persuasive, as did the hearing officer.

        Since I have found that respondent had offered to provide an appropriate educational program to petitioners’ daughter, I need not reach the issue of the appropriateness of Kildonan’s program.

THE APPEAL IS DISMISSED.