The State Education Department
State Review Officer
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 Mamaroneck Union Free School District
Shaw and Perelson, LLP, attorneys for respondent, David S. Shaw, Esq., and Lisa S. Rusk, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which held that the dispute between the parties had been resolved by two stipulations. The first stipulation was read into the record at the hearing on March 24, 1997, and was incorporated into a decision which the hearing officer rendered on May 1, 1997. The second stipulation was read into the record at the hearing on April 15, 1997, and was incorporated into the hearing officer's decision which was dated June 5, 1997. The hearing officer retained jurisdiction with respect to the enforcement, construction and interpretation of both stipulations. Petitioner contends that she did not understand, and therefore could not have agreed to, the terms of the March 24, 1997 stipulation. She also disputes the hearing officer's determination that she agreed to the terms of the April 15, 1997 stipulation. The appeal must be dismissed.
Petitioner's son, who is sixteen years old, has been classified as learning disabled. His disability is manifested by deficits in his visual sequential short-term memory, and visual spatial skills, as well as an auditory processing disorder. The boy's disability hinders his ability to perform certain tasks requiring the use of visual memory and impairs his ability to do arithmetic (Exhibit 12). However, I note that when he was evaluated in February, 1996, while in the eighth grade, petitioner's son achieved twelfth grade equivalent scores in reading comprehension, mathematics and spelling (Exhibit 14). In any event his classification is not disputed in this proceeding, and I will not review the appropriateness of his classification (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]).
There is very little information in the record about the boy's education program prior to the 1995-96 school year. He received speech/language therapy and resource room services while in the eighth grade during the 1995-96 school year. The boy reportedly made satisfactory educational progress in the eighth grade.
On June 13, 1996, respondent's committee on special education (CSE) met to review the boy's progress, and to prepare his individualized education program (IEP) for the 1996-97 school year. The CSE recommended that petitioner's son continue to attend mainstream, i.e., regular education, classes while receiving resource room services four times per week, speech/language therapy in a group once per week, and individual speech/language therapy three times per week, in the Mamaroneck High School. The boy's IEP indicated that various alternate testing techniques, such as flexible scheduling, setting, and time limits, were to be used. It also indicated that he would have access to an FM trainer, a computer for word processing, and a scientific printing calculator. The CSE recommended that the boy be evaluated in the fall with regard to the use of assistive technology devices (see 34 CFR 300.6). In a letter dated July 18, 1996, petitioner informed respondent's special education department that she accepted the boy's IEP for the 1996-97 school year.
On September 4, 1996, the CSE reconvened at petitioner's request. Petitioner reportedly wanted the CSE to revise her son's IEP by replacing resource room services with consultant teacher services. The CSE amended the IEP to provide that the boy would receive 60 minutes of consultant teacher services twice per week, and 49 minutes of individual speech/language therapy twice per week, in place of the special education services which it had previously recommended for him. It did not change its recommendation that an assistive technology device evaluation be performed.
Petitioner's son received passing grades in each of his regular education courses, except Regents level mathematics-I, during the first marking period of the 1996-97 school year. He reportedly changed to a non-Regents mathematics course for the remainder of the school year.
Petitioner requested that a hearing be held. When the hearing began on November 27, 1996, her then attorney identified the issues which petitioner wished to have the hearing officer resolve. Those issues included whether petitioner had been accorded an opportunity to meaningfully participate in CSE meetings; whether the boy's IEP had been "tailored" to meet his individual needs; whether the IEP adequately described his present levels of performance; whether the IEP described the boy's testing modifications with adequate precision; whether the IEP failed to address his need for counseling; and whether respondent had implemented the IEP properly with regard to testing modifications, and the use of note takers for the boy. Petitioner also alleged that respondent had failed to provide a hearing in a timely manner, but she subsequently withdrew that claim (February 7, 1997 Transcript, page 277). There was also a disagreement about the boy's pendency placement, which the parties resolved by written stipulation on or about January 22, 1997 (Exhibit A).
On March 24, 1997, which was the sixth day of the hearing, respondent's then attorney read into the record a description of the terms to which both parties had agreed to address the boy's needs for the remainder of the 1996-97 school year. She indicated that the consultant teacher services would be replaced with resource room services; that the boy would receive two additional periods of resource room services for direct special education instruction (cf. 8 NYCRR 200.1 [hh]); that the boy would receive counseling from a school psychologist; that the boy's global studies course would be replaced with a modified global studies course; that notes would be taken for the boy in a new English class; and that the assistive technology evaluation which had still not been completed would be concluded by the end of the 1996-97 school year. Respondent's attorney further indicated that the parties had agreed that their stipulation would not constitute an admission by respondent that it had violated any Federal, State or local law, and that the boy's parents would release respondent and its officers and employees from all claims from the time the boy entered respondent's schools until the date of their agreement, except with regard to petitioner's claim for attorney's fees. It was also agreed that the hearing officer would retain jurisdiction.
The hearing officer questioned petitioner about her understanding of the stipulation. She admitted that she had discussed the stipulation with her attorney (March 24, 1997 Transcript, page 32). Petitioner and her attorney then questioned respondent's attorney about the arrangements for the boy's assistive technology evaluation. The hearing officer further questioned petitioner about her understanding of the stipulation's waiver of her claims (March 24, 1997 Transcript, page 40). An off-the-record conversation then ensued about the timing of the evaluation. The hearing officer once again asked petitioner whether she understood the stipulation. Petitioner responded by saying "I believe so" (March 24, 1997 Transcript, page 43). She also acknowledged that she had entered into the stipulation freely and voluntarily.
