The University of the State of New York Seal

The State Education Department
State Review Officer

No. 06-013

 

Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the East Ramapo Central School District

 

Appearances:
Aaron M. Schreiber, Esq., attorney for petitioners

Greenberg, Wanderman & Fromson, attorney for respondent, Carl L. Wanderman, Esq., of counsel

 

DECISION

Petitioners appeal from the decision of an impartial hearing officer which denied their requests to be reimbursed for their daughter's tuition costs at the Yeshiva of North Jersey (YNJ) for the 2004-05 and 2005-06 school years; the cost of a private psychoeducational evaluation and a private speech-language evaluation; fees related to language therapy and counseling; and the cost of private tutoring.  The Board of Education cross-appeals from the impartial hearing officer's determination that it failed to provide an appropriate educational program to the student during a portion of the 2004-05 school year.  The appeal must be dismissed.  The cross-appeal must be sustained in part.

Petitioners' daughter was 12 years old and had completed the sixth grade in the transitional program at YNJ at the commencement of the impartial hearing in July 2005 (Tr. pp. 524-25, 530-31; Dist. Ex. 7 at p. 1).  Petitioners unilaterally placed their daughter at YNJ at the beginning of the 2004-05 school year (Tr. p. 312).  YNJ has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7).  The record indicates that the student's overall cognitive ability is within the average range with a weakness in language processing (Dist. Ex. 5 at p. 6).  Psychoeducational and speech-language evaluation reports indicate that the student exhibits deficits in reading decoding, reading comprehension, spelling, vocabulary and word retrieval (Dist. Exs. 5 at p. 7, 6 at p. 7).  The student was reported to struggle with low self-esteem, feelings of inadequacy and a poor attitude toward school (Dist. Ex. 5 at p. 6).  The student's eligibility for special education programs and services and classification as a student with a learning disability (see 8 NYCRR 200.1[zz][6]) are not in dispute in this appeal.

Respondent's Committee on Preschool Special Education (CPSE) classified petitioners' daughter as a preschool student with a disability in spring 1997 (Tr. pp. 264, 661; see also Parent Exs.  G, H).  Petitioners' daughter received occupational therapy from November 1997 through June 1998 and attended a private preschool (Tr. pp. 264, 663-64, 679, 680, 681; see also Parent Ex. E).  The CPSE also offered to provide the student with a half-day integrated classroom program, but petitioners did not believe that this would meet their daughter's needs (Tr. pp. 262, 661, 673; see also Parent Ex. D at p. 4).  Petitioners decided that they did not want their daughter to receive occupational therapy after June 1998 (Tr. pp. 669, 674).  Respondent's records state that the student was "declassified at parent's request," that the student was not referred to respondent's Committee on Special Education (CSE) to consider her classification as a student with a disability, and that no "joint CPSE/CSE meeting" was held (Tr. pp. 1002, 1004-05, 1006, 1014).  Subsequent to June 1998, the student did not receive any special education or related services from respondent (Tr. pp. 677-78). 

The student attended private school during the 1998-99, 1999-2000, and the 2000-01 school years through second grade (Tr. pp. 268, 681-83).  In 2001, petitioners requested that the student's private school evaluate their daughter because of concerns regarding her academic difficulties and educational performance (Tr. pp. 268, 685).  The private school contacted respondent and in June 2001, respondent conducted an educational evaluation and psychological evaluation of the student (Tr. pp. 268-69; Parent Exs. A, B).  Administration of the Wide Range Achievement Test-3 (WRAT-3) to the student resulted in a reading standard score (SS) (percentile) of 102 (55), spelling SS of 91 (27), and arithmetic SS of 99 (47) (Parent Ex. B at p. 1).  Administration of the Gates MacGinitie Reading Test to the student resulted in a vocabulary percentile score of 19, a comprehension percentile score of 7 and a total reading percentile score of 11, which the examiner described as a "lag of one year three months below present grade expectancy" (Parent Ex. B at pp. 1, 2).  Examiner analysis of the student's informal written passage revealed that although she clearly expressed her thoughts and ideas in written form, errors in indentation, punctuation, capitalization and spelling were noted (Parent Ex. B at p. 2).  The examiner recommended that the student receive remedial reading instruction to focus on increasing silent reading comprehension and vocabulary skills, and in-class practice to improve her written language skills (Parent Ex. B at p. 3).

In June 2001, respondent's psychologist administered the Wechsler Intelligence Scale for Children - III (WISC-III) to the student which yielded a verbal scale IQ score (percentile) of 95 (37), a performance scale IQ score of 90 (25) and a full-scale IQ score of 92 (30) (Parent Ex.  A at p. 1; Tr. p. 269).  The psychologist reported that the student's current cognitive functioning was in the lower portion of the average range (Parent Ex.  A at p. 3).  She also reported that the student's verbal comprehension and auditory attention skills were average while her perceptual organization abilities were in the low average range (id.).  The psychologist's recommendations included a number of classroom accommodations and that the student receive remedial reading as recommended in the educational evaluation (Parent Ex. A at p. 4).

Petitioners enrolled their daughter in a different private school for the third grade during the 2001-02 school year (Tr. pp. 288-89, 687-88, 691).  The student remained at that school for the 2002-03 and 2003-04 school years when she was in the fourth and fifth grades and prior to her enrollment at YNJ (see Tr. p. 748; Dist. Exs. 5, 6).

