94-026

Petitioners' child is 13 years old. The child, who was born nine weeks prematurely, exhibited delays in his speech/language skills and motor skills during the first two years of his life. He began to receive speech/language therapy in a private preschool program, when he was two years old. He also received physical therapy and occupational therapy while in a preschool program. In September, 1986, the child was enrolled in one of respondent's regular education kindergarten classes. There, he was provided with speech/language therapy because of delays in his expressive and receptive language skills and his articulation skills. The child reportedly exhibited a short-attention span while in kindergarten.

While in the first grade (during the 1987-88 school year) the child was referred to the CSE by his teacher, who was concerned about the child's difficulty concentrating and listening and the slow development of his academic skills. A school psychologist, who evaluated the child in November, 1987, reported that the child had above average cognitive ability, as evidenced by a verbal IQ score of 117, a performance IQ score of 114 and a full scale IQ score of 118. He also reported that the child had difficulty with tasks requiring short-term memory and concentration with both visual and auditory stimuli. The child's visual motor coordination was described as being in the average range, but he exhibited poor spatial organization and impulsiveness. His reading skills were found to be at a 1.1 grade equivalent, while his mathematics skills were found to be at a 1.3 grade equivalent. The school psychologist described the child as bright, but exhibiting poor self-control and limited ability to concentrate. He recommended that the child be neurologically evaluated.

In February, 1988, a neurologist reported that the child evidenced signs of a minimal brain dysfunction, including visual motor, gross and fine motor incoordination, hand sustention tremulousness, and overflow movement. The neurologist recommended that the child be instructed in a small, structured class.

The child was initially classified as other health impaired, while he was in the first grade. He was placed in a special education class, and continued to receive speech/language therapy. He was subsequently classified as learning disabled, which is his current classification. Although his ability to receive information visually and auditorily is relatively good, the child reportedly has difficulty integrating the information in written form. He has significant deficits in reading, writing and spelling, despite having above average cognitive skills. When tested by a private evaluator in May 1993, the child achieved an age equivalent score of eight years eight months in reading skills, which was approximately four years below his actual age. His classification as learning disabled is not disputed.

The child remained in a special education class for learning disabled students, and received speech/language and occupational therapy. His individualized education program (IEP) for the 1989-90 school year revealed that the child's total reading skills were at a 1.3 grade equivalent, i.e., the third month of the first grade, and his spelling skills were at a 1.7 grade equivalent. His IEP for the 1990-91 school year reported that his total reading skills had increased to a 1.5 grade equivalent. However, respondent's school psychologist, who re-evaluated the child in September, 1990, reported that reading recognition skills were at a 1.8 grade equivalent and his reading comprehension skills were at a 1.9 grade equivalent. Nevertheless, those scores indicated a growth of approximately eight months in the child's reading skills in the almost three years since his initial psychological evaluation in 1987. The school psychologist also reported that the child's visual and auditory attention skills were within the average range, and that he had a broad fund of general information. Nevertheless, the child evidenced significantly below average academic skills, and some signs of dependency, poor self-esteem, and withdrawal from others. The child's IEP provided that he would participate in eight sessions of large group counseling during the 1990-91 school year.

The child's academic skills were assessed again on a standardized test given in April, 1991. His reading vocabulary and reading comprehension skills were each at the 2.0 grade equivalent, while his total reading skills were at a 2.1 grade equivalent. The child's spelling skills were reported to be at a 1.8 grade level, or one month above the level reported on the child's IEP for the 1989-90 school year. His total mathematics skills were reported to be at a 2.8 grade equivalent.

