The State Education Department
State Review Officer

 

Nos. 98-81 & 99-9

 

Applications 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 City School District of the City of New York

Appearances:
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Masako C. Shiono, Esq., of counsel

 

DECISION

 

        Petitioner appeals from two decisions by an impartial hearing officer which were both related to a single meeting of respondent's committee on special education (CSE) which was held on August 13, 1998. Since both appeals arise from essentially the same set of facts and involve at least some of the same issues, they have been consolidated for purposes of decision. In Appeal No. 98-81, the hearing officer denied respondent's request to consolidate the two proceedings arising from petitioner's two hearing requests. However, she held that the issues which petitioner had raised in the first of her two hearing requests had been the subject of a prior proceeding which had ended with my decision in Application of a Child with a Disability, Appeal No. 98-53, and dismissed the proceeding arising from the first hearing request. The hearing officer further ordered that petitioner could either abandon her second hearing request, or preserve it by informing respondent's Impartial Hearing Office that she wished to pursue the matter. She indicated that the Impartial Hearing Office would then schedule a motion hearing at which time she would determine whether to dismiss petitioner's remaining claims. In Appeal No. 99-9, the hearing officer held that petitioner's second hearing request involved the same issues which were the subject of the prior proceeding and my decision, except for petitioner's claim for compensatory tutorial services for her daughter, which the hearing officer dismissed. The hearing officer remanded the matter back to the CSE to consider any new evidence that petitioner might have with regard to her child's health needs. The appeal in No. 98-81 must be sustained in part, and the appeal in No. 99-9 must be dismissed.

        I will first address respondent's request that I accept its answer in Appeal No. 98-81, which should have been served by no later than January 4, 1999, but which was not served until March 5, 1999. I note that by letter dated December 12, 1998, petitioner also sought an extension of time in which to file her petition in that appeal. Respondent has not raised the affirmative defense of untimeliness to bar the petition. In view of the fact that both parties were delayed in filing their respective papers, and that the issues raised in Appeal No. 98-81 are related to those which are raised in Appeal No. 99-9, I will exercise my discretion and excuse respondent's delay. Similarly, respondent asks that I accept its answer in Appeal No. 99-9 which was served on March 16, 1999. Respondent points out that it was simultaneously served with the notice of intention to seek review and the petition on February 9, 1999 (cf. 8 NYCRR 279.2 [b]). If petitioner had complied with the regulation, her petition would have been served on February 19, 1999. Nevertheless, respondent's answer would still have been untimely. However, its untimeliness has not prevented a prompt decision in this appeal. Therefore, I find that petitioner has not been prejudiced by the delayed answer, which I will accept.

        Petitioner's daughter, who is 10 years old, has been diagnosed as having galactosemia, which is a metabolic disorder in which the body is unable to convert excess galactose into glucose. After attending preschool, the child was enrolled in a modified instructional services-IV (MIS-IV) program in respondent's P.S. 12, where she reportedly exhibited behavioral problems. In January, 1997, the CSE recommended that the child be placed in respondent's specialized instructional environment-VI (SIE-VI) program. Shortly after her entry into the SIE-VI program in February, 1997, the child was hospitalized with a reported diagnosis of viral encephalitis. She was discharged from the hospital, but did not return to school. Instead, petitioner sought to obtain a CSE recommendation for home instruction.

        On May 16, 1997, an impartial hearing was held at petitioner's request to obtain a change in the child's classification to other health impaired, and to have her daughter placed in a private school on a 12-month basis. Thereafter, the CSE agreed to the requested classification as other health impaired, but it recommended that the child be placed in the SIE-VI program. During the pendency of the hearing, the CSE developed an individualized education program (IEP) for the child to reflect an agreement between the parties. The agreement included the child's placement in a private school, as petitioner had requested. The child was accepted by the Westchester School for Special Children (Westchester School) which is located in Yonkers, New York. However, the hearing continued because the parties could not resolve their differences with regard to who should bear the expense of providing suitable lunches and snacks to the child at the Westchester School, and because petitioner had concerns about the length of time needed for the child to be transported to and from the private school.

        On March 20, 1998, the hearing officer in that proceeding (hereinafter "proceeding 1") rendered her decision. She found that the child should attend the Westchester School, and that respondent should either provide special meals to the child at the school, or reimburse petitioner for the cost of those meals. The hearing officer found that the length of the bus trip to the Westchester School did not make the child's placement in that school inappropriate, but she ordered respondent to provide a special transportation aide for the child. She also directed the CSE to have the child evaluated by a physical therapist. The hearing officer ordered the CSE to reconvene to conduct an annual review of the child, and to modify her IEP in certain respects.

        As I noted in my prior decision, respondent had difficulty arranging an appointment with petitioner to have her daughter evaluated by a physical therapist, and with arranging to have the CSE conduct its annual review at a mutually convenient time (see 34 CFR 300.345 [a][2]). The annual review was initially scheduled to occur on June 9, 1998. Petitioner asked that the CSE meeting be postponed until after July 6, 1998 because her family's medical appointments reportedly prevented her from attending a meeting until then. The CSE unsuccessfully attempted to contact petitioner to reschedule the annual review, and it unilaterally scheduled its meeting to take place on June 17, 1998.

        One day before the annual review was to be conducted, petitioner requested that an impartial hearing be held because she was allegedly being harassed and discriminated against by the CSE regarding the scheduling of the annual review. On June 17, 1998, the CSE conducted its annual review, although neither petitioner nor her child's teacher attended the meeting. The CSE modified the child's IEP in accordance with the hearing officer's decision, except for physical therapy because the child's physical therapy evaluation had still not taken place.

        On July 8, 1998, a second impartial hearing (hereinafter "proceeding 2") was held. Petitioner was represented by an attorney, as was the CSE. The hearing officer indicated that the focus of the hearing was to be upon whether the CSE had complied with the hearing officer's decision in proceeding 1, and whether petitioner had been validly notified of the June 17, 1998 annual review. Nevertheless, petitioner's attorney asserted that the child should be evaluated because of a recent problem with incontinence, in light of the fairly lengthy bus trip she would have to take to attend the Westchester School. Petitioner testified that she had decided not to appeal from the hearing officer's decision in proceeding 1 which ordered that her child be placed in the Westchester School, although she had concerns about the method by which her child would be provided with food while attending the school. She did not testify about her daughter's alleged incontinence problem and no evidence was adduced with regard to that issue.

        The hearing officer in proceeding 2 rendered his decision on August 4, 1998. He found that petitioner had been unreasonable and uncooperative in making herself unavailable to participate in the CSE's annual review for a period of more than six weeks, but he also found that the CSE which met on June 17, 1998 was invalidly composed because the child's teacher was not present. The hearing officer directed the CSE to reconvene within 21 days. He also ordered that the child be immediately removed from home instruction and be placed in the Westchester School, which was her pendency placement pursuant to the hearing officer's decision in proceeding 1. Although he noted that petitioner's attorney had alluded to the child's alleged incontinence problem, the hearing officer did not address the issue in his decision.

        The CSE reconvened on August 13, 1998. Petitioner did not attend the CSE meeting. The CSE reportedly reviewed the results of the child's physical therapy evaluation. It did not recommend that the child receive physical therapy. The CSE maintained its previous recommendation that the child receive speech/language therapy and occupational therapy, and have the services of a health aide and a transportation aide while attending the Westchester School.

        In a letter to respondent's Impartial Hearing Office dated August 28, 1998, petitioner requested that an impartial hearing be held because she had allegedly not received notice that the CSE would meet on August 13, 1998. Petitioner also asserted that the teacher's observation report referred to in her child's individualized education program (IEP) was three years old, and that there was no report by the physical therapist who had evaluated the child. She also accused the physical therapist of sexual harassment. Petitioner asserted that the child's IEP should indicate that petitioner would be reimbursed for the cost of her child's special meals. She also apparently sought to obtain a copy of the CSE meeting minutes for August 13, 1998. For the purposes of this appeal, the proceeding which was initiated by petitioner's August 28, 1998 hearing request shall be known as proceeding 3.

        On September 9, 1998, petitioner instituted her appeal from the hearing officer's decision in proceeding 2. The next day, she submitted an additional request for an impartial hearing. In that request, petitioner asserted that her child's proposed placement at the Westchester School should be reconsidered because of the CSE's failure to indicate on her child's IEP that she should receive special meals. Petitioner also asserted that she had new medical evidence of the inappropriateness of the Westchester School as a placement for her child. She indicated that the relief she sought was an order requiring respondent to provide home instruction to her child until an appropriate placement could be obtained. The proceeding initiated by petitioner's September 10, 1998 hearing request will be deemed to be proceeding 4, for the purposes of this decision.

        On September 25, 1998, petitioner and her attorney appeared before an impartial hearing officer, as did an attorney from respondent's Office of Legal Services. The Office of Legal Services attorney made a motion to consolidate the proceedings arising from petitioner's August 28 and September 10 hearing requests into a single proceeding. The attorney also moved to dismiss petitioner's claims, on the ground that petitioner was attempting to re-argue the merits of her case in proceeding 1, or was arguing about the implementation of the hearing officer's decision in proceeding 1. The Office of Legal Services attorney also argued that an impartial hearing was not the proper forum for petitioner's claim that the physical therapist who evaluated the child had sexually harassed petitioner, and that any new evidence about the child's physical condition should be presented to the CSE, rather than at an impartial hearing. Petitioner's attorney opposed the motion because one of petitioner's hearing requests was allegedly made pursuant to Section 504 of the Rehabilitation Act of 1993, while the other request was made pursuant to the Individuals with Disabilities Education Act (IDEA). He asserted that petitioner wished to receive separate decisions under Section 504 and the IDEA, and that resolution of petitioner's claims pursuant to her August 28, 1998 hearing request would be delayed if the two proceedings were consolidated.

        Petitioner briefly testified that she had not been notified that a CSE meeting would be held on August 13, 1998, and was unaware that it had been held until she received the IEP which had been prepared at that meeting. She asserted that she had requested a hearing on August 28, 1998 to establish that the CSE had violated her right to participate in the development of her daughter's IEP. Her attorney urged the hearing officer not to remand the matter to the CSE because " … they keep violating due process" (September 25, 1998 Transcript, page 25). The Office of Legal Services attorney asserted that the hearing officer need not take petitioner's claim of a due process violation at the August 13, 1998 CSE meeting into account in deciding respondent's motion to dismiss. She also disputed the assertion that petitioner had requested separate hearings under Section 504 and IDEA. The hearing was then closed by the hearing officer.

        On October 16, 1998, I dismissed petitioner's appeal from the hearing officer's decision in proceeding 2. I found that petitioner's claims with respect to the allegedly untimely notice which she had received for the June 17, 1998 CSE meeting and the CSE's alleged failure to schedule its meeting at a mutually convenient time were moot because the hearing officer in proceeding 2 had nullified the action taken by the CSE at the June 17, 1998 meeting. I pointed out that petitioner's claim with regard to her child's need for special food had been addressed by the hearing officer in proceeding 1, and that respondent had acknowledged its responsibility to reimburse petitioner for the cost of the meals which she provided for the child at the Westchester School. In her appeal from the hearing officer's decision in proceeding 2, petitioner asserted that the hearing officer had erroneously determined that the Westchester School was the child's pendency placement (see USC 1415 [j]; Section 4404 [4] of the Education Law). However, I found that the child's pendency placement was at the Westchester School because petitioner had not appealed from the hearing officer's decision in proceeding 1 (see 34 CFR 300.509).

        On November 2, 1998, the hearing officer in the instant appeals denied respondent's motion to consolidate the proceedings arising from petitioner's August 28, 1998 and September 10, 1998 hearing requests. However, she granted respondent's motion to dismiss proceeding 3 arising from the August 28, 1998 hearing request on the grounds that the August 13, 1998 CSE meeting had been held pursuant to the hearing officer's decision in proceeding 2, and that petitioner was in essence launching a collateral attack upon that hearing officer's decision and my decision in Appeal No. 98-53. With respect to proceeding 4 arising from petitioner's September 10, 1998 hearing request, the hearing officer found that the issues which petitioner had raised were moot because of my decision in Appeal No. 98-53, but ruled that the matter was not properly before her. She indicated that petitioner would be deemed to have abandoned the proceeding, unless petitioner notified respondent's Impartial Hearing Office of her desire to pursue the matter. In that event, the hearing officer indicated that a motion hearing should be scheduled to afford petitioner an opportunity to explain why the proceeding should not be dismissed.

        Petitioner decided to pursue the issues raised in her September 10, 1998 hearing request, and a hearing was scheduled to take place on December 3, 1998. On December 2, 1998, petitioner notified the hearing officer that she could not appear at the hearing on the following day. On December 3, 1998, the hearing officer opened the hearing. Neither party was present, although the Office of Legal Services attorney appeared by speaker phone. The hearing officer indicated that she would be available on three additional days, and directed that either petitioner or her attorney should inform the Impartial Hearing Office of which day they were available to participate in the hearing. The hearing officer issued an interim order to that effect on December 4, 1998. By letter dated December 9, 1998, petitioner asserted that it would be highly prejudicial to her and a violation of her due process rights for the hearing to be held without her. A hearing was held on December 15, 1998. Petitioner did not appear because her child was reportedly in the hospital. However, she was represented by her attorney. The Office of Legal Services attorney moved to dismiss the proceeding, and suggested that perhaps the CSE should evaluate the child with regard to her incontinency problem. Petitioner's attorney reiterated his opposition to a remand of the matter to the CSE.

        The hearing officer rendered her decision on January 26, 1999. She first addressed petitioner's assertion that she had been denied due process of law at the hearing by noting that petitioner had been afforded two opportunities to attend the hearing on respondent's motion to dismiss, but had been unavailable to participate either in person or by telephone on either date. The hearing officer further noted that petitioner had been represented by her attorney on December 15, 1998, and she denied petitioner's allegation that the hearing officer's determination to proceed on December 15, 1998 was in retaliation for petitioner having filed a complaint with the Office of Civil Rights of the U.S. Department of Education. On the merits, the hearing officer found that the issues of the child's incontinency, her need for special diet, and the general appropriateness of the Westchester School had been raised in prior proceedings, and that those issues were barred from being considered in the present proceeding by the doctrine of issue preclusion. She denied petitioner's request for compensatory tutorial services on the ground that respondent had not excluded petitioner's child from school. Instead, petitioner had withheld the child from her pendency placement in the Westchester School, rather than placing her in that school and going to the CSE with any new concerns, as I had indicated that she do in my previous decision. The hearing officer remanded the matter to the CSE, with the direction that it make a good faith attempt to schedule its meeting at a mutually convenient time and date, for the purpose of updating her educational evaluation and obtaining updated medical information about her.

        In Appeal No. 98-21, petitioner contends that the hearing officer erred by dismissing proceeding 3 on the ground that it was a collateral attack upon the decision of the hearing officer and myself in proceeding 2. She asserts that the due process violation which she claimed in proceeding 2 involved the June 17, 1998 CSE meeting, and that neither the hearing officer's decision nor my decision in proceeding 2 dealt with the CSE's alleged failure to notify her of its August 13, 1998 meeting. I agree with petitioner. Although the August 13 CSE meeting was held at the direction of the hearing officer in proceeding 2, it does not follow that petitioner's complaint about not receiving notice of when the meeting would be held cannot be the subject of a new proceeding.

        Petitioners further asserts that since I did not specifically address the issue of her daughter's incontinency in my decision in proceeding 2, she was not precluded from raising the issue in a new proceeding. I must note that in proceeding 2 no evidence of the child's medical needs was introduced at the hearing which was held on July 8, 1998. Although petitioner attached a letter dated August 10, 1998 from the child's physician to the petition in her appeal from the hearing officer's decision, that letter did not address the issue of what would be an appropriate placement for the child. More importantly, the sole placement issue which was properly before me in proceeding 2 was the legal issue of what was the child's pendency placement. However, I specifically indicated that petitioner should bring this new medical information to the CSE's attention. While I agree with petitioner that my decision in Appeal No. 98-53 did not address the issue of her daughter's new medical condition on the merits, I must again point out that information about that condition should be shared with the CSE to assist it in making its recommendation for future placements. It does not in any way affect my determination that the Westchester School was the child's pendency placement.

        Petitioner also asserts that she was not precluded by the decisions of the hearing officer and myself in proceeding 2 from instituting a new proceeding to force the CSE to amend her child's IEP to indicate that respondent would be responsible for reimbursing her for the cost of her child's special meals at the Westchester School. I disagree. Despite the fact that the hearing officer in proceeding 1 had addressed the issue in her decision, petitioner nevertheless raised it in proceeding 2. In my decision, I indicated that the issue had been addressed by the hearing officer in proceeding 1, and I dismissed petitioner's claim that her child's IEP was inappropriate because it did not refer to her nutritional requirements. I find that petitioner was precluded from raising the same issue again in proceeding 3 (Application of a Child with a Disability, Appeal No. 93-40).

        I note that petitioner has not appealed from the hearing officer's finding that an impartial hearing under the IDEA is not the appropriate forum for petitioner's claim of sexual harassment, with which I concur.