Petitioners referred their daughter for a private psychoeducational evaluation in July 2004 because of a continuing concern regarding how she was performing in school and her continuing difficulties with reading (Tr. pp. 290-91; see Dist. Ex. 5).  Administration of the Wechsler Intelligence Scale for Children-IV (WISC-IV) yielded a perceptual reasoning index standard score of 96 (average), a working memory index SS of 99 (average), a processing speed index SS of 109 (average) and a verbal comprehension index SS of 89 (low average) (Dist. Ex. 5 at p. 3).  The psychologists reported that the student's full-scale IQ score of 94 indicated overall average cognitive ability, however, she demonstrated a weakness in language processing in the areas of word knowledge, word retrieval and verbal problem solving which was in the low average range (Dist. Ex. 5 at pp. 3, 6).  The student's performance on the Woodcock-Johnson Tests of Achievement Third Edition (WJ III-ACH) revealed a broad reading SS (percentile) of 83 (13), a broad math SS of 99 (46) and a broad written language SS of 91 (28) (Dist. Ex. 5 at p. 11).  Administration of the Gray Oral Reading Tests-Fourth Edition (GORT-4) yielded a rate subtest score (percentile) of 5 (5), an accuracy subtest score of 3 (1), a fluency subtest score of 2 (<1) and a comprehension subtest score of 7 (16) (Dist. Ex. 5 at p. 10).  The evaluators concluded that the student's performance on academic achievement tests yielded "average scores" in math and written expression and "significant weaknesses" in reading and spelling (Dist. Ex. 5 at p. 7).

The Bender Visual-Motor Gestalt Test (Bender-Gestalt II) and the Beery-Buktenika Developmental Test of Visual-Motor Integration (VMI) were administered to the student to measure her ability to integrate visual input and motor output (Dist. Ex. 5 at p. 5).  The student's scores on the VMI were at the 6th percentile when compared with others her age (id.).  Her scores on the Bender-Gestalt II were in the average range, which the psychologists stated could be due to the allowance for erasing and student correction on the Bender-Gestalt II (id.).  When the student's visual and motor skills were assessed individually, her performance was average, suggesting that it was the coordination of the two skills that caused her difficulty (id.).  The psychologists stated that the student's generally slow and cautious style of writing and drawing was an effective way of compensating for her weakness (id.).  The evaluators indicated that the student's performance on certain tests suggested limitations in visual motor coordination and spatial integration which may be "sourced in a mild neurological impairment" (Dist. Ex. 5 at p. 7).

            The psychologists also reported the results of projective testing done as part of the psychoeducational evaluation including the House-Tree-Person Test, the Thematic Apperception Test and the Rorschach Inkblot Test (Dist. Ex. 5 at pp. 1, 6).  The evaluators reported that test results suggested that the student was an imaginative girl who struggled with low self-esteem, feelings of inadequacy and helplessness, and who often felt isolated, vulnerable and disconnected from those around her (Dist. Ex. 5 at p. 6).  The psychologists concluded that the student had limited resources for coping with emotions and failed to recognize her personal strengths and her ability to overcome challenges (id.).  Rating scales completed by the student and her mother yielded scores in the average range; however, the student's responses also reflected a "moderately poor" attitude toward school (id.), which the evaluators indicated was "not solely attributable to her limitations in ability, but to her personality and emotional functioning as well" (Dist. Ex. 5 at p. 7).

            In their report, the psychologists recommended an "integrative resource room program within [the student's] regular school setting" with close communication between the special education teacher, regular education teacher and parents (Dist. Ex. 5 at p. 7). The psychologists also recommended that the student's family consult with a speech-language pathologist to review test results and discuss treatment to improve the student's phonological processing, inferential reasoning, word retrieval and language expression skills (Dist. Ex. 5 at p. 8).  The psychologists suggested that the student would likely benefit from psychotherapy in order to address her feelings of anger, frustration and negative self-perceptions (id.).

            In August 2004, petitioners obtained a private speech-language evaluation as recommended by the earlier psychoeducational evaluation (Tr. pp. 298, 299; see Dist. Ex. 6). Administration of the Clinical Evaluation of Language Fundamentals-3 (CELF-3) revealed a receptive language SS (percentile) of 92 (30) and an expressive language SS of 90 (25) (Dist. Ex. 6 at pp. 2, 3).  While both composite receptive and expressive language standard scores were in the average range, the speech-language pathologist reported that the student's subtest scores revealed significant variability in skill level depending on the task (Dist. Ex. 6 at pp. 3, 4).  For example, the student did not demonstrate difficulty recalling four words presented auditorially, but she exhibited difficulty identifying how two of the words best went together, resulting in a word classes subtest score in the 16th percentile (Dist. Ex. 6 at pp. 2, 3).  During expressive language tasks, although the student displayed strong grammatical knowledge and auditory memory on a sentence repetition task, she exhibited difficulty spontaneously generating grammatically appropriate and complex sentences reflected in a sentence assembly subtest score in the ninth percentile (Dist. Ex. 6 at pp. 3, 4).  The student's performance on a test of expressive vocabulary yielded a SS (percentile) of 62 (<1) (Dist. Ex. 6 at p. 4).  The speech-language pathologist reported that the student demonstrated difficulty with test items that required her to look at a picture and produce only one possible response, as well as with sequencing ideas in a narrative story (Dist. Ex. 5 at pp. 4, 5).

As part of the private speech-language evaluation, portions of the Woodcock Reading Mastery Test, the Comprehensive Test of Phonological Processing and an optional subtest from the CELF-3 were administered to assess the student's decoding, phonological awareness, reading fluency and reading comprehension skills (Dist. Ex. 6 at p. 5).  On the Woodcock Reading Mastery Test, the student achieved a SS (percentile) of 89 (23) on the word identification subtest, a SS of 96 (40) on the word attack subtest and a SS of 84 (14) on the passage comprehension subtest (id.).  Phonological processing subtest scores were in the average range (id.).  The student's performance on the rapid automatic naming subtest of the CELF-3 was delayed (Dist. Ex. 6 at p. 6).  The student's writing ability was measured by sentence dictation and formulation tasks that revealed the student's significant spelling weaknesses and difficulty with sentence formulation (Dist. Ex. 6 at pp. 6, 7).