The child reportedly remained in a special education class during the 1991-92 school year. No IEP for such school year is in the record. In March, 1992, petitioners requested that their child have an independent reading evaluation done at respondent's expense. Although respondent ultimately agreed in June, 1992 to have the independent evaluation performed, the CSE had already recommended the child's instructional program for the 1992-93 school year. The CSE recommended that the child be in a special education class with a 12:1+1 child to adult ratio and that he continue to receive speech/language therapy and occupational therapy. Notwithstanding the IEP's description of the recommended class as a 12:1+1 class, which typically designates a self-contained special education class organized to meet the requirements of State regulation (8 NYCRR 200.6[g][4][i]), the record reveals that the CSE in fact recommended that the child be placed in what respondent deems to be an "inclusion" class consisting of approximately 30 children, only 12 of whom are classified as children with disabilities. One regular education teacher, one special education teacher and one aide are assigned to such a "class." The child's IEP for the 1992-93 school year indicated that his reading decoding skills were at a 2.4 grade equivalent, while his reading comprehension skills were reported to be at a 2.3 grade level, or alternatively at a 3.3 grade level if time limits were not imposed. His spelling skills were reported to be at a 2.7 grade equivalent, while his mathematical skills were reported to be at the fourth grade level.

The independent reading evaluation which petitioners had requested was performed in July, 1992, when the child was 11 years old. The evaluator, who chose to report the child's performance in terms of age equivalents, rather than grade equivalents, reported that the child's reading skills were equivalent to those of a seven to eight year old child. On a test of his word identification skills, the child reportedly had little success recognizing words, and relatively more success decoding those words. At the hearing in this proceeding, the evaluator explained that most children would have learned to recognize enough words by sight in the third grade to have no difficulty on the word identification test. She opined that this child's difficulty on that test suggested that he did not learn as well visually, and required a different form of instruction. Although the child reportedly attempted to decode words, the evaluator reported that he appeared to have had an insufficient grasp of the rules for successfully decoding words. The child's writing was described by the evaluator as immature, with poorly formed and spaced letters. She also reported that the child had difficulty integrating visual and auditory information when he wrote. The evaluator also assessed the child's spelling and mathematics skills, in addition to administering tests which provided information about the child's learning style. The independent evaluator opined that the child had a specific language disability, commonly known as dyslexia. She recommended that the child be instructed for one hour each day in reading, writing, spelling and comprehension by a teacher using a highly structured, sequential and multisensory technique, such as the Orton-Gillingham technique. A sequential, multisensory technique, as the term is used in this decision, involves the simultaneous training of a child's visual, auditory and kinesthetic modalities, while presenting information about language in a systematic approach.

In a letter dated July 28, 1992, petitioners requested that the CSE meet with them to consider the independent evaluator's report. Petitioners met with respondent's child study team, or subcommittee of the CSE, on October 14, 1992, and with the CSE on November 18, 1992. The CSE recommended that the child's IEP be amended to provide that he receive one hour per day of instruction by a special education teacher who was trained to use the Orton-Gillingham technique. However, there is no evidence in the record which demonstrates that the child's IEP was amended to provide annual goals and short-term instructional objectives for implementation of the CSE's recommendation to provide the additional instruction.

At the petitioners' request another educational consultant reviewed the results of the child's independent evaluation and the child's school work, and interviewed the child in March, 1993. The consultant reported that the child wrote slowly, with well formed and spaced letters. Her informal analyses revealed that the child knew many, but not all, of the consonant and short vowel sounds, but exhibited some difficulty with articulation. He evidenced approximately a three year delay in his ability to recognize reversed letters and numbers. The consultant reported that the child's ability to read silently with comprehension was at a 2.5 to 3.8 grade equivalent, but cautioned that his comprehension may have been the result of his prior knowledge of the subject covered in the test she used. The consultant recommended that the child receive an integrated, structured, sequential and multisensory language instructional program encompassing reading, writing, spelling and spoken language.

On May 6, 1993, the consultant observed the child in his "inclusion" fourth grade class in respondent's school. The consultant did not observe the child's reading class, but did review the lesson plan for that class, which was designed to use the techniques of the Preventing Academic Failure program (PAF). The record reveals that the PAF is an adaptation of the Orton-Gillingham technique in the form of a multisensory curriculum for reading, writing, and spelling in the elementary grades, in which reading and spelling are to be taught together within the same lessons (Exhibit 10, page 2). In her report, the consultant expressed the concern that the PAF program was not being integrated into all of the child's classroom language activities, as the consultant had recommended but was apparently being used primarily to teach the child to read. She also commented that during the one class session she had observed, the child's teachers did not appear to have time to coordinate their instruction.

