D. and R. G. )
on behalf of M. G., )
vs. ) CASE NO. 80-1461E
Respondent. )
This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on September 11, 1980. By stipulation of the parties, time for submission of post hearing memoranda and proposed recommended orders was extended until 15 days after receipt of the transcript of the final hearing, and time for entry of the final order was extended until 30 days after receipt of the transcript. The Division of Administrative Bearings received the transcript on October 13, 1980.
For Respondent: Phyllis D. Douglas, Esquire
The question for decision is whether Respondent can appropriately educate M.G., and, if not, whether Respondent is legally obligated to finance his education elsewhere. Neither his classification as an eighth grade student with specific learning disabilities nor the type of instruction prescribed by his Individualized Education Plan (IEP) is at issue in these proceedings.
M.G., as he is now known, was born on May 30, 1966. He attended kindergarten at Rainbow Park Elementary School. After beginning first grade in the fall of 1972, at Miami Baptist Temple, a private school, he entered Westview Elementary, one of Respondent's schools, in 1973. On May 3, 1974, he transferred to South Miami Elementary, another public school. Even before the transfer, his mother realized M.G. could not read, but she approached his teachers only after the family had moved and M.G. was settled in his new school.
Ms. Mitchell, the second grade teacher with whom Mrs. G. conferred in the spring of 1974, told her that the school system would arrange various tests and interviews that might shed some light on M.G.'s academic difficulties. Among Respondent's records is a note from Ms. Mitchell dated June 13, 1974, saying, "M.G.'s Mother has requested a psychological evaluation. She is very much concerned as to why M. [h]as not been able to make more academic progress (and so am I)." Respondent caused psychological testing to be done in the middle of the following school year.
On January 27, 1975, Elizabeth I. Smith, a psychologist in Respondent's employ, finished her psychological evaluation of
M.G. Ms. Smith decided that M.G. had "a poor self-concept", "dependency needs", and "paranoid tendencies"; and that he was "a rather lonely child" and "ha[d] too strong a tendency to delay emotional satisfaction." Joint Exhibit No. 7. At this time, administration of Wechsler Intelligence Scale for children indicated that M.G. had normal "full scale" intelligence (101), with subtest scores ranging from 5 (coding) to 16 (object assembly). Contemporaneous Wide Range Achievement Test (WRAT) scores put him a year or more behind the average child at his grade level, with scores ranging from 1.8 (spelling) to 2.1 (reading) to 2.4 (arithmetic). On the WRAT, he mistook "41" for "14". Errors on the Wepman Auditory Discrimination Test indicated inadequate auditory discrimination. Ms. Smith concluded that M.G. had perceptual difficulties that should be evaluated, but decided that his main problems were emotional. Inter alia, she recommended "[r]esource into an Emotionally Disturbed Class . . . [and a]dministration of the Illinois Test of Psycholinguistic Abilities" (ITPA). Joint Exhibit No. 7. The ITPA is administered to children (up to ten years old) in an effort to measure auditory and visual process deficits, among other things.
After talking to Ms. Smith, Mrs. G. signed a form on February 21, 1975, authorizing Respondent to place M.G. in a class
for emotionality disturbed children for part of the day. At the time, she was unaware that Respondent had full-time classes for children with specific learning disabilities. The teacher of the class for emotionally disturbed children told M.G.'s parents that "she would be working with him with his LD problem." (T. 153.) Respondent never administered the ITPA to M.G..
Dr. Ronald I. Cantwell, a pediatrician who limits his practice to developmental disabilities, first examined M.G. in January of 1975. He found that M.G. confused left with right, had difficulty copying foot patterns, was unable to distinguish between "12" and "21" or between "b" and "d", and could not remember a sequence of five numbers or letters. Codeine acted to excite rather than to sedate M.G. Dr. Cantwell felt M.G.'s principal problems were academic rather than emotional, and recommended tutoring.
