91-014

Petitioner appeals from the determination of a hearing officer finding that the educational program recommended by petitioner's committee on special education (CSE) for respondents' child for the 1990-91 school year was inappropriate because it did not include the services of a consultant teacher, and which ordered petitioner to provide such services. Respondents cross-appeal from the hearing officer's decision, upon the grounds that the hearing officer should have excused himself from the hearing, or should have ordered petitioner to provide an additional amount of consultant teacher services and should have found that petitioner violated respondents' right to procedural due process of law. The appeal must be sustained in part, and the cross-appeal must be sustained in part.

The pupil was initially classified as a learning disabled pupil in November, 1983. The record reveals that the pupil functions within the average to high average range of intelligence, with limitations in verbal and/or auditory abilities and relative strength in nonverbal and/or perceptual tasks. A neuropsychological evaluation of the pupil performed on August 8, 1991 revealed that the pupil's capacity to process language-based information is limited, which hinders his ability to rapidly comprehend, process and assimilate sequentially presented auditory information. The evaluator noted that pupils are typically provided with information in a classroom, through oral presentations in a sequential manner. The evaluator further noted that the pupil typically becomes unable to keep up with the pace of a regular class, and resorts to off-task behavior. An educational evaluation performed by an employee of the Board of Cooperative Education Services for the First Supervisory District of Monroe County (BOCES) on October 25, 1989 found that the pupil excelled on tasks which required an understanding of concepts and relationships, but experienced significant difficulty engaging in systematic sequential tasks. The evaluator described the pupil's learning style as simultaneous, rather than sequential. The record reveals that, despite the pupil's intellectual ability, he has had academic difficulty, even with the assistance of resource room services. The pupil's classification as learning disabled is not in dispute.

The pupil, who was in third grade at the time of initial classification, received one hour of resource room services for the remainder of the 1983-84 school year. In November, 1984, the CSE recommended that the pupil be placed in a self-contained special education class. The pupil remained in a self-contained classes, with increased mainstream classes, through the 1988-89 school year, for which he was mainstreamed for every subject except mathematics.

On May 31, 1989, the CSE discussed the parents' request that the pupil received a neuropsychological evaluation, but concluded that it would first obtain diagnostic testing from the BOCES.

In September, 1989, the pupil entered petitioner's Sutherland High School, as a ninth grader. The pupil's individualized educational program (IEP) provided that, he would be mainstreamed in all of his subjects, and would receive one daily period of resource room services. In addition, the pupil would be assisted in test taking by extended time limits, taking tests in alternative sites and having test directions rephrased if necessary. This IEP, which was prepared prior to the pupil's educational evaluation at the BOCES, in October, 1989, does not reflect the recommendations of the BOCES evaluator to assist the pupil and his teachers in dealing with his unusual learning style.

On March 15, 1990, the CSE met with respondents and the individual who had performed the educational evaluation of the pupil at the BOCES, to discuss the pupil's academic performance. Some, but not all, of the evaluator's recommendations had been attempted by the pupil's regular education teachers. The pupil's father requested that a note-taker and a tutor be made available to the pupil, and that the CSE arrange to provide for weekly meetings between the pupil's teachers and the evaluator from BOCES. The CSE agreed to consult with the BOCES evaluator on an as needed basis, and to make provision for student or teacher prepared notes for the use of the pupil. Either at or shortly after this meeting, the CSE and respondents agreed to increase the number of resource room periods available to the pupil, from five to eight each week. However, the pupil's IEP was not amended to reflect the increase in resource room periods.

On April 10, 1990, the pupil's father requested that an impartial hearing be held to review the adequacy of the services provided to the pupil. By letter dated April 12, 1990, the chairperson of the CSE informed respondents that he had instructed the staff at Sutherland High School to implement certain changes, such as having students or teachers prepare notes for the pupil in appropriate circumstances and providing an additional period of resource room on the three days of the week when the pupil was not scheduled to attend physical education. The chairperson also advised respondents that an additional meeting with the CSE would be appropriate to address their concerns.

On April 16, 1990, the pupil's father reiterated his request for an impartial hearing. By letter dated May 8, 1990, petitioner's attorney stated his understanding that respondents did not wish to proceed with a hearing and would instead meet with the CSE. An advocate in the office of respondents' attorney responded by letter dated May 10, 1990 to petitioner's attorney, in which the advocate agreed to waiver of the 45 day requirement for the completion of the hearing process, but asserted that respondents' request for a hearing had not been withdrawn. On May 11, 1990, petitioner's attorney advised the advocate that a hearing would not be scheduled unless it became necessary to do so as a result of the next meeting of the CSE with respondents.

The CSE met with respondents on May 31, 1991, for the purpose of preparing the pupil's IEP for the 1990-91 school year. Respondents submitted a proposal to the CSE, in which they requested that the pupil be provided with the services of a resource room teacher or a consultant teacher, who would provide services on a one to one basis to the pupil one period each day, and would spend two periods each day observing the pupil in his regular classes to support him in organizing and processing the information generated in those classes. Respondents also requested that a resource room teacher or consultant teacher devote one class period each day to assisting the pupil's regular education teachers in modifying their assignments and methodologies.