On May 27, 1993, the CSE conducted its annual review of the child, and recommended that for the 1993-94 school year the child continue in a 12:1+1 class in respondent's Vassar Road School. The child's IEP indicates that recommended placement is to be "full-time less mainstreaming." However, the IEP does not specify the subjects for which the child would participate in the regular education program (cf. 8 NYCRR 200.4[c][2][iv]). In fact, the CSE recommended that the child be placed in a fifth grade inclusion class of approximately 30 children. It also recommended that the child continue to receive speech/language therapy and occupational therapy.

On May 28, 1993, the independent evaluator who had tested the child's reading skills in July, 1992 retested his skills. Using age equivalents, the evaluator reported that the child's word identification skills had improved by five months, and his word attack skills had improved by one month. However, his word comprehension skills had improved by ten months, while his passage comprehension had improved by only three months. The evaluator reported that the child's total reading skills had improved by four months.

On June 9, 1993, petitioners, through their attorney, requested that an impartial hearing be held to review the CSE's recommendation for the 1993-94 school year. The hearing commenced on August 25, 1993, but was immediately adjourned to afford the parties an opportunity to reach a settlement. The parties could not reach an agreement, and petitioners unilaterally placed the child in the Kildonan School, a private school serving children with language disabilities. The Kildonan School is not approved by the State Education Department as a school for children with disabilities for purposes of State reimbursement to school districts for tuition costs, although that fact is not dispositive of petitioners' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, U.S. , 114 S. Ct. 361 [1993]).

The hearing resumed on October 13, 1993, and concluded on June 14, 1994. In his decision dated July 22, 1994, the hearing officer held that the program recommended by the CSE would have been appropriate to meet the child's educational needs, based upon a finding that the child had made reasonable progress during the 1992-93 school year after the PAF program had been instituted. Having held that respondent had met its burden of proving the appropriateness of the recommended program, the hearing officer denied petitioners' claim for tuition reimbursement.

Petitioners assert that the hearing officer erred in finding that the CSE had prepared an adequate IEP and offered an appropriate program for their child during the 1993-94 school year. Respondent bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, respondent must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 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 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. 93-9; Application of a Child with a Disability, Appeal No. 93-12). The child's IEP for the 1993-94 school year describes his academic skills by presenting the stanines and percentiles for his scores on a Stanford Achievement Test, without identifying when the test was given. At the hearing it was revealed that the test in question was administered in April, 1993, one month before the IEP was drafted. There is a note of caution on the IEP that the "Test results do not reflect student's ability and achievement. Many blanks were left on more than half the tests." Despite the CSE's apparent uncertainty about the validity of the child's test scores, it failed to provide any additional information about the child's academic performance on his IEP. Furthermore, I find that the mere listing of stanines and percentiles, rather than the age or grade equivalents which had appeared on the child's prior IEPs, is not useful for assessing the child's progress in achieving his annual goals and short-term instructional objectives.

I further find that the child's IEP fails to identify his instructional needs related to his learning disability in the areas reading, writing, spelling and mathematics. For example, the IEP does not describe his needs with regard to reading decoding and comprehension. Although the IEP indicates that the child has deficient mathematical skills, it does not specify the concepts or mathematical operations which need to be remediated. Similarly, the stanines and percentiles relating to the child's written language and spelling indicate that he has deficiencies in these skills, but the IEP does not identify the specific skills which the proposed program would address. In the absence of adequate information about the child's specific needs, the CSE could not draft individualized goals and objectives to address the deficits identified when the child was evaluated.

