The State Education Department
State Review Officer

No. 97-26

 

Application of 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 South Glens Falls Central School District

Appearances:
Hogan and Sarzynski, LLP, attorneys for respondent, Edward J. Sarzynski, Esq., of counsel

 

DECISION

        Petitioner appeals from the decision of an impartial hearing officer which found that respondent's committee on special education (CSE) had prepared an appropriate individualized education program (IEP) for her son during the 1995-96 and 1996-97 school years, and which denied petitioner's request that the board of education be ordered to reimburse her for the cost of a home schooling program and related expenditures. The hearing officer also dismissed petitioner's claim that she had been denied access to her son's records by respondent. Respondent board of education cross-appeals from the hearing officer's directive that it provide home tutoring to the boy until he achieves a GED (high school equivalency) diploma, or for eighteen months. The appeal must be sustained in part. The cross-appeal must be sustained.

        At the outset, I note that petitioner challenges respondent's answer and its cross-appeal, on procedural grounds. She asserts that the copy of the answer which she received was not verified (cf. 8 NYCRR 275.5 and 279.1 [a]). However, the answer which was filed with the State Education Department includes the requisite verification. Respondent's failure to include the verification in the copy of the answer which petitioner received does not afford a basis for rejecting its answer. I find that petitioner's other assertions about the contents of the answer, and the manner in which the original verifications for the answer and cross-appeal were transmitted to the Office of State Review are also without merit. With respect to respondent's cross-appeal, petitioner argues that it should be dismissed as untimely because it was allegedly served 48 days after respondent received the hearing officer's decision. Petitioner has not revealed how she knows when respondent received its copy of the hearing officer's decision. More importantly, a respondent may cross-appeal from a hearing officer's decision at the time when the respondent answers the petition in an appeal (Application of the Bd. of Ed. Pittsford CSD, Appeal No. 91-14; Application of a Child with a Disability, Appeal No. 91-25; Application of a Child Suspected of Having a Disability, Appeal No. 97-32). The board of education was not required to serve a notice of intention to seek review, because the purpose of that document is to notify the board of education that it must file a copy of the administrative record with the State Education Department (Application of a Child Suspected of Having a Disability, Appeal No. 97-32).

        Petitioner's son is twenty-one years old, and has reportedly not attended classes in respondent's schools since the fall of 1993. The hearing officer's decision in a prior proceeding indicates that petitioner's son attended school in the Lake George Central School District, prior to entering respondent's schools for the eighth grade at the beginning of the 1990-91 school year. He had reportedly been classified as emotionally disturbed while attending school in Lake George, and had been receiving resource room services and counseling. In January 1991, the boy was declassified by respondent's CSE. Petitioner did not request a hearing to review the CSE's determination. Although he was somewhat successful academically during the 1990-91 and 1991-92 school years, petitioner's son reportedly had behavioral problems in school, notwithstanding the private counseling which he received.

        During the 1992-93 school year, the boy was enrolled in the tenth grade in the South Glens Falls Senior High School. He reportedly continued to have behavioral problems, and he failed his core academic subjects, although his educational program was allegedly modified in the spring to reduce his stress and increase his feelings of success. Just prior to the end of the school year, petitioner referred her son to the CSE for an assessment. The school psychologist who evaluated the boy reported that he had average intelligence, and had twelfth grade reading and mathematics skills. However, his writing and spelling skills were at the sixth grade level. He noted that petitioner had indicated that her son was taking Ritalin because he reportedly had an attention deficit hyperactivity disorder (ADHD), and that the boy's teachers had reported that his performance in class was variable, but that the child exhibited immature behavior, poor self-control, low self-esteem and low frustration tolerance. The school psychologist also noted that the boy tended to have greater behavioral difficulty in the more academically oriented classes, and that the boy escaped from challenges by skipping classes, or acting out in class. With regard to the boy's alleged ADHD, the school psychologist noted that the child's freedom from distractibility score was quite high on his IQ test, and that petitioner had not permitted him to discuss the child with his treating psychiatrist. In any event, he recommended that the boy be held accountable for his absences from school, and that he receive remedial instruction in writing.

        In June, 1993, the CSE reportedly agreed to defer making a recommendation about petitioner's son in order to afford petitioner the opportunity to have her son independently evaluated. When school resumed in September, 1993, the boy briefly attended school, but left school after disputes with the school principal about parking privileges, and the school nurse about his medication. A home tutoring program was begun in October, 1993, but it ended later the following month. The boy, who was above the age of compulsory school attendance, reportedly became employed on a full-time basis by a local restaurant.

