The State Education Department
State Review Officer

98-1

 

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 held that petitioner’s son was not entitled to an award of compensatory education because of a private school’s decision to change the manner in which the boy’s reading instruction was provided during the spring of 1997. She also held that respondent had not caused the private school to withhold instructional services from the boy during the summer of 1997, and she dismissed petitioner’s claim for reimbursement for travel expenses in July, 1997. The hearing officer rejected petitioner’s contention that respondent’s committee on special education (CSE) had failed to conduct an annual review for petitioner’s son. The appeal must be dismissed.

        Petitioner’s son is eighteen years old. He has reportedly been diagnosed as having an attention deficit hyperactivity disorder (ADHD), and has had at least one seizure. A psychologist who evaluated the boy in 1994, when he was in the eighth grade in respondent’s schools, reported that the boy did not focus well enough and long enough to reliably take in information or think things through. She also reported that he processed information slowly, and that he needed help with social problem-solving. His intelligence test scores were in the borderline range, and his academic achievement was well below the eighth grade level. The boy’s classification as learning disabled is not disputed in this proceeding, and I do not review its appropriateness for him (Hiller v. Bd. of Ed. Brunswick CSD, 674 F. Supp. 73 [N.D. N.Y., 1987]).

        Petitioner’s son received instruction at home for the latter half of the 1994-95 school year and the first two months of the 1995-96 school year. He was then placed by respondent in the Pine Ridge School in Willston, Vermont, for the remainder of the 1995-96 school year. At the end of the school year, the Pine Ridge School determined that it could not meet the boy’s needs and would not accept him as a student for the 1996-97 school year. The private school reportedly recommended that petitioner’s son receive neurological and psychiatric evaluations.

        In July, 1996, respondent’s CSE agreed that the neurological and psychiatric evaluations should be performed. A psychiatric evaluation was performed in September, 1996, by a psychiatrist who recommended that the child take medicine to control his behavior (Exhibit F). A dispute between the parties about the selection of a neurologist to evaluate the boy resulted in an impartial hearing and an appeal to the State Review Officer (Application of the Board of Education of the Wappingers Central School District, Appeal No. 97-29). In that appeal, I held that respondent could determine who should perform the evaluation, and I dismissed petitioner’s claim that her son was denied a free appropriate public education while attending the Pine Ridge School during the 1995-96 school year.

        In November, 1996, petitioner’s son was accepted for admission to the Eagle Hill School in Hardwick, Massachusetts, subject to undergoing a medical evaluation and participating in counseling (Exhibit G). Respondent’s CSE met with petitioner, her son, and a representative of the Eagle Hill School, who participated by telephone, on November 22, 1996. The CSE recommended that the boy be placed in the Eagle Hill School as a residential student for the remainder of the 1996-97 school year. On the boy’s individualized education program (IEP), the CSE indicated that he would receive 45 minutes of individual counseling per week, as well as consultant speech/language therapy for 45 minutes per week. Petitioner accepted the CSE’s recommendations. Her son entered the Eagle Hill School on December 2, 1996.

        Petitioner’s son was academically successful at the Eagle Hill School for the remainder of the first semester of the 1997-97 school year (Exhibit K). He reportedly received individual reading instruction from an instructor who employed the Orton-Gillingham teaching methodology. During the second semester of the 1996-97 school year, the boy’s reading instruction was reportedly changed to place more emphasis on his comprehension than his decoding skills. He was instructed for this purpose in a group of four students. Petitioner testified that she questioned the appropriateness of her son’s new reading program at a meeting with Eagle Hill staff on February 10, 1997, and again when she met with the staff on May 9, 1997. She was reportedly assured by the Eagle Hill staff that the change in the boy’s reading program was not harmful to him, and the reading program continued to emphasize her son’s reading comprehension. The boy achieved final grades of 79 for reading, 77 for mathematics, 84 for writing workshop, and 83 for U.S. history. His special subject grades were in a comparable range.

