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 City School District of the City of New York
Michelle Kule-Korgood, Esq., attorney for petitioners
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Emily Sweet, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer remanding the matter to respondent's Committee on Special Education (CSE) to develop an individualized education program (IEP) for petitioners' child. Respondent cross-appeals from the hearing officer's determination that it did not meet its burden of demonstrating the appropriateness of the program its CSE recommended for the child. The appeal must be dismissed. The cross-appeal must be dismissed.
The child turned ten years old while the impartial hearing was pending. She is classified as multiply disabled and her classification is not in dispute. She has been diagnosed as having Cornelia de Lange syndrome, a complex congenital condition that is associated with severe global developmental delay (Exhibit AAA) as well as medical and health consequences (Exhibit S). The child has a sensorineural hearing loss (Exhibits 5, H), is nonverbal and does not respond to her name or make eye contact (Exhibit PP). She is not toilet trained and is dependent upon adult assistance for all self care (Exhibits AA, BB). She is small for her age, measuring approximately three feet tall and weighing approximately 24 pounds (Transcript p. 483). She has a deformity of her left hand and walks with assistance (Exhibits 7, 8, S, NN; Transcript p. 537). The child also has gastrointestinal abnormalities and requires a feeding tube (Exhibit 8). She engages in self-injurious behavior, described as scratching or poking her chin (Exhibit 7). A private nurse who accompanies the child to school, assists to the child's needs and monitors her throughout the school day (Transcript pp. 257-58, 490).
The child began receiving feeding, speech-language, occupational and physical therapy services in the hospital before she was initially discharged at approximately eleven months of age (Exhibit EEE). Thereafter, she received early intervention services through August 1996 (Exhibit EEE). She then received home-based services from multiple providers until she turned five years old (Transcript p. 541).
In the spring of 1998, the child was referred to Community School District (CSD) 2 in Manhattan by her mother and various evaluations were conducted (Exhibits CCC, DDD). However, the child's case was closed, and she did not receive any services for the following two years (IHO Dec. p. 5; Exhibit C; Transcript p. 543).
In February 2000, the CSE at CSD 2 met and decided to explore the option of a nonpublic placement for the child (Exhibit C; Transcript p. 543). It reportedly agreed to provide the child services at her home until a placement was obtained. Home instruction with speech, occupational and physical therapy services were provided to the child at her home through an interim service plan (ISP) dated May 2000 (Exhibit TT).
The CSE was unable to locate a nonpublic placement and met again in June 2000 to recommend that the child's placement be changed from a nonpublic school to a specialized instructional environment – I (SIE-I) class with a staffing ratio of 6:1+2 and related services for the 2000-01 school year (Exhibit G). The child's mother observed the recommended placement, but rejected it because it did not offer a communication program, which she believed her daughter required (Transcript p. 548). The child's mother was interested in a program called Engineering the Classroom, an aided language stimulation program for nonverbal, cognitively delayed students, and was advised that the program was being used at PS 811Q, a specialized school in District 75 in Queens (Transcript pp. 258, 547). As a result of an impartial hearing, the child was placed at PS 811Q for the 2000-01 school year (Transcript pp. 63, 549).
The CSE for PS 811Q met in April 2001 and modified the child's IEP to include the use of an FM trainer (Exhibit I). Additionally, language was included on the child's IEP providing for a change in the class staffing ratio to 12:1+4 to be effective in September 2001. Petitioners requested a hearing raising issues concerning the services associated with the FM trainer and the proposed change in the class staffing ratio (Exhibit O). Pursuant to a Statement of Agreement and Order dated May 21, 2001, the CSE agreed to continue the child's placement in a 6:1+2 class for the following school year (Exhibit O). The CSE also agreed to reconvene in September to reevaluate the child's progress with the FM trainer. In a letter dated October 4, 2001, the child's mother advised the hearing officer who presided over the proceeding in May that the CSE had not reconvened (Exhibit K). The CSE met on October 25, 2001 and added hearing education services to the child's IEP (Exhibit L).
The child's annual review was conducted in February 2002. The CSE recommended that the child remain in the 6:1+2 SIE-I class through August, then change to a special class with a staffing ratio of 12:1+4 (Exhibits 1, Q). On March 19, 2002, petitioners requested a hearing challenging the CSE's recommendation to change the child's class in September 2002 (Exhibit QQ).
