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No.  91-38

Application of a CHILD WITH A HANDICAPPING CONDITION, by his parents, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the Warwick Valley Central School District

Appearances:

Dee Estelle Alpert, Esq., attorney for petitioners

Shaw and Silveira, Esqs., attorneys for respondent, David S. Shaw, Esq., of counsel

DECISION

Petitioners appeal from the determination of a hearing officer denying petitioners' motion that he recuse himself from the hearing, declining to rule upon certain issues raised by petitioners, and finding that the central issue of the hearing relating to the appropriateness of a placement recommended by respondent's committee on special education (CSE) for petitioners' child had been rendered moot by a subsequent agreement to place the child in a private, residential school preferred by petitioners. The appeal must be dismissed.

In September, 1986, the child was medically diagnosed as having Tourette Syndrome, a neurochemical dysfunction of the central nervous system. In March, 1987, the child was referred by his second grade teacher to the CSE, because of the child's high level of activity and difficulty in working independently. After evaluating the child, the CSE recommended that the child be classified as other health impaired, a classification which includes children with a variety of health conditions which adversely affect their educational performance (8 NYCRR 200.1 [ff][10]). The child remains classified as other health impaired, which classification is not in dispute.

Until the middle of the 1990-91 school year, the child was mainstreamed, i.e. enrolled in regular education classes, with supplementary instruction in a resource room. The child's individualized education program (IEP) for the 1990-91 school year, which was prepared at a CSE meeting held on May 16, 1990, provided that the child would receive primary instruction in a regular sixth grade class in respondent's middle school, with supplementary instruction in a resource room for 20 percent of the school day. The IEP described the child as having average cognitive ability and academic achievement. The IEP also included the opinion that testing did not always reflect the child's true abilities. With regard to the child's management and social development needs, he was described as needing to develop appropriate behavior in a number of class settings and having a low frustration tolerance.

In July, 1990, the child was re-evaluated by respondent's school psychologist, as part of a triennial evaluation. The school psychologist noted that he had been consulted throughout the school year by the child's teachers and school administrators, because of the child's refusal to complete assigned school work, pervasive unhappiness, rage reactions, aggressive behavior and low self-esteem. The psychologist found that the child's general process of language and thinking was logical and goal directed. IQ testing revealed that the child was functioning within the average range of intelligence, but the psychologist cautioned that the test results while generally valid could be affected by the child's lability of mood, current response to his Tourette Syndrome and fluctuations in his medications for the disease. While a formal assessment of the child's academic achievement revealed grade equivalent scores in mathematics, reading and spelling of 4.4, 3.9 and 3.3 respectively, the school psychologist reported that the child's teachers had expressed the belief that the child was, in fact, capable of doing sixth grade level work. Projective testing revealed that the child was experiencing much stress, and that he had a poor frustration tolerance and self-esteem. The school psychologist described the child as quick to anger, and occasionally either verbally or physically lashing out at others. He noted that counseling, medication, behavior management and special education had all been used with moderate or minimal success. The school psychologist stated that, as the symptoms of Tourette Syndrome waxed and waned, the child displayed signs of depression more prevalently as the child further withdrew from school and his classmates.

At the request of the child's mother, the CSE met on February 11, 1991 to review the child's performance in school. Among the information considered by the CSE was a note dated November 29, 1990, from three of the child's teachers, who reported that he was often unprepared in class, did not complete all of his homework, did not remain on task while in class and had misbehaved during a fire drill. The CSE also had a copy of a letter written by the child's neurologist to the school district physician, in which the neurologist stated that the child was in significant emotional crisis because of low self-esteem and an "almost induced self-destructive behavior" and suggested that the district might need to look into a residential placement for the child. At the meeting, a private psychologist who had counseled the child spoke to the CSE about the child's social and emotional needs.