The child's IEP annual goals, such as "to increase reading skills" and "to increase spelling skills", are far too general to be of use in planning the child's program (Application of a Child with a Disability, Appeal No. 94-8). Although the child's short-term instructional objectives provide some additional information about the expected outcome of his instructional program, I find that the objectives are not realistic, in light of the child's past performance. The objectives indicate that the child is expected to improve or develop various skills on a fourth or fifth grade level with 80 percent accuracy. Although the child's total reading skills on the Stanford Achievement Test in April, 1993 were reported to be at a 2.5 grade equivalent, the child's IEP reading objectives are to reach a high fourth grade level. His objectives for spelling, writing and mathematics are similarly unrealistic, given the child's past performance in developing those skills. In addition, I find that the objectives are inconsistent with the Federal regulatory requirement that they should be "measurable intermediate steps between the present levels of educational performance ... and the annual goals that are established for the child" (34 CFR Part 300, Appendix C, Question 39).

The central question in this appeal is the child's IEP, including its completeness, clarity, and appropriateness in: (1) defining special educational needs; (2) setting specific educational goals and objectives and (3) formulating a strategy to address educational needs and achieve learning goals and objectives. The IEP in question fails in all three respects.

State regulation requires that a child's IEP indicate the amount of time per day that the child will receive special education and related services (8 NYCRR 200.4 [c][2][vi]), and indicate the extent to which the child will participate in regular education (8 NYCRR 200.4 [c][2][iv]). This child's IEP for the 1993-94 school year does not clearly delineate the subjects in which he was to receive either special education or regular education. By providing that the child's class size was to be "1-12-1" (12:1+1), "Full-time less mainstreaming", the IEP suggests that most of the child's primary instruction is to be provided by a special education teacher assisted by an aide in a small class. However, the record reveals the CSE had once again recommended an "inclusion" class for the child. The class initially consisted of 18 regular education students and 13 children with disabilities. At the hearing, the special education teacher assigned to teach the class in tandem with a regular education fifth grade teacher testified that there were then 12 children with disabilities in the class, of whom 8 were also designated as 12:1+1 students. The teacher testified that the latter designation meant that the children received special education in small groups for 60 percent of the time. Notwithstanding that testimony, there is little in the record to assure me that petitioners' child would indeed have received such instruction in each of the subject areas for which his IEP sets forth annual goals and short-term objectives. Furthermore the respondent has not demonstrated convincingly that it could have provided an appropriate program for the child in the "full-time less mainstreaming" classroom environment.

Despite several years of special education, including at least one year in such an "inclusion" class, this child has made only very modest progress in overcoming his language disability. Although the child's special education teacher testified that during the 1992-93 school year that the child had read "rather fluently" in class from a fourth grade textbook, there is overwhelming evidence in the record that serious learning deficiencies both existed and persisted. I find that the 2.5 grade equivalent score for total reading which the child achieved on the Stanford Achievement Test administered in April, 1993 when he was almost 13 years old was a more accurate assessment of the child's independent reading skills. Indeed, the teacher asserted at the hearing that the Stanford Test did not accurately reflect the child's ability because it " ... was standardized test. Therefore, it was not read to him" (Transcript, page 1043). The Stanford results are consistent with the results reported by the independent evaluator when she tested the child one month after the Stanford Test was administered. After almost one school year in his fourth grade "inclusion" class, the child had achieved an age equivalent increase of only four months in his reading skills, which was comparable to his annual increases in prior years.

The hearing officer premised his decision that respondent could offer an appropriate program, in part, upon the child's testimony that in the Fall of 1993 he had read the book "Dr. Doolittle", which was a beginning of the fourth grade level book, according to the testimony of one of respondent's reading teachers. The child testified that in his class in the Kildonan School, he had read the book of approximately 100 pages over a two week period, with some assistance by his teacher. I find that the child's testimony afforded an insufficient basis, in the face of the established record, for the hearing officer to conclude that the child's reading skills were significantly better than reported in the various evaluations.