        At an annual review conducted by the Eagle Hill School on May 7, 1997, it was reportedly agreed that the boy would be enrolled in the school’s six-week summer program which was to begin on July 7, 1997. Respondent’s CSE conducted its annual review on June 24, 1997. No one from the Eagle Hill School was reportedly available to participate in the meeting because the school was in recess. In any event, the CSE did not complete the preparation of the boy’s IEP for the 1997-98 school year at that meeting.

        Petitioner testified at the hearing that she accompanied her son back to the Eagle Hill School on July 14, 1997, one week after the summer program had begun. When she and her son arrived at the school, petitioner was reportedly advised by the school’s Admissions Director that there was an outstanding balance of $14,000. for the 1996-97 school year and that no payment had been made by respondent for the 1997 summer program. The Admissions Director also reportedly told petitioner that her son could not attend the summer program unless petitioner agreed to be financially responsible for her son’s tuition until respondent paid for the boy’s tuition. As a result, the boy did not attend the summer program at the Eagle Hill School, nor did he return to that school in September, 1997.

        Petitioner also accompanied her son on July 14, 1997 so that he could have a psychiatric evaluation which the Eagle Hill School had requested for the purpose of determining what medication the boy should take to alter his behavior. Petitioner testified that, as a result of her attempts to resolve the tuition payment issue on July 14, she and her son were late arriving for the psychiatric evaluation which was to be performed in Enfield, Connecticut. When she arrived at the psychiatrist’s office, she was reportedly told that neither the Eagle Hill School nor respondent had made arrangements to pay for the evaluation, and that she would be financially responsible for the evaluation. Petitioner was unwilling to assume financial responsibility, and her son was not seen by the psychiatrist.

        By letter dated July 15, 1997, petitioner requested that an impartial hearing be held to review the CSE’s alleged failure to conduct a timely annual review to ensure that petitioner’s son would receive a summer program, as well as respondent’s alleged failure to pay for all of the boy’s tuition for the 1996-97 school year which had jeopardized her son’s ability to return to Eagle Hill for the 1997-98 school year. Petitioner also sought review of respondent’s failure to make arrangements to pay for the independent psychiatric evaluation which was to have been performed on July 14, 1998.

        On July 17, 1997, petitioner and her son met with respondent’s CSE. At the hearing in this proceeding, petitioner testified that she attempted to raise the issue of her son’s inability to attend the Eagle Hill School’s summer program, but had not been permitted by the CSE chairperson to do so. The chairperson testified that she was made aware that there were "some financial problems", but that she believed that they were being resolved, and that there was no need to consider an alternative to the Eagle Hill summer program. Petitioner immediately filed a second hearing request, in which she asserted that the CSE chairperson had denied her the opportunity to be an equal participant in the July 17, 1997 CSE meeting.

        Petitioner made two additional requests for hearings on July 24, 1997 and August 1, 1997. The July 24 request alleged that respondent had failed to take action in response to a "directive" given to it by the State Education Department which had resulted in the boy’s loss of a summer school program and a placement for the 1996-97 school year. Her August 1 request alleged that respondent had unduly delayed in obtaining a neurological evaluation of her son.

        On August 6, 1997, petitioner and her son met with the CSE. A written notice of the results of the meeting (Exhibit 3) indicates that the CSE recommended that the boy receive 1:1 instruction at home during the remainder of the summer and until a new residential placement could be arranged for him. In addition to instruction, the boy was also to have received individual counseling three times per week and individual speech/language therapy twice per week. The notice also indicates that this program was being recommended because the Eagle Hill School would not permit the boy to enroll for the summer program or the 1997-98 school year. The CSE also recommended that the boy receive a neurological evaluation and a psychiatric/medication evaluation.

        The hearing in this proceeding was held on August 12, 1998. Prior to the hearing, the hearing officer agreed to respondent’s request to consolidate the issues raised in petitioner’s four hearing requests into a single proceeding. Petitioner objected to the consolidation at the outset of the hearing, but the hearing officer overruled her objection. Respondent conceded that the boy should have received an educational program during the summer. Its attorney represented that it would provide the equivalent of a six-week program at the local Sylvan Learning Center, and that each of the services indicated on the boy’s LEP would be provided to him. Petitioner agreed to accept respondent’s offer as an interim measure.