The hearing was conducted on May 22, 2002 and the hearing officer rendered his decision on May 31, 2002 (Exhibit T). In his decision, the hearing officer noted that the parties were in agreement that: (1) the parents objected to the change in staffing ratio; (2) the district representatives maintained that they lacked discretion to offer a class with a ratio other than 12:1+4 due to the age of the student and the development of a new continuum; and (3) the change in the staffing ratio was not identified as a modification on the child's IEP, and that the notice to the parents of the modification of services did not include the change in staffing ratio. He ordered the CSE to reconvene to consider the parents' request that the 6:1+2 ratio be maintained and to assess whether the child's individual needs required a staffing ratio of 6:1+2. He also determined that the child's pendency placement was a class with a staffing ratio of 6:1+2 as mandated by the last agreed upon IEP dated October 2001. Finally, at the request of the parties, the hearing officer agreed to retain jurisdiction through the determination of a placement for the 2002-03 school year.
On June 6, 2002, a classroom observation was conducted by an educational evaluator who observed the child during circle time (Exhibit 8). The educational evaluator reported that the child's private nurse sat by the child. During the observed activity, the child focused, looked away, then refocused when directed to do so. In another activity, the child required one-to-one assistance to press a communication device to indicate her presence. The child then began to cry, indicated that she wanted to be removed from her carriage and her nurse walked her around the room for a short time.
The child's teacher advised the educational evaluator that the child had made good progress over the last two years and that she had shown improvement during circle time by maintaining focus for longer periods. The teacher noted that the child communicated her dissatisfaction by making noises and crying, and that she "shuts down" when she did not want to perform an activity. She indicated that a quiet, well-structured classroom suited the child. She further indicated that she had not noticed a change in the child's behavior when an activity was more stimulating, such as a show in the auditorium. The teacher did not anticipate a difficulty with the child moving to a 12:1+4 program. The child's nurse advised the educational evaluator that the child sometimes cried when in the cafeteria or auditorium.
In a teacher report dated June 2002, the child's teacher reported that the child used a communication device and was physically prompted to press the device during group lessons (Exhibit 7). She further reported that the child did not respond to her name, nor did she demonstrate an understanding of "no." The teacher indicated that the child was beginning to predict familiar routines and to select a photo of a desired object paired with an object that was not desired. The teacher also indicated that the child was dependent on the adults in the classroom the entire school day. She could ambulate with one hand held for support. She also was being encouraged to use her left hand to assist her when picking up objects. The teacher noted that the child engaged in some self-stimulatory behaviors including hand shaking, spinning on a mat, and banging a toy on a mat or lap tray. Additionally, she poked at her chin, which must be covered with a band aid. The teacher indicated that the current program and services were appropriate.
The CSE met in June 2002 and recommended that the child continue with her current program until September 2002, when she would articulate to a 12:1+4 special class with related services (Exhibit 2). The impartial hearing resumed on September 4, 2002 at the parents' request to address issues relating to the child's pendency placement for the 2002-03 school year and to address the CSE's compliance with the hearing officer's May 2002 order to consider whether a 6:1+2 staffing ratio was necessary to meet the student's needs (Transcript p. 3). In a Statement of Agreement and Order dated September 4, 2002, the hearing officer noted the district's clarification that the change in staffing ratio was occasioned automatically by the application of its articulation practices for students turning nine years old. Additionally, the hearing officer found that the CSE did not follow the requirements of his May 2002 order because it did not include on the child's June 2002 IEP that it had considered, but rejected a 6:1+2 placement. At the district's request, he remanded the matter to the CSE to comply with his May 2002 order to consider a 6:1+2 placement. He also ordered that pendency in a 6:1+2 placement continue. Again, at the request of the parties, he retained jurisdiction until the 2002-03 placement was resolved.
The child was observed for two hours in her classroom on September 24, 2002 by one of respondent's school psychologists (Exhibit 9). The school psychologist reported that the child did not require hand over hand assistance in activities such as touching an indicated object. She was able to walk independently to a mat where she chose a toy by herself and played briefly. She then walked to the other side of the room, played by herself, then was returned to the group by a paraprofessional. When the teacher asked the child to touch her nose, the child did not respond and the paraprofessional assisted her.
The child's teacher advised the school psychologist that the child remained occupied for a "nice length of time if she is self-motivated." She indicated that the child did not like to sit in her chair for long periods of time, nor did she participate in group activities. The school psychologist noted that the child's teacher taught a 12:1+4 class the previous year, and that the child's teacher advised her that the child's behavior was in no way significantly different from the students she taught that year. The child's speech-language therapist advised the school psychologist that the child demonstrated good prelinguistic skills, was very alert, and remained on task for small periods of time. She did not speak words, but hummed.