        A private psychologist who had evaluated petitioner's son in September, 1993 noted that another psychologist had been treating the boy for ADHD, depression, and adjustment reaction to his parents' divorce. She reported that the boy had performed in the average to above average range of intellectual functioning, and that his academic achievement, except his writing, was consistent with his cognitive skills. The psychologist noted that the child exhibited the hallmarks of ADHD, including organizational problems and impulsive behavior, notwithstanding the fact that he was taking Ritalin. She reported that he also exhibited poor self-esteem, difficulty controlling anger, and oppositional-defiant symptoms. The psychologist suggested that the boy would be appropriately classified as other health impaired (see 8 NYCRR 200.1 [mm] [10]), and recommended that he receive individualized programming to remediate the deficits in his writing skills, and to address his emotional needs. She questioned whether the boy could succeed in any program located in respondent's high school, given the boy's alleged perception of the school as a place where he was destined to fail, and suggested that he might be more successful in either a day treatment program (see 8 NYCRR 200.14), or an at home instructional program.

        A neurologist who had evaluated the boy in September, 1993, reported that he did not evidence signs of a seizure disorder. The boy's psychiatrist opined that the boy had ADHD, and that he should be classified as other health impaired because his limited alertness adversely affected the boy’s educational performance. He speculated that the boy would have difficulty returning to respondent's high school because of "strained relations", and he recommended that other options be explored. The psychiatrist suggested that a more structured and less stressful school environment might be appropriate for the boy (Exhibit D-33).

        In November, 1993, the boy’s writing skills were assessed at the Stern Center for Language and Learning in Vermont. On the Test of Written Language-2, the boy achieved a contrived writing quotient of 104, which was at the 61st percentile. However, his spontaneous writing quotient was 71, which was at the 3rd percentile. His significantly lower score for spontaneous writing indicated that he had difficulty integrating various writing skills, when asked to write an unstructured, open-ended essay. The evaluator reported the demands on the boy’s attentional focus, organizational skills, and impulse control appeared to be overwhelming when he was asked to write an open-ended essay. He further reported that petitioner’s son had graphomotor deficits, as well as deficiencies in the structural/grammatical aspects of written language. The evaluator opined that the boy appeared to meet the criteria for classification as both other health impaired and learning disabled. He further opined that the child appeared to need a highly structured and supportive educational program offering small sized classes and individual assistance in writing. The evaluator also suggested techniques for improving the boy’s writing and spelling skills.

        On February 11, 1994, the CSE recommended that petitioner’s son be classified as multiply disabled, and that a BOCES day treatment program be considered for him. Petitioner did not attend the CSE meeting because she had reportedly not received timely notice of when it would be held. She did meet with the CSE on May 25, 1994, at which time the CSE apparently recommended that the boy receive consultant teacher services and home tutoring. Petitioner did not accept the CSE’s recommendation. The board of education initiated a hearing to secure authorization to place the boy in the program recommended by the CSE, notwithstanding petitioner’s lack of consent (see 8 NYCRR 200.5 [b][3]).

        On January 5, 1995, an impartial hearing officer ruled that the boy should be classified as other health impaired because of his "Attention Deficient Disorder". The hearing officer found that the IEP which the CSE had prepared for the boy was inappropriate because it inadequately described his management, academic, physical and social abilities and needs, lacked complete annual goals and objectives, did not provide an adequate amount of instructional service, and failed to include transition services (see 8 NYCRR 200.1 [rr]). He ordered the CSE to prepare an appropriate IEP for the boy. The hearing officer commented upon the adversarial nature of the proceeding, and he urged the parties to work together. I must note that during the hearing in the present proceeding, and in her petition in this appeal, petitioner has indicated that she does not agree with each of the findings by the hearing officer in the prior proceeding. However, she did not appeal from his determination, although she was aware of her right to do so. The hearing officer’s decision in the prior proceeding is final, and cannot be reviewed in this appeal (34 CFR 300.509).

        The CSE met on February 17, 1995, but it was unable to proceed in the absence of its required parent member. When the CSE reconvened on March 31, 1995, it recommended that petitioner’s son be classified as other health impaired. However, the CSE did not complete the boy’s IEP because it reportedly needed additional time to investigate specific services for the child, including a computer for home use which had been requested by petitioner. The next scheduled CSE meeting on April 28, 1995 was cancelled because the physician member of the CSE was unable to attend, and petitioner wished to have the physician at the meeting (see Section 4402 [1][b][1] of the Education Law).