With tutoring during the summer of 1975, M.G. learned multiplication tables, which he forgot after school began that fall, even though his tutoring continued. In the middle of the following school year, H.U. Puryear, a psychologist in Respondent's employ, concluded, on a psychological referral form dated February 3, 1976, that M.G.'s tutoring should be rescheduled so as not to conflict with school hours, if tutoring was really needed, and that "assignment to another E.D. setting requires no additional professional [psychological] procedures." Joint Exhibit No. 8. M.G. spent the latter part of the fourth grade in a varying exceptionalities class at South Miami Elementary.
M.G. is tutored at Dr. Cantwell's Pediatric Achievement Center the summer following fourth grade, just as he had been the summer before. In addition to this tutoring, M.G. had the help of his mother and an uncle, who between them spent four hours a night with M.G., during the first semester of the fifth grade.
M.G. and his mother grew increasingly disturbed about his slow progress in school, especially in light of his performance at home. In December of 1976, Mrs. G. attended a conference which Dr. Marshall, head of Respondent's Southwest Area office, Mr. Torano, principal of South Miami Elementary, Lenora Hays, M.G.'s "regular fifth grade teacher," and Ms. Jackson, who had begun two weeks earlier as the teacher of M.G.'s varying exceptionalities class, also attended. At the conference, Ms. Hays undertook to locate either a science or a social studies textbook on a more appropriate level. Mrs. G. sought to persuade the school authorities to transfer M.G. to Ms. Patterson's "continuing LD class," but she was unable to. (T. 168.)
After Christmas vacation, in January of 1977, M.G. began at Gables Academy, a private school for children with learning disabilities, where he finished fifth grade and spent sixth and seventh grades. At Gables Academy, M.G. won "an award for advancing two years in every subject . . . an award for reading" (T. 93) , and other awards. The evidence did not reveal the qualifications of Gables Academy's staff, what its school day and school year are, whether it maintains current sanitation, health, or fire inspection certificates, what its procedures to protect the confidentiality of student records are, what written policies it has, if any, and whether it has filed required assurances or reports.
Ms. Evelyn Orkney, who was certified as a school psychologist in Connecticut before she moved to Miami, saw M.G. on April 22 and May 13, 1977, before she prepared her initial "psychoeducational evaluation." Joint Exhibit No. 2. She reported WRAT scores of 2.9 (spelling), 3.5 (reading recognition), and 3.9 (arithmetic), and full scale I.Q. of 106. Ms. Orkney observed that M.G.'s "dialogue revealed bitter memories of public school." Joint Exhibit No. 2. She concluded that M.G. "Possesses average aptitude . . . [with] residuals of visual motor problems .
. . [and] a significant problem in auditory sequential memory." Joint Exhibit No. 2. Ms. Orkney again evaluated M.G. on August 9, 1979, at which time she observed that he "virtually never experiences depression or bitterness." In the 1979 "psychoeducational re-evaluation," Ms. Orkney reported WRAT scores of 3.5 (spelling), and 6.3 (arithmetic). The Detroit Tests of Learning Aptitude, the ITPA, the Slosson Drawing Coordination, Bender Visual-Motor Gestalt, and other tests were also administered. Ms. Orkney concluded that the "Detroit and ITPA tests confirm severe deficit in the auditory memory area and recommended "special instruction in spelling, as well as auditory sequential memory training and design integration exercises." On the basis of second-hand information, some of which was erroneous, Ms. Orkney recommended that M.G. remain at Gables Academy rather than return to public school.
M.G. was evaluated at Respondent's Diagnostic and Resource Center on August 29 and 30, 1979, and a report dated September 27, 1979, was prepared. A number of tests were administered, including the Stanford-Binet Intelligence Scale, various psychological projective tests, the Peabody Individual Achievement Test, Durrell Analysis of Reading Difficulty and Woodcock Johnson Psycho-Educational Battery: Test of Cognitive Ability, Memory for Sentences. M.G.'s vision and hearing were
also tested. The diagnostic team concluded that M.G. was "somewhat rigid hut d[id] not have a primary emotional handicap for educational programming purposes." They recommended a specific learning disability program with "primary emphasis in the auditory and visual attention skill areas," and conferences with the school counselor. In their view, his weakest skills were reading and spelling, reflecting "specific process deficits in the visual aid auditory attention areas," as well as in visual memory of words, while arithmetic and general information were strengths. The team made detailed recommendations regarding teaching techniques.