By letter dated January 28, 1991 to the CSE chairperson, the psychologist reported that outpatient treatment of the child had not been effective and that "it seems that [the child] needs placement in a special education environment that is geared to handle children with significant behavioral disturbances." The CSE and petitioners agreed that the child's program should be changed immediately, to full-time enrollment in a special education class with a child-teacher-aide ratio of 12:1:1 which was also at respondent's middle school. The child's IEP which was prepared at the February 11 CSE meeting describes the new program as an "emergency, transitional placement." The CSE and petitioners agreed that the CSE would explore alternative placements at BOCES and/or a private school. On February 12, 1991, the child entered the special education class. On February 22, 1991, a speech evaluation of the child was performed. Respondent approved the CSE's recommendation at its next scheduled meeting on March 11, 1991.

On or about February 28, 1991, the chairperson of the CSE provided the Orange-Ulster BOCES with current evaluation materials to support a request that the child be enrolled in a 12:1:1 special education class at the BOCES. An intake interview with petitioners, the chairperson and respondent's psychologist was held at the BOCES on March 15, 1991. By letter dated March 18, 1991, a BOCES principal advised the CSE chairperson that the BOCES had concluded that the child required a more structured program than that afforded by the BOCES 12:1:1 program.

On April 11, 1991, the CSE met with petitioners to review the child's performance in the district's special education class, and to consider alternative placements in view of the March 18, 1991 letter. The IEP, which reported the results of the April 11 meeting, reveals that the CSE determined to postpone recommending a change of program or placement, pending the receipt of further information. The IEP does not reveal what information was sought by the CSE. The CSE chairperson testified at the hearing that the CSE considered whether the child should undergo a psychiatric evaluation, and that petitioners' attorney stated that the CSE would receive such an evaluation.

On April 22, 1991, the chairperson of the CSE applied to the State Education Department for a variance from the regulatory requirement that the class into which this child had been temporarily placed not exceed 12 children. The application represented that the child was appropriately placed in such class. On April 25, 1991, a representative of the Education Department notified the CSE that the requested variance had been granted.

By letter of April 23, 1991, the BOCES principal invited the CSE to submit an application to the BOCES for the placement of the child in a different program, a class with a child-teacher-aide ratio of 6:1:1, for the 1991-92 school year.

On April 30, 1991, the child attempted to leave his classroom, but was stopped by his teacher. A confrontation ensued during which the child shoved the teacher and used a derogatory term in speaking to her. After consulting with the school psychologist, an assistant principal determined that the child should have a "cooling-off" period, and called the child's mother to come to school for the child. However, the administrator subsequently agreed to allow the child to stay in his office for the remainder of the day on April 30. The assistant principal offered to have the child remain in his office during the day on May 1, 1991, but on that day the child's mother told the assistant principal that she would keep the child home. The parent asked the assistant principal for a letter formally suspending the child from school. By letter dated May 1, 1991, the building principal advised petitioners that the child was being suspended from school for two days because of the incident with the child's teacher.

On May 2, 1991, the CSE met with petitioners to prepare a new program for the child for the 1991-92 school year. While the April 30, 1991 incident with the child and his teacher was discussed, the major action of the CSE was to recommend that the child be enrolled in a BOCES 6:1:1 class, to commence in July, 1991. The newly appointed chairperson of the CSE testified at the hearing that the CSE decided to recommend a 6:1:1 class, after considering comments from the child's teachers concerning the child's need for an outlet to discharge his pent-up emotions, information about a deterioration of his behavior at home as a reaction to his frustration in school and letters from a private neurologist and a psychiatrist who had recently assumed the medical care of the child. Each of the physicians urged that a residential placement be found for the child. Petitioners and their attorney left the May 2, 1991 CSE meeting before its conclusion. By letter of May 7, 1991, the CSE chairperson advised petitioners that a new intake interview would be arranged at the BOCES for the child's enrollment in a BOCES 6:1:1 class for the 1991-92 school year, and that the CSE would also request that the child enter the BOCES program in July, 1991, so as to provide the child with a 12-month program and to afford the BOCES an opportunity to assess the child for entrance into a BOCES 6:1:1 class in September, 1991. The chairperson further advised petitioners that the CSE would review the child's program in August, 1991. On May 13, 1991, respondent approved the recommendation of the CSE. Petitioners were advised of respondent's approval, in a letter dated May 14, 1991 from respondent's director of pupil personnel services.