        On April 18, 1995, the boy’s vocational skills and interests were assessed. He was reported to have average intermediate memory skills, as well as an ability to learn visually and auditorily. His reading and writing skills were found to be at the seventh to ninth grade levels, while his mathematics skills were reported to be at the fourth to sixth grade levels. Although these scores were significantly lower than those which he had achieved on a different test instrument when he was evaluated in June, 1993, it should be noted that he had been out of school for almost all of the time since the latter evaluation. The vocational assessor reported that the boy had not exhibited any difficulty attending to task, but had worked ahead of his instructions during an information processing test, thereby missing vital information. Noting that the boy had expressed an interest in returning to school to obtain additional training in the culinary arts, the evaluator recommended that he be enrolled in a BOCES culinary arts program, and that the boy be closely monitored to ensure his acceptance of rules and procedures.

        A CSE meeting scheduled for May 12, 1995 was cancelled because petitioner was unable to attend the meeting. The CSE met with petitioner on May 19, 1995 for the purpose of preparing the boy’s IEP for the months of July and August, 1995, which was apparently done because the CSE wanted to assist the boy in becoming reacclimated to school (Transcript, page 56), rather than to prevent substantial regression (cf. 8 NYCRR 200.6 [j][1]). The CSE recommended that the boy receive two hours of consultant teacher services per week at his home, in addition to two hours per day of home instruction. It also recommended that 30 minutes of parental counseling be provided per week. Petitioner asked the CSE to recommend that her son also receive counseling by a private therapist, at respondent’s expense. However, the CSE did not do so. With respect to petitioner’s request that respondent provide a computer for her son to use at home, the CSE instead recommended that the boy have access to the computers located in respondent’s schools, in accordance with a schedule to be established by the boy.

        At the May 19, 1995 CSE meeting, petitioner revealed that she had enrolled her son in a private home based instructional program, and she requested that the CSE recommend that respondent pay for that instructional program. She also indicated that she disagreed with the IEP which the CSE had prepared. In the absence of petitioner’s consent to having her son placed in accordance with the recommendation, respondent once again initiated a hearing, which was scheduled to begin in August, 1995. By letter dated July 31, 1995, petitioner informed respondent’s superintendent of schools that she intended to educate her son at home with a curriculum provided by the Clonlara School during the 1995-96 school year. She indicated that she would seek reimbursement from respondent for the cost of educating her son. The CSE chairperson indicated to petitioner that the issue of reimbursement would be addressed in the hearing which respondent had requested. The hearing was postponed at petitioner’s request, so that she could secure legal representation.

        A meeting of the CSE was to take place on October 10, 1995, for the purpose of preparing the boy’s IEP for the 1995-96 school year. At petitioner’s request, the meeting was rescheduled to be held on October 23, 1995. The meeting did not take place on that date because the physician member of the CSE could not attend the meeting. On November 7, 1995, petitioner met with the CSE to develop her son’s IEP. Petitioner and her lay advocate insisted that petitioner’s son could not return to respondent’s high school for any purpose. They told the CSE that the psychiatrist who was privately counseling the boy had indicated to them that it would not be in the boy’s best interest to be in the high school. However, they did not offer any written opinion by the psychiatrist to that effect. The CSE voted to recommend that petitioner’s son receive regular education instruction, with the assistance of consultant teacher services and counseling. The IEP which was prepared for him subsequent to the CSE meeting indicated that he would receive direct consultant teacher services for English, and indirect consultant teacher services for mathematics and United States history, with those services to be provided on an individual basis for 30 minutes twice per week. He was to receive individual counseling for 30 minutes twice per week. The boy’s IEP provided for the use of various testing modifications, including extended time limits, separate locations, and having test directions and questions read to him. The IEP also provided that petitioner’s son was to have access to a computer. Pursuant to the program which the CSE had proposed, the boy would have studied English, mathematics, and United States history in respondent’s high school. During the remainder of the school day, he was to attend the Saratoga BOCES for vocational education courses.

        On or about November 17, 1995, petitioner’s lay advocate informed respondent’s attorney that petitioner did not agree with the CSE’s recommendation, and she requested that the hearing which had been held in abeyance pending receipt of the CSE’s recommendation for the 1995-96 school year be conducted to review that recommendation. The hearing began on December 7, 1995. At the outset of the hearing, petitioner asserted that respondent had claimed her access to her child’s educational records, and that it had failed to provide her son with a free appropriate public education. She asked the hearing officer to find that respondent had violated the Individuals with Disabilities Education Act (20 USC 1400), and Section 504 of the Rehabilitation Act of 1973 (29 USC 794). Petitioner also asked the hearing officer to require the board of education to pay for the cost of her son’s tuition for a home-study instructional program in which she had enrolled the boy, and to reimburse her for other expenditures, including a computer and software which she had purchased, and tutors for her son. She also asked to be reimbursed for her time and expenditures for the hearing.