Richard Maisel, a clinical psychologist, evaluated M.G. on January 14 and 23 and February 5 and 14, 1980. Joint Exhibit No. 5. He reported WRAT scores of 2.7 (spelling), 4.1 (reading) and 5.6 (arithmetic). Dr. Maisel concluded that M.G. has average intelligence with "very significant auditory and visual attention, memory and sequencing problems." Joint Exhibit No. 5. Dr. Maisel reported "emotional difficulties . . . superimposed upon the underlying learning disability" for which he recommended "psychotherapeutic intervention." He recommended "full-time placement in a learning disabilities program." Joint Exhibit No. 5.
M.G. himself wanted, at the time of the hearing, to go to Gables Academy. He remembered assignments at public school that he felt were insultingly simple; and the taunts of children in regular classes; and he did not get along with one of his teachers in public school. He did not want to go to South Miami Junior High because he had "seen injection needles and pill bottles" (T. 91) there as he rode home from Gables Academy. He wanted to "look over a learning disabilities program at Ponce de Leon Junior High School, another public school, but felt he would "really like to go back to Gables Academy]." (T. 92)
On November 7, 1979, public school officials, in conjunction with M.G. and his parents, drew up an IEP for the 1979-1980 school year, recommending a full-time learning disabilities placement. Joint Exhibit No. 6. By that time, however, the G.s were obligated for tuition for the 1979-1980 school year, so M.G. stayed the school year there. No IEP had been prepared for the 1980-1981 school year, at the time of the hearing, but Myra Silverstein, a placement specialist in Respondent's employ, testified that a full-time learning
disabilities placement would still be appropriate. Such a program is available at Ponce de Leon Junior High. It would include four hours of specific learning disabilities instruction daily by use
more teachers along with "mainstream" classes in physical education and shop, art, or some other elective. At Ponce de Leon Junior High School, there is a counselor who works only with student in special education classes.
CONCLUSIONS OF LAW
By law, Respondent must "[p]rovide for an appropriate program of special instruction, facilities, and services for exceptional students . . . ." Section 230.23(4)(m), Florida Statutes (1979). Respondent is required to "provide special educational programs through contractual arrangements with approved private or non-public schools" only when there is "no special educational program offered by it, a cooperating district school board, or a state agency [that] can adequately provide the educational program for the student." Rule 6A-6.361, Florida Administrative Code. The evidence showed that Respondent does have a special educational program that can adequately provide an educational program for M.G. for the 1980-1981 school year. Respondent can provide counseling, see 42 C.F.R., Section 121a.13, and certain electives, see 42 C.F.R., Section 121a.305, which were not shown to have been available at Gables Academy. In addition, Respondent's proposed program includes some "mainstreaming". See 42 C.F.R., Section 121a. 550.
Even if Petitioners had established that Respondent's proposed program for 1980-1981 was inappropriate, which they did not do, it would have been for Respondent to select "an appropriate school or facility [albeit] in consultation with," Rule 6A-6.361(2)(a), Florida Administrative Code, Petitioners, and Respondent would not have been free to choose any school or facility that did not meet the criteria laid down in Rule 6A- 6.361(1)(a), Florida Administrative Code. The evidence did not show that Gables Academy met these criteria.
Whether Respondent once mis-classified M.G. is not an issue in these proceedings. The evidence did not support Petitioner's contention that M.G.'s time in public school was so unpleasant that his attending a different public school more than two and a half years later would affect his learning adversely simply because it was a public school.
