The State Education Department
State Review Officer

No. 96-37

 

 

Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Harrison Central School District.

Appearances:
Ebenstein & Ebenstein, Esqs., attorneys for petitioners, Barbara J. Ebenstein, Esq., of counsel

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent, James P. Drohan, Esq., of counsel

 

DECISION

        Petitioners appeal from the decision of an impartial hearing officer which found that respondent had met its obligation to provide petitioner's daughter with a free appropriate public education under the Individuals with Disabilities Education Act (IDEA), and which dismissed petitioners' claim that respondent had violated their child's rights under Section 504 of the Rehabilitation Act of 1993 (29 USC 794). The appeal must be dismissed.

        Petitioners' daughter is eleven years old. During the 1995-96 school year, she was enrolled in the fifth grade in respondent's Purchase Elementary School. The child has been medically diagnosed as having hypogammaglobulinemia, which is an immunodeficiency disorder. She was initially referred by her mother to respondent's Committee on Special Education (CSE) in 1990, prior to her entry into kindergarten. The CSE recommended that the child be classified as other health impaired, and that she receive resource room services during the 1990-91 school year. Shortly after her entry into kindergarten, the child was reportedly found to no longer need resource room services. In January, 1991, the CSE recommended that the child be declassified. The child remained declassified through the completion of the first grade in June, 1992. At that time, her mother referred her again to the CSE, because she was concerned about her child's educational performance.

        The CSE re-evaluated the child, who was found to have average cognitive skills, with slight weaknesses in her word knowledge, attention to visual detail, and copying skills. Her reading skills were found to be at a beginning first grade level, while her writing skills were found to be significantly below what would be expected for a child of her mental ability. Respondent's school psychologist reported that the child evidenced a significant delay in her visual-motor integration skills. The school psychologist further reported that the child was an emotionally needy, overly dependent student, who needed to develop increased independence and self-confidence. In September, 1992, the CSE recommended that the child be classified as learning disabled, and that she receive resource room services for three hours per week. The CSE further recommended that the child receive individual counseling for one-half hour per week.

        In February, 1993, the CSE reviewed the child's progress at the request of her mother. The CSE amended the child's individualized education program (IEP) to provide that she would receive five hours of service per week in respondent's collaborative instructional program (CIP), consisting of three hours of resource room services and two hours of consultant teacher services. It also recommended that she receive indirect consultant teaching services by a speech/language therapist twice per month, and that she continue to receive individual counseling.

        In June, 1993, the child was privately evaluated by a speech/language pathologist, who reported that the child's language skills were not sufficiently developed, despite the excellent support and intervention which had been provided to her in elementary school. She recommended that the child's hearing be tested, and that she be evaluated for a possible central auditory processing deficit. She further recommended that the child receive additional specialized assistance to remediate the deficits in her language skills. In a subsequent evaluation, the child's hearing was found to be within normal limits, but she reportedly evidenced some signs of an auditory processing deficit.

        When the child was evaluated by the CSE at the end of the 1992-93 school year, she was found to have significantly improved writing skills. However, her reading skills continued to be significantly delayed, and she evidenced an inability to decode vowel sounds. The CSE recommended that the child receive more intensive special education services during the 1993-94 school year, in the form of resource room services for one hour per day, rather than the combination of resource room and consultant teacher services which she had received while in the second grade during the 1992-93 school year. It further recommended that the child receive small group speech/language therapy twice per week, to address the reported deficit in her auditory processing skills. The CSE also recommended that the child receive small group counseling once per week to assist her in developing self-esteem.

        The CSE reportedly did not receive the private evaluator's report until early September, 1993. It reconvened in October, 1993, to review the evaluator's report. The CSE concluded that the child's IEP did not need to be changed. At the hearing in this proceeding, the CSE chairperson testified that the school district was already implementing many of the recommendations which the private evaluator had made.

        During the 1993-94 school year, the child's teachers became concerned about the child's ability to succeed in the third grade, because her reading skills were still at a first grade level. In January, 1994, the third grade teaching team proposed that the child be enrolled in an extended resource room program, which would provide her with additional specialized small group instruction in reading and writing. At the hearing, the child's mother testified that she was aware that the extension of the child's resource room program would reduce the amount of time during which she could be instructed in social studies and science, and that she did not object to this consequence of having her child receive more special education. On March 10, 1994, the CSE accepted the teaching team's recommendation, and recommended that the child's resource room services be increased to 90 minutes per day.

        Respondent's Director of Special Education met with the building principal, the third grade teaching team, and the child's resource room teacher on May 31, 1994, to review the results of the extended resource room program. The third grade teachers expressed their belief that the program had benefitted the children who were in the program. A written report of the meeting indicated that the classroom (regular education) teachers " ... are not responsible for teaching of content material to these students" (Exhibit C). At the hearing, the Director of Special Education testified that respondent's staff agreed that the work which the children missed in regular education would not be made up, and that the children would not be graded for the subjects in which they missed work because they were in the extended resource room program. She also testified that the parents of the children in the program were made aware of this, and had not objected.

        The girl's progress in school was next reviewed by the CSE on June 1, 1994. The child's speech/language therapist reported that the child's progress had been erratic, but that her language skills had improved during the school year. The child's resource room teacher reported that the child's word attack skills had improved, but that her reading comprehension continued to be weak. Nevertheless, the child's regular third grade teacher reported that the child had made significant progress in all areas by June, 1994.

        For the 1994-95 school year, the CSE recommended that the child receive primary special education instruction for reading and language arts in a special education class for two hours per day, and that she be mainstreamed in a regular education fourth grade class for her other subjects. It also recommended that she receive small group speech/language therapy once per week, and consultant speech/language services on a once per week basis.

        In the Spring of 1995, the child received her triennial evaluation. The school psychologist who evaluated the child reported that she had achieved a verbal IQ score of 105, a performance IQ score of 103, and a full scale IQ score of 104. The psychologist noted that the child's responses to verbal test items indicated that she might have difficulty with certain verbal expression skills, particularly word retrieval and language concepts. The school psychologist also reported that the child evidenced a weakness in auditory processing and visual integration skills, both of which affected her academic performance. The child attained standard scores of 84 in basic reading and mathematical reasoning, and 88 in spelling, which were well below her expected levels of performance. The school psychologist reported that the child's self-esteem and ability to maintain social relationships had improved.

        As a result of the child's triennial evaluation, the CSE recommended that the child remain classified as learning disabled. For the 1995-96 school year the CSE recommended that the child continue to be instructed for reading and language arts in a special education class for two hours per day, and that she be mainstreamed in regular education fifth grade classes for other subjects. The CSE recommended that the child receive speech/language therapy in a small group once per week, as well as once per week consultant teaching services by the speech/language therapist.

        The child's IEP for the 1995-96 school year was prepared at a meeting of the CSE on October 2, 1995. At the hearing in this proceeding, the child's mother testified that she expressed her concern about the child missing instruction in social studies and science because she was being removed from her fifth grade class for two hours each day to receive special education instruction in reading and language. She further testified that she was advised that nothing could be done about the matter. The child's mother thereafter met with the child's teachers and school principal, and was again advised that nothing could be done. On January 25, 1996, the child's mother met with respondent's Director of Special Education. At that meeting, the child's mother delivered petitioners' written request for a hearing, which read as follows:

"We hereby request an impartial hearing to review the Harrison Central School District's failure to provide an appropriate education for our daughter [child's name]. We believe that the Harrison Central School District is in violation of the IDEA" (H.O. Exhibit A).

        The hearing in this matter began on February 15, 1996. The hearing officer asked the parents' attorney to make an opening statement " ... so that I understand what the issues are" (Transcript, page 5). Petitioners' attorney declined to make an opening statement, or to describe the issues involved, or the relief requested by petitioners. The hearing officer did not press his request, and the hearing proceeded.