        Shortly after the hearing began, the hearing officer directed the parties to meet in an attempt to agree upon interim services to be provided to the boy during the pendency of the hearing. On January 8, 1996, respondent offered to provide a tutor to the boy for as much as two hours per day, and to enroll him in a physical education class at its high school. It also offered to provide him with computer-assisted instruction in school buildings on an afternoon or evening basis. Respondent also agreed to obtain a list of audio-visual materials which might be available to the boy through the local BOCES (Exhibit D-38). Petitioner apparently accepted the list of those materials, but not the remainder of respondent’s offer. At the hearing, she acknowledged that her son was not privately tutored from December, 1995 until June, 1996, because he was allegedly too distraught about the death of one of his friends.

        On June 20, 1996, respondent’s CSE recommended that petitioner’s son remain classified as other health impaired, and that he be provided with home instruction by a special education teacher, beginning in September, 1996. The CSE also recommended that the boy receive individual counseling for 30 minutes per week, and transition support services (see 8 NYCRR 200.1 [pp]). The IEP which the CSE prepared for the boy indicated that testing modifications would be used with him, and that he was to have access to a computer. In its least restrictive environment statement, the boy’s IEP indicated that " … home instruction in a G.E.D. preparation program administered by a special educator at an alternative site is the most appropriate for [the boy] at this time" (Exhibit P-196). This IEP, in addition to the boy’s two prior IEPs, became part of this proceeding.

        In her decision which was rendered on February 27, 1997, the hearing officer found that respondent had made a concerted effort to provide petitioner’s son with a free appropriate public education since January, 1995, and that petitioner had been resistant to any effort by respondent to provide the boy with appropriate services. She further found that the IEPs which the CSE prepared for petitioner’s son in May, 1995, November, 1995, and June, 1996 were appropriate, and were reasonably calculated to confer an educational benefit upon the boy. In addition, the hearing officer found that petitioner had failed to demonstrate that the educational program which she had obtained for her son, consisting of his home-study course of instruction, private tutoring, private consultant teacher services and the computer which petitioner purchased for him was appropriate for the boy. She noted that neither petitioner nor the administrator of the school which had purported to grant high school credit for the boy’s home-study course had offered evidence about the boy’s course of study, curriculum, lesson plans, or the modifications which had been used to address the boy’s special education needs. The hearing officer found that petitioner had been given an ample opportunity to request, review, and copy her son’s records, and that there had been no showing by petitioner that those records were inaccurate. Respondent was ordered by the hearing officer to implement the boy’s June, 1996 IEP as soon as possible. The hearing officer also ordered respondent to provide the boy with the instruction which was indicated in his IEP in a public facility, such as a library, until the boy achieved his G.E.D., or the next eighteen months, whichever occurred first. She did so on the ground that the prior hearing officer’s decision had to be upheld, and the boy had to be compensated for respondent’s failure to provide him with appropriate services from June, 1993, when he was referred to the CSE, until January 1995, when the decision was rendered by the hearing officer in the prior proceeding.

        Petitioner challenges the validity of the hearing officer’s appointment on the grounds that the hearing officer had informed her in a letter dated July 21, 1995 that she had been asked to serve as hearing officer, and would be appointed at the next meeting of the board of education (Exhibit D-3), but the superintendent of schools informed the hearing officer in a letter dated August 3, 1995 that she had been appointed by the board of education at a meeting held on July 19, 1995. Petitioner also alleges that the superintendent of schools, the CSE chairperson, or the school district attorney may have been improperly involved in the hearing officer’s selection. Respondent asserts that the hearing officer was properly appointed from its rotational list of hearing officers (see Section 4404 [1] of the Education Law), but it does not specify the date on which it made the appointment. It further asserts that no one communicated with the hearing officer about the hearing, except its attorney’s secretary, who discussed scheduling matters with the hearing officer. Although respondent has not offered proof of the hearing officer’s appointment in the form of a copy of the board of education meeting minutes, or an affidavit by a person who has personal knowledge of the appointment, I must point out that petitioner should have raised her objection about the hearing officer’s appointment at the hearing, so that appropriate evidence could have been entered into the record. Moreover, the answer affirmatively asserts that the hearing officer was properly appointed, and the superintendent’s letter to the hearing officer confirms that the latter was appointed by respondent. In the absence of any evidence to establish that she was not validly appointed, I will not annul the hearing officer’s decision. With regard to petitioner’s assertion that the selection of the hearing officer may have been tainted by the participation of the superintendent of schools, the CSE chairperson, or the school attorney (see Application of a Child with a Handicapping Condition, Appeal No. 92-25). I find that there is no evidence in the record which supports that assertion. Absent evidence of any ex parte conversation between those individuals and the hearing officer, I find that there is no basis to question the hearing officer’s appointment (Application of a Child with a Disability, Appeal No. 96-35).