The speech-language pathologist concluded that the student presented with a mild receptive language disorder manifested by weaknesses in vocabulary and the ability to comprehend smaller units of orally presented information, moderate difficulties with single word decoding and reading comprehension, and moderate expressive language weaknesses (Dist. Ex. 6 at p. 7).  The evaluator also reported that the student's vocabulary and word retrieval skills were decreased, and that she had difficulty formulating sentences to relay multiple ideas in an organized and grammatically mature manner (id.).  She also indicated that the student had significant spelling weaknesses and that her formulated sentences lacked content, complexity and elaboration (Dist. Ex. 6 at pp. 6, 7).  The speech-language pathologist concluded that when orally presented with lengthier information the student was able to rely on context to improve her comprehension and exhibited relatively strong phonological awareness skills (Dist. Ex. 6 at p. 7).  The evaluator recommended that the student receive language therapy to address her weaknesses in auditory comprehension, oral expression, reading and writing; and specifically recommended a multisensory approach to improve her reading and spelling skills (id.).

Petitioners enrolled their daughter in YNJ at the very end of August or in September 2004 as a result of two summer 2004 evaluations (Tr. pp. 312, 745, 757).  The student's mother testified that as a result of the evaluations, petitioners "realized that the student's deficits were far worse than [they] thought" and they believed that their daughter could not "make it in a mainstream class" (Tr. pp. 748, 312).  She testified that the school year was approaching and petitioners had to make a "quick decision" and did not have time to think about respondent (Tr. pp. 758-59).

            Petitioners referred their daughter to the CSE by requesting a CSE meeting in September 2004 and an initial meeting was held on November 3, 2004 (Tr. pp. 60, 301; Dist. Ex. 1).  CSE members included petitioners, a psychologist, respondent's supervisor of special education who acted as the CSE Chairperson, a regular education teacher and a special education teacher, as well as a parent member who participated by telephone (Tr. pp. 19-20, 81; Dist. Ex 1 at p. 3; Parent Ex. L at p.1).  Although invited, a representative of YNJ did not attend the CSE meeting (Tr. pp. 75-76).  The regular and special education teachers who attended the CSE meeting did not teach at the placement respondent recommended for the student (see Tr. pp. 70, 301).  The CSE reviewed the private speech-language evaluation and private psychoeducational evaluation reports as well as September 2004 social history and physical reports (Dist. Ex. 1 at p. 4).  The CSE classified the student as learning disabled and recommended that she receive daily resource room services, with extended time for tests to be administered in a separate location (Dist. Ex. 1 at p. 1).  Special education services were to be implemented at Lime Kiln, one of respondent's elementary schools (Dist. Ex. 1 at p. 1; Tr. p. 21).  The individualized education program (IEP) developed at the meeting included goals and objectives in the areas of study skills, reading, writing and math (Dist. Ex. 1 at pp. 5-7).  The CSE Chairperson recalled petitioners as "hesitant" with regard to the recommended services to be provided at Lime Kiln; however, they took the consent for services form with them at the end of the meeting (Tr. pp. 25-26, 27).  The CSE encouraged petitioners to visit the recommended program (Tr. p. 26). The student's mother visited the recommended resource room program and met with its teacher on or about November 23, 2004 (Tr. pp. 27, 313-14, 699, 702-05; IHO Ex. 1 at p. 2).  Thereafter, the resource room teacher advised the CSE that the student's mother had questions about the recommended program (Tr. p. 46).  Petitioners did not subsequently return the consent for services form or consent to the CSE's recommendation (Tr. p. 304; see Tr. p. 27).

            Petitioners requested an impartial hearing on February 7, 2005 (Tr. p. 304; see IHO Ex. 1).  Their request stated that respondent had not conducted an observation of the student prior to its November CSE meeting (see 8 NYCRR 200.4[b][1][iv]), that the regular education teacher and special education teachers present at the meeting (see Parent Ex. L) were not teachers "of the student" as required by the regulations, that the recommended goals and objectives were not adequate, and that the recommended program was not appropriate for the student (see IHO Ex. 1).

Respondent's CSE met again on March 17, 2005 (Dist. Ex. 2).  Prior to that meeting, respondent prepared an updated social history, observed the student at one of her classes at YNJ, and conducted an educational evaluation (see Dist. Exs. 3, 7, 9).  Administration WRAT-3 revealed a reading (decoding) SS of 83, a spelling SS of 83, and an arithmetic SS of 93 (Dist. Ex. 9 at p. 1).  The student achieved a grade equivalent score of 4.9 on the comprehension subtest of the Gates MacGinitie Reading Test Level 6 (no SS or percentile was provided).  The school psychologist reported that the student's reading comprehension skills exceeded her decoding skills (Dist. Ex. 9 at p. 2).  Review by the school psychologist of a "simple paragraph" composed by the student revealed appropriate punctuation, adequate handwriting and "acceptable" spelling (Dist. Ex. 9 at p. 1).  In her report, the school psychologist stated that the student had the capacity to function on grade level in math and despite decoding difficulties, should be encouraged to read grade level material particularly in content areas, and new or unfamiliar words should be introduced without context cues (Dist. Ex. 9 at p. 2).