Petitioners did not accept the CSE recommendation. On June 19, 1991, respondents received petitioners' request for an impartial hearing. In the interim, petitioners also commenced an Article 78 proceeding in New York State Supreme Court, Orange County, in which they asserted a number of claims with respect to their child's education. On June 13, 1991, the Supreme Court granted petitioners' request for an order directing respondent to provide an aide to accompany the child whenever he was outside his classroom for the remainder of the 1990-91 school year. The Court dismissed, as premature, petitioners' claims concerning the appropriateness of the education provided to the child, because petitioners had not exhausted their administrative remedies of an impartial hearing and review by the State Review Officer. The Court noted that other claims relating to respondent's alleged bad faith, gross negligence, violation of constitutional and statutory rights and intentional infliction of emotional distress would be subsequently addressed by the Court on June 21, 1991. The record before me does not reveal the judicial outcome of those remaining claims.

The administrative hearing commenced on July 16, 1991 and was continued on July 23, 26, and 29, August 1, 6, 14, 16, 20, 26, 27, and 29, 1991. In a decision dated September 19, 1991, the hearing officer found that the appropriateness of the child's May 2, 1991 IEP which had recommended the BOCES placement was no longer in dispute, because the parties had reached agreement on August 29, 1991 to revise the child's IEP to provide for a residential placement at the Summit School, an approved private school for children with handicapping conditions. The hearing officer noted that respondent had approved the new IEP on September 16, 1991, and reported that the hearing had been closed upon the mutual consent of the parties. The hearing officer further noted that he had orally declined to grant petitioners' motion for an order declaring the process by which hearing officers are selected to be unconstitutional because he lacked the jurisdiction to make a decision upon that issue, and that, at petitioners' request, he had issued a brief written statement concerning the denial of petitioners' motion.

With regard to petitioners' challenge of his impartiality, the hearing officer found that there was no basis in the record to establish a real or implied conflict of interest or appearance of impropriety because of his prior service as the president of a board of education and affiliations with organizations such as the American Association of School Administrators. With regard to petitioners' request that the principal's letter of May 1 regarding the two-day supervision should be purged from the child's school files because the child had been disciplined for a manifestation of his handicapping condition, the hearing officer found that the letter was written at the insistence of the child's mother, and that the appropriate remedy for the expungement of the child's files was to request a hearing in accordance with the provisions of the Family Educational Rights and Privacy Act. The hearing officer also denied petitioners' request to have the matter remanded to the CSE to prepare a unitary or single phase IEP for the child, upon a finding that the IEP was adequate and had been correctly prepared.

Petitioners assert that the provisions of the Education Law and the Regulations of the Commissioner of Education relating to the selection of hearing officers violate the Due Process and Equal Protection clauses of the United States and New York State Constitutions. In essence, petitioners assert that it is unfair to afford boards of education the opportunity to select hearing officers from among those individuals certified as hearing officers by the State Education Department, when parents are not afforded the opportunity to participate in the selection process. They further assert that respondent had no right to appoint ten white males to its panel from which it selects hearing officers. While acknowledging that they had the opportunity to challenge the impartiality of the hearing officer at the outset of the hearing, petitioners nevertheless assert that boards of education have an inherent advantage in learning about possible relationships between hearing officers and the parties to hearings.

Due process of law requires that a law not be unreasonable, arbitrary or capricious, and that the means selected shall have real and substantial relation to the object or end (Nebbia v. New York, 291 U.S. 502), while equal protection requires that all persons similarly circumstanced be treated alike (Plyer v. Doe, 457 U.S. 202). While I need not reach the constitutional claims, it is important to note that the courts, as well as the United States Education Department, have concluded that the unilateral selection of hearing officers by boards of education does not violate either the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.) or Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) (Hessler v. State Board of Education of Maryland, 3 EHLR 553: 262 [USDC, D.Md., 1983], aff'd. 700 F 2d 134 [4th Cir., 1984]; OSEP informal opinion, EHLR 211:174; OCR informal opinion, 17 EHLR 432). Nor have petitioners offered any specific basis for finding that the hearing officer was biased because of his ethnicity or gender. The record reveals that they obtained one or more copies of the hearing officer's resume, and were afforded a basis for contesting and raising questions about his past and present associations with school organizations.

