90-018

Petitioner appeals from the determination of an impartial hearing officer which found that the placement for the 1990-91 school year of petitioner's child in a self-contained special education class at respondent's P.S. 37, as recommended by respondent's committee on special education (CSE), was appropriate to meet the needs of the pupil, and which rejected petitioner's request that the CSE's recommendation be nullified because of alleged procedural errors committed by respondent. The appeal must be sustained.

Respondent was served with a notice of intention to seek review and the petition in this appeal, but has not submitted an answer to the petition. In accordance with the provisions of 8 NYCRR 279.3, the statements set forth in the petition will be deemed to be true for purposes of the rendering a decision in this appeal.

Petitioner's seven year old child is classified as autistic. The pupil's classification was not disputed at the hearing, and is not in dispute in this appeal.

Petitioner's child began receiving special education in September, 1987, while attending the Early Learning Center, a nonpublic preschool program. In July, 1988, he entered the Eden II School for Autistic Children, a nonpublic school and has remained at that school on a 12 month basis. During the 1989-90 school year, the pupil's tuition at the Eden II School was paid by respondent, pursuant to a stipulation which resolved litigation between the parties concerning the pupil's placement for that school year. The stipulation provided that the CSE would re-evaluate the pupil prior to April 15, 1990 in order to recommend an appropriate placement for the pupil for the 1990-91 school year.

Petitioner was notified by the CSE that a meeting to discuss her child's placement had been scheduled to be held on April 26, 1990. Upon receipt of petitioner's request that a physician member of the CSE be present at the meeting, the CSE rescheduled its meeting for May 14, 1990.

Before the CSE meeting began on May 14, 1990, a school social worker attempted to interview petitioner in order to prepare an updated social history. Petitioner's attorney, who was present, was denied permission to tape record the interview. Petitioner declined to participate in the interview, or to sign an authorization for her child's physician to release a copy of the pupil's most recent physical examination records to the CSE.

Petitioner's attorney was not allowed to tape record the May 14, 1990 CSE meeting. At that meeting, petitioner, her attorney and two representatives of the Eden II School discussed the pupil's needs with the CSE for more than two hours, during which a Phase I Individualized Education Program (IEP) for the 1990-91 school year was prepared. The CSE then requested that petitioner, her attorney and the Eden II representatives step outside the room, so that the CSE could deliberate. Following a ten to thirty minute period of deliberation, the CSE met with petitioner and her attorney and advised them that it would recommend that her child be placed on a 12 month basis in a Specialized Instructional Environment III (SIE III) class located at P.S. 37 in Staten Island. As related services, the pupil would receive speech therapy and petitioner would receive counseling to enable her to work with her child at home.

On June 8, 13 and 28 and July 12, 1990, an impartial hearing was held at petitioner's request to review the CSE's recommendation. At the hearing, the pupil's classification and the proposed IEP were not challenged. Petitioner did challenge the proposed placement, on the grounds the CSE did not have adequate evaluation data and lacked sufficient reason to change the pupil's placement to P.S. 37. In addition, petitioner asserted that she had been denied due process of law because she had not been allowed to tape record the CSE meeting and had been excluded from a portion of the meeting. Petitioner also alleged that the parent member of the CSE was in fact an employee of respondent, in violation of Section 4402 (1)(b)(1) of the Education Law. Petitioner also requested that the hearing officer order respondent to contract with the Eden II School for the 1990-91 school year, because respondent had allegedly failed to comply with the terms of the stipulation which resolved the pupil's placement for the 1989-90 school year.

In a decision dated September 18, 1990, the hearing officer found that the proposed placement of the pupil in the SIE III program at P.S. 37 was appropriate to meet the pupil's needs. The hearing officer further found that while the CSE had erred in not permitting petitioner to tape record the May 14, 1990 meeting and in excluding petitioner and her attorney from a portion of the meeting, neither procedural error afforded a basis for invalidating the CSE's recommendation.