        Petitioner complains that the hearing officer was unavailable to begin the hearing until after August 16, 1995, and she refers to the Federal and State requirement that hearing officers complete hearings and render their decisions within forty-five days after a request has been made for a hearing (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c][111]). She appears to ignore the fact that she sought the deferral of he hearing, so that she could obtain counsel, and was apparently still trying to do so in September, 1995 (Exhibits D-6 and 7). Thereafter, there were delays while the CSE met with petitioner to prepare the boy’s IEP for the 1995-96 school years, and subsequent delays because of the unavailability of witnesses and petitioner’s advocate. Although I am concerned by the extensive duration of the hearing, I do not find that it affords a rational basis for annulling the hearing officers determination. Petitioner also objects to the accuracy of the hearing transcript. Having reviewed each transcript and the errata sheets which petitioner prepared, which were available to the hearing officer, I find that the written record of the hearing was sufficiently accurate to permit the hearing officer to render her decision, and for me to review her decision.

        Petitioner also argues that she was treated unfairly by the hearing officer in her rulings with respect to the admission of evidence, and the issuance of subpoenas by respondent’s attorney. I do not agree. This proceeding involves events which took place after the hearing officer’s decision in the prior proceeding. Nevertheless, both parties were permitted to introduce evidence relating to matters which occurred prior to the hearing officer’s decision. I also note that the hearing officer allowed petitioner to introduce various documents relating to her claims that respondent had not permitted her to have access to all of its records which pertained to her son, and that some of her son’s records were inaccurate. The relevant regulation Federal regulation (34 CFR 300.570) prescribes a specific procedure for challenging the accuracy of student records, and provides that hearings for that purpose are to be conducted in accordance with the provisions of the regulations which implement the Family Educational Rights and Privacy Act, the statute which accords parents the right to see their child’s records, and to challenge the accuracy of those records. Hearings for that purpose are held pursuant to 34 CFR 99.22, and the decisions in those hearings are not subject to review by the State Review Officer.

        Petitioner asserts that it was unfair of the hearing officer to dismiss her objection to a subpoena which respondent’s attorney had issued to the psychiatrist who was treating her son for his treatment records. The psychiatrist was to have testified, and respondent’s attorney sought the child’s records to prepare for his cross-examination of the psychiatrist. The psychiatrist did not testify, and there is no evidence that respondent’s attorney gained access to the boy’s records. Petitioner argues that the hearing officer’s ruling in favor of respondent precluded her from having the boy’s psychiatrist testify. Pursuant to Federal and State regulations, the parties to an impartial hearing have the right to present and cross-examine witnesses (34 CFR 300.508 [a][2]; 8 NYCRR 200.5 [c][9]). The right of cross-examination includes the right to require an expert witness to establish the factual basis for his or her opinion (McKilligan v. McKilligan, 156 AD 2d 904, [3d Dept., 1989]). The physician-patient privilege against disclosure of information to third parties may be waived when the patient calls the physician to testify about the patient’s condition (Steinberg v. NY Life Ins., 263 NY 45, [1933]). Petitioner’s argument that respondent’s attorney usurped the role of the hearing officer by issuing his own subpoenas is without merit (see Section 2302 [a] of the Civil Practice Law and Rules).

        Petitioner also strongly objects to the hearing officer’s findings of fact, and her alleged failure to give credence to the evidence which petitioner presented. Upon review of the record before me, I find that there is no basis in fact to conclude that the hearing officer was biased against petitioner. Petitioner’s disagreement with the hearing officer’s findings does not afford a basis for concluding that the hearing officer was biased (Application of a Child with a Disability, Appeal No. 95-75).

        I note that petitioner challenges each of the IEPs which were prepared by the CSE on the ground that the CSE failed to invite the child’s private tutors to attend the CSE meetings at which the IEPs were prepared. I find that there is no merit to petitioner’s contention. The child’s teacher must be present at the CSE meeting, provided that when the child is not in school, the school district may designate the individual to serve as the teacher member of the CSE (34 CFR 300.344 Note 1, c). The record reveals that Ms. Sheila Itzo, a special education teacher, served as the teacher member of the CSE at the meetings which were held on March 21, 1995, May 19, 1995, November 7, 1995, and June 20, 1996.