The hearing resumed on April 15, 1997, at petitioner's request, for the purpose of determining whether the parties' March 24, 1997 settlement had been breached. Petitioner appeared without an attorney because she had discharged her former attorney after the stipulation had been agreed upon. She did not request an adjournment, or otherwise indicate that she wished to be represented by an attorney. Petitioner asserted that she had been misled at the March 24, 1997 hearing about the nature of her son's new global studies class, which was a special education class. She alleged that respondent had failed to implement various terms of the stipulation, including the provision of class notes to her son, the availability of a computer with appropriate software for him to take tests, and counseling by the school psychologist on a weekly basis. Petitioner further alleged that the boy's English teacher had not returned the telephone calls of the boy's private tutor, and that there was a scheduling problem with one of the resource room periods for her son. She also complained about respondent's alleged failure to act promptly in scheduling her son's assistive technology evaluation. With the hearing officer's assistance, the parties agreed to resolve the issues petitioner had raised about class notes, coordination between the boy's teachers and his tutor, the use of a computer during tests, counseling by the school psychologist, and the boy's resource room program. With respect to her son's placement in a special education global studies class, petitioner agreed to have her son remain in that class for the remainder of the school year, but she asked that his school records not reveal that it was a special education class. Respondent disclosed that the long delayed assistive technology evaluation would take place on April 16, 1997, and that a report of the evaluation would be available by April 30, 1997. Respondent offered to have a building-level committee meet to review the evaluation report by no later than May 9, 1997. Petitioner reluctantly agreed to respondent's proposal (April 15, 1997 Transcript, page 115). The parties also agreed that respondent would prepare a written plan to facilitate communication between themselves.
Petitioner contends that she was under duress at the hearing which was held on March 24, 1997, because only six days before the hearing she had received her son's student progress report indicating that he could possibly fail three of his four academic classes. She further contends that she has a severe auditory processing deficit. Petitioner requests that I find that the hearing officer and respondent's then attorney acted improperly by asking her to give up her due process and civil rights, as well as those of her son and husband. She is presumably referring to the fact that she dropped any claim which she might have had under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1975 (Section 504) and Article 89 of the Education Law with regard to matters which had occurred prior to March 24, 1997.
In essence, petitioner seeks to be relieved from the terms of the stipulation which she entered into on March 24, 1997. Stipulations are favored by the courts as a means of settling disputes, and they may not lightly be set aside. That is equally true with respect to a stipulation in an administrative proceeding like this (Application of a Child with a Disability, Appeal No. 93-27). Stipulations may, however, be invalidated for cause, e.g., fraud, collusion, mistake or accident. I have considered petitioner's contention about her alleged duress and lack of comprehension. However, I must note that she was represented by an attorney at the hearing which was held on March 24, 1997. When questioned by the hearing officer on March 24, petitioner acknowledged that she had discussed the stipulation with her attorney. Under the circumstances, I find that there is no basis for relieving petitioner from the provisions of the stipulation, including the provision about waiving her pre-existing claims.
Petitioner also contends that the hearing officer should have ruled upon the allegations she had made at the hearing on April 15, 1997 with regard to possible violations of IDEA and Section 504. At the hearing on April 15, 1997, the hearing officer clearly indicated that he would not reopen the proceeding, but would afford petitioner the opportunity to present her claim that respondent was not honoring the terms of the March 24, 1997 stipulation. The record reveals that the hearing officer asked petitioner about respondent's alleged non-compliance, and that he went through her complaints with the school district's attorney and school district employees. He then assisted the parties by drafting the language of the agreement which they reached on April 15, 1997. I note that near the end of the hearing, the hearing officer provided both parties with copies of an outline of their agreement, so that petitioner had both oral and written information about the agreement. I have considered petitioner's contention that on April 15, 1997 the hearing officer pressured her into agreeing to the terms of the agreement which was reached that day. However, I find that there is no basis in fact for her contention. While petitioner was clearly unhappy about the fact that her son had been placed in a special education class for global studies, she voluntarily agreed to have him remain in that class for the rest of the 1996-97 school year (April 15, 1997 Transcript, page 88). Petitioner reluctantly agreed to the timetable which respondent proposed for a building committee to review the results of her son's assistive technology evaluation, after the hearing officer observed that "I don't think we have any other options" (April 15, 1997 Transcript, page 115). However, I find that this comment was not inappropriate, given the context in which it was made. In view of the fact that the issues which petitioner raised at the April 15, 1997 hearing were addressed by either the March 24, 1997 stipulation, or the agreement which the parties reached on April 15, 1997, I find that the hearing officer was not required to further address those issues in his second decision.
I agree with petitioner that the hearing officer should not have indicated in his May 1, 1997 decision that the "parties have waived their right to review and this decision is final and binding upon the parties." However, I have now reviewed that decision in this appeal, and I find that the issue is moot. Petitioner asserts that the hearing officer violated her due process rights by failing to render his decision with regard to the April 15, 1997 hearing within 45 days after she had requested that hearing (cf. 34 CFR 300.512 [a]; 8 NYCRR 200.5 [c]). Petitioner requested the hearing on April 8, 1997, and the hearing officer rendered his decision on June 5, 1997. Although the hearing officer did not render his decision within the requisite 45-day period, I must note that there were no issues which he had to resolve, and that his failure to comply with the time limit would not afford a basis for annulling his decision (Application of a Child with a Disability, Appeal No. 97-30).
I have considered petitioner's other contentions which I find to be without merit. However, I must remind respondent that this child's IEP may not be revised without a recommendation by its CSE. The record reveals that there has been a serious breakdown in the communication and cooperation between the parties. I urge them to put aside their differences and work together for the boy's benefit.
THE APPEAL IS DISMISSED.
|Dated:||Albany, New York||__________________________|
|April 21, 1998||FRANK MUŅOZ|