The State Education Department
State Review Officer

 

No. 04-090

 

 

 

 

 

Application of a CHILD SUSPECTED OF HAVING A DISABILITY, by his parents, 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:
Linda A. Geraci, Esq., attorney for petitioners

 

Donoghue, Thomas, Auslander & Drohan, attorney for respondent, James P. Drohan, Esq., of counsel

 

 

 

DECISION

 

            Petitioners appeal from the decision of an impartial hearing officer which upheld the determination of respondent's Committee on Special Education (CSE) that petitioners' son should not be classified as a student with a disability and denied their request for compensatory education.  The appeal must be dismissed.

 

Petitioners’ son attended a private parochial school until eighth grade when he entered the district's high school (Tr. p. 182).  He was 19 years old at the commencement of the hearing in June 2004.  During the course of the hearing, he graduated from the district's high school with a local diploma (Tr. pp. 344, 369).  The student’s eligibility for special education services is the subject of this appeal.

 

In February 1993, the student was referred to the CSE by his second grade teacher and by his parents based on his difficulties with reading, writing, and spelling (Dist. Ex. 19).  In April 1993, the student was evaluated by a district psychologist (Dist. Ex. 21).  Administration of the Wechsler Intelligence Scale for Children-III (WISC-III) yielded a verbal IQ score of 90, a performance IQ score of 126, and a full scale IQ score of 107 (id.).  The psychologist's report suggested that the student presented with characteristics of an attention deficit disorder (ADD), and emotional and reading difficulties (id.).  The psychologist suggested the student could be identified as educationally handicapped in the areas of reading, spelling, and written language. The psychologist recommended a neurological evaluation of the student to assess possible ADD and to determine if the student exhibited difficulties due to an earlier trauma as a result of a concussion, as well as a parent/school conference to discuss evaluation results and to consider educational alternatives. Additional recommendations included parent counseling to discuss child management or possible participation in a “STEP” program.   A CSE meeting was held on June 1993 (Tr. pp. 176-77).   Petitioners were offered an “inclusion program”, which they rejected (Tr. pp. 178-9).  The CSE declined to classify the student as a child with a disability at the June 1993 meeting (Tr. p. 179). 

 

The student entered high school in September 2000.  He completed ninth grade with a grade point average (GPA) of 84.7 in Regents level courses (Tr. p. 126) and earned six credits towards high school graduation (Dist. Ex. 10; Parent Ex. H).  In 10th grade, during the 2001-02 school year, petitioners' son was hospitalized from mid-May to the end of the school year.  He failed two of three Regents examinations in 10th grade, but passed all of his subjects, including honors biology, achieving a GPA of 79.9 at the end of the 2001-02 school year, and earning seven more credits towards high school graduation (Dist. Ex. 11).  While in the 11th grade during the 2002-03 school year, the student was absent 23 days and illegally absent for 20 days (Dist. Ex. 12).  He was also hospitalized for a period of time during 2002-03 (Tr. p. 340).  The student failed two of three Regents examinations in 11th grade, and his final GPA in 2002-03 was 76.9, with a cumulative GPA of 76.971 (Tr. p. 128).   His class rank at the end of 11th grade was 297 out of 454 (Parent Ex. H).  During the 2003-04 school year, the student was absent for much of his senior year after bumping his head, which reportedly resulted in temporary amnesia (Tr. p. 345).  In October 2003, petitioners advised the district that the student had Lyme disease (Dist. Ex. 4).  They requested home teaching for their son (Tr. pp. 347-350). Home tutors were provided between October 2003 and January 2004 (Tr. pp. 347-350), as the student was absent from school continuously during that time period (Tr. p. 351).  However, the parents reportedly advised the tutors that their son was too ill to be able to avail himself of the tutoring (Tr. pp. 350-51). The record indicates, that during this same time period, the student worked 20 hours per week as a stock clerk at a department store (Tr. pp. 225-26), and remained on active duty as a volunteer firefighter (Tr. p. 225).  The record also reflects that during this period of time, there was frequent communication between the student's mother and his high school guidance counselor, yet the parent did not advise the guidance counselor that the student was having any problems with reading or writing in school (Tr. pp. 356-7).   The guidance counselor did not recall the student having any problems in reading and writing (Tr. p. 357).  He testified that no teachers ever approached him relative to how the student was performing and no concerns were ever raised (Tr. pp. 357-8). 