The school psychologist also observed the 12:1+4 class proposed by the CSE. She indicated that some of the students demonstrated good eye contact and most did not require hand over hand assistance. Four of the students sat at small desks. The school psychologist was advised that the teacher of the class was trained in Engineering the Classroom, the program used in the child's class the previous year. The school psychologist concluded that the class was well organized with no overt stressors.
The CSE reconvened on September 26, 2002 and recommended that the child be placed in a 12:1+4 special class (Exhibit 3). By letter dated October 11, 2002, petitioners, through their attorney, requested that the impartial hearing resume to address the failure of the CSE to offer a procedurally valid and substantively appropriate IEP and placement recommendation, and to address the appropriateness of the 12:1+4 class placement recommendation (Exhibit A). The CSE convened again on November 7, 2002 for the child's annual review (Exhibit 13). It continued to recommend that the child be placed in a 12:1+4 special class with related services.
The hearing resumed on December 9, 2002. The hearing officer adjourned the hearing to provide the parties an opportunity to explore alternatives to the hearing process (Transcript p. 80). In January 2003, the child's mother observed the recommended class (Transcript p. 573). In March 2003, a progress report was prepared rating the child's performance in various areas including communication, social skills, self care, language arts and music (Exhibit 16). It included reports from the child's speech, physical and occupational therapists.
The hearing resumed in April and continued on various days, concluding on July 1, 2003. The hearing officer rendered his decision on August 11, 2003. He found that the recommended placement was procedurally and substantively defective, and that the proposed IEP did not provide an adequate basis for defining an appropriate program. He suggested that there may be no appropriate program for the child. The hearing officer further found that respondent failed to demonstrate the appropriateness of the recommended placement because it failed to consider the implications of the child's medical condition and because it failed to identify appropriate annual goals against which to assess the propriety of its recommended placement. Additionally, the hearing officer found that the goals were not based on a clinical assessment, but rather on the child's failure to meet her prior goals. He further found that the recommended placement failed to meet the program described on the IEP because it lacked one of the mandated paraprofessionals. He ordered the CSE to reconvene, with appropriate clinical participation, to develop new goals and objectives.
Petitioners appeal from the hearing officer's decision. They claim that the hearing officer erred in finding that there may be no appropriate program for their daughter and that one may not be reasonably defined. They further claim that the hearing officer's order remanding the matter to the CSE for the third time is fruitless in that the CSE will make the same recommendation to which they will object. The parents also claim that respondent failed to comply with state and federal regulations regarding the evaluation process. Respondent cross-appeals claiming that the hearing officer erred in determining that it did not meet its burden of demonstrating the appropriateness of the child's proposed placement.
I will address the cross-appeal first. Respondent claims that the hearing officer erred in finding that it did not meet its burden of demonstrating the appropriateness of the program recommended for the child for the 2002-03 school year. In general, appeals dealing with specific class placements are moot at the end of the school year because no meaningful relief could be granted (Application of a Child with a Disability, Appeal No. 93-20). Therefore, I need not, and do not, reach the issue of the appropriateness of the specific class recommended by the CSE for the child during 2002-03 school year (Application of a Child with a Disability, Appeal No. 93-20). However, in this case, the hearing officer's decision does not resolve the underlying dispute between the parties regarding the appropriateness of the class size in the proposed program. Petitioners contend that their daughter requires placement in a 6:1+2 class, while respondent contends that placement in a 12:1+4 class is appropriate. Despite numerous opportunities, neither side has changed its position in the more than two years since a 12:1+4 class was first proposed.
The remaining and central question is whether the child will receive educational benefits if her special education services are provided in a 12:1+4 class in light of her medical and health needs, distractibility and reaction to overstimulation. The record includes a letter from a consultant for the International Cornelia de Lange Syndrome Federation-Scientific Advisory Council who set forth critical considerations in planning appropriate educational services for students with Cornelia de Lange syndrome (Exhibit S). She indicated that such students required routines and predictability in a calm, organized environment. They also required structured sensory experiences, increased time to process sensory information and increased time to plan and implement motor responses. She further indicated that most students performed best in small groups where the pace of the activity was slowed down so they could see rather than be told how to perform the task.