In February 2005, respondent's school psychologist who conducted the educational evaluation also conducted an observation of the student in a Hebrew class at the private school (Dist. Ex. 7).  The classroom observation report stated that the student was in the class with one other student and the religious studies teacher (Dist. Ex. 7 at p. 2).  The school psychologist reported that during the observation, the student responded appropriately to questions posed and raised her hand to clarify the concepts presented (id.).  In her observation report the school psychologist questioned "whether or not this program is offering instruction in the least restrictive environment" and recommended that the private school's child study team review the student to see if "mainstreaming" the student in her stronger academic areas would be appropriate (Dist. Ex. 7 at p. 4).

The CSE, at its March 17, 2005 meeting, recommended the same classification, program and placement recommended by the November 2004 CSE (Tr. p. 30; see also Dist. Ex. 2 at pp. 1, 4).  Unlike the prior CSE meeting, the March CSE included the special education teacher who would have taught the student if she attended respondent's program, in this case, the teacher assigned to the resource room recommended for the student (Tr. pp. 69-70).  Other members included respondent's director of special education, two psychologists, a general education teacher and petitioners (Dist. Ex. 2 at p. 4).  A parent member and a representative from YNJ participated by telephone (Tr. pp. 65-66; Dist. Ex. 2 at p. 4).  According to the comments reported on the March 2005 IEP, petitioners actively participated in the meeting and believed that their daughter was making satisfactory progress in her placement at YNJ (Dist. Ex. 2 at p. 4; see also Tr. p. 696).  The CSE, however, believed that the student's placement there was "too restrictive" to meet the student's needs (Dist. Ex. 2 at p. 4; see also Tr. pp. 696, 698).  Petitioners advised the CSE that they would like to "think about" the recommendation, would contact the CSE with their final decision and were given a consent form to take home and sign (Dist. Ex. 2 at p. 4; Tr. pp. 706, 708; see also Tr. p. 6).  Petitioners did not subsequently provide consent to respondent to implement the recommended IEP (Tr. p. 708).

            The impartial hearing began on July 6, 2005, continued on August 15, 18, September 22, and concluded on October 31, 2005.  During the impartial hearing, petitioners asserted: that respondent did not implement the recommendations of the evaluations that were conducted in the spring of 1997 (see Parent Exs. F, C, D, E) and failed to provide appropriate remediation (Tr. p. 1170); that respondent failed to follow up and monitor her progress in 1997 or annually thereafter (Tr. p. 1172); that the CSE should have suspected that the student was a student with a disability as a result of the June 2001 evaluations (see Parent Exs. A, B), scheduled a CSE meeting, more fully evaluated her, and provided her with appropriate special education services annually thereafter (Tr. pp. 1172-76); that the CSE did not meet when it should have after their request in September 2004 and when it did, was not properly composed (Tr. p. 1178); and that the IEP from the March 2005 meeting had "many defects" and did not recommend an appropriate program for their daughter (Tr. pp. 1179-83).  Petitioners contended that they properly enrolled their daughter in YNJ and that the school provided her with appropriate educational services (Tr. pp. 1178, 1183-86).  They also enrolled her in an intensive summer program at Lindamood-Bell in the summer of 2005, where she made progress (Tr. p. 1186); and, in previous years, had provided their daughter with tutoring services (Tr. p. 1187).  They argued that equitable considerations supported their requests (Tr. pp. 1186-91).  They also argued that the activities respondent employed to identify students with disabilities who attended private schools were not sufficient, and that as a result, identified students with disabilities represented a disproportionately low percentage of students who attended such schools and that such nonidentified students did not receive appropriate services (Tr. pp. 1191-92, 1194-97).  As remedies, petitioners requested tuition reimbursement for the student's attendance at YNJ during the 2004-05 and the 2005-06 school years, payment for their tuition at the Lindamood-Bell program, reimbursement for their previous tutoring expenses, funding for language therapy for the student, as well as counseling in 2005 and 2006, reimbursement for the cost of the private evaluations conducted in 2004, and reimbursement for attorneys fees and expert witness fees (Tr. pp. 1198-1200).  Respondent argued that petitioners' appeal should fail "since the child in issue has never attended a public school" and that the two IEPs that were developed provided the student with a free appropriate public education (FAPE) (Tr. pp. 4-10).

The impartial hearing officer rendered his decision on December 30, 2005 (IHO Decision, p. 7).  He concluded that the student's November 3, 2004 and March 17, 2005 IEPs did not recommend an appropriate educational program for the student (IHO Decision, p. 1).  He found that the March 2005 IEP did not address the needs of the student as established by her evaluations (IHO Decision, p. 4).  In particular, the impartial hearing officer pointed out that the March 2005 IEP did not provide for speech-language services, counseling, or one-to-one remedial reading (IHO Decision, p. 5).  The impartial hearing officer also concluded that the student's opportunity at YNJ to interact in the mainstream was "substantially limited" and indicated that the student's disability was "not so severe that she should be deprived of the benefits as a student that she can receive by being in regular classes, with support to address her needs" (IHO Decision, p. 4).  For reasons that are not clear in the record, the impartial hearing officer's discussion characterized petitioners' claims relating to "procedures in place to affirmatively locate a child with a learning disability" and "to monitor" the student after she left the jurisdiction of the CPSE in 1998 as raised under the No Child Left Behind Act (NCLB), rather than "child find" under Individuals with Disabilities in Education Act (IDEA) (see IHO Decision, pp. 5-6; see also Tr. pp. 282-83, 725-32).  The impartial hearing officer concluded that those claims were "misplaced" based on the purpose of NCLB (IHO Decision, p. 6).  The impartial hearing officer denied all of petitioners' requests for reimbursement, determined that the student's IEP was not appropriate, and also determined that the CSE was to "promptly meet and prepare an educational program and placement that is appropriate for [the student's] needs" (IHO Decision, p. 6).