Petitioners assert that there was an appearance of partiality, because the hearing officer did not have a written contract with respondent. They assert that the hearing officer could receive what they characterize as a "bonus rate" from respondent, presumably based upon the outcome of the hearing. Under questioning from petitioners' attorney at the hearing, the hearing officer stated that he had no written salary agreement with respondent, but that he assumed that he would be paid at the normal daily rate used by the American Arbitration Association, of which he is a member. While it would be appropriate to specify a hearing officer's rate of compensation at the time of selection, the absence of such a statement is too speculative a basis to conclude that there was an appearance of partiality.

Petitioners also assert that the hearing officer's affiliations with organizations, which petitioners state "litigate and lobby for school boards and administrators and against the interests of parents of handicapped children," created an appearance of partiality. While petitioners have not identified specific organizations, I note that the hearing officer's resume lists his affiliation with seven organizations, two of which appear to relate to education: the American Association of School Administrators, and the American School Boards Association. In the absence of any evidence concerning the hearing officer's participation in these organizations with respect to specific issues involving children with handicapping conditions, I find that the hearing officer's membership in these organizations is too speculative a basis to demonstrate the appearance of partiality.

Petitioners assert that the hearing officer deliberately misled them about his prior service as president of the Board of Education of the Hicksville Union Free School District, as well as his current affiliation with the American Association of School Administrators. The record includes two versions of the hearing officer's resume, both of which list his affiliation with the school administrator group. One resume includes his prior service on a board of education, while another does not. At the hearing, the hearing officer stated that he had been on the board of education in Hicksville over 20 years ago, and that he had deleted that information from the more current version of his resume which petitioners had received from respondent. I find that petitioners have not established a factual basis for their assertion.

Petitioners further assert that the hearing officer demonstrated bias against them by refusing to permit petitioners to present evidence concerning all of the issues which they wished to raise and by failing to rule upon all of those issues, as well as by declining to schedule the hearing to continue on consecutive days as they requested. They also assert that the hearing officer made a bizarre accusation against their attorney, and had on his own initiative obtained evidence about the case outside the record before him. Petitioners assert that the hearing officer was observed by a local reporter to have lunch with respondent's attorney and several members of respondent's CSE. Respondent denies having knowledge or information sufficient to form a belief as to the last assertion.

A hearing officer must be fair in dealing with the parties, and should take care to avoid the appearance of bias or prejudice, which may be created by having lunch with an attorney and the witnesses for one of the parties. However, in the absence of evidence that the hearing officer did, in fact, have lunch with respondent's attorney and members of the CSE, I must find that petitioners have not established a basis for the disqualification of the hearing officer.

With regard to the alleged accusation made by the hearing officer against petitioners' attorney, the record reveals that during the course of her cross-examination of respondent's director of pupil services on August 6, 1991, petitioners' attorney made oral representations about the side effects of Prozac, the medication which the child had taken. No evidence of any of the drug's side effects had been introduced at the hearing. On August 14, 1991, the next day of the hearing, petitioners' attorney noticed that the hearing officer had a package insert for the medication discussed on August 6. When questioned, the hearing officer stated that the remarks made by petitioners' attorney on August 6 had piqued his curiosity about the drug and its side effects. I find that the hearing officer erred by independently obtaining evidence without the knowledge or consent of the parties (Simpson v. Wolansky, 38 NY 2d 391; Multari v. Town of Stony Point, 99 AD 2d 838). Although the hearing officer agreed with petitioners' request to share the drug insert with their medical experts, who were to testify at a subsequent date, the hearing was terminated before petitioners' medical experts could testify. While I do not condone the hearing officer's action and it certainly suggests poor judgment, I am unable to conclude that the action demonstrates bias on the part of the hearing officer.

Petitioners' assertion about the hearing officer's refusal to schedule the hearing for consecutive days does not per se afford a basis to infer that the hearing officer was biased. The hearing officer ascertained that respondent's attorney could not appear on successive days because of prior commitments. The attorneys for both parties and the hearing officer then agreed upon dates when they could attend future hearing sessions. While I do not find the hearing officer's attempts to reconcile the schedules of the attorneys is evidence of bias both Federal and State regulations require that each board of education ensure that a final decision is reached in a hearing within 45 days after the board of education receives the request for a hearing (34 CFR 300.512 [a][1]; 8 NYCRR 200.5 [c][10]). Respondent was not relieved of its obligation to comply with this requirement because of the unavailability of its attorney.

