The State Education Department
State Review Officer
Application of a CHILD SUSPECTED OF HAVING 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
Law Offices of Michael L. Kaplan, attorney for petitioner, Linda M. Dardis, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Kimberly Conway, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision which approved a stipulation between the parties that respondent would reimburse petitioner for the costs of an independent evaluation of her daughter, for certain educational services provided to petitioner's daughter by the Huntington Learning Center (Huntington), and for certain future private counseling services for her daughter. Based on the agreement of the parties, the hearing officer also ordered respondent's Committee on Special Education (CSE) to expeditiously reconvene and consider the independent evaluation of the student, conduct any other evaluations that were appropriate, and develop an individualized education program (IEP) based on those evaluations. The appeal must be dismissed.
Respondent asks me to excuse its delay in answering the petition. The applicable state regulations required respondent serve its answer within ten days of the date it was served with the petition (8 NYCRR 279.5). Petitioner served the notice with petition and verified petition on respondent on August 5, 2003. With petitioner's consent, the Office of State Review (OSR) granted respondent an extension of its time to answer to August 29, 2003. Respondent did not answer by that time but requested a further extension of time to September 11, 2003, to which petitioner did not agree. In response, the OSR advised the parties that a further extension of time would be granted upon the consent of both parties, and if respondent were not able to obtain such consent that its answer should set forth the good cause for the delay in the service of the answer and ask the State Review Officer (SRO) to excuse that delay. Respondent filed a verified answer with the OSR on September 15, 2003, requesting in the answer that its delay in service be excused because it needed additional time to prepare its answer as its attempt to resolve the matter through settlement negotiations had not been successful (Answer ¶¶ 126-33). In view of the parties' efforts to resolve this matter through settlement and the relatively brief delay in serving the answer, which did not delay this decision, I will exercise my discretion to excuse respondent's delay and will accept the answer (See Application of a Child with a Disability, Appeal No. 01-034; see also Appeal of a Child with a Disability, Appeal No. 00-019).
Petitioner's daughter was 18 years old at the time of the hearing in March 2003 and a student at respondent's City-As-School, which she entered subsequent to her discharge in November 2002 from the high school which she previously attended. Petitioner's daughter has attended respondent's schools since kindergarten. She was evaluated for speech-language services at the end of the second grade, and petitioner testified that she was found to have a lisp and deficits in decoding, spelling, vocabulary, and silent reading (Transcript p. 31). Respondent initiated speech-language services in or about August 1993 before the beginning of third grade (Exhibit 7). Petitioner's daughter received speech-language services through the end of the 1998-99 school year when she finished the eighth grade.
Petitioner's daughter was admitted to one of respondent's high schools in September 1999 as a result of her score on that school's entrance examination. Respondent's speech-language therapist evaluated the student in October 1999. The student scored above grade level, as measured by the Expressive One-Word Picture Vocabulary Test - Upper Extension and the Receptive One-Word Picture Vocabulary Test - Lower Extension. She scored at the 91st percentile in the listening vocabulary subtest of the Test of Adolescent Literature. Administration of the Goldman-Fristoe Test of Articulation revealed no articulation errors, although during spontaneous speech the student self-corrected several times to improve articulation of the "s" sound. The evaluation also indicated that the student's grades were good, that she was comfortable in the competitive atmosphere at the school, and that she was regarded as a leader. It further indicated that her English teacher reported no concern with her language skills other than an occasional misspelling (Exhibit 7).
Respondent's CSE met on October 21, 1999. The CSE concluded that petitioner's daughter should not be classified as having a disability and recommended the termination of her existing speech-language services (Exhibit 1 p. 1; Transcript p. 31). The recently completed speech-language evaluation was presented at the October meeting (Transcript pp. 57, 69), but the CSE did not have a copy of the student's IEP for the 1999-2000 school year (Transcript pp. 59-60). There was no testimony that the CSE considered either a psychological or an educational evaluation, and it apparently did not (Transcript pp. 68-69). Petitioner was not present at the CSE meeting (Transcript pp. 33-34, 62-63), and she contends that she did not receive proper notice of the meeting, that she was not fully advised of what took place at the meeting, including that her daughter had been declassified, and that respondent did not timely provide her with documentation regarding the decision to declassify the student and to no longer provide her with special education services (Transcript pp. 90-92, 146-47; Pet. Exhibit P; see Transcript pp. 49-50, 52, 54). Although the CSE's assistant chair, who was its representative at the hearing, disputed some of petitioner's assertions, she agreed that the student had not been properly declassified (Transcript pp. 150-51).