Petitioners raise numerous claims on appeal including: that respondent's CSE should have more fully evaluated and considered whether the student was a student with a disability subsequent to respondent's June 2001 evaluations; that respondent should have monitored and reevaluated the student, and provided her with special education services during the period 2002 through 2004; that the November 2004 CSE did not timely meet, and that when it did, it was improperly composed with the result that the IEP was "fatally defective" and "invalid;" and that the March IEP was defective for multiple reasons and did not recommend an appropriate educational program for the student.  Petitioners also assert that the impartial hearing officer did not conduct the impartial hearing in an appropriate manner in that he did not allow them to be heard without interference from respondent and did not maintain decorum during the proceeding.  Petitioners further assert that the impartial hearing officer should have, but did not, follow-up on a decision to issue a subpoena for certain documents in respondent's possession which deprived them of due process and prejudiced their case and claim that the impartial hearing officer based his decision "on numerous false testimonies under oath."  Petitioners also contended that the impartial hearing officer "was biased" "as exhibited by the totality of his... conduct" and because, in light of the record, he did not conclude that the student could not function in a normal size class and, with certain limited exception, could progress only in very small groups of seven or less, but instead, concluded that the student's disabilities "were not so significant that she should be removed from the regular class population" and "that the academic support the [student's] needs could be achieved within the type of resource room envisioned by the IEP" (see IHO Decision, p. 4).  Petitioners also allege that the facts show that respondent failed to comply with child find, both as it related to the student herself, and as it related to its obligations more generally.  Finally, petitioners assert that the impartial hearing officer "ignored" their claims that respondent's mistreatment of the student "was due to [its] unlawful religious discrimination."  Petitioners argue that they are entitled to reimbursement, "when rendered," for the speech-language, counseling, and one-to-one remedial reading services, which the hearing officer ordered to be provided to the student; reimbursement for tuition at YNJ; reimbursement for services from Lindamood-Bell during summer 2005; reimbursement for the 2004 psychoeducational and speech-language evaluations because they have prevailed with respect to their claims; and for tutoring costs during the period 2001 through 2005.  In addition, petitioners assert they are entitled to compensatory education.

Respondent argues, among other things, that petitioners' tuition reimbursement claims are barred because the student "has never been enrolled in a public school," that a significant number of petitioners' allegations prior to the development of the 2004-05 IEP are barred by the statute of limitations, and that their claims involve allegations which were not put at issue at the impartial hearing.  Respondent also cross-appeals from the impartial hearing officer's determination that its November 2004 and March 2005 IEPs do not establish an appropriate educational program for the student on the basis that the impartial hearing officer's decision "charged the CSE with knowledge that it could not have had in making its determinations."  Respondent also contends that equitable considerations do not support petitioners and that they have not cooperated with the district.  Petitioners have not answered the cross-appeal.

I will initially address respondent's contention that the impartial hearing officer erred in ruling that respondent did not establish an appropriate educational program for the student based upon the November 3, 2004 and March 17, 2005 IEPs.

A purpose behind the IDEA is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]).1  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. 1401[8][D]; 34 C.F.R. 300.13; see 20 U.S.C. 1414[d]).2  A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192  [2d Cir. 2005]).  In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (id.).  Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

            A FAPE is offered to a student, when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).  While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]).  In evaluating the substantive program developed by the CSE, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998][citation and internal quotation omitted]).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130).  The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak, 142 F.3d at 132).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. 1412[a][5][A]; 34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]).

            An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 1).  An IEP must include measurable annual goals related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. 300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]).

I concur with the impartial hearing officer's finding that respondent's IEPs failed to offer an appropriate educational program for the student because they did not adequately address all of her special education needs.  The IEPs failed to adequately address the student's speech-language and social-emotional needs identified by her evaluations (Dist. Exs. 5, 6).

In the November 2004 and March 2005 IEPs, respondent's CSE offered the student a general education program with daily resource room and testing accommodations of extended time and special location (Dist. Exs. 1 at p. 1, 2 at p. 1).  The CSE Chairperson who attended the November 2004 meeting testified that the resource room program has no more than five students per 40-minute period and the rest of the student's program would be in general education in classes of 18-24 nondisabled students (Tr. pp. 23, 72).  Respondent's school psychologist testified that the resource room program was structured to the individual student using multisensory instruction (Tr. pp. 143-44).  The record stated multisensory instruction employs visualization, auditory input, kinesthetic input and tactile input (Tr. p. 142).  Respondent's staff, including the Chairperson of the November 2004 and March 2005 CSE meetings, the deputy superintendent and school psychologist testified that the student's needs, as identified in the private psychoeducational and speech-language evaluations, could be addressed by the resource room program (Tr. pp. 47, 128, 145).

However, the student's IEPs do not contain annual goals and short-term objectives that would address all of her deficits that were identified in the evaluations.  The private neuropsychological and speech-language evaluation reports on which the CSE relied identified the student's weaknesses in language processing and expressive language skills (Dist. Exs. 5 at p. 6, 6 at p. 7).  Specifically, the reports cite the student's limited word knowledge (vocabulary) skills (Dist. Exs. 5 at pp. 3-4, 6 at pp. 3-4, 7).  The student's IEPs state that the student demonstrates lags in vocabulary and in comprehension of smaller units of information and identifies word knowledge as a "weaker" area, but do not recommend any annual goals or short-term objectives to address this need (Dist. Exs. 1 at pp. 2-3, 5-7, 2 at pp. 2, 5-7).  Given the student's Expressive One Word Picture Vocabulary Test SS of 62 (<1), the IEPs should have incorporated strategies to address this deficit.  The student's limited vocabulary related to her documented difficulty with word retrieval, exhibited during tasks that required her to retrieve a specific label for a pictured item (Dist. Ex. 6 at p. 4).  In addition to her word retrieval deficits on single word naming tasks, the student exhibited word retrieval difficulties during narrative language tasks such as story telling (Dist. Ex. 6 at p. 5).  The private speech-language pathologist recommended that the student receive instruction in descriptive language, synonym and antonym tasks and divergent categorization exercises to increase her vocabulary and word retrieval skills (Dist. Ex. 6 at p. 7).  The IEPs do not include goals and objectives related to these needs (Dist. Exs. 1 at pp. 5-7, 2 at pp. 5-7).