The CSE did not accept respondents' request. The CSE prepared an IEP for the 1990-91 school year which continued the pupil's mainstreaming in all subjects, but increased his resource room services to a total of nine class periods each week. The IEP also provided for one period each week of counseling, to offer guidance to the pupil in dealing with stress and developing coping strategies. Additional testing modifications, such as using shorter testing periods in mathematics and science, reading directions to the pupil and providing additional examples, if necessary, were added by the CSE to the pupil's IEP. The pupil would also be permitted to use a tape recorder, word processor and calculator in tests, and would not be penalized for spelling errors.

On June 8, 1990, the CSE chairperson informed respondents of the recommendation of the CSE and provided them with a copy of the pupil's IEP for the 1990-91 school year. On June 12, 1990, the pupil's father requested an impartial hearing.

The CSE met with respondents on July 9, 1990 to discuss respondents' requests that the pupil receive a neuropsychological evaluation at petitioner's expense, and that the pupil receive home tutoring in English during the summer. The CSE agreed to provide the requested evaluation, but declined to provide home tutoring. Respondents agreed that the impartial hearing should be deferred until after the CSE had reviewed the results of the evaluation.

Following the pupil's neuropsychological evaluation, the CSE met with respondents and the evaluator to discuss the results of the evaluation. Various programs, including a special class, were discussed. However, the CSE decided not to alter its recommendation of May 31, 1990.

A hearing was held on October 1, 2, 19 and 31, 1990. By a decision dated February 12, 1991, the hearing officer found that respondents had been afforded all of their due process rights by petitioner. The hearing officer opined that there was a conflict between the requirement of the Individuals with Disabilities Education Act (20 USC 1201 et seq.) that school districts provide a continuum of programs and services and the definition of consultant teacher services set forth in 8 NYCRR 200.1 (pp), in that the latter would not permit consultant teacher services to be provided to respondents' child because he was receiving special educational services in a resource room. The hearing officer directed petitioner to provide two hours of consultant teacher services per week, but found that the other services provided by the petitioner were appropriate. Finally, the hearing officer rejected respondents' claim that the goals and other data in the pupil's IEP were not accurate and comprehensive.

Before considering the issues raised by the parties, I note that petitioner has submitted a reply, which both responds to assertions made in respondents' answer and answers the assertions set forth in respondents' cross-appeal. However, 8 NYCRR 279.6 provides that no reply to an answer is permitted, except in response to new documentary evidence submitted with an answer. In the absence of any new documentary evidence submitted with the answer, I will not consider the first 16 paragraphs of petitioner's reply. The remainder of the reply answers the allegations set forth in respondents' cross-appeal, and will be considered.

The appeal and cross-appeal challenge the hearing officer's findings as to the nature and amount of supportive services to be provided to the pupil. However, I will first consider respondents' assertion that the hearing officer erred by not recusing himself at the request of respondents' attorney.

At the outset of a hearing, a hearing officer must disclose any potential conflicts of interest which may compromise his or her impartiality (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 343). Federal and State regulations provide that an impartial hearing officer must not have a personal or professional interest which would conflict with his or her objectivity in the hearing (34 CFR 300.507 [a][2]; 8 NYCRR 200.1 [p][1]).

The hearing officer, who is the Director of Pupil Services and chairperson of the CSE of the Fairport Central School District, disclosed his relationship with petitioner's attorney, by first noting that petitioner and his employer each retain the law firm of Harris, Beach and Wilcox. He then discussed his relationship with Alfred Streppa, an attorney of that firm representing petitioner at the hearing:

"In the past, I have worked with attorneys from the firm Harris, Beach and Wilcox, including Mr. Streppa. On two occasions he has attended CSE meetings in Fairport Central School District for the purpose of answering questions of a legal nature that the Committee on Special Education members felt would be appropriate.

Additionally, he has assisted the Fairport Central School District on two occasions in the course of conducting impartial hearings. The aforementioned situation of course did not involve any discussion whatsoever regarding this case ..."

I recently considered the issue raised by respondents in an appeal which involved this hearing officer serving as a hearing officer in another district, which was also represented by the same attorney at the hearing. I found that there was a clear, continuing professional relationship between the hearing officer and the school district attorney, in that the hearing officer relies upon the attorney for legal advice in conducting his activities as a school administrator and CSE chairperson, and would be represented by the attorney in the event the administrator is sued in his official capacity (Application of a Child with a Handicapping Condition, Appeal No. 91-10). As in that case, I have considered the hearing transcript, which reveals that the hearing officer was called upon to make rulings on the school district attorney's objections as to the scope of cross-examination. Despite the relatively relaxed rules of evidence in administrative hearings, petitioner's attorney insisted upon an unduly restrictive view of witness testimony upon cross-examination. The record reveals that the hearing officer generally upheld the school attorney's unusually narrow view of cross-examination.

I need not, and do not, determine whether there was actual bias on the part of the hearing officer at the hearing. For the reasons cited in my prior decision, I find that the appearance of bias was clearly presented, and that the hearing officer should have disqualified himself (In re Intemann, 73 NY 2d 580 at 582; Matter of Conti, 70 NY 2d 416, at 419).