During the first quarter of the 1999-2000 school year, petitioner's daughter had difficulty submitting her work (Transcript p. 37). As the school year progressed, her attendance deteriorated and she cut classes (Transcript p. 36). At mid-year, she was failing three classes (Transcript pp. 37-38). At the end of the year, the student failed at least one of her ninth grade courses (Transcript pp. 42-43), and she attended summer school (id.). Starting in the 1999-2000 school year and during the 2000-01 and 2001-02 school years, petitioner's daughter was frequently absent from school and/or her classes, missed many examinations due to absences, did not submit required assignments, and failed a number of her courses (Exhibits 3, 5, 8, 9, 10, 11, 12; Transcript pp. 36-38, 42, 147).
Respondent evaluated petitioner's daughter in the spring of 2002 when she was in the 11th grade (Exhibit 3; Transcript p. 147). Respondent prepared a social history, psychological evaluation, and educational evaluation (see Exhibits 3, 4, 5). As part of the psychological evaluation, a school psychologist administered the Wechsler Adult Intelligence Scale Third Edition (WAIS III). This testing yielded a verbal IQ score of 110, a performance IQ score of 117, and a full-scale IQ score of 113, indicating overall cognitive functioning in the high average range (Exhibit 4). The evaluator also administered the Kaufman Test of Educational Achievement (KTEA), on which the student achieved standard scores (SS) of 124 (95th percentile) in math applications, 117 (87th percentile) in math computations, 106 (66th percentile) in decoding, 125 (66th percentile) in reading comprehension, and 111 (77th percentile) in spelling (Exhibit 5). With petitioner attending, respondent's CSE met on June 14, 2002 (Exhibit I; Transcript p. 30). The CSE concluded that petitioner's daughter was not disabled and recommended that she attend a general education program without any special educational services (id.).
Petitioner enrolled her daughter in Huntington in May 2002 for tutoring (Exhibit 15; Transcript p. 76). Huntington evaluated the student on May 14, 2002 and thereafter provided her with a program of educational services (Exhibits 15, E; Transcript p. 74). The evaluation indicated that petitioner's daughter had mastered math skills at or about the fifth grade level, vocabulary skills at or about the seventh grade level, and reading comprehension and verbal skills at or about the eighth grade level (Exhibit 15; Transcript pp. 76-80). Huntington's director testified that after the student finished the program in October 2002, her math and vocabulary skills were at the eighth grade level and her reading was at the tenth grade level (Transcript pp. 76, 78-79).
Petitioner's daughter began 12th grade in September 2002. She rarely attended school that semester (Exhibit 12), and she was discharged from her high school in November 2002 (Exhibit 12; Transcript pp. 51-52). As indicated above, petitioner's daughter subsequently enrolled in respondent's City-As-School, and at the time of the hearing she was working to earn the eight credits necessary for her high school diploma (Transcript pp. 92, 167).
Petitioner requested an impartial hearing by letter dated February 2, 2003 (Pet. Exhibit P). As relief, petitioner requested an independent evaluation of her daughter, remedial tutoring, reimbursement for both counseling and tuition services provided to her daughter, and future counseling services. The hearing commenced on February 27, 2003. On that date, the hearing officer adjourned the proceeding to March 26, 2003 to provide petitioner an opportunity to submit documentation regarding the amounts for which she was seeking reimbursement. The hearing resumed on March 28, 2003. After hearing testimony from two witnesses, the parties determined that it would be fruitful to discuss the parameters of a possible settlement. Respondent agreed to reimburse petitioner for an independent evaluation, subject to its approval of the evaluator and the scope of the evaluation (Transcript pp. 115-17, 126-27). The parties agreed that the hearing would continue on May 8, 2003 to address any disputes regarding the evaluator and the scope of the independent evaluation and other outstanding matters (Transcript pp. 130-32). On April 11, 2003, petitioner provided respondent with details of the proposed independent evaluation for her daughter (Exhibit A). On May 2, 2003, the hearing was further adjourned to June 8, 2003 so that it could be held after the completion of the independent evaluation (Transcript pp. 138-39).
The hearing reconvened on June 8, 2003, at which time petitioner submitted the results of the independent evaluation of her daughter. The evaluator reported that the student's results on the WISC-III indicated performance in the superior range and verbal ability in the high average range. Perceptual organization and abstract thinking were identified as areas of strength. Processing speed was identified as an area of relative weakness, and the evaluator reported that the student had difficulty performing tasks dependent on auditory registration, sequencing and rote auditory processing, as well as difficulty with working memory on some tasks.