The student also exhibited a decrease in verbal abstract thinking skills, including the ability to identify the relationship between words, formulate grammatically complex sentences and to assemble words into grammatically acceptable and semantically meaningful sentences (Dist. Exs. 5 at p. 3, 6 at pp. 3-4).  This deficit manifested itself during the evaluations as the student's difficulty with "clearly and fully conveying information" (Dist. Exs. 5 at p. 6, 6 at p. 5).  The speech-language pathologist concluded that the student's weaknesses in vocabulary and word retrieval combined with her weakness in language formulation made it difficult for the student to convey her ideas when speaking and writing (Dist. Ex. 6 at p. 7).  The student's November 2004 IEP states: "[The student] needs to develop her oral language skills," however, there are no goals in either IEP that specifically address this need (Dist. Exs. 1 at pp. 2, 5-7, 2 at pp. 5-7).

The private psychoeducational evaluation report of the student states that she "struggles" with low self-esteem, focuses on feelings of inadequacy, helplessness and often feels isolated, vulnerable and disconnected from those around her (Dist. Ex. 5 at p. 6).  The psychologists who conducted the evaluation further opined that the student has limited resources for coping with her emotions and believes that problems cannot be solved by any means available to her  (id.).  The report further states that the student's academic difficulties and negative attitude toward school are not solely attributable to her limitations in ability, but to her personality and emotional functioning (Dist. Ex. 5 at p. 7).  Lastly, the evaluation report stated that the feelings of helplessness experienced by the student are "extremely distressing" to her (id.).  The private psychologists recommended that the student would likely benefit from psychotherapy to address feelings of anger and frustration as well as negative self-perception as they relate to her learning problems (Dist. Ex. 5 at p. 8).  Given the results of the private psychoeducational evaluation report, the IEPs should have addressed the student's present levels of performance in the social emotional domain more in depth than the statement: "[the student] may not be fully aware of her own personal strengths" (Dist. Exs. 1 at p. 3, 2 at p. 3). 

Testimony from respondent's psychologist indicates that the November 2004 and March 2005 CSEs may not have had enough information regarding the student's social emotional status to make a determination as to whether services in this domain were warranted.  Respondent's psychologist testified regarding the student's need for psychotherapy: "The time that I spent with [the student], I don't feel it would be fair for me to make that kind of an opinion" and "I don't know [the student] well enough to make any real value judgment as to the need for therapy" (Tr. pp. 154-55).  The psychologist made these statements after conducting an educational evaluation and classroom observation of the student.  She concluded that she could not opine about the student's need for therapy for her social emotional concerns.

Having determined that the record does not demonstrate that the student was offered a FAPE for the 2004-05 school year,3  I must now consider whether petitioner has met her burden of demonstrating that the placement selected for the student for that school year was appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080).  The private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010).  The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

            Respondent argues that the student's placement at YNJ was not consistent with the requirement that children with disabilities be placed in the least restrictive environment (LRE).  Although the LRE requirement (20 U.S.C. 1412[a][5]) applies to unilateral parental placements (M.S. v. Board of Educ., 231 F.3d 96, 105 [2d Cir. 2000], it must be balanced against the requirement that each student receive an appropriate education (Briggs v. Board of Educ., 882 F.2d 688, 692 [2nd Cir. 1989]).  While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S. v. Bd. of Educ., 231 F.3d at 105; see Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]).  The test for a parental placement is that it is appropriate, not that it is perfect  (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999]; see also M.S., 231 F.3d at 105).

I agree with the impartial hearing officer's finding that the student's classroom placement at YNJ is not appropriate because it is an overly restrictive environment for the student (Application of a Child with a Disability, Appeal No. 05-075).

The student attended YNJ for sixth grade during the 2004-05 school year (Tr. pp. 530-31).  YNJ was described as a regular education yeshiva that offers a self-contained, skills based component called the "transitional program" which the student attended (Tr. pp. 524, 527, 533).  The transitional program consists of up to eight students with one teacher and one teacher assistant (Tr. p. 527).  During the 2004-05 school year, the transitional program had access to a reading specialist and psychologist (id.).  YNJ developed individual educational plans for the student that contained goals that targeted her decoding, reading comprehension, writing, and mathematic skills (Parent Exs. M, N, O).

The director of the transitional program stated that the school determined the student's placement in the transitional program based upon private psychoeducational and speech-language evaluation reports the parents submitted prior to her enrollment at the school and a "very cursory" meeting with the director of the program (Tr. pp. 531, 573, 582-83).  The transitional program's reading specialist was trained in the Orton-Gillingham methodology of reading instruction (Tr. p. 527).  The psychologist was involved in teaching social skills to the entire school (id.).  The student received instruction in both religious and secular subjects.  The religious component of the student's program lasted from 8:30 a.m. to 12:45 p.m. daily and consisted of morning prayer, Hebrew language and Bible content class, and instruction in Jewish prophets, law, holidays and customs (Tr. pp. 616, 620-23).