The record reveals that petitioners' child has (at least) average intellectual potential and that his cognitive capacity is seriously undermined by language-based learning disabilities. The CSE recognized that a traditional teaching/learning strategy would not allow this student to realize his full potential when it amended the child's IEP for the 1992-93 school year providing him with one hour per day of instruction by a teacher trained to use the Orton-Gillingham technique. Although an IEP need not identify a particular teaching technique (Application of a Child with a Disability, Appeal No. 93-46), this child's IEP did require that respondent provide at least one hour of daily instruction in a manner which was consistent with the technique identified in the IEP. Respondent offered credible evidence that the PAF program is consistent with many of the principles underlying the Orton-Gillingham technique. However, respondent did not demonstrate that it had, in fact, provided the child with instruction in a manner consistent with its PAF program. The specialized PAF instruction which the child received focused primarily upon his reading skills, with limited linkage to his spelling skills. The child's special education teacher testified that writing was taught to the entire fourth grade class, i.e., it was not presented as specialized instruction linked to the child's instruction in reading and spelling.

Respondent presented little information about the nature of the recommended program for the 1993-94 school year, which was apparently to be similar to that which it provided in the prior school year. Nevertheless, the special education teacher for the proposed fifth grade "inclusion" class testified that her reading program was based upon a basal text, which she supplemented with "Orton", but that she didn't use the technique all the time. She also testified that she wouldn't choose to provide the child with one hour of PAF instruction per day, but would provide it if directed to do so. The teacher explained that she did use the Orton technique to teach spelling, but offered no information about instruction in writing. Also, I find no evidence of a comprehensive strategy to address the child's reading, spelling, and writing deficits in an integrated manner. I further find that respondent failed to prove that the child would be appropriately grouped with children having similar needs for instructional purposes, as required by State regulation (8 NYCRR 200.6 [g][2]). The profile of the children with disabilities in the proposed class, and the testimony of the special education teacher that their IQs ranged from 65 to 160 provide scant assurance that the child would be appropriately grouped.

In view of the defects in the child's IEP and the inadequate information about the child's program for the fifth grade, I find that respondent has failed to meet its burden of proof with regard to the appropriateness of the program recommended by its CSE. A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]). Since I have found that respondent did not meet its burden of proof with respect to the first Burlington criterion, I must now consider the appropriateness of the educational program which petitioners obtained.

At the hearing in this proceeding, the principal of the elementary school portion of the Kildonan School testified that the school provides an integrated instructional program using multisensory technique for children who, like petitioners' child, are dyslexic and of average to above average intelligence. She further testified that the goal of the Kildonan School is to teach the children to become independent readers at their appropriate grade levels within two years after they enter the school. The child was placed in a fifth grade class of six children, and was provided with daily individual tutoring in language skills. The principal testified that the child had entered the school in September, 1993 with approximately third grade level reading skills, and that by December, 1993, at least some of his reading skills were at the fifth grade level. Although the principal's claim with regard to the child's progress could not be substantiated by the documentary evidence in the record, her testimony about the nature of the school's program is unrefuted. I find that petitioners have demonstrated that the Kildonan School program addressed their child's special educational needs for the 1993-94 school year. Having so found, I must next consider whether, under all of the circumstances, placement of the child in the Kildonan School was consistent with the requirement of least restrictive environment (Application of a Child with a Disability, Appeal No. 94-6). Clearly, the educational program proposed by respondent for the 1993-94 school year was a less restrictive environment than that selected by petitioners, i.e., the Kildonan School. Nonetheless, my determination must be made with regard to the least restrictive environment in which the student's educational needs can be met. Considering the record of the child's academic progress in the clearly less restrictive environment provided by respondent, I must find that for the 1993-94 school year the child's placement in the Kildonan School was consistent with the least restrictive environment requirement (Application of a Child with a Disability, Appeal No. 94-20).

The last issue to be determined is whether equitable factors support petitioners' claim for tuition reimbursement. The record does not disclose any instance in which petitioners failed to cooperate, reasonably, with respondent. Although they had misgivings about the adequacy of the program proposed for their child for the 1992-93 school year, petitioners agreed to give respondent an opportunity to demonstrate that this program was appropriate. Their decision to place the child in the Kildonan School came about only after the respondents 1992-93 IEP failed to produce the predicted results. Therefore, I find that petitioners' claim is supported by equitable factors.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled; and,

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditures for the child's tuition at the Kildonan School during the 1993-94 school year, upon petitioners' presentation to respondent of proof of such expenditures.