        In her decision which was rendered on November 12, 1997, the hearing officer rejected petitioner’s claim that respondent’s CSE had failed to conduct a timely annual review of the boy. She noted that only seven months had elapsed between the November 22, 1996 CSE meeting and its June 24, 1997 meeting. The hearing officer found that the evidence adduced at the hearing did not establish that respondent had any overdue financial obligations to the Eagle Hill School, and that if there was a financial disagreement, it was between petitioner and the Eagle Hill School regarding the boy’s personal expenses. She further found after listening to a tape recording of the July 17, 1997 CSE meeting that the child’s case manager at Eagle Hill, who had participated by telephone in the CSE meeting, had not indicated that the boy would not be allowed to return to school, or that respondent had to resolve any financial matters with the private school. The hearing officer also concluded that the tape recording did not support petitioner’s claim that she had been denied the right to be an equal participant at the CSE meeting. She found that two issues which petitioner had raised relating to a new assistive technology evaluation and a neurological evaluation had been resolved. With regard to petitioner’s claim for compensatory education using the Orton-Gillingham instructional methodology, the hearing officer found that the boy’s reading teacher at the Eagle Hill School had concluded that the boy had learned to use the Orton-Gillingham technique for reading decoding, and he needed to apply it to develop his reading comprehension. She dismissed petitioner’s argument that the CSE had agreed that her son would receive Orton-Gillingham teaching for reading, and that Orton-Gillingham was the only effective methodology for the boy. She found that the boy’s instructional program at the Eagle Hill School had been appropriate for him, and denied petitioner’s claim for compensatory education. The last issue which the hearing officer addressed was whether petitioner was entitled to be compensated for her travel expenses on July 14, 1997. She noted that the boy was entitled to be transported to school, but found that there was no evidence that respondent had failed to provide any requested transportation. She rejected petitioner’s contention that her travel on July 14, 1997 had been in vain because of any action or inaction by respondent, and denied her claim for reimbursement.

        Petitioner asserts that the hearing officer did not conduct herself in an appropriate manner during the hearing, and that she should have honored petitioner’s request that she recuse herself. Having reviewed the hearing transcript, I find that the hearing officer treated petitioner courteously and fairly. Petitioner had asked the hearing officer to recuse herself because she had allegedly had ex parte communications with respondent’s attorney prior to the hearing. Hearing officers should refrain from communicating with any party or party’s representative about any issue of fact or law, except upon notice and opportunity for all parties to participate. While a hearing officer’s ex parte communication with a party may afford a basis for annulling the hearing officer’s decision (see Signet Construction v. Goldin, 99 AD 2d 431), I am not persuaded by the record which is before me that there is a basis for doing so. The issue arose as part of petitioner’s objection to the consolidation of her four hearing requests into a single hearing. While I agree with petitioner that respondent’s request that the matters be consolidated should have been made on notice to her, I find that she was afforded the opportunity to explain why the matters should not have been consolidated at the outset of the hearing. I further find that the hearing officer acted well within the scope of her power in consolidating the matters, in view of the timing of the hearing requests and the subject matter of the requests.

        Petitioner contends that the hearing officer misunderstood the issues which had been placed before her in this proceeding, and that she should have directed respondent’s attorney to submit written proof that respondent had signed contracts with and paid the tuition fees of the Eagle Hill School. She asserts that she was obliged to make a Freedom of Information Law request after the hearing to obtain copies of the documents she had sought at the hearing, some of which she has annexed to the petition. Although a hearing officer must afford an unrepresented parent a fair opportunity to present his or her case (Application of a Child with a Handicapping Condition, Appeal No. 92-38), the hearing officer also has the power and duty to restrict the record which is before him or her to evidence which is relevant to the issues to be decided. A hearing officer may exclude irrelevant or unduly repetitions evidence and testimony (Application of a Child with a Disability, Appeal No. 96-51; Application of a Child with a Disability, Appeal No. 96-71). In this instance, there was no dispute that it was respondent’s duty to provide a summer instructional program to petitioner’s son. There was also no dispute that the boy was not enrolled in the Eagle Hill School’s summer school, despite the fact that the CSE had recommended that he be enrolled in that program. While the reasons why the boy did not attend the Eagle Hill Summer School are not completely established in the record of this proceeding (see, for example, Exhibit 5), the question is whether they need to be established, given respondent’s acknowledgement of its responsibility to provide a program and its offer to provide an alternative program. The hearing officer determined that her primary obligation was to ensure that the boy was promptly enrolled in the alternative program offered by respondent. Absent any showing that the information which petitioner sought would have gotten her son appropriate educational services sooner, I find that the hearing officer did not abuse her power by not requiring respondent to produce the documents in question.