 

A plan for graduation was outlined on January 30, 2004 (Dist. Ex. 4; Tr. p. 355). In January 2004, the district gave approval for the student to take Regents Competency Tests (RCT) (Tr. p. 376), and enabled the student to take an accelerated English course in a district program identified as the "PM" program so that he could pass English and graduate (Tr. pp. 352-3). The student's guidance counselor testified that there was a mandatory attendance policy for the 16 week PM program, which was held twice a week from 3:15 p.m. until 6:00 p.m.  If for any reason the student missed two classes, he would not be allowed to continue and would not pass the course (Tr. p. 353).  The plan for graduation also included special modifications to help the student pass physical education, an opportunity to make up electives, and assigned work (Tr. pp. 368-9; Dist. Ex. 4). 

 

In February 2004, as a result of the parents' and doctor's referral, a neuropsychological evaluation was completed to assess the student's academic and neurocognitive progress in the context of disseminated Lyme disease, and to obtain an opinion as to services that might be necessary to address the student's needs (Tr. p. 244; Dist. Ex. 5).    He was also referred because of his depression (Tr. p. 285).

 

  Assessment of overall cognitive ability using the Administration of the Wechsler Adult Intelligence Scale-III (WAIS-III) yielded results in the average range, with a verbal comprehension index scaled score (SS) of 96, a perceptual organization index SS of 109, a working memory index SS of 92, a processing speed SS of 140, and a full scale IQ score of 102 (id.).  The evaluator described these scores as "fairly even" when comparing the student's verbal and nonverbal skills, and noted that discrepancies in scores were reflective of attentional/organizational weaknesses (id.).

 

At the hearing, the neuropsychologist testified that the student has some problems with integration and some slightly weaker complex perceptual processes that were not associated with the neuro-borreliosis (Lyme Disease) (Tr. p. 250). The student had difficulty with attention and working memory, which could be associated with neuro-borreliosis and a pre-existing history of attentional symptoms (id.). This history of attention deficit hyperactivity disorder (ADHD) in conjunction with historical data was, in the evaluator's subjective opinion, supportive of a reading disorder coupled with the ADHD (Tr. p. 260).  He concluded that the student was dyslexic (Tr. p. 262). Research-based recommendations included individual structured phonetic instruction such as Wilson, or Orton-Gillingham, three times per week to help the student with comprehension (Tr. pp. 262-63).

 

At the time the student was evaluated by the neuropsychologist, some evidence of depression was seen (Tr. pp. 282, 285). The evaluator testified that depression might have an effect on certain parameters of psychometric testing (Tr. p. 282). Also at the time of the evaluation, the student was on several antibiotics, an antidepressant, and Ritalin (Tr. p. 281). The evaluator further testified that he was aware that the student had been absent from school from October 2003 through December 2003, and had suffered a concussion (Tr. p. 284). He testified that the student's extensive absences could be a variable that would have an effect on classroom grades, Regents exams or RCT exams (Tr. p. 312).

 

In February 2004, petitioners met with the district's special education coordinator, and provided a copy of the neuropsychological evaluation (Dist. Ex. 5), and expressed an interest in what educational modifications the student might receive going forward into college (Tr. pp. 123-24).  Subsequent to this, the student participated in several evaluations (Dist. Exs. 5, 24, 25).

 

In May 2004, the district school psychologist conducted an evaluation (Dist. Ex. 24).  Administration of the Wechsler Individual Achievement Test-II (WIAT-II) yielded a low average Reading Composite standard score (SS) of 89, an average Written Language Composite SS of 90, and an average Mathematics Composite SS of 98 (id.). Results of the Woodcock Reading Mastery Tests-Revised N/U (WRMT-R-N/U) resulted in a low average Basic Skills Cluster SS of 85, an average Reading Comprehension SS of 93, and a low average Total Reading SS of 89.  Academically, the student was noted to be currently passing his Policy and Economics courses, and was on track to graduate in June 2004 (id.).  