In this appeal, petitioner raises specific objections to the proposed placement at P.S. 37, as well as objections as to the manner in which the recommendation was developed.

Petitioner urges that the CSE's recommendation should be set aside because the parent member of the CSE was compensated by respondent for attending the meeting and is therefore an employee of respondent.

Section 4402 (1)(b)(1) of the Education Law reads, in pertinent part, as follows:

"The board of education or trustees of each school district shall establish a committee on special education, composed of at least a school psychologist, a teacher or administrator of special education, a school physician, a parent of a handicapped child residing in the school district, provided such parent shall not be employed by or under contract with the school district, and such other persons as the board of education or the board of trustees shall designate... members who are neither employees of nor under contract with such district shall serve without compensation except that such members shall be entitled to reimbursement for actual and necessary expenses incurred in such service..." (Emphasis added)

The record reveals that, at least in Community School District 31, it is respondent's practice to pay a stipend of $12.50 to each parent member for up to two hours of service, without regard to whether the parent member actually incurred any expenses by serving on the committee. The chairperson of the CSE testified at the hearing that a stipend of $25.00 is paid to the parent member of the CSE whenever a CSE meeting exceeds two hours. The parent member of the CSE who participated in the May 14, 1990 CSE meeting did not testify at the hearing. Instead, the parties agreed to have the parent member submit to the hearing officer a written response to questions prepared by the attorneys for the parties. The parent member was asked whether she had in fact incurred any expense for babysitting services, transportation or meals in connection with her participation in the May 14, 1990 CSE meeting. The parent member replied that she had not incurred any expense for babysitting, or transportation. She stated that she had used her car for transportation, but had not calculated her mileage for attending the meeting. The parent further stated that she had spent approximately $5.00 for lunch, but had received a total of $25.00 for serving on the CSE because the meeting had continued until approximately 2:30 p.m. on May 14, 1990. In response to a question whether she had submitted receipts with her voucher for expenses, the parent member of the CSE stated that it was her practice to submit the second page of the pupil's IEP, on which her presence at a meeting would be noted, to the Board of Education for the purpose of obtaining her stipend.

Respondent's practice of paying the parent members of its CSE a uniform amount without regard to the expenses, if any, which the members have incurred by serving on the CSE clearly violates the provisions of Section 4402 (1)(b)(1) of the Education Law. That statute expressly provides that non-employee members of a CSE (eg. parent members) are not to be compensated for their service on the CSE. The fact that the amount of the stipend paid by respondent is relatively modest in no way makes it allowable. The payment of any compensation, in excess of actual expenses, undermines the public policy of this state of having unpaid parent members serve on CSEs. As an unpaid member of a CSE, each parent member is expected to have no interest which could conflict with that of any pupil. While the individual payment to a parent is modest, in the aggregate such payments may be significant. Moreover, the prohibition against the payment of parent members protects against even the appearance of any conflict of interest on the part of the parent members of CSEs. It is not necessary that petitioner prove actual bias by the parent member. Under the circumstances, I find that the CSE which recommended a placement for petitioner's son on May 14, 1990 did not include a parent member as required by the Education Law and was not properly constituted. Accordingly, I find that the CSE's recommendation must be nullified.