        The central issue in this appeal is the appropriateness of the educational services which respondent’s CSE recommended for petitioner’s son. Petitioner argues that the hearing officer misplaced the burden of proof upon her because the hearing officer found that petitioner "… has failed to show evidence that the school district’s IEPs have been inappropriate and unable to meet the needs of her son." However, that finding was preceded by the hearing officer’s finding that the IEP’s were appropriate. In any event, it is well settled that the board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (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). To meet its burden, the board of education must show 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 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).

        The IEPs which were prepared in May and November, 1995, and June, 1996 included a description of the boy’s individual needs in the areas of academic achievement, social development, physical development, and management needs, as required by State regulation (8 NYCRR 200.4 [c][2][1]). With respect to the boy’s academic achievement, his IEPs indicated that his writing skills were weak, while his reading and mathematics skills were well developed. The IEPs also indicated that the boy’s most recent testing, which occurred during his vocational assessment in April, 1995, revealed that his reading and mathematics skills might be lower than had been reported in 1993. In the absence of any more current data about his academic achievement, I find that the IEPs fairly reflected the results of his evaluations by respondent’s staff, as well as by others. In addition to reporting the specific grade equivalent scores which he had achieved in September, 1993, the boy’s IEPs also described his learning style, as well as the learning needs created by his disability. Specifically, the IEPs indicated that petitioner’s son could learn effectively through either auditory or visual means, but that he required a structured learning situation so that he could receive guidance and feedback. They also indicated that he needed to use a computer to assist him in overcoming or adapting to the deficits in his writing skills. The IEPs further indicated that there should be some flexibility in rules which were applied to the boy, to accommodate his emotional reactivity. His social/emotional development was described in terms of his poor self-esteem, emotional reactivity and strong dislike for authority. I find that the boy’s IEPs resulting from the meetings on May 11, 1995, November 7, 1995, and June 20, 1996 accurately reflect his evaluations and identify his special education needs.

        The May 19, 1995 IEP was intended to help petitioner’s son prepare himself to return to high school in September, 1995, and was premised in part upon the fact that he had been out of school for almost two years. The IEP annual goals related to demonstrating his competency in American history, chemistry and physical science, as well as improving his writing and spelling skills, and his self-advocacy skills, independent work habits, and study skills. The boy’s two subsequent IEPs included some of the same annual goals, but they did not include annual goals for specific courses. However, the two later IEPs included additional goals relating to improving the boy’s level of comfort within respondent’s high school, and to developing positive peer relationships. At the hearing, petitioner challenged some of the IEP annual goals, on the ground that they were not specific enough to be useful. For example, each of the boy’s IEPs included an annual goal that he would increase his reading comprehension, and would improve his self-advocacy skills, independent work habits, and study skills. Annual goals must be sufficiently specific to provide a student’s teachers with direction about the CSE’s expectations (Application of a Child with a Disability, Appeal No. 94-8). Although I find that a number of the boy’s annual goals were too general to provide much direction to his teachers, I note that the short-term instructional objectives which supported each annual goal would have afforded a basis for the boy’s teachers to prepare a more detailed instructional plan for him if he returned to respondent’s schools. Therefore, I will not annul those IEPs on the grounds that the boy’s IEP goals were too vague (Application of a Child with a Disability, Appeal No. 95-15; Application of a Child with a Disability, Appeal No. 97-20). Nevertheless, I am troubled by omission of any IEP goal to assure that the boy developed an appropriate level of skills using a computer to enable him to benefit from computer assisted instruction, and to do word processing. Given the Stern Center’s findings that the boy had graphomotor deficits and organizational difficulties, it was essential that the boy’s computer skills be developed. The CSE recognized this by indicating on each of the boy’s IEPs that he was to have access to a computer. However, it did not ensure that he would become proficient in the use of a computer by including an annual goal to achieve that result.

        With respect to the specific services which the CSE recommended that petitioner’s son receive, I find that the two hours of consultant teacher services per week and the thirty minutes of parent counseling per week which were recommended in the IEP which resulted from the May 19, 1995 meeting were appropriate to meet the boy’s identified needs, the most important of which was to prepare him to return to school. While I have considered the reports by the private psychologist, the psychiatrist and the boy’s physician, I am not persuaded that they afford a basis for concluding that the boy could not have been educated in the less restrictive setting of a public school, rather than the isolated setting of instruction at home which petitioner favors. As noted above, the psychiatrist alluded to the strained relations between the boy and the high school, but he did not indicate that the boy’s return to school would be harmful, or counterproductive. In addition to his writing deficits, the boy’s other major difficulty appears to have been following through on assignments and accepting authority. There is no reason to believe that those needs could not have been addressed in a public school program during the 1995-96 school year.