The Weschler Individual Achievement Test Second Edition (WIAT-II) and the Nelson Denny Reading Test, with extended time trials, were administered to assess academic achievement. The student's strongest performance was in reading comprehension, but most subtest scores were in the average range, below expectation given her cognitive ability. The student demonstrated difficulty sounding out words she did not know and had a tendency to add, omit or transpose syllables. Reading speed was slow, with her reading rate on the WIAT-II in the second percentile. Writing skills were inconsistent and described as "unsophisticated" when compared to the student's orally presented stories.
The student's receptive language was described as average, based upon results of the Clinical Evaluation of Language Fundamentals Third Edition (CELF III). Scores on tasks assessing expressive language indicated weaknesses, particularly in recalling sentences, which could affect her ability to attend to and absorb orally presented information. She also demonstrated difficulties with sentence manipulation and composition.
The Weschler Memory Scale Third Edition (WMS III) indicated a well developed memory but identified relative difficulty with tasks requiring registration and short-term memory of visual sequences, which the evaluator noted can affect spelling. Assessment of attention and executive functioning indicated evidence of some attentional difficulties, which the examiner noted could be related to the student's language processing difficulties. Personality testing identified depression as well as low self-esteem related to the student's awareness of her poor academic performance.
The evaluator concluded that the student's academic difficulties were due to a combination of identified learning weaknesses, emotional distress, and "inappropriate interventions." She recommended a number of classroom accommodations, including tutoring, extended time and a note taker, and counseling to address her depression and emotional confusion (Exhibit C).
With the hearing officer facilitating the discussion, the parties reached agreement and stipulated to resolve the matter during the June 8, 2003 proceeding (Transcript p. 167). In particular, it was agreed that respondent would reimburse petitioner for the cost of the independent evaluation (Transcript p. 174) and for the cost of supplemental educational services provided by Huntington during the 2002-03 school year (Transcript pp. 172-73, 174, 176-77). The parties also agreed that the independent evaluation would be referred to the CSE on an expedited basis for consideration (Transcript p. 174). The parties further agreed that respondent would pay for 60 minutes of individual counseling, twice a week until the end of the 2002-03 school year, which was on June 28, 2003 (Transcript pp. 174, 180), and that respondent would provide a copy of the student's school district file to her current school (Transcript p. 174). The hearing officer summarized the agreement reached by the parties in a Statement of Agreement and Order dated June 19, 2003.
Petitioner appeals from the hearing officer's order. She asserts that subsequent to the order, respondent's CSE met on at least two occasions, determined that her daughter was not a student with a disability, and recommended that she not receive any special education services. Petitioner further asserts that the CSE did not properly consider the report of the independent evaluator. Petitioner appeals, in part, on the basis that the hearing officer's June 19, 2003 order did not give her sufficient time to make arrangements for and take her daughter to counseling. Petitioner alleges that respondent has yet to reimburse her for either the cost of the independent evaluation or for the services provided by Huntington during the 2002-03 school year. I note that the petition herein repeats, and in a number of areas amplifies, the facts and arguments that she presented at the hearing prior to the parties' resolution of the matter. As a remedy, petitioner requests reimbursement for the cost of the independent evaluation and reimbursement for all monies paid to Huntington during the period May 2002 to date. Petitioner further requests an order directing respondent to reimburse petitioner for the costs of therapeutic counseling for her daughter as well as for an order directing respondent to reimburse petitioner for future tutoring required for her daughter to graduate on a timely basis. Petitioner also contends as a basis for appeal that the hearing officer showed favoritism to the district's representative and conducted herself in an unprofessional manner during the course of the impartial hearing (Pet. ¶¶ 86, 87).
An appeal to an SRO may not be used as a way to relitigate a matter that the parties have previously resolved or to consider in the first instance additional claims that may arise as a settlement agreement is implemented. Stipulations, including those of settlement, are favored by the courts and may not be lightly set aside (Application of a Child with a Disability, Appeal No. 97-47; see also Hallock v. State of New York, 64 N.Y.2d 224, 230 ). At the same time, a stipulation may be vacated for cause including fraud, collusion, mistake, and accident (Application of a Child with a Disability, Appeal No. 97-47; see also Matter of Frutiger, 29 N.Y.2d 143, 150 ).
