No. 95-50


Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Scotia-Glenville Central School District

McCary and Huff, Esqs., attorneys for respondent, Margaret D. Huff, Esq., of counsel


Petitioners appeal from the decision of an impartial hearing officer which dismissed their claim that their child's individualized education program (IEP) for the 1994-95 school year was inadequate because it did not provide that the child's mother would serve as the child's individual aide. They also appeal from the hearing officer's dismissal of their claim that respondent had violated their right to inspect their son's school records. The appeal must be dismissed.

Petitioners' child is thirteen years old. He was initially identified as learning disabled by the CSE of the Guilderland Central School District, in which he then resided. He has remained classified as learning disabled. Although his IQ scores have been reported to be in the retarded range on a number of occasions, there is no evidence in the record that his adaptive behavior has been assessed and found to have a concurrent deficit which is a prerequisite for classification as mentally retarded (8 NYCRR 200.1 [mm]). Those who have evaluated him have noted that the child's IQ scores may not be truly reflective of his cognitive ability. He reportedly has difficulty remaining focused upon tasks. There is very limited information in the record of this proceeding about the child's academic skills. A consultant teacher who worked with the child during part of the 1993-94 school year estimated that the child's reading and mathematics skills were at the mid-first grade level. His regular education teacher for that school year reported that the child's rate of learning was considerably below that of his chronological peers, and that the child needed to develop positive social relationships with peers and adults. A private educational evaluator, who assessed the child in February, 1994, reported that the child was reading at the primer level, and required prompting to follow a story. The child was unable to identify numbers above 20, but could write some numbers. The evaluator reported that the child jumped from topic to topic during conversation. She recommended that he be educated with his chronological peers, but receive a functional academic program. The child's classification as learning disabled has not been challenged.

During the 1989-90 school year while living in Guilderland, he was enrolled in a special education class of the Board of Cooperative Educational Services of Albany, Schenectady and Schoharie Counties (BOCES), and was mainstreamed for part of the day in a regular education kindergarten class. Although he initially attended the regular kindergarten with an aide, he eventually was able to attend the class without an aide, according to a report of the BOCES.

In the summer of 1990, petitioners became residents of respondent's school district. For the 1990-91 school year, respondent's CSE recommended that the child remain classified as learning disabled, and that he be enrolled in a special education class in respondent's Lincoln Elementary School and be mainstreamed for first grade "special subjects", i.e., art, music and physical education. The CSE also recommended that the child receive speech/language therapy, and that he be evaluated to ascertain whether he continued to need occupational therapy which he had previously received.

The child attended the Lincoln Elementary School only briefly, before he began being instructed at home by his mother at the request of respondent's then CSE chairperson. The child was reportedly involved in several incidents of acting out, as a result of his inability to remain focused and his frustration, according to the principal of the Lincoln School, who testified at an impartial hearing in this proceeding. The child continued to be educated at home, while the parents and the CSE attempted to resolve their differences about having the child evaluated. The child did receive speech/language therapy and occupational therapy in one of respondent's schools, but received no instruction from respondent. He returned to respondent's elementary school in the spring of 1991, after the parties agreed that the child would be evaluated by one of respondent's school psychologists and by an independent psychologist. The child's mother initially stayed with the child in school to assist him in aking the transition back to school. By the end of the 1990-91 school year, the child was reportedly participating in the entire educational program prescribed by his IEP.

In the Fall of 1991, the child was enrolled by petitioners in the Montessori School of Albany, which, despite its name is located in Rensselaer, New York. He received no services from respondent. The child's mother served as his volunteer aide at the Montessori School. On the child's report card for the 1991-92 school year, his Montessori School teacher indicated that the child had made progress in acquiring phonetic skills and using manipulatives in mathematics. The teacher noted that the child's mother had been of great assistance in having the boy observe his peers for behavioral cues, but indicated that attention should be focused upon physically and verbally controlling the child, whom she described as very uninhibited and strong. The CSE had deferred making its recommendation for the child's educational program during the 1991-92 school year until additional evaluations could be performed. When the CSE reconvened in October, 1991, it recommended that the child receive instruction for part of the day in one of respondent's special education classes, and receive the remainder of his instruction in respondent's pilot inclusionary, i.e., regular education, second grade class.