 

An intensive reading evaluation was administered by the district on June 3, 2004 by an evaluator with training in multisensory teaching of basic language skills, including Orton-Gillingham (Tr. pp. 471-3; Dist. Ex. 25). The Woodcock-Johnson-III Tests of Achievement (W-J-III) and the Comprehensive Test of Phonological Processing (CTOPP) were administered. The CTOPP assesses the student's phonological awareness, phonological memory, and rapid naming abilities. His performance on the test indicated that his phonological awareness skills were in the average range (Tr. p. 492). His phonological memory skills were slightly below average range. His performance on the rapid naming tests was in the poor range (Dist. Ex. 25).

 

The reading specialist indicated that the phonological memory composite score was a measure of short-term memory. The student's slightly below average phonological memory composite score could have been the reason for some of his difficulty in decoding difficult words, which would help a student to decode multi-syllabic words. She asserted that the student was able to compensate for this difficulty as indicated by his overall average reading comprehension ability, as per his performance on the W-J-III. The rapid naming composite on the CTOPP is an indicator of one's ability to quickly retrieve information from one's long-term memory. Weakness in this area affects a student's fluency because they must quickly recall phonemes and apply them in order to decode words. Although the student had a weakness in rapid naming, the evaluator concluded that the student compensated for this weakness because his scores on the reading fluency subtest of the W-J-III were in the average range (Tr. pp. 491-2). The evaluator further concluded that the school psychologist's test results on the WIAT-II were consistent with her own findings (Tr. p. 497).

 

By letter dated April 21, 2004, the parents requested an impartial hearing.  They sought classification of the student as learning disabled or other health impaired, implementation of an IEP with appropriate programs and services, and four years of compensatory education (Dist. Ex. 23).

 

 A Section 504 Committee (Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §§ 701-796[l] [1998]) convened on June 3, 2004 to review the evaluations (Tr. p. 376-77) but it does not appear from the record that a referral was ever made to a CSE for a determination of eligibility for special education services (8 NYCRR 200.4 [a]). The Committee confirmed the student's test modifications (Tr. p. 377).  In addition to eligibility for the RCT exams, test accommodations included extended time for testing (1.5X), entitlement to have the RCT questions read to him, testing in a separate location, and adaptive testing (id.).   A 504 accommodation due to chronic illness had been in place and enabled the student to take the RCT in Global Studies, which he passed. The student also passed the English Regents examination in June 2004 (Tr. p. 344).   

 

The hearing began on May 6, 2004 and concluded on August 3, 2004.  The impartial hearing officer rendered her decision on September 14, 2004.  She denied petitioners' request to classify their son as a student with a disability because the student's grades were not indicative of a student with a disability, and rather, it was his long absences from school which impacted his performance. She also denied petitioners' request for compensatory education, because she found the claim to be time-barred by the applicable statute of limitations.

 

Petitioners appeal from the impartial hearing officer's decision.  They assert the hearing officer was biased and further argue that the hearing officer erred in finding that their claim was time-barred by the statute of limitations.  They also assert that their son was eligible for special education as a student with a disability, and that the hearing officer erred in determining their son did not meet the criteria to be classified as either other health impaired (OHI) or learning disabled (LD).  Petitioners also claim the hearing officer erred in finding the district's witnesses to be more credible than the parents' neuropsychologist.   Finally, petitioners argue that the district failed to evaluate their son, offer him an appropriate program and committed gross procedural violations of the Individuals with Disabilities Education Act (IDEA) from 1993 to June 2004, and that their son is entitled to compensatory education in the form of reading and writing instruction using a multisensory method. 

 

            Respondent asserts the hearing officer was not biased.  Respondent further asserts that petitioners' claim for compensatory education is barred by the statute of limitations, and that even if the claim is not time barred, that petitioners have failed to show a basis for an award of compensatory education.  Additionally, respondent asserts that the hearing officer correctly found that the district did not violate any of the student's rights under the child find duty since the student did not meet the criteria for classification.