I will first consider petitioner's claim of bias. An impartial hearing officer must be fair and impartial and must avoid giving even the appearance of impropriety or prejudice (Application of a Child with a Disability, Appeal No. 01-046). I have reviewed the full record of this case. Respondent indicated on March 28, 2003, the second day of the hearing, that it might not be necessary to continue the hearing and that as a first step the district would be agreeable to petitioner's request for an independent evaluation (Transcript pp. 96-98). Petitioner agreed to this (Transcript p. 99). After the completion of the independent evaluation, the parties, with the facilitation of the hearing officer, reached agreement on June 11, 2003 on a resolution of the matter. Upon a review of the record and of petitioner's allegations, I have found no basis on which to conclude that the hearing officer showed favoritism to respondent or was biased or prejudiced against petitioner.
With respect to the CSE's actions subsequent to its receipt of the independent evaluation of petitioner's daughter, the parties agreed that respondent's CSE would review and consider such evaluation. There was no agreement that respondent would take any specific action with respect to that evaluation. Consistent with this, petitioner understood that if she did not agree with the action taken by the CSE regarding that evaluation, she would be free to request an impartial hearing with respect to any disagreement (Transcript pp. 155-58). The proper way for petitioner to address her concerns with respect to the CSE's review of the independent evaluation and its determination not to classify the student as having a disability and its recommendation not to provide her daughter with special education services during the 2003-04 school year is to request an impartial hearing pursuant to the applicable state and federal regulations (8 NYCRR 200.5[i]; 34 C.F.R. § 300.507[a]). Alternatively, petitioner has the right to file a signed, written complaint with the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) requesting a state-level administrative review of the CSE's actions (see 8 NYCRR 200.5[k]; see 34 C.F.R. § 300.662).
Petitioner contends that the hearing officer's order made it impossible for her to obtain the agreed upon relief which she secured by the settlement. She alleges that she did not have time to arrange for, and take her daughter to, counseling between the June 19, 2003 date of the decision and the end of the school year on June 28, 2003. The parties agreed on June 11, 2003 that respondent would pay for counseling for petitioner's daughter to the end of the 2002-03 school year, which was on June 28, 2003. Petitioner, who was represented by counsel at the hearing, first requested counseling in her February 2, 2003 hearing request. Moreover, she indicated on June 11, 2003, that she wanted the counseling to begin as soon as possible, that it be provided by the same psychologist who had completed the independent evaluation of her daughter, and that this person had time to meet with her daughter (Transcript p. 154). Petitioner's apparent inability to schedule a counseling appointment for her daughter does not provide a basis upon which to set aside a stipulation into which she, with the assistance of her attorney, entered.
Petitioner also claims that it is impossible for her to receive the agreed upon reimbursement for the independent evaluation and for the money paid to Huntington for the 2002-03 school year because she was required to comply with respondent's processing and verification procedures by the end of that school year and because she had insufficient time to do this. The parties agreed that petitioner would comply with such procedures in order to receive reimbursement for the cost of the independent evaluation and the services she received from Huntington during the 2002-03 school year1 (see Transcript pp. 173-77). Contrary to petitioner's claim, however, the parties did not agree (and the order does not require) that this was to be completed prior to the end of the school year (see id.). I note here that if, after petitioner completes respondent's processing and verification procedure, respondent declines to make the agreed upon payment, petitioner can commence a proceeding pursuant to Article 78 of the Civil Practice Law and Rules or in Federal Court under 42 U.S.C. § 1983 (see Application of the Bd. of Educ. of the Ticonderoga Cent. Sch. Dist., Appeal No. 99-004, citing A.T. and I.T. on behalf of Z.T. v. New York State Educ. Dep't, 1998 WL 765371 [E.D.N.Y. August 4, 1998], Blazejewski v. Bd. of Educ., 560 F. Supp. 701 [W.D.N.Y. 1983]) to enforce the parties' settlement. Enforcement of the parties' agreement can also be sought by filing an administrative complaint with VESID pursuant to the applicable federal and state regulations (see 8 NYCRR 200.5[k]; 34 C.F.R. §§ 300.660 300.662; see also A.T., 1998 WL 765371 at 8).
THE APPEAL IS DISMISSED.
Albany, New York
September 30, 2003
PAUL F. KELLY
1The petition requests in part reimbursement for monies paid to Huntington from May 2002 to the present. This is similar to petitioner's initial position during the settlement discussions at the hearing. Respondent's representative made it clear at the hearing that respondent would reimburse petitioner for services received from Huntington during the 2002-03 school year and not for monies for services prior to that (Transcript pp. 172-73, 176-77). Petitioner understood that this was part of the resolution of the matter (Transcript pp. 176-77, 181) and is now bound by the terms of the agreement reached between the parties.