At petitioners' request, an impartial hearing was held in the Spring of 1992 to review the appropriateness of the child's program for the 1991-92 school year. The hearing officer in that proceeding held that the child's IEP was appropriate. Petitioners appealed from the hearing officer's decision to the State Review Officer, who sustained their appeal on August 17, 1992 (Application of a Child with a Handicapping Condition, Appeal No. 92-29). Petitioners' appeal was sustained on the ground that respondent had failed to demonstrate that the child could not have achieved his IEP annual goals and instructional objectives in the less restrictive environment of a full-time regular education class. The matter was remanded to the CSE, which was directed to prepare an IEP for the 1992-93 school year which was consistent with the recommendations of the child's independent evaluators, and to obtain an assessment of the child's adaptive behavior and a behavioral analysis of the child.

In September, 1992, the CSE reconvened pursuant to the decision of the State Review Officer. It recommended that the child be placed in a regular education class, with the services of consultant teacher (see 8 NYCRR 200.1 [1]) and a full-time individual aide, in respondent's Lincoln Elementary School, which is near his residence. Petitioners informed the CSE that they preferred to keep their child in the Montessori School, which had not been approved by the State Education Department as a school for children with disabilities.

At petitioners' request, respondent provided the special education services recommended in the IEP to the child by cross-contracting with the Board of Cooperative Educational Services of Rensselaer, Columbia and Greene Counties (RCG BOCES), because the Montessori School is located within the RCG BOCES service area. The child's mother, who had served as a volunteer aide for him, was employed in January, 1993, by the RCG BOCES to serve as his individual aide. At the hearing in this proceeding, the Administrator of the Montessori School testified that the child had a good year during the 1992-93 school year, but not as good as during the prior school year. However, the child's report card for the year is not in the record.

The CSE had recommended that the child be transported between his residence and the Lincoln Elementary School. Respondent denied petitioners' request that it transport the child to and from the Montessori School. Petitioners appealed from respondent's decision to the Commissioner of Education, who dismissed their appeal on the grounds that their appeal was untimely and that they were not entitled under State law to the requested transportation (Application of a Student with a Disability, 32 Ed. Dept. Rep. 467).

On November 13, 1992, the child was evaluated for respondent at the Montessori School by a school psychologist of the RCG BOCES. The school psychologist reported that the child, who had received full scale IQ scores of 51, 47, and 55, when tested in 1988, 1989, and 1991, respectively, obtained a verbal IQ score of 54, a performance IQ score of 46, and a full-scale IQ score of 46. He cautioned that the child's test scores were undoubtedly depressed because of his poor test taking behavior, (impulsivity and willingness to "give up"). The school psychologist also observed the child listening to a story being read, take a spelling test, and work on computer assignments, with the assistance of his mother, who was serving as his aide. He reported that the child did not present any behavior problem, and appeared to be accepted by his classmates. The school psychologist opined that the child would continue to require a supportive educational program in which he could proceed at his own pace and have good peer models. He suggested that a type of behavior modification program be employed, and that the child have access to computer assisted instruction. In March, 1993, the CSE recommended that a computer and writing software be obtained for the child.

On June 15, 1993, the CSE recommended that the child be enrolled in a regular education class, and that he receive two and one-half hours of direct and two and one-half hours of indirect consultant teacher services per week. The CSE also recommended that the child receive one and one-half hours of individual speech/language therapy in his regular education classroom, and that an occupational therapist provide consultant services for one-half hour per month. The CSE further recommended that an individual aide be assigned to assist the child for six and one-half hours per school day, and that reading and mathematics computer software be provided to the child.