With regard to the issues which the hearing officer perceived to be properly before him, the record reveals that the attorneys for the parties did not agree upon the scope of the hearing or the effect of the court order in the Article 78 proceeding. Indeed, on the first day of the hearing, petitioners' attorney stated that the Article 78 proceeding was about to be heard by the Appellate Division of State Supreme Court, and that "we will either continue or not continue as the case may be." Although the hearing officer stated on more than one occasion that the focus of the hearing should be on the child's IEP prepared at the May 2, 1991 CSE meeting, he also stated on other occasions that he would consider petitioners' assertions of alleged procedural violations by the CSE and/or respondent's employees. The scope of the hearing was not clearly defined before the hearing was terminated after petitioners accepted respondent's offer to contract with the Summit School for the 1991-92 school year instruction of the child.

I have reviewed the entire transcript for evidence of any bias or partiality by the hearing officer. Generally, the hearing officer did permit extensive questioning of each witness, and ruled appropriately on procedural points raised by the parties. Nevertheless, certain remarks made by the hearing officer during the course of the hearing, particularly on August 16, 1991, are troubling (Transcript, Volume 8, pages 272-73, 277-278).

I find these remarks to be injudicious and inappropriate for an impartial hearing officer. The remarks occurred in the context of a protracted hearing, on the eighth day of testimony, some of which was of questionable relevance to the issues of the hearing. It followed a provocative interaction between petitioners' attorney and the hearing officer on the prior day of testimony, in which the attorney's personal attacks on the hearing officer were unnecessary and humiliating (Transcript, Volume 7, pages 598 and 600). Clearly, this proceeding was not the finest hour of either petitioners' attorney or the hearing officer. Nevertheless, a hearing officer must not allow him or herself to be provoked by the conduct of the parties or their representatives at a hearing. While such remarks may afford a basis for annulling the decision of the hearing officer on the basis of the appearance of bias, and remanding the matter for a de novo hearing, I must also consider the fact that the central issue of the hearing has already been resolved by the parties. The relevant concern at this point is what issues, if any, remain to be resolved.

Notwithstanding the statement by the hearing officer in the September 19, 1991 decision that the parties had agreed to end the hearing, petitioners' attorney by letter dated September 20, 1991 to the hearing officer asserted that she wished to present the testimony of the child's private psychologist with regard to the child's past and present needs. The psychologist would also repeat statements which the psychologist had made in an affidavit regarding the alleged perjury by one or more of respondent's witnesses concerning the events which transpired at the February 11, 1991 CSE meeting. While that testimony may have relevance to the pending Article 78 proceeding, it has none to the resolution of the issues before me.

Additional testimony concerning the child's present needs during the 1991-92 school year would have to be given with regard to the child's IEP prepared after petitioners agreed to the child's placement at the Summit School, which was not the subject of the hearing before the hearing officer. Petitioners may, if they wish, challenge that IEP by requesting another hearing.

Further testimony as to the child's needs during the 1990-91 school year would be relevant at this point only with regard to petitioners' assertion that the child should receive compensatory education. Compensatory education is available as a remedy, where a child has been excluded from school through procedural violations of Federal or State regulations (Burr by Burr v. Ambach, 863 F. 2d 1071; Mrs. C. v. Wheaton, 916 F. 2d 69), or where the child has not been provided with an appropriate education for an extensive period of time and the child will soon no longer be eligible for services under Article 89 of the Education Law (Application of a Child with a Handicapping Condition, Appeal No. 91-6). In this instance, the child has not been excluded from school, nor is there persuasive evidence that the child has not been provided with an appropriate education for a significant period of time. In view of the child's age and continuing eligibility to receive educational services and the impossibility of predicting whether the child will be able to attain his educational goals by age 21, there is no basis to order that compensatory education be provided (Application of a Child with a Handicapping Condition, Appeal No. 91-12).