I concur with the hearing officer that the CSE erred in not permitting petitioner's attorney to record the proceedings at the CSE meeting. The Commissioner of Education has recently held that a CSE must permit a parent to record a CSE's meeting regarding the parent's child (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. , Decision No. 12425, dated November 21, 1990), and the United States District Court, District of Connecticut, has held that a school district policy of not allowing a parent to record meetings to develop a pupil's IEP is inconsistent with the policies and provisions of Federal Law (E.H. v. Tirozzi, 735, F Supp. 53; V. W. and R.W. v. Favolise, 16 EHLR 1010). In this instance, petitioner asserts that she was forced to abandon her right to tape record the CSE meeting or risk being excluded from the meeting where the CSE would make its decision about her son's education. Petitioner has also alleged that the testimony of at least one of respondent's employees at the hearing did not accurately reflect what that employee had said to petitioner at the May 14 CSE meeting, but that she was precluded from effectively refuting that testimony because she had not been allowed to tape record the CSE meeting. I need not reach the issue of whether the employee's testimony was accurate, because I conclude that the CSE's refusal to permit petitioner to record its meeting was per se a serious violation of petitioner's due process rights. As noted by the Supreme Court in Honigv. Doe, 484 U.S. 305, the Education of All Handicapped Children Act provides an elaborate scheme of procedural safeguards to guarantee parents the opportunity to provide meaningful input into all decisions affecting their child's education and the right to seek review of any decisions which they believe to be inappropriate. The CSE's refusal to permit the tape recording of the meeting impacted upon petitioner's right to meaningfully participate in the planning and decisional process and to challenge the decision reached as a result of that process.

With regard to petitioner's claim that she was denied full participation in the CSE meeting because she was excluded from a portion of the meeting, I note that petitioner met with the CSE for in excess of two hours, during which the contents of her son's IEP were discussed and determined. Petitioner does not allege that the issue of placement was not discussed with her, or that the CSE was unaware of her strong preference that her son continue to attend the Eden II School. After discussing the pupil's needs with petitioner and her representatives, the CSE withdrew to deliberate. A CSE may discuss the classification or placement of a pupil with a handicapping condition in the absence of the pupil's parents (Application of a Child with a Handicapping Condition, Appeal 90-13; Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 496; Application of a Child with a Handicapping Condition, 29 id. 343; Application of a Child with a Handicapping Condition, 27 id. 29; Matter of a Handicapped Child, 21 id. 100, judgment granted dismissing petition to review, Malone v. Albany City School district and Ambach, Sup. Ct., Albany Co., Cholakis, J., February 5, 1982, n.o.r.). Upon the record before me, I am unable to conclude that petitioner was denied the opportunity to make her view known to the CSE or otherwise participate in the CSE meeting of May 14, 1990.

In view of my findings with regard to the first two procedural due process issues raised by petitioner, it is not necessary for me to render a decision on the other issues presented in this appeal, particularly with regard to the appropriateness of the placement at P.S. 37 offered by respondent. Respondent has not complied with the statutory procedure by which it must develop a recommended placement to offer to petitioner for the 1990 - 91 school year. Accordingly, I must remand the matter to respondent so that a CSE may be convened with the requisite members to prepare a recommendation for the present school year. Having failed to offer petitioner a valid recommendation for placement on a timely basis, respondent is obligated to continue to pay tuition for the pupil's attendance at the Eden II School until such time as an appropriate placement has been recommended by the CSE.

With regard to petitioner's request that I order respondent to provide her son with compensatory education, I find that the record does not reveal, any basis for doing so (Application of a Child with a Handicapping Condition, 19 Ed. Dept. Rep. 223).

Finally, I note that petitioner asks for attorneys' fees in connection with the impartial hearing and this appeal. In accordance with the provisions of 20 USC 1415 (e)(4)(B), a court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents or guardian of a child with a handicapping condition who is the prevailing party. Attorneys' fees may be awarded for success at the administrative level (School Bd. of County of Prince William v. Malone, 662 F. Supp. 999, aff'd. 762 F. 2d 1210; Burpee v. Manchester School District, 661 F. Supp. 731; Moore v. District of Columbia, 16 EHLR 951). However, the statute does not authorize an administrative officer to award attorneys' fees. Such awards may only be made by a court (Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 44 Matter of Rickles, 28 id. 363). Therefore, I lack authority to grant petitioner's request.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer be, and the same hereby is, annulled; and,

IT IS FURTHER ORDERED that within 30 days after the date of this decision respondent's CSE shall meet and shall recommend an appropriate placement for petitioner's child for the remainder of the 1990-91 school year.