The student's secular program lasted from 12:45 to 4:45 p.m. daily, and consisted of individual reading instruction three times per week using the Wilson Program, instruction three times per week in reading comprehension and writing, twice weekly instruction in spelling, grammar, science, social studies and independent work, math instruction five times per week and once weekly computer class (Tr. pp. 623, 630-34).  The student received individual instruction in math and instruction with six or seven other students for science, social studies and grammar (Tr. pp. 648-50).  Although in a classroom with six or seven students during spelling instruction, the students worked at their own level (Tr. p. 649).  At the beginning of the 2004-05 school year, the student received 1:1 or 1:2 instruction in reading comprehension, however, as the year progressed she was able to participate in a class size of 1:6 or 1:7 (id.).

During the 2004-05 school year, the student was provided with individual educational plans which the director of the transitional program and her teachers used to monitor her academic progress (Parent Exs. M, N, O).  The individual educational plans included goals in the areas of reading decoding, reading comprehension, writing, spelling, math and classroom participation/organization (Parent Exs. M, N).  The March 2005 and June 2005 individual educational plans documented the student's progress via a number scale: skills between numbers one to four are "in progress," and skills between numbers five to eight are varying degrees of "strong" (Parent Exs. N, O).  Comments contained in the student's November 2004 individual educational plan indicate that she required additional explanation and directions repeated in order to understand concepts presented in class, she was progressing "slowly but steadily," and working hard (Parent Ex. M at pp. 2, 5).  The student's March and June individual educational plans indicated that she was progressing through the Wilson Reading System and generally understood the main idea of novels although details posed a challenge for her (Parent Exs. N at p. 2, O at p. 2).  The student was reported to use graphic organizers for writing paragraphs and her spelling had improved (Parent Exs. N at p. 5, O at p. 3).  In math, the plan indicated that the student was working toward understanding the concept of fractions (Parent Exs. N at p. 7, O at p. 5).

During the 2004-05 school year, in addition to the general education and transitional programs, YNJ offered other educational programs including an enrichment program, pull-out resource room, and inclusion classrooms with a special education, regular education teacher and teacher assistant (Tr. pp. 524, 526-27).  Through the 2004-05 school year, the student was "mainstreamed" for prayer, breakfast, recess, lunch, gym, once weekly Bible class, once weekly computer class, once per month community service project and social skills class (Tr. pp. 528, 581-82, 615, 628).  The mainstream curriculum at YNJ was described as "very academic," "intense" and competitive (Tr. pp. 576, 603-04).  The director of the transitional program testified that the intensity of the mainstream program was generated by supplemental materials and activities which required higher-level thinking skills (Tr. pp. 604-05).  She also stated that students at YNJ routinely scored very high on Stanford Achievement Tests and in fact scored significantly higher than most schools (Tr. pp. 613-14).

The director of the transitional program testified that during the 2004-05 school year the student was not mainstreamed for any academic subjects (Tr. pp. 581-82).  The record does not show that YNJ attempted to mainstream the student for any academic subjects other than math.  The student was assessed twice during the 2004-05 school year to determine if she was eligible to be mainstreamed for math, however, the student was not found "to be able to function in the math, in the mainstreamed math settings that we have" (Tr. p. 582).  The director testified that rather than using standardized tests, the student was assessed by using "formal math programs of where a sixth-grader should be up to at a particular time" (Tr. pp. 607-608).  She further added that sixth grade math was attempted with the student; however, it "didn't work" (Tr. p. 612).  The record does not provide information as to what accommodations and modifications were offered to the student during mainstream attempts and what curriculum was used in this "intense" mainstream environment.  Even if she was not successful in a mainstream math class, there is nothing in the record that explains why in view of her July 2004 WJ-III test scores in math (see Dist. Ex. 5 at p. 11), the student required solely 1:1 math instruction, and why a less restrictive option was not recommended (Tr. p. 648).

The director of the transitional program stated that for this student, standardized testing is a "limited tool" due to the difference in her performance in a one-to-one setting as opposed to a classroom setting (Tr. pp. 608-609).  She also reported that the student exhibited deficits in following directions in the classroom (Tr. pp. 535-36).  The student was also reported to require additional review of learned material more than a "regular class" would require (Tr. pp. 605-606).  Despite these difficulties, I agree with the impartial hearing officer who found that this student with average to low average cognitive abilities and achievement test scores did not require a self-contained classroom of no more than seven students for all academic subjects (Dist. Ex. 5 at p. 11).

            Petitioner also seeks reimbursement for tuition costs of the Lindamood-Bell summer 2005 program.  The record does not contain the initial evaluation that Lindamood-Bell conducted with the student during summer 2005 (Tr. p. 821).  Therefore, there is inadequate information about how the student's instructor determined the content of the instruction she received, mainly the "Seeing Stars" and "Visualizing and Verbalizing" programs (Parent Ex. S).  The record does not describe the curriculum of the Seeing Stars program, and the only description of the Visualizing and Verbalizing program is that it was used to "address [the student's] vocabulary deficit and to improve her reading comprehension" (id.).  The record does not explain how these programs were implemented with the student.

The clinic director of the Lindamood-Bell facility where the student attended testified that students work "one-on-one," four hours a day, five days a week for a "chunk of time" (Tr. p. 828).  The record does not provide specific information regarding the frequency and duration of the tutoring sessions that the student received.  Additionally, the record does not describe how staff at Lindamood-Bell determined the student's specific frequency and duration of sessions.  Even assuming that the student did receive daily, individual, four hours per day tutoring, there is nothing in the record that indicates the student required such an "intense" level of service.