Petitioners chose to have the child remain in the Montessori School for the 1993-94 school year. Respondent again cross-contracted with the RCG BOCES to provide the child with special education services at the Montessori School. The child's mother was again employed as the child's aide by the RCG BOCES. At the hearing in this proceeding, the child's consultant teacher for the 1993-94 school year testified that the child's mother did not want her to test the child to establish his "baseline", i.e., level of performance at the beginning of the school year. She also testified that it had been difficult to provide direct consultant teacher services to the child because his mother insisted upon talking to her about her services during the time scheduled for direct services, and had not followed the consultant teacher's directions with regard to maintaining records. The Administrator of the Montessori School also testified that the child's mother appeared to not be up to the task of serving as the child's aide during the 1993-94 school year.

In two letters to respondent's Director of Pupil Personnel Services, each dated January 19, 1994, the Administrator of the Montessori School requested that a CSE meeting be held immediately to discuss the performance of the child's individual aide (his mother), and the child's lack of progress towards the attainment of his IEP goals, which the Administrator attributed to the aide's performance. On or about January 20, 1994, the child's mother was transferred by the RCG BOCES to another aide position in another school building. However, she reportedly did not accept the new assignment, and her employment was terminated by the RCG BOCES. The child ceased attending the Montessori School as of the date when his mother was transferred by the RCG BOCES. In a letter to respondent's Superintendent of Schools, dated February 18, 1994, petitioners asked that respondent cease providing services to their child.

The CSE met with petitioners, their attorney, the Administrator of the Montessori School, the child's regular education teacher, his consultant teacher, and his speech/language therapist, on February 16, 1994. The petitioners' attorney reportedly asserted that the reassignment of the child's aide constituted a unilateral change of the child's placement (cf. 8 NYCRR 200.1 [f]). The CSE chairperson testified that the CSE adopted the position that the aide's reassignment was a personnel matter outside of the CSE's jurisdiction. The CSE reviewed the child's academic and social progress, and considered a request by the child's regular education teacher and his consultant teacher that the amount of the latter's direct services be increased. The CSE reaffirmed its prior recommendation that the child receive two and one-half hours of direct consultant teacher services per week, but specified that it be provided on a daily basis, i.e., 30 minutes per day, rather than 50 minutes per day, three times per week as it had been provided from October through January of the 1993-94 school year.

Around the time of the CSE meeting, petitioners sought information from respondent's Superintendent of Schools about educating their child by themselves. The Superintendent of Schools provided them with a copy of a form on which they were to submit an individualized home instruction plan (IHIP), as required by State regulation (8 NYCRR 100.10 [c]). Thereafter, petitioners submitted an IHIP for the child. In a letter to petitioners, dated April 22, 1994, the Superintendent of Schools informed them that the IHIP appeared to comply with State regulation, except that it did not specify the grade level for the plan of instruction. The parties corresponded further about the IHIP, but the record does not reveal whether the IHIP was ultimately deemed by the Superintendent of Schools to be acceptable. Although petitioners discussed the child's return to the public schools in the Spring of 1994 with the Principal of the Lincoln Elementary School, they could not agree on the appropriate grade level placement. He has remained at home, where he reportedly receives some tutoring provided by respondent pursuant to an agreement between the parties.

The CSE chairperson testified that he attempted to have the child's annual review conducted in June, 1994, but was unable to arrive at a mutually agreeable date for a CSE meeting in either June or July, 1994. The child's father reportedly requested that the annual review he conducted during the last week in August, 1994. The annual review was, in fact, conducted on September 2, 1994, but was not completed until September 13, 1994. The CSE recommended that the child be enrolled in a regular education fifth grade class, and that his special education needs be addressed by providing him with 45 minutes per day of direct consultant teacher services and the same amount of indirect consultant teacher services. The CSE also recommended that an individual aide be assigned to assist the child in class, at lunch, and at recess. It further recommended that various testing modifications, including scheduling, format, aids, setting, directions and questions, be employed with the child. The CSE recommended that the child have a laptop computer, with a mouse, for school and homework, access to a printer in school, software for reading, writing, mathematics, speech/language and organizational/study skills. It also recommended that he have the use of a tape recorder with earphones, a calculator with fractions, and books on tape. The CSE specified that the child should receive regular transportation between home and school.

In a letter to respondent's attorney, dated September 12, 1994, petitioners' advocate specified six issues which petitioners wished the CSE to address when it reconvened on September 13, 1994. Three of the issues were apparently addressed in the child's IEP. The remaining issues involved hiring the child's mother to be his individual aide for a minimum of three months, and the training of the child's consultant teacher and his speech/language therapist, respectively, in the "inclusion" model. Inclusion typically means the placement of a child with a disability with the child's age-appropriate peers in a regular education class, in which the child receives appropriate special education services (Application of a Child with a Disability, Appeal No. 94- 17). The CSE chairperson testified that the CSE did not address the issues because the selection and training of staff were believed to be beyond the CSE's jurisdiction.

On or about September 16, 1994, petitioners requested that an impartial hearing be held. By agreement of the parties, the hearing was scheduled to begin on October 28, 1994, but was adjourned by consent until November 9, 1994. Petitioners waived the 45-day time limit in which the hearing officer was required to render his decision (34 CFR 300.512 [a]). At the outset of the hearing, the issues for the hearing officer to resolve were identified as: (1) whether the child's IEP for the 1994-95 school year was inappropriate because the CSE had not identified the child's mother as the person to be employed as the child's individual aide; and (2) whether respondent deliberately delayed the commencement of the hearing by allegedly hindering petitioners' attempts to review and obtain copies of their child's school records. The hearing in this matter ended on February 7, 1995.

In his decision, which was rendered on June 9, 1995, the hearing officer rejected petitioners' assertion that the transfer of the child's mother to another aide position was a unilateral change in the child's placement. The hearing officer expressed doubt about his authority to order respondent to employ any specific person to provide service to a child with a disability, which he opined would be a form of relief to be warranted only under the most extraordinary conditions. He found, on the basis of the record before him, that there were no grounds for granting the requested relief. However, the hearing officer did remand the matter to the CSE to resume its discussion of issues which either or both parties deemed to be relevant to the child's education. He suggested that the CSE should consider whether the child now required a 12-month program to make up for his isolation from a more comprehensive program, that the CSE work with a consultant or other qualified individual to develop a management plan for the child, and that the CSE consider recommending that a social worker or counselor work with the child and his parents to assist his transition back into school. The hearing officer also found that petitioners had not been denied full and fair access to their child's records. Finally, the hearing officer denied petitioners' request that they be reimbursed for all reasonable expenditures which they had incurred as a result of the hearing.

Prior to addressing the substantive issues raised in this appeal, I must address one procedural issue. Petitioners, through their lay advocate, request that I consider in this appeal the post-hearing written arguments which were submitted to the hearing officer, but which were not part of the hearing record (see 8 NYCRR 279.7[a]). Although the documents petitioners wish to submit were not part of the hearing record, petitioners were free to submit them with their petition in this appeal (8 NYCRR 279.4). However, the documents were submitted on August 9, 1995, approximately two weeks after the petition in this appeal was filed with the State Education Department. A representative of the Office of State Review returned the two documents to the lay advocate, with the explanation that they were not part of the record and were not submitted on a timely basis. Petitioners have resubmitted the documents. I have decided to accept the two documents. While I recognize that respondent will not have an opportunity to respond to the arguments set forth in petitioners' memorandum, I find that it will not be significantly prejudiced as a result.

Petitioners assert that respondent denied them access to their child's records in a timely fashion, as a result of which the hearing in this proceeding was delayed. Respondent asserts that it afforded petitioners access to the child's records in a manner which was consistent with Federal and State law. The record reveals that in a letter to respondent's Director of Pupil Personnel Services, which was dated August 24, 1994, the child's father asked that all documents in which his son's name appeared be assembled in one location for petitioners to review. Thereafter, the principal of the Lincoln Elementary School and the child's father corresponded about when the child's records could be inspected. At the hearing, the Principal of the Lincoln Elementary School testified that the child's records were shared with petitioners, after the records had been retrieved from storage in another school building. She further testified that the records were initially made available as of September 30, 1994, on a daily basis from 8:00 a.m. to 4:00 p.m., and that the time was extended to 5:00 p.m., as an accommodation to the child's father. Petitioners contend that the Principal's practice of handing them one document at a time needlessly delayed their review of the child's records.

The relevant Federal regulation provides that a school district must comply with a parent's request to review records "...without unnecessary delay and before any meeting regarding an IEP or any hearing relating to the identification, evaluation or educational placement of the child... and in no case more than 45 days after the request has been made" (34 CFR 300.562). The records were made available to petitioners within 45 days after their request. Although the records were not made available prior to the CSE meetings on September 2 and 13, 1995, when the child's IEP for the 1994-95 school year was prepared, there is no evidence in the record that petitioners asked to have the CSE meeting adjourned. They requested and received an adjournment of the impartial hearing which began on November 9, 1994 because they had reportedly not had an opportunity to review all of the child's records, despite having access to the records since September 30, 1994. They also waived the 45 day time limit for the hearing officer to render his decision (34 CFR 300.512 [a]). Although I do not necessarily agree with the Principal's practice of allowing petitioners access to only parts of the child's record at one time, rather than the entire file, I find that there is no basis in the record before me for finding that respondent violated any statute or regulation regarding parental access to student records or the timeliness of hearings.

Petitioners assert that the removal of the child's mother from her position as the child's individual aide was a change in the child's placement, and that the mother's employment as the child's aide should have been continued as part of the child's "pendency" placement (20 USC 1415 [e][3]; section 4404[4] of the Education Law). However, a change in placement is defined in State regulation as "... a transfer of a student to or from a public school, BOCES or schools enumerated in article 81, 85, 87, 88, or 89 of the Education Law." (8 NYCRR 200.1 [f]). Moreover, the Office of Civil Rights of the United States Department of Education has opined that a change of a child's teachers, absent a significant corresponding change in program content or methodology, does not constitute a significant change of the child's placement for purposes of requiring a school district to notify the parents or evaluate the child (EHLR 353:144). Neither Federal nor State regulation requires a CSE to identify the individual who is to provide a service to the child in the child's IEP. Therefore I find that the discontinuance of the mother's employment as the child's aide was not a change in the child's program, as that term is defined in State regulation (see 8 NYCRR 200.1 [e]).

Throughout the lengthy hearing in this proceeding the parties discussed the circumstances under which the RCG BOCES reassigned the child's mother to another aide position. However, I must point out that the quality of the mother's services as an aide is not an issue in this proceeding. A school employee has no standing to assert employment rights in a proceeding of this nature (Oden v. Chicago Board of Education, 22 IDELR 137 [N.D., Ill., 1995]; Ross v. Allen, 515 F. Supp. 972 [S.D., N.Y., 1981]). In addition, a review of the impact of his mother's transfer upon the child's educational program for the 1993-94 school year, the school year in which the transfer occurred, would be untimely because this proceeding was not commenced until eight months after the transfer had occurred and the school year had ended.

The central issue in this appeal is whether the child's educational program for the 1994-95 school year which the CSE recommended, and which is set forth in the child's IEP, was appropriate for the child. Respondent bears the burden of proving the appropriateness of the program which its CSE recommended (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). It must do so by showing 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 the child's 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).

Petitioners do not challenge the child's IEP, per se, but they assert that the CSE's failure to identify the child's mother as his individual aide, at least for a transitional period of approximately three months, denied the child the free appropriate public education to which he is entitled as a matter of Federal law. At the hearing, respondent adopted the position that the hearing officer lacked the jurisdiction to order that the child's mother serve as his aide. I find that respondent's position is without merit. Federal regulations accord parents the right to initiate a hearing with regard to the alleged denial of a free appropriate public education to a child (34 CFR 300.504 [a]; 34 CFR 300.506 [a]). In the event that a hearing officer found that a school district's refusal to provide the services of a specific individual to a child constituted a denial of a free appropriate public education to the child, the hearing officer could order that steps be taken by the school district to provide the child with a free appropriate public education, including the services of a specific individual (Ludington Area Schools, 20 IDELR 211 [1992]; School Committee Town of Truro v. Commonwealth of Massachusetts et al., EHLR 552:186 [Massachusetts Superior Court, 1980]).

In order to determine whether the child could not receive a free appropriate public education without the assistance of his mother, it is necessary to consider his special education needs. The child's IEP indicated that the child occasionally required reminders, verbal prompts and redirection to remain on task, and that he displayed inattentiveness and avoidance behavior when presented with difficult tasks or tasks which were inappropriately paced for him. The IEP further indicated that the child required individualized assistance and instruction in novel and unfamiliar learning situations. Petitioners' advocate submitted a written description of the child's management needs to the CSE in which she asserted that the child's impulsiveness and attention difficulties were easily directed through the use of peer modeling, positive verbal reinforcement, and self-directed short breaks in the classroom.

At the hearing, petitioners presented as an expert witness a retired professor of psychology at the State University of Albany, who testified that when he observed the child several years ago the child required very careful regulation during novel situations. The witness opined that it would be valuable to have someone with the child who understood the child's level of arousal occasioned by novel situations, who was attuned to how the child would react, and who had a good understanding of how to guide the child through his arousal. The witness conceded that he had not observed the child in school, and that someone other than the child's mother could function as the child's aide, if properly trained. He also testified that he was not making a specific recommendation with regard to the child's education.

The child's advocate, who had observed the child in his home and at various locations in the community, but not in school, testified that the child had deficits in his expressive and receptive language skills, and required someone to assist him in expressing himself and understanding lessons presented in school. She also testified that he required assistance when he became agitated, and that the child's mother could effectively redirect him. The advocate opined that the child would be ostracized by his peers because of his inappropriate behavior, unless his mother was present to assist him. She conceded that someone other than the child's mother could eventually serve as his aide, but opined that the child needed his mother as his aide for a period of two or three months while he made the transition back to public school.

Upon review of the record before me, I find that the child requires the services of an aide, but that his needs are not so unique that he would not be able to benefit from instruction without the services of his mother as his aide. Petitioners' concern about the child's ability to return to school and benefit from instruction without the assistance of his mother is speculative. I cannot find that the program which the CSE recommended for the child is inappropriate on the basis of petitioners' speculation that he may have difficulty adjusting to a new environment, and the further speculation that respondent's staff will be unable to help him make the transition (Application of a Handicapped Child, 26 Ed. Dept. Rep. 59; Application of a Child with a Handicapping Condition, 26 id. 357). I note that the hearing officer has recommended that the CSE consider the assistance of a school social worker or counselor to help the child make the transition back to school. I also recommend that the child's teacher should prepare an appropriate behavior management plan for the child.

I have considered petitioners' other assertions, which I find are without merit. Finally, I must note that the record in this proceeding demonstrates that there has been a substantial disagreement between the parties about the child's educational program for a number of years. The parties have a neutral obligation to develop and implement the child's educational program (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2d Cir., 1989]). I urge the parties to do so for the benefit of the child.



Dated: Albany, New York August 24, 1995             ROBERT G. BENTLEY