The State Education Department
State Review Officer

No. 98-66

 

 

 

Application of a CHILD WITH A DISABILITY, by her 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:
Shaw and Perelson, L.L.P., attorney for respondent, Michael K. Lambert, Esq., of counsel

 

DECISION

        Petitioner appeals from a hearing officer's decision which upheld the appropriateness of the individualized education program (IEP) which respondent's committee on special education (CSE) had prepared for the instruction of petitioner's daughter during the 1997-98 school year, and which denied petitioner's request for compensatory education for her daughter. The appeal must be sustained in part.

        Respondent contends that the appeal must be dismissed because the copy of the petition which it received was not verified (cf. 8 NYCRR 275.5 and 279.1), and because the petition does not contain a concise statement of petitioner's claims in separately numbered paragraphs (cf. 8 NYCRR 275.10, 279.1). Although petitioner should have served a verified copy of her petition upon respondent, she did verify the copy of her petition which she filed with the State Education Department. Under the circumstances, I will not dismiss her petition (Application of a Child with a Disability, Appeal No. 95-41). I have reviewed the petition, and I find that although it does not have numbered paragraphs, it does explain the bases for her disagreement with the hearing officer's determination. Accordingly, I will not dismiss the petition because of petitioner's failure to number the paragraphs of the petition.

        At the outset, I note that the record which is before me is quite limited because of the manner in which the hearing was conducted. In a letter to respondent's attorney which was dated July 24, 1998, petitioner requested an impartial hearing regarding respondent's alleged failure to properly implement her daughter's educational program for the 1997-98 school year. In a subsequent letter dated August 4, 1998, petitioner asserted that the hearing should also be about respondent's alleged failure to develop an appropriate IEP for the 1997-98 school year. Respondent appointed a hearing officer on July 27, 1998. The hearing officer scheduled the hearing to take place at 10:00 a.m. on August 13, 1998. When he convened the hearing at 10:30 a.m. on August 13, 1998, the hearing officer noted that he had been advised that petitioner had been in the building with her child, but had left to take the child home and was to have returned. He waited for petitioner to return. At 10:50 a.m., he noted that petitioner had returned with a letter addressed to him, in which the petitioner indicated that she had not received certain information which she had sought regarding the hearing officer's appointment. According to the hearing officer, petitioner indicated that she had elected not to participate in the hearing process. The hearing officer noted for the record that if petitioner had questions about his appointment, she should have appeared at the hearing and raised them at that time.

        Respondent's attorney asked the hearing officer to conduct an "inquest hearing" based upon certain documents. Those documents were the child's IEP, notices of recommendation relating to CSE meetings held on January 29, 1998, February 19, 1998, March 5, 1998, March 20, 1998, May 15, 1998, and August 22, 1998, the minutes of a CSE meeting held on June 27, 1997, and a psychological evaluation of the child which had been performed on March 6, 1998. The hearing officer accepted those documents, as well as five other documents relating to his appointment and the scheduling of the hearing. Respondent's attorney indicated that he was unaware of any specific disagreement which petitioner had with the child's IEP, but he asked the hearing officer to find that respondent had properly discharged its obligation to meet the child's educational needs.

        In his decision which was dated September 10, 1998, the hearing officer noted that the child's classification as autistic was not disputed. He found that her IEP had been prepared by a properly constituted CSE on March 20, 1998. Pursuant to that IEP, the child was to be educated in a special class with 1:1 child to adult ratio on a twelve-month basis, with individual physical therapy and speech/language therapy. The hearing officer found that the child's IEP correctly identified her special education needs, included appropriate annual goals and short-term objectives, and provided her with appropriate special education services. He concluded that petitioner's challenges to the IEP and its implementation were unfounded.

        Petitioner challenges the appropriateness of her daughter's IEP for the 1997-98 school year. She contends that the school district lacked adequate evaluative information about her child to prepare an appropriate IEP. Petitioner also disputes the appropriateness of her child's IEP annual goals and objectives, and she challenges the adequacy of the special education services which respondent's CSE had recommended for her. She argues that respondent should be required to provide compensatory education to her daughter because of its failure to provide an appropriate educational program to the child during the 1997-98 school year.

        Respondent argues that since petitioner failed to participate in the hearing where her assertions could have been addressed by respondent and the hearing officer, she is now precluded from making those assertions in this review of the hearing officer's determination.

        Federal and State law require that a parent's dispute with a school district involving the identification, classification and placement of a child with a disability be considered by an impartial hearing officer. A hearing officer must ensure that there is an adequate record upon which to premise his or her decision and to permit a meaningful review of the issues (Application of the Board of Education of the City School District of the City of New York, Appeal No. 94-35; Application of a Child with a Disability, Appeal No. 97-62). In this instance, there is very limited information about the child's special education needs other than as they appear on her IEP. Petitioner disputes the accuracy of the IEP's description of her daughter's needs. The psychologist's report (Exhibit 9) which is in the record briefly refers to the results of a number of evaluations which have been performed. However, the psychologist's report lacks the specificity required to afford an exclusive basis for drafting an IEP, since it does not provide the kind of information which could be used to describe the child's present levels of performance (8 NYCRR 200.4 [c][2][i]) and to prepare annual goals which are consistent with her needs and abilities (8 NYCRR 200.4 [c][2][ii]). Absent other information about the child's needs and attainments, I find that the record does not afford an adequate basis to determine the appropriateness of the child's IEP. Although petitioner had also raised the issue of the IEP's implementation in her July 24, 1998 hearing request, there is no information in the record about the implementation of the IEP. Therefore, I must also annul the hearing officer's determination about the implementation of the IEP. However, I find that there is no basis in the record before me to grant petitioner's request that respondent be ordered to provide compensatory education.

        Although I will annul the hearing officer's decision, I must note for the record that petitioner bears some of the responsibility for the present posture of this case. If she had reservations or questions about the hearing officer's appointment, she should have requested that the hearing be adjourned until she received the information which she was reportedly seeking, or asked the hearing officer at the hearing to provide that information. It is essential that petitioner participate in the hearing so that her concerns about her child's education become part of the record upon which the hearing officer and I must base our respective decisions.

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

        IT IS ORDERED that the hearing officer's findings with respect to the appropriateness of the child's IEP and its implementation are hereby annulled; and

 

        IT IS FURTHER ORDERED that within 30 days after the date of this decision respondent shall appoint a new hearing officer to conduct a hearing on the issues raised by petitioner in her letters of July 24, 1998 and August 4, 1998.

 

 

Dated: Albany, New York __________________________
November 30, 1998 FRANK MUŅOZ