        For the 1995-96 school year, the CSE recommended that the boy receive thirty minutes of consultant teacher services twice per week, as well as counseling twice per week for thirty minutes each session. The boy’s IEP indicated that his consultant teacher was to be responsible for assisting the boy in achieving his annual goals for reading, writing, self-advocacy, independent work habits and study skills. However, I find that respondent did not satisfactorily demonstrate at the hearing how the consultant teacher was to accomplish all of this by working with petitioner’s son for a total of only one hour per week. In addition, I find that while the counseling which the CSE had recommended for the boy would have been helpful to address some of his emotional needs, such as low self-esteem, there nevertheless was a related need which the IEP did not address. As revealed by the incidents with the school principal and school nurse in 1993, petitioner’s son needed to have a well-defined behavioral management plan to provide the structure which the manifestations of his ADHD required. At the hearing, the CSE chairperson acknowledged that the IEP lacked such a plan, but she insisted that no plan could be prepared until after the boy had returned to school. I disagree.

        For the 1996-97 school year, the CSE recommended that petitioner’s son be educated at an alternative site by a special educator in a G.E.D. preparation program. It did so after having concluded that regular education with support services, or a special class placement would be inappropriate for him. That determination was based upon a more recent report dated February 3, 1996 by the boy’s psychiatrist, who opined that it had been beneficial for the boy to be out of respondent’s high school in order to reduce his high level of stress and anxiety, which had contributed to his low self-esteem and difficulty coping with the requirements of school. He further opined that petitioner’s son had outgrown the public school environment, and that his return to school at the age of nineteen would only serve to exacerbate his already fragile self-esteem, and would "in all likelihood lead to more problems." Since both parties agree that a traditional school placement would have been inappropriate, I will not review that aspect of the CSE’s recommendation. I must note however that the IEP failed to specify the amount of special education instruction which the child was to receive (cf. 8 NYCRR 200.4 [c][2][vi]). At the hearing, the CSE chairperson testified that the boy was to receive 120 minutes of instruction per day, five days per week. The IEP also provided that the boy was to receive transition support services, but it failed to specify the amount of those services.

        Petitioner objected to the IEP on the ground that it provided that the boy was to earn a G.E.D. diploma, rather than a regular high school diploma. However, I find that a G.E.D. diploma was a reasonable goal, in view of the boy’s age, and his inability or unwillingness to attend regular classes and complete the work required to earn a high school diploma pursuant to 8 NYCRR 100.5. She also objected to the CSE’s recommendation that her son be educated at a local community site, rather than in his home. I find that a local community site, such as a community center or library, would have been less restrictive than instruction at home, and was not inconsistent with the recommendations, by the boy’s psychiatrist. At the hearing, petitioner’s advocate challenged the IEP on the ground that it reportedly did not address the boy’s organizational and management needs, and that it still had not resolved the issue of whether the boy should have the use of a computer at home. I must agree with petitioner that the IEP failed to address all of her son’s needs. There were no IEP goals relating to the boy’s deficits in writing, nor was there any goal relating to his organizational problems. The CSE also failed to address the issue of the boy’s non-compliant behavior, and failed to include a behavior management plan. Therefore, I find that respondent failed to meet its burden of proof with respect to the appropriateness of the educational program which it offered to provide during the 1996-97 school year.

        In addition to finding that the IEPs which the CSE prepared for the boy were defective in various ways, I must also note the extensive delay by the CSE in preparing an IEP in response to the first hearing officer’s decision. Although I am not oblivious to the strained relationship between petitioner and respondent’s CSE, I must point out that it was the CSE’s responsibility to gather the necessary information promptly, and to prepare an IEP for the boy. The fact that petitioner did not appear to be willing to accept much of what the CSE was prepared to offer did not relieve the CSE of its duty to proceed expeditiously.

        A board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parent to provide special education services to the child has not been approved as a school for children with disabilities by the State Education Department is not dispositive of the parent’s claim for tuition reimbursement (Florence County School District four et al. v. Carter by Carter, 510 U.S. 7 [1993]). In this proceeding, I have found that respondent did not meet its burden of proving that it had offered an appropriate educational program to the boy for either the 1995-96 or 1996-97 school year. Petitioner has therefore prevailed with respect to the first of the three criteria for an award of tuition reimbursement.

        The boy’s parent bears the burden of proof with respect to the appropriateness of the services which the parent obtained for their son by registering him in the home study program of the Clonlara School (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parent must show that the services were "proper under the act" [Individuals with Disabilities Education Act](School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 310), i.e., that the private school offered an educational program which met the child’s special education needs (Application of a Child with a Disability, Appeal No. 94-29). In this instance, petitioner seeks reimbursement for not only the cost of the Clonlara School’s tuition, but also the services of two tutors, a recreation therapist, and an educational consultant.