The principal at PS 811Q testified that the child's disabilities were similar to the disabilities of most other students classified as multiply disabled and that the child was a typical student with multiple disabilities, "not an unusual child for us" (Transcript pp. 258, 272). She also testified that a 12:1+4 class provided the same benefits as a 6:1+2 class in that small group instruction was provided throughout the day with intervention from related service providers (Transcript p. 267). The 12:1+4 class also offered continuation of the Engineering the Classroom program (Transcript p. 261). The principal stated that the child benefited from the program and opined that there was no reason to believe that the child would not continue to benefit from the program in an appropriate group (Transcript pp. 261, 272).
The assistant principal at PS 811Q testified about the Engineering the Classroom program describing it as aided language displays, such as language boards, hand held displays and vest displays, with picture symbols (Transcript pp. 210-11) She stated that teachers chose a theme and created a language board to present that theme. The same language board would then be used for every activity providing repetition so the students would hear the same words and see the same symbols and objects. The repetition would teach the students to anticipate. The students also used augmentative devices to interact with the teacher. Additionally, paraprofessionals were trained to be silent prompters enabling the students to focus only on the teacher (Transcript p. 213). The assistant principal further testified that a goal of Engineering the Classroom was to provide a calm, quiet room with minimal distractions (Transcript p. 213). She testified that she believed the child could function in a class with 12 other students and could derive an educational benefit in such a class (Transcript p. 217).
The teacher who taught the child during the 2002-03 school year testified that while the child made some progress related to her IEP goals, she made extensive progress in areas not addressed on the IEP including growth and maturity (Transcript pp. 384-85). She indicated that the child's stamina had increased, that the child focused for longer periods of time on items of her choosing, and that the child communicated, in her own way, more than she had initially (Transcript pp. 385-86). The 2002-03 teacher further testified that the child required numerous services and that many different people worked with her in the classroom (Transcript p. 388). She opined that the child could derive educational benefits in a 12:1+4 class and that such a class ratio would be appropriate for her (Transcript p. 387)
The teacher who taught the child from September 2000 to June 2002 testified that the child's needs were not unique compared to other students in her class (Transcript p. 371). She further testified that the child could perform an activity on her own, but was adult dependent (Transcript pp. 369-70). She described the child as happy and able to function (Transcript p. 370). The 2000-02 teacher opined that a 12:1+4 class would be appropriate depending on how the classroom was run (Transcript p. 334).
The teacher of the proposed class testified that she was the teacher in a 12:1+4 class of multiply disabled students with a wide range of needs (Transcript p. 420). She further testified that she incorporated both large and small group activities during a typical day in her classroom (Transcript p. 601). Work on IEP goals was usually conducted in small groups or individually, when possible. The teacher also testified that she used Engineering the Classroom for most activities in her classroom (Transcript p. 601). She indicated that paraprofessionals served as secondary facilitators to help implement the lessons by quietly assisting the students so as not to distract them from focusing on her and the symbols (Transcript p. 600). The teacher also testified that she believed she could help the child achieve her IEP goals (Transcript p. 603).
To support their position that their daughter requires a 6:1+2 class, petitioners offered testimony from three physicians, none of whom had observed the child at school (Transcript pp. 440, 488, 692). Merely because a 12:1+4 class is larger than a 6:1+2 class, it does not necessarily follow that a 12:1+4 class can never be appropriate for the child. The Engineering the Classroom program, desired by the parents and offered by the school district, not only addresses the parents' concerns about their daughter's distractibility and overstimulation, but also is consistent with their consultant's recommendations for a small group, predictable, calm, organized environment with minimal distractions.
I note that both parties have expressed their belief that the pendency placement during the 2002-03 school year was not the proper educational programming for the child. Based on my review of the record, I agree. The child should be in an appropriate school program. I encourage both parties to work together in accordance with the requirements of the applicable state and federal education laws to ensure that the child receives an appropriate educational program without delay.
Having determined that there is no meaningful relief that can be granted with respect to the specific class placement for the child for the 2002-03 school year, it is not necessary that I address those issues raised in petitioners' appeal relating to that specific class placement. The 2003-04 school year has commenced and an IEP should be in place for the child.
I must note that the parents are concerned about the potential for overstimulation in a larger class. If it has not done so, I urge the CSE to consider conducting a functional behavioral assessment to obtain more information about the child's behaviors when she becomes overstimulated.
I have considered petitioners' remaining claims and find them to be without merit.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.