 

I will first address petitioners' claim of hearing officer bias.  Petitioners assert that the hearing officer interrupted petitioners' cross-examination of the district's psychologist pertaining to her interpretation of reading tests by asking petitioners' attorney whether every single sentence of the exam was going to be questioned.  Petitioners claim the hearing officer was unwilling to consider all the evidence presented and had a preconception about petitioners' evidence and arguments.  A hearing officer must be fair in dealing with the parties and should take care to avoid the appearance of bias or prejudice (Application of a Child with a Disability, Appeal No. 04-018; Application of a Child with a Disability, Appeal No. 04-010; Application of a Child with a Disability, Appeal No. 03-071, Application of a Child with a Disability, Appeal No. 01-046).  Inappropriate remarks by a hearing officer may afford a basis for concluding that the hearing officer was biased (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 98-55).  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. 04-010; Application of a Child with a Disability, Appeal No. 03-071; Application of the Bd. of Educ., Appeal No. 03-015; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 00-063).  Hearing officers also must conduct hearings as expeditiously as possible, and may limit irrelevant or unduly repetitious evidence and testimony (Application of a Child with a Disability, Appeal No. 96-71; see 8 NYCRR 200.5[i][3][xii][d]), while ensuring that there is an adequate record upon which to premise their decisions and permit meaningful review of the issues (Application of a Child with a Disability, Appeal No. 04-010; Application of a Child with a Disability, Appeal No. 00-021; Application of a Child with a Disability, Appeal No. 97-62; Application of the Bd. of Educ., Appeal No. 94-35). I have carefully reviewed the entire transcript of the hearing, including the hearing officer's interaction with the parties and the text of her decision, and I find no evidence to support petitioners' contention.  Although petitioners disagree with some evidentiary rulings made by the hearing officer, the rulings do not provide a basis for finding actual or apparent bias by the hearing officer (Application of a Child with a Disability, Appeal No. 96-3; Application of a Child with a Disability, Appeal No. 95-75).  The determination of the impartial hearing officer, that the extent of detail to which petitioners’ attorney sought to examine certain evidence was excessive and at times irrelevant, does not demonstrate bias.

 

The hearing officer determined the statute of limitations barred petitioners' claim for compensatory education.  Although the IDEA does not prescribe a time period in which requests for administrative impartial due process hearings must be asserted, I have applied a one-year statute of limitations in light of recent case law requiring me to adopt the most appropriate analogous state statute of limitations (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 [2d Cir. 2003]); (Application of the Bd. of Educ., Appeal No. 02-119; Application of the Bd. of Educ., 03-062).  Federal rules of accrual apply (Leon v. Murphy, 988 F.2d 303 [2d Cir. 1993]); hence, the time period for requesting an impartial hearing to resolve disputes under the IDEA or Article 89 of the New York Education Law begins to run when petitioners knew or should have known of the injury involved, in this case, that their son was denied a free appropriate public education (FAPE) (M.D., 334 F.3d at 221).  The record shows that petitioners believed that the respondent denied a FAPE to their son in 1993, but they did not request an impartial hearing until April 21, 2004 (Dist. Ex. 23). The impartial hearing officer did not find credible petitioner’s assertion that she was unaware of her right to an impartial hearing in 1993 (IHO Decision, p. 10).   I find that petitioners’ claims that arose prior to April 21, 2003 are untimely under the one-year statute of limitations and they are therefore dismissed (Application of a Child with a Disability, Appeal No. 04-082; Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of the Bd. of Educ., Appeal No. 02-119).

 

            I now turn to the merits of petitioners' remaining claims. Petitioners assert that their son was eligible for special education services and respondent’s failure to identify the student as eligible for such services resulted in a denial of FAPE. Assuming without deciding that the student should have been receiving special education services from June 13, 2003 until his graduation, I find that such a denial of services does not justify an award of compensatory education. Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).         Here, there was no gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time.  The student received an education from respondent to the extent he was passing Regent’s exams and subsequently graduated with a local diploma (Tr. pp. 124,126-28, 203-4, 214, 344, 369, 491-92). As such, petitioners’ son is not entitled to compensatory education.

            

I have considered petitioners' remaining contentions and find them to be without merit.

 

 

THE APPEAL IS DISMISSED.

           

 

 

 

 

Dated:

Albany, New York

 

_________________________

 

December 2, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER