The State Education Department
State Review Officer

No. 96-51

 

 

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

Appearances:
Michael K. Lambert, Esq., attorney for respondent

 

DECISION

        Petitioner appeals from the decision of an impartial hearing officer which dismissed petitioner's complaint that respondent's administrative staff had interfered with the implementation of her son's individualized education program (IEP) in the Spring of 1995. The appeal must be dismissed.

        Petitioner's son is 21 years old. He has been classified as other health impaired since the 1989-90 school year, when he was in the ninth grade. The young man has been the subject of three prior appeals to the State Review Officer (Application of a Child with a Handicapping Condition, Appeal No. 92-18; Application of a Child with a Disability, Appeal No. 94-39; Application of a Child with a Disability, Appeal No. 96-38). In the first appeal, the State Review Officer noted that the child had been diagnosed with epilepsy, and that he had reportedly had other health problems which interfered with his ability to attend school on a regular basis. Although petitioner's son reportedly has above average cognitive skills, his academic performance in junior high school had been impaired by his frequent absences from school. The young man's classification as other health impaired is not in dispute in this proceeding.

        In its initial recommendation, respondent's CSE also recommended that petitioner's son receive two periods per day of resource room services, and three hours per day of instruction at home. Shortly after the CSE had made its recommendation, a dispute arose between the parties about the implementation of the recommendation. An impartial hearing took approximately 14 months to complete. The hearing officer in that proceeding ordered that the student be enrolled in one of respondent's two high schools. In his decision dismissing petitioner's appeal from the hearing officer's decision, the State Review Officer noted that the child had remained at home throughout the lengthy proceeding, despite the professed agreement by the parties at the beginning of the hearing that there was no reason why he should continue to be instructed at home.

        The student reportedly did not attend respondent's schools during the 1992-93 or 1993-94 school years, and the parties could not agree upon an alternative program of instruction. In July, 1993, petitioner and her son commenced an action against respondent in the United States District Court for the Southern District of New York, with regard to respondent's alleged unilateral termination of the student's instructional program in his home.

        In December, 1993, respondent initiated an impartial hearing for the purpose of compelling petitioner to authorize her son's private neurologist to provide the CSE with the data upon which the neurologist had opined that the child needed to receive instruction at home because of his seizure disorder, and/or to have the child examined by a neurologist selected by the CSE. The parties apparently resolved their dispute with regard to the child's neurologist. On October 6, 1994, the hearing officer ordered the CSE to meet for the purpose of making an appropriate determination about the child's educational needs. Petitioner appealed from the hearing officer's decision to the State Review Officer, who found that there was no legal basis for respondent to have initiated the hearing. However, he observed that the CSE needed to have updated evaluative information about the child to prepare an IEP for him, and urged petitioner to cooperate with the CSE for that purpose (Application of a Child with a Disability, Appeal No. 94-39).

        The State Review Officer rendered his decision in December, 1994. At approximately the same time, the attorneys for the parties in the Federal Court action reportedly agreed that the CSE should reconvene to determine what would have been an appropriate educational program for the student and to make arrangements for his triennial evaluation. On March 24, 1995, the CSE met with petitioner and her son. At the hearing which was held in this proceeding, the CSE chairperson testified that the CSE had only limited information about the child's current educational needs, and that petitioner objected to the CSE's consideration of two evaluation reports. The CSE chairperson testified that it was agreed that the student would remain classified as other health impaired, and that he should receive instruction at home in the subjects which the student needed to complete in order to obtain a Regents high school diploma. He also testified that the teachers who were to provide instruction in the student's home would also evaluate the student's interest in and readiness for retaking certain Regents examinations. The CSE chairperson testified that the CSE intended that its recommendation be implemented as soon as possible. The CSE also recommended that a triennial evaluation be performed.

        The four teachers who had previously instructed the child at home in mathematics, English, Latin, and social studies were present at the CSE meeting, and participated in the CSE's discussion of the student. Petitioner indicated to the CSE that she preferred to have all of the four teachers assigned to teach their respective subjects to her son. The teachers were polled at the CSE meeting about their interest in understanding the teaching assignment, and all of them indicated that they would be willing to teach the student. However, the CSE chairperson testified that the CSE did not recommend that particular individuals be assigned to teach petitioner's son in his home. The chairperson's testimony was supported by respondent's Assistant Coordinator for Special Education, who testified that no commitment had been made to assign the four teachers, and that there were "personnel issues" to be resolved. The CSE did not prepare a new IEP for the student (cf. 8 NYCRR 200.4 [c]).

        After the CSE meeting had concluded, the CSE chairperson sent a memo to four school district administrators, notifying them of the outcome of the CSE meeting. Attached to his memo was a "cover sheet" which appears to be a summary of the March 24, 1995 meeting. The cover sheet indicated that petitioner's son would receive "3 hours per subject per week" of instruction at home, and a reference to "status quo as per 6/1/90 IEP". The CSE chairperson testified that there was a reference to that IEP because it had provided that the child would receive instruction at home for three hours per week in each subject. A copy of the June 1, 1990 IEP was also attached to the chairperson's memo. I note that the IEP indicated that the student was to receive instruction at home "3 hrs./day + 20 hours of lab time." In any event, there is no dispute in this appeal about the amount of instruction to be provided.

        Each of the teachers whom petitioner wished to have teach her son was assigned to perform that task, except the student's former mathematics teacher. The student's English teacher began to instruct the student on Saturday, March 25, 1995. His Latin teacher had reportedly planned to begin instruction the following week. However, both were reportedly advised by the student's guidance counselor not to begin the student's instruction. Those teachers and the social studies teacher reportedly began instructing the student shortly after the guidance counselor informed them that they could begin, on April 6, 1995. The determination not to assign the child's former mathematics teacher was reportedly made by respondent's Assistant Superintendent for Personnel. There was reportedly no other teacher on respondent's staff who was available for the assignment of being the student's mathematics teacher. Respondent reportedly hired a mathematics teacher for the child at some point between the hearing which was held on May 17, 1995 and the hearing which was held on June 6, 1995.

        In a letter to respondent, which was dated March 30, 1995, petitioner asked that an impartial hearing be held " ... as a result of the interference of the Wappingers Central School District's administrative staff on an approved decision and recommendation by the Committee on Special Education on March 24, 1995 to immediately institute [the child's] Individualized Education Program as is status quo". Respondent did not appoint the hearing officer in this proceeding until April 25, 1995. The hearing began on May 12, 1995, and it continued for six additional days, ending on June 11, 1996. Petitioner, who appears pro se in this appeal, was represented by an attorney at the hearing. On the first day of the hearing, petitioner and her attorney identified the issue to be determined as whether respondent had failed to provide a mathematics course which the CSE had recommended be provided to the student.

        At the hearing on April 23, 1996, respondent's attorney asserted that this proceeding was barred by the terms of a written agreement which the parties had reached in June, 1995, to settle petitioner's action against respondent in the United States District Court for the Southern District of New York. Petitioner's attorney objected to the disclosure of the terms of the settlement. The hearing officer reserved decision on respondent's request that he consider the terms of the settlement agreement. Shortly thereafter, petitioner brought an appeal to the Commissioner of Education pursuant to Section 310 of the Education Law, in which she sought an order precluding respondent from disclosing the terms of the settlement agreement. Her request for a stay order was denied by the Commissioner of Education. However, her appeal to the Commissioner of Education is reportedly still pending. In a letter dated June 3, 1996, the hearing officer informed the parties' attorneys that he would reserve decision on respondent's application to dismiss petitioner's complaint until the Federal judge who had approved the stipulation ruled upon the scope of the stipulation.

        In his decision which was rendered on June 18, 1996, the hearing officer found that respondent had not violated any of petitioner's rights by failing to assign the teacher whom she preferred to be her son's mathematics teacher. The hearing officer noted that while petitioner had a right to participate in the CSE process, neither the CSE nor respondent was obligated to select a particular teacher requested by a parent. He also noted that pursuant to 8 NYCRR 200.4 (d) respondent had a period of 30 school days in which to implement its CSE's recommendation, and he found that any delay which had occurred in assigning a teacher was the result of respondent's need to find a suitable teacher for the student. The hearing officer therefore dismissed petitioner's complaint.

        Petitioner challenges the impartiality of the hearing officer, who denied her request that he recuse himself from conducting the hearing. She contends that the hearing officer should have recused himself because he was the Director of Pupil Personnel Services, and the CSE chairperson, in the Monticello Central School District. It is important to note that Section 4404 (1) of the Education Law was amended on July 1, 1993 to provide that:

" The commissioner shall develop and implement a plan to ensure that no individual employed by a school district, school or program serving students with disabilities placed by a school district committee on special education acts as an impartial hearing officer and that no individual employed by such schools or programs serves as an impartial hearing officer for two years following the termination of such employment. Such plan shall be fully implemented no later than July first, nineteen hundred ninety six."

        The record reveals that the hearing was started and completed prior to July 1, 1996. I note that previous State Review Officer decisions have held that a hearing officer's concurrent employment by another school district would not per se afford a basis for concluding that a hearing officer lacked the requisite impartiality during the period prior to the implementation of the amendment to Section 4404 (1) of the Education Law (Application of a Child with a Disability, Appeal No. 94-6; Application of a Child with a Disability, Appeal No. 94-31). Absent evidence of any actual bias on the part of the hearing officer, I decline to find that the hearing officer was not impartial because of his employment by another school district.

        Petitioner contends that the hearing officer unfairly denied her the opportunity to submit written evidence to refute the allegedly defamatory remarks which respondent's attorney had made about her in a letter which reportedly dealt with petitioner's request for an adjournment of the hearing. The attorney's letter is not in the written record of this proceeding. The hearing officer denied petitioner's request to submit a document responding to the letter by respondent's attorney on the ground that he had granted petitioner's request for an adjournment. I find that the hearing officer was well within his discretion in declining to admit the proffered evidence, which was irrelevant to a determination of the issues presented in this appeal.

        Petitioner also contends that the hearing officer did not allow her to fully present her case, by limiting her attorney's attempt to impeach the credibility of petitioner's witnesses, who were school district administrators. The resolution of this issue does not depend on either the common law rule against the impeachment of one's own witnesses (Becker v. Koch, 104 NY 374 [1887]), or the statutory exceptions to the rule (e.g., Rule 4514 of the Civil Practice Law and Rules). Each party to an impartial hearing has the right to present evidence and to confront and question all witnesses (34 CFR 300.508 [a][2]; 8 NYCRR 200.5 [c][9]). However, a hearing officer may limit irrelevant and unduly repetitious evidence and testimony (Application of a Child with a Handicapping Condition, Appeal No. 92-18; Application of a Child with a Handicapping Condition, Appeal No. 92-32; Application of a Child with a Disability, Appeal No. 94-4). Upon review of the record, I find that petitioner and her attorney were given an ample opportunity to question the witnesses. Petitioner's premise for this proceeding was that either respondent's Assistant Superintendent for Instruction, or its Director of Instruction, had interfered with the implementation of the CSE's recommendation on March 24, 1995 that the student's home instruction be resumed. The Assistant Superintendent, the Director of Instruction, the student's guidance counselor who had allegedly received the instruction to delay the provision of instructional services, the Assistant Coordinator for Special Education and the student's four teachers were all questioned about their respective roles in the matter. The hearing officer would not allow petitioner's attorney to question the Assistant Superintendent about having allegedly issued a "gag" order in 1990 precluding respondent's staff from communicating with petitioner. I agree with the hearing officer that this matter was too tangential to be considered in resolving the issues which were before him.

        Petitioner argues that the hearing officer arbitrarily attempted to violate the order of the United States District Court judge who had approved the stipulation which respondent raised as a defense to this proceeding. In view of the hearing officer's determination not to consider the stipulation, I find that petitioner's argument is completely without merit. I note that in its answer, respondent asserts that the hearing officer erred by not considering the stipulation. Respondent asks me to annul the hearing officer's determination, and to rule that this proceeding is precluded by the terms of the stipulation. I decline to do so for two reasons. First, respondent has not cross-appealed from the hearing officer's decision (Application of a Child with a Disability, Appeal No. 95-8). The second reason why I will not address the issue is that it is the subject of an appeal to the Commissioner of Education which is still pending before him.

        On the merits of the case, petitioner argues that the hearing officer ignored the testimony of the four teachers and her son's guidance counselor with regard to the CSE's intention that its recommendation be implemented immediately, and that three of the four teachers had been approved by respondent's administrators to be her son's teachers shortly after the CSE ended on March 24, 1995. She acknowledges that the child's English and social studies teachers had indicated at the CSE meeting that there were personnel issues, apparently having to do with their respective teaching loads, which needed to be resolved. At the hearing, petitioner acknowledged that in June, 1995, she had been advised by respondent's attorney that there was a continuing personnel issue which had precluded respondent from engaging the services of her son's former mathematics teacher to be his teacher in the Spring of 1995. The record does not reveal what that issue was.

        Petitioner's contention that respondent's administrative staff interfered with the implementation of her son's program of home instruction is premised upon the erroneous assumption that respondent's CSE has the responsibility or authority to designate her son's teachers, or to hire teachers for that purpose. Respondent has that responsibility and that authority (Sections 1709 [16] and 1804 [1] of the Education Law.) Subject to State teacher certification standards, a board of education may hire whomever it chooses to teach children with disabilities (Application of a Child with a Handicapping Condition, Appeal No. 91-19). State law also provides that a CSE shall make its recommendation with regard to the services to be provided to a child with a disability to the board of education (Section 4402 [3] of the Education Law). State regulation provides that a board of education must implement a recommendation by its CSE within 30 school days after it receives the recommendation (8 NYCRR 200.1 [m]; 8 NYCRR 200.4 [d]). Petitioner has not alleged, nor does the record afford a basis for concluding, that her son's instructional program was instituted in excess of the prescribed period, except for the student's instruction in mathematics. Although the record does not reveal the specific date when instruction in mathematics was begun, it was apparently started in late May, 1995. While I do not condone respondent's delay in initiating the student's mathematics instruction, I note that petitioner urges that I do not consider the matter to be moot because the alleged violations were remedied after the request for a hearing was filed. Absent evidence that the delayed instructional services were not made up, there is no basis for me to order respondent to provide additional instructional services.

        Petitioner also contends that the hearing officer's decision was rendered well in excess of the 45-day period prescribed by Federal and State regulation (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c] [11]). She asserts that she did not waive her right to a timely decision, and that the hearing in this proceeding did not begin until the 45th day after respondent had received her request for a hearing. I agree with petitioner that the start of the hearing was unduly delayed. Respondent did not appoint a hearing officer in this proceeding until April 25, 1995, or 26 days after it had received petitioner's request. In the future, respondent should promptly appoint hearing officers. However, I must note that the conclusion of the hearing was considerably delayed by adjournments, at least some of which were requested by petitioner.

 

        THE APPEAL IS DISMISSED.

 

 

Dated: Albany, New York __________________________
November 5, 1996 ANN R. ELDRIDGE