            Petitioners also seek tuition costs for YNJ for the 2005-06 school year.  The parent's witness from YNJ who offered information regarding the student's program during the 2004-05 school year, concluded her testimony on August 18, 2005, prior to the beginning of the 2005-06 school year. There is no information in evidence regarding the student's program at YNJ during the 2005-06 school year or how that program met her special education needs.  There is only limited testimony from the director of the transitional program that the student attended during the 2004-05 school year regarding mainstreaming opportunities that may be offered to the student during the 2005-06 school year, however, the record does not reflect if that is what actually happened (Tr. pp. 578-79).  Therefore, based on the record, I cannot make a determination that the student's program at YNJ during the 2005-06 school year met her special education needs.

            Based upon the foregoing, I find that petitioners failed to meet their burden of proof under the second Burlington criterion for an award of tuition reimbursement.  As such, the necessary inquiry is at an end (Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 05-039).

            Respondent asserts that a significant number of petitioners' allegations relate to actions of respondent that are barred due to a one year statute of limitations.  I find that respondent is correct in this contention.  The record reflects that petitioners had expressed disagreement with the recommendations of respondent's CPSE as early as 1997 (Tr. pp. 663, 679).  Thus, claims that accrued more than one year prior to petitioners' hearing request of February 7, 2005 are untimely under the adopted one-year statute of limitations (Application of the Bd. of Educ., Appeal No. 02-119).  I have considered all of petitioners' other assertions and I find that they are beyond the scope of my review because they were not raised below or are without merit (Application of the Bd. of Educ. of the Hyde Park Cent. Sch. Dist., Appeal No. 02-024. 5, 6

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that it required the CSE to meet and develop specific recommendations for the student.

 

Dated:

Albany, New York

__________________________

 March 27, 2006

PAUL F. KELLY
STATE REVIEW OFFICER

 

1.  On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [2004], Pub. L. No. 108-446, 118 Stat. 2647).  Citations contained in this decision are to the statute as it existed prior to the 2004 amendments.  The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEA 2004 do not apply.

2. The term "free appropriate public education" means special education and related services that--

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meets the stands of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and,

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. 1401(8) (see 34 C.F.R. 300.13; 20 U.S.C. 1414[d]).

3  This determination would remain if during the administrative hearing the burden of persuasion had been placed on the parents, the parties challenging the IEP, as the Supreme Court recently established in Schaffer v. Weast, 126 S. Ct. 528, 537 (2005) (see Application of the Bd. of Educ., Appeal No 05-120).

4 At the time of the relevant events underlying this appeal, the Individuals with Disabilities Education Act (IDEA) did not prescribe a time period in which requests for administrative impartial due process hearings must be asserted; during the time of the events in question State Review Officers were applying a one-year statute of limitations in light of recent Second Circuit case law directing that states adopt the most appropriate analogous state statute of limitations (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-222 [2d Cir. 2003]; Application of the Bd. of Educ., Appeal No. 02-119; see, e.g., Application of the Bd. of Educ., Appeal No. 04-104; Application of a Child Suspected of Having a Disability, Appeal No. 04-090; Application of a Child with a Disability, Appeal No. 04-082; Application of a Child with a Disability, Appeal No. 04-077; Application of a Child with a Disability, Appeal No. 04-075; Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of a Child Suspected of Having a Disability, Appeal No. 03-098; Application of a Child Suspected of Having a Disability, Appeal No. 03-068; Application of the Bd. of Educ., Appeal No. 03-062).  Subsequently, effective July 1, 2005, Congress amended the IDEA to include a provision specifically creating a two-year statute of limitations period for filing a due process hearing request, unless a state has an explicit time limitation set by State law (20 U.S.C. 1415[f][3][C]).

Since newly enacted federal statutes of limitations are typically not applied retroactively absent express congressional intent (see Landgraf v. USI Film Products, 511 U.S. 244, 280 [1994]; In Re Enterprise Mortgage Acceptance Co., 391 F.3d 401, 407 [2d Cir. 2005]; see also R.G. v. Glen Ridge Bd. of Educ., 2005 WL 3274857 at *4 [D.N.J. Dec. 2, 2005] [in considering new statute of limitations for civil actions in federal courts, because amendments to the IDEA are not retroactive, courts must apply the IDEA as it existed when the claim was filed]), the most analogous statute of limitations analysis prevailing at the time of the underlying events of petitioners' claim will be applied to the facts in this case. Federal rules of accrual apply (Leon v. Murphy, 988 F.2d 303 [2d Cir. 1993]); hence, the most analogous statute of limitations for requesting an impartial hearing to resolve petitioners' dispute under the IDEA or Article 89 of the New York Education Law began running when petitioners knew or should have known of the alleged injury involved, i.e., the alleged inappropriate education (Southington, 334 F.3d at 221).

5  Petitioners assert that the impartial hearing officer failed to issue a subpoena as they requested, to compel production of "needed materials."  Petitioners assert that the impartial hearing officer failed to apprise them of this failure, thereby depriving them of the opportunity to take "remedial" action.  Respondent denies petitioners' allegations, states that no subpoena was entered into evidence and contend that the material sought was "irrelevant to any issue properly before the impartial hearing officer and/or 'records' that did not exist."  Respondent further asserts that its Director of Special Education testified at length and that extensive documentation was placed into the record.  Respondent asserts that petitioner was not prevented from questioning the witness or the documentation provided.  I find that the impartial hearing officer's declination to issue a subpoena did not result in a denial of due process because the records sought by petitioners were not dispositive of petitioners' claims.

Petitioners assert that the impartial hearing officer was biased against petitioners "as exhibited by the totality of his...conduct..., which encompassed, inter alia, rulings by the impartial hearing officer, his conduct of the impartial hearing, his credibility findings and his ignoring their claim of religious discrimination.  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).  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 petitioner's contention.  Although petitioner disagrees with the conclusions reached by the hearing officer, that disagreement does 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.