        Petitioner asserts that the hearing officer’s finding with respect to the timing of the CSE’s annual review of her son is inconsistent with the definition of the term "annual review" in 8 NYCRR 200.1(c). I disagree. The boy’s educational program and placement were established by the CSE at its meeting on November 22, 1996. The IEP which was prepared at that meeting indicated that the boy was being placed on a twelve-month basis as of December 2, 1996. The CSE began its annual review on June 24, 1997 and completed its review on July 17, 1997, when it reviewed the results of his standardized testing and his grades from the Eagle Hill School with his academic advisor at Eagle Hill. The regulation upon which petitioner relies requires that the CSE review a child "at least annually", which was done in this case. Petitioner’s reliance upon my decision in Application of the Board of Education of the Wappingers Central School District, supra, for a contrary conclusion is completely misplaced.

        Petitioner also challenges the hearing officer’s determination regarding the Eagle Hill School’s alleged violation of her son’s IEP by failing to provide him with a reading program using the Orton-Gillingham methodology during the spring semester of the 1996-97 school year. I have reviewed the IEP in question (Exhibit 2). It indicated that he was to receive "1 HR/DAILY READING (MULTI-SENSORY)". Although his IEP annual goal for reading and its supporting objectives suggest that a phonic approach to reading was to be used, they do not explicitly provide that the Orton-Gillingham methodology would be used exclusively. I am aware that petitioner asked at the November 22, 1996 CSE meeting whether the Eagle Hill School had someone who could use that methodology, and was assured by the Eagle Hill Admission Director that her son was "slated to be in that" (Exhibit A, page 18). However, I am not persuaded that the CSE had specified that only the Orton-Gillingham methodology was to be used. I must also note that the boy’s reading teacher at the Eagle Hill School indicated in his progress report (Exhibit 9) that petitioner’s son could decode instructional level material with success, but that he needed to improve his comprehension skills. I find that petitioner’s challenge to the hearing officer’s finding is without merit.

        At the hearing and in this appeal, petitioner asserts that she was denied "full and meaningful parental participation" at the July 17, 1997 CSE meeting. The hearing officer indicated that she would listen to the audio tape recording of the CSE meeting and would make her determination on the basis of that recording. I too have listened to the tape recording, and I concur with the hearing officer’s finding which dismissed petitioner’s claim. The meeting began with a discussion of the boy’s standardized test results and his grades for the 1996-97 school year. Petitioner raised the issue of the use of the Orton-Gillingham methodology, and she was promised that it would be looked into. She also questioned whether an assistive technology evaluation which had been performed in the spring of 1997 was valid because of allegedly incorrect information about the boy’s reading program being given to the evaluator. That issue was extensively discussed. Petitioner next raised the issue of her son’s alleged exclusion from the Eagle Hill School three days before the CSE meeting was held because of respondent’s alleged failure to pay his tuition. The CSE chairperson asserted that "finances" were not a CSE issue, and that the issue would be addressed in another forum since petitioner had already filed an impartial hearing request. In any event, the matter was further discussed, as were additional matters raised by petitioner.

I have considered petitioner’s other contentions which I find to be without merit.

THE APPEAL IS DISMISSED.

 

Dated: Albany, New York __________________________
December 9, 1998 FRANK MUŅOZ