The essence of petitioners' claim with respect to the appropriateness of the special class into which the child entered on February 12, 1991 is that the CSE failed to consult with and/or heed the advice of the psychologist and physicians who were privately treating the child, failed to communicate with respondent's staff about the possible side effects of the medications the child was taking, failed to make provision for having the child observed in class and failed to provide counseling. With regard to the issue of counseling, the record reveals that, although the need for counseling was discussed at the February 11 meeting, it was not included as a related service on the IEP which was prepared as a result of that meeting. Nevertheless, respondent's school psychologist testified that he had provided counseling to the child for the remainder of the school year. The testimony of the child's teacher revealed that she was aware of the medications which the child was taking, to the extent that such information had been revealed to the school nurse, and was also aware of the common side effects of those medications. The testimony of the school nurse revealed that she also was aware of the possible side effects of some of the child's medications. The school psychologist testified that he had conferred with the child's neurologist about the child's condition and medication.

Any determination as to the appropriateness of the admittedly temporary placement of the child in respondent's special education class would have to include consideration of the least restrictive environment for the child (34 CFR 300.550; 8 NYCRR 200.6 [a][1]). Placement in a residential school is appropriate only after all other less restrictive alternatives have been exhausted (Matter of a Handicapped Child, 24 Ed. Dept. Rep. 18; Application of Handicapped Child, 26 id. 173; Application of a Child with a Handicapping Condition, 29 id. 215). In this instance, the child had been mainstreamed, with one period each day of resource room, prior to entering the special class at respondent's middle school. Enrollment in a self-contained class on a daily basis is less restrictive then a placement in a residential school. I have also considered the testimony of the child's teacher, the classroom aide and the assistant principal of the middle school concerning the child's educational performance and behavior. I find that there would be no useful purpose in remanding the matter for a new hearing on the issue of the appropriateness of the child's placement for the 1990-91 school year with regard to petitioners' request that I direct respondent to provide compensatory education.

One of the issues before the hearing officer was whether the child had been suspended from school on April 30 and May 1, 1991 for manifesting a symptom of his handicapping condition. The hearing officer noted that even respondent's witnesses had conceded the possibility that the child's confrontation with his teacher could be attributed to his Tourette Syndrome, but found that the relief sought by petitioners, i.e. the expungement from the child's records of any reference to such suspension, was available to them under the procedures set forth in 34 CFR 99, implementing the Family Educational Rights and Privacy Act.

I find that there would be no point in remanding this issue back for a de novo hearing. A child with a handicapping condition may be suspended from school on a short-term basis to ensure the safety of others or to provide a "cooling off" period (Honig v. Doe, 484 U.S. 305). However, with regard to the accuracy of the suspension letter in the child's file, I note that respondent's representatives do not appear to dispute the fact that the standard student suspension letter sent to petitioners at their request does not accurately represent the circumstances of the matter. I further note that 34 CFR 300.567 - 570 provides that if a parent of a child with a handicapping condition believes information in a child's educational records is inaccurate, the parent should first make a request that the information be amended, and that if the board of education refuses to amend the child's record, it must afford the parent an opportunity for a hearing which must be conducted according to the procedures set forth in 34 CFR 99. Accordingly, petitioners, individually or through their attorney, should ask respondent's superintendent of schools to amend or delete information about their child's suspension. Given the facts of this case, I have no reason to believe that they will receive a favorable response to their request.

I have considered petitioners' other assertions, as well as their request for various general directives to respondent's CSE. I find no merit in pursuing those assertions with regard to the manner in which the child's prior IEPs were prepared or implemented, because those matters are moot. Petitioners' requests for various directives, such as an order mandating that each child with the Tourette Syndrome will be permitted to leave the classroom, as necessary, and accompanied by an adult, in order to discharge his or her symptoms of such disease, are clearly inconsistent with the nature of this proceeding which is to review the provision of programs and services to a specific child. If petitioners wish to assert generic complaints concerning an alleged violation of Federal statute or regulation by respondent or its CSE, they should be submitted to the State Education Department's Office of Special Education Services, for resolution pursuant to the provisions of 34 CFR 76.780.

THE APPEAL IS DISMISSED.

Dated: Albany, New York __________________________
January 9, 1992 HENRY A. FERNANDEZ