        I have considered the testimony by the Director of the Clonlara School, petitioner, and petitioner’s advocate, as well as the various exhibits which were introduced at the hearing to describe the boy’s educational program. At the hearing, the Director of the Clonlara School testified that the private school provided "guidance and counseling," but no direct services (Transcript, page 1100). The school apparently awarded high school credit based upon a student’s experiences, which in this instance involved at least some experiences which had occurred before the boy had enrolled in the Clonlara School’s home study program. When asked what her school had done to address the boy’s special education needs, the Director testified that the school had provided a flexible program, but she could not document what, if any, service had been provided to the boy between December, 1995 and June, 1996. Indeed, she was unaware that the boy had not been tutored during that period of time. I must concur with the hearing officer’s determination to deny the relief of tuition reimbursement because there is no tangible evidence in the record before me that the private school addressed this boy’s special education needs.

        Two individuals reportedly tutored petitioner’s son. The first tutor reportedly met with the boy on nine occasions between September, 1995 and December, 1995. The tutor did not testify at the hearing. His report (Exhibit P-213) indicated that he and the boy had looked at magazines to review "such skills as scanning and the general review of information." He reported that the boy "was quite resistive to writing but was willing to allow me to write his ideas." I am unpersuaded that this brief description of the tutor’s work affords a basis for concluding that he had addressed the boy’s special education needs. The second tutor did not actually work with petitioner’s son until June, 1996. Her log (Exhibit P-227) reveals that she provided approximately twelve hours of tutoring between June 19 and July 24, 1996. The tutor’s written report (Exhibit P-229) indicated that she had worked with petitioner’s son on mathematics, expressive writing, and the use of a computer. As noted by the hearing officer in her decision, the tutor’s report only briefly referred to these activities, and did not indicate what, if any, progress had been achieved. The tutor did not testify. Although this tutor reportedly continued to tutor the child during the 1996-97 school year, there is no evidence of what she did during that school year. I reach the same conclusion about the second tutor’s services as I did with respect to those of the first tutor.

        At the hearing, petitioner’s lay advocate testified about her services as the boy’s "consultant teacher". Having reviewed her testimony and the documentation which she submitted, I find that there is little, if any, evidence that the advocate, who is a certified teacher, offered any instructional services. Consequently, I will not order respondent to pay for her services. I have also considered petitioner’s claims for reimbursement for the advocate’s services, as well as furniture and other supplied which she reportedly provided to her son. I find that those claims are without merit. In view of the fact that I have determined that petitioner has not met her burden of proof with regard to the second of the three criteria for an award of tuition reimbursement, I do not reach the issue of whether she has satisfied the third criterion. I have considered petitioner’s other arguments, and find them to be without merit.

        Respondent cross-appeals from the hearing officer’s decision requiring the school district to tutor the boy in accordance with his IEP for the 1996-97 school year, until the boy achieved a G.E.D., or for the next eighteen months, whichever occurred sooner. She indicated that she was doing so because the " … period of 18 months would uphold Mr. Meldrum’s decision [the first hearing officer’s decision] in January, 1995 and compensate the student for the approximate period of time between June, 1993 (when the child was referred to the CSE) and the date of his [Meldrum’s] decision." Respondent challenges the hearing officer’s order on the ground that she lacked the jurisdiction to award compensatory education to the boy for a period of time during which he was allegedly denied appropriate educational services, because the adequacy of those services, and the remedy, if any, for a deprivation of services, were the subjects of the prior proceeding before Mr. Meldrum. In essence, respondent argues that the first hearing officer did not order respondent to provide any compensatory education, and that the second hearing officer cannot do so without violating the finality of the first hearing officer’s decision (see 34 CFR 300.509). I agree with respondent. However, I must point out for the benefit of the parties that petitioner’s son remains eligible to receive educational services from respondent, until he receives a high school diploma or attains the age of twenty-one (Section 3202 [1] of the Education Law).

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

        IT IS ORDERED that the hearing officer’s decision is hereby annulled, to the extent that it found that respondent had prevailed with respect to the appropriateness of the boy’s IEPs for the 1995-96 and 1995-96 school years.

        THE CROSS-APPEAL IS SUSTAINED.

        IT IS ORDERED that the hearing officer’s decision ordering respondent to provide compensatory education to the boy is hereby annulled.

 

 

 

Dated: Albany, New York __________________________
November 4, 1997 FRANK MUŅOZ