        In Appeal No. 99-9, petitioner contends that the hearing officer erred in her January 26, 1998 decision dismissing proceeding 4 on the grounds of issue preclusion with respect to her child's incontinence, and petitioner's ineligibility to obtain an award of compensatory tutorial services. She argues, as she did in Appeal No. 98-81, that she is not collaterally attacking the decisions of the hearing officer and the State Review Officer in proceeding 2 because those decisions did not address that issue.

        As noted above, petitioner's attorney briefly alluded to the child's incontinency in his opening remarks at the hearing on July 8, 1998 in proceeding 2, but no evidence of that medical condition was adduced. I must again note that the issue which was before both the hearing officer and myself in proceeding 2 was what was the child's pendency placement, not what should the child's placement be in the future. Therefore, petitioner is not precluded from attempting to obtain a new placement for her child, but the proper procedure for doing so is to raise the issue with the CSE first. If the CSE and petitioner cannot agree to change the child's placement, there will at least be some basis in the record of the administrative proceeding to review the CSE's recommendation to determine what would be an appropriate placement in the future. I recognize that petitioner may have concerns about going back to the CSE in light of what she perceives to be its previous unfair treatment of her. However, I cannot assume on the basis of the record before me that petitioner will not be afforded an opportunity to participate with the CSE in the development of her child's IEP.

        I note that in her request for a hearing in proceeding 4 petitioner alluded to her child having an attention deficit hyperactivity disorder (ADHD), while asserting that her child should not have to attend the Westchester School. However, that issue was raised in proceeding 1 and ruled upon by the hearing officer in that proceeding.

        In her decision in proceeding 4, the hearing officer held that petitioner's child was not legally entitled to compensatory tutorial services for the month of September, 1998, because respondent had not excluded the child from school, nor had it denied her a free appropriate public education for an extended period of time. Petitioner contends that the hearing officer erred because petitioner had never raised this issue in any prior proceeding. While petitioner is correct as a matter of fact, I find that she is wrong as a matter of law. The question is not whether petitioner had requested this relief before. The hearing officer correctly found that respondent had not excluded the child from school, rather petitioner had chosen to withhold the child from an educational placement which the hearing officer in proceeding 1 had found to be appropriate for the child. Petitioner has not appealed from the hearing officer's other findings, which I therefore do not review.

        Although I have found that petitioner's appeal in No. 98-81 should be sustained in part, the question remains as to what would be an appropriate remedy. Petitioner is entitled to a hearing on the question of the CSE's alleged failure to inform her of its intention to hold a meeting about her child on August 13, 1998. However, she is not entitled to re-litigate the fact that the Westchester School is her child's pendency placement, or whether the child's IEP should indicate that respondent will reimburse petitioner for the cost of the child's meals at the Westchester School.

        While petitioner's due process rights are a significant matter, I share the hearing officer's concern in the present appeals that there should be closure to the matter of the child's future placement. There does not appear to be any educational reason at present why the child should remain on home instruction, as she has for at least one year while these protracted proceedings have gone on. I urge both parties to follow the hearing officer's directive to promptly schedule a new CSE meeting at a mutually convenient time to update its information about the child and recommend an appropriate educational program and placement for her. I remind respondent that its CSE must take steps to afford petitioner a reasonable opportunity to participate in the CSE meeting, either in person or by telephone, and it should document its efforts to do so by keeping records as it is required to do (34 CRR 300.345 [d]) of telephone calls made, correspondence sent to petitioner, and visits to her home. I remind petitioner that while her participation is desirable, it is not mandatory (34 CFR 300.345 [d]). It is imperative that she cooperate with the CSE and make every good faith effort to reach agreement on meeting times within the required time frames (Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2d Cir., 1989]).

 

        APPEAL NO. 98-81 IS SUSTAINED TO THE EXTENT INDICATED.

 

        APPEAL NO. 99-9 IS DISMISSED.

 

        IT IS ORDERED that the decision of the hearing officer in Appeal No. 98-81 is hereby annulled only to the extent that it held that petitioner was not entitled to a hearing on her claim of a denial of due process involving the August 13, 1998 CSE meeting; and,

 

        IT IS FURTHER ORDERED that within five days of a receipt of a new request by petitioner for a hearing on that subject, respondent shall schedule a hearing.

 

Dated: Albany, New York __________________________
March 24, 1999 ROBERT G. BENTLEY