        Before the hearing resumed on March 18, 1996, petitioners' attorney filed a motion for interim relief regarding the evaluation of the child and implementation of her IEP during the pendency of the proceeding. Petitioners asked the hearing officer to order respondent to refrain from conducting any evaluation of the child, because the CSE had reportedly conducted a speech/language evaluation of the child on February 26, 1996, without giving petitioners prior notice of the evaluation. They also asked the hearing officer to require respondent to allow the child to fully participate in fifth grade science and social studies during the pendency of the proceeding. The CSE had reportedly approved a revision in the child's schedule to permit her to receive instruction in both subjects, in a meeting held on February 28, 1996. Following two off-the-record discussions at the hearing on March 18, 1996, the parties reached agreement with respect to both of the issues in petitioners' motion. The child's schedule was revised to provide that she would not be removed from her regular education fifth grade class during the portions of the day when instruction in science and social studies was presented. The parties also agreed that the CSE would not test the child, other than as was customary to prepare for the child's next annual review. They also agreed that if requested by petitioners, the child would have an independent speech/language evaluation.

        Although petitioners did not identify any element of their child's educational program for the 1995-96 school year with which they disagreed, they nevertheless asked the hearing officer to continue the hearing with regard to the alleged violation by respondent of their child's rights under Section 504 of the Rehabilitation Act of 1973. The hearing officer noted that he had not been appointed by respondent to conduct a hearing for that purpose, but agreed to do so, when respondent's attorney acquiesced to petitioners' request. The hearing continued on March 18, 1996, and concluded on March 20, 1996.

        In a decision which was rendered on May 8, 1996, the hearing officer noted that the agreement reached by the parties on March 18, 1996 had resolved the questions raised in petitioners' motion for an interim order, and also resolved the issue of whether the child's IEP for the 1995-96 school year was being properly implemented. He then addressed petitioners' claim of an alleged violation of Section 504, which appeared to involve two issues. The first was whether the removal of the child from her class when social studies and science instruction was provided so that she could receive special education instruction in reading and language was an act of discrimination against the child on the basis of her disability. The hearing officer found that the IEP which the CSE had prepared for the child was appropriate to meet her educational needs, and that the manner in which the IEP had been implemented appeared to have been for her benefit. He noted that the record established that the child's reading and writing skills had significantly improved, since her enrollment in the part-time special education class for reading and language. He further noted that the child had received a score which was in the top quartile for the New York State Program Evaluation Test for science in the Spring of 1995, despite not having received instruction in science on a full-time basis during the 1994-95 school year. The hearing officer found that there was no basis for petitioners' first Section 504 claim. Petitioners' second Section 504 claim was that respondent had allegedly retaliated against either them, or their child, because they had exercised their due process rights. The hearing officer found that there was no evidence whatsoever to support petitioners' claim.

        The initial question which I must resolve is which, if any, of the hearing officer's findings may be reviewed in this appeal. Section 4404 (4) of the Education Law provides that:

"A state review officer of the state education department shall review and modify, in such cases and to the extent the review officer deems necessary, in order to properly effectuate the purposes of this article, any determination of the impartial hearing officer relating to the determination of the child's handicapping condition, selection of an appropriate special education program or service and the failure to provide such program and to require such board to comply with the provisions of such modification."

        Section 4404 of the Education Law is part of Article 89 of the Education Law, which is the State counterpart to the Federal IDEA. The claims which are to be considered by the hearing officer and reviewed by the State Review Officer, pursuant to Section 4404, are those which arise under the IDEA and Article 89 of the Education Law. At the hearing in this proceeding, the child's mother acknowledged that the child's IEP for the 1995-96 school year was appropriate. Petitioners' disagreement with respondent involved the manner in which the IEP had been implemented. That disagreement was resolved on March 18, 1996, when the parties agreed to revise the child's schedule, so that she could fully participate in the science and social studies portions of her fifth grade curriculum. I find that petitioners' IDEA/Article 89 claim regarding the implementation of their child's IEP during the 1995-96 school year is therefore moot. The State Review Officer is not required to determine issues which are no longer in controversy, or to make a determination which would have no actual effect on the parties (Application of a Child with a Handicapping Condition, Appeal No. 91-45; Application of a Child Suspected of Having a Disability, Appeal No. 95-60).

        Petitioners do assert two other IDEA/Article 89 claims. First, they challenge the hearing officer's decision on the ground that he failed to determine whether State regulation requires that each child for whom speech/language therapy is to be provided pursuant to an IEP must receive a minimum of two sessions of "direct" therapy per week. Second, they also assert that the hearing officer's decision was colored or tainted by his incorrect assumption that their attorney should have made an opening statement, when she was asked to do so by the hearing officer.

        With regard to the issue of speech/language therapy, petitioners argue that 8 NYCRR 200.6 (e)(2), which indicates that speech and language services " ... shall be provided for a minimum, of two 30-minute sessions each week ... " means that the child with a disability must receive direct services from a speech/language therapist twice per week. They ask that I find that respondent may not satisfy this requirement by offering the child one period of direct service and one period of consultant speech/language therapy per week, as were provided to the child during the 1995-96 school year. Petitioners recognize that the 1995-96 school year has ended, but they insist that the issue is not moot because the child's IEP for the 1996-97 school year will likely include speech/language therapy. However, that IEP is not part of this proceeding. I find that petitioners, in essence, seek an advisory opinion. I decline to issue an advisory opinion, and recommend that they contact the appropriate office within the State Education Department for advice about the regulatory requirement.

        Petitioners' claim of possible bias by the hearing officer must be considered, even if the issues raised in the impartial hearing are moot (Heldman v. Sobol, 962 F. 2d 148 [2d Cir., 1992]; Hiller v. Bd. of Ed. Brunswick CSD, 687 F. Supp. 735 [N.D.N.Y., 1988]). The hearing officer noted in his decision that petitioners' attorney had declined to identify the issues at the beginning of the hearing. However, I have found nothing in my review of the hearing transcript, or the hearing officer's determination, which would support an inference that petitioners were treated unfairly, or that the hearing officer exhibited any bias in rendering his decision. I also find that the hearing officer acted appropriately when he asked the parties' representative for their respective opening statements, so that he could understand the issues. Although no party may be compelled to give an opening statement, a hearing officer is not precluded from asking the parties for opening statements. During the course of a hearing, a hearing officer is typically asked to rule upon the relevance of documentary or testimonial evidence. Some knowledge of the issues is essential for the hearing officer to properly discharge his or her duties as hearing officer.

        Petitioners ask that I review the hearing officer's finding that respondent had not discriminated against their daughter because of the girl's disability, which would have constituted a violation of Section 504. They also seek a determination that respondent's methods of administration permit discrimination based on disability, and that respondent failed to follow the appropriate grievance procedure for Section 504 claims.

        I find that petitioners' allegation that respondent discriminated against their daughter on the basis of her disability is merely an attempt to revisit their now moot IDEA/Article 89 claim about the implementation of the child's IEP in the 1995-96 school year. To the extent that petitioners assert other Section 504 claims, such as the extent to which respondent's grievance procedures and methods of administration comply with the requirements of Section 504, I find that I have no jurisdiction to review those claims. Respondent has an obligation to provide an impartial hearing and a review procedure, with respect to Section 504 claims (See 34 CFR 104.36). It may satisfy its obligation to do so by complying with IDEA's procedural safeguards, such as an impartial hearing under IDEA. However, the New York State Education Law makes no provision for State-level administrative review of hearing officer decisions in Section 504 hearings. Petitioners' remedy is to seek review in the Courts.

 

        THE APPEAL IS DISMISSED.

 

 

Dated: Albany, New York __________________________
August 29, 1996 ANN R. ELDRIDGE