There are additional reasons which require that I find that the hearing officer's decision should be annulled.

The central dispute between the parties involves the nature and amount of supportive services to be provided to the pupil so that he can succeed in a mainstreamed learning environment. The hearing officer found that the pupil would require additional services beyond the resource room and counseling services which the CSE had recommended, and directed that petitioner should provide consultant teacher services for two hours per week. Consultant teacher services are defined by State regulation as follows:

"Consultant teacher services means direct and/or indirect services, as defined in this subdivision, provided to a pupil with a handicapping condition who attends a regular education program on a full-time basis and/or to such pupil's regular education teachers.

(1) Direct consultant teacher services means specially designed individualized or group instruction provided by a certified special education teacher to a pupil with a handicapping condition to aid such pupil to benefit from the pupil's regular education program.

(2) Indirect consultant teacher services means consultation provided by a certified special education teacher to regular education teachers to assist them in adjusting the learning environment and/or modifying their instructional methods to meet the individual needs of a pupil with a handicapping condition who attends their classes." (8 NYCRR 200.1 [pp])

In his decision, the hearing officer, who did not specify whether the consultant teacher services should be direct or indirect, found that the definition of consultant teacher services was in conflict with the Federal requirement that school districts provide a continuum of alternative placements to meet the needs of pupils with handicapping conditions (34 CFR 300.551), because these services could not be made available to this pupil who is receiving the special educational service of resource room. I find that the hearing officer misperceived the purpose of the regulatory definition of consultant teacher service, which implements the provisions of Section 3602 (19)(b)(3) of the Education Law, relating to the amount of State aid to be paid to school districts for educating children with handicapping conditions. The definition reflects the fact that a certain amount of additional State aid will be paid for the instruction of pupils whose only special educational service is provided by a consultant teacher. School districts receive greater amounts of State aid for educating pupils who require more extensive special educational services. Neither the Education Law nor the Regulations of the Commissioner of Education preclude a board of education from providing similar services to a pupil who is receiving other special educational services. Each pupil with a handicapping condition must be provided with the special education necessary to meet the pupil's special educational needs (8 NYCRR 200.6 [a][2]).

To the extent that the hearing officer premised his decision upon an erroneous understanding of the Regulations of the Commissioner of Education, I find that his decision must be annulled.

Petitioner also challenges the decision of the hearing officer upon the ground that there is no basis in the record for the hearing officer's conclusion that the pupil requires additional services similar to those of a consultant teacher.

The record reveals that the pupil has a unique learning style, which enables him to grasp abstractions quickly, but which makes it difficult for him to process information presented in the traditional sequential style used by teachers in most classrooms. The BOCES evaluator testified that in order for the pupil to benefit from instruction, there must be changes in the way instruction is provided to the pupil. The pupil requires simultaneous instruction, with concrete examples and hands-on experience whenever possible. The evaluator further testified that the pupil requires a preview of the instruction he will receive, which can be accomplished by the use of semantic maps and outlines of the material to be presented by the teacher. The pupil also needs to use adaptive equipment, such as a word processor with a spelling program and a calculator, to facilitate the development of his coping skills to compensate for the deficiencies in his learning style. The evaluator also testified that the pupil requires a clear explanation from his teachers of their expectations for his academic performance, and repetition of instruction and directions from the teachers. As a result of his inability to simultaneously take adequate notes and comprehend oral discussions by his teachers, the pupil must have an alternative method of note-taking, such as the use of a tape recorder and/or access to teacher prepared notes and outlines.

The pupil also requires a carefully coordinated effort by each of his teachers, working with a special education teacher, to assure that appropriate teaching strategies are used and that the pupil receives regular feedback as to his performance from his teachers. Feedback is very important, if the pupil is to understand the limitations of his learning disability and to capitalize upon his academic strengths, in other words to develop coping skills. The record reveals that the pupil tends to become overwhelmed by the information which he is expected to understand and to retain, and ceases to actively participate in the learning process. The development of improved coping skills will enable the pupil to feel comfortable with the learning process and become more involved in school related decision-making. At the moment, he is a passive participant in the process, who tends to withdraw and blame others for his lack of success. He must become an independent learner.

I note that both the BOCES evaluation and the psychologist who performed the neuropsychological evaluation were in general agreement with the pupil's IEP. I find that while the pupil's IEP for the 1990-91 school year discusses each of the pupil's needs, those needs are discussed interchangeably as goals and needs. The IEP should be revised to accurately reflect the pupil's needs, as discussed in this decision. The pupil's needs must be addressed through relevant goals. Responsibility for each goal must be assigned to one or more specific individuals identified in the IEP, to assure implementation and coordination.

I find that the pupil's IEP goals can be achieved with resource room services consisting of a minimum of five periods each week of supplementary instruction by a resource room teacher. Such instruction must be provided in a group of not more than five pupils with generally similar needs. Respondents assert that the pupil requires direct one-to-one instruction for one period a day. I am not persuaded that the pupil requires one-to-one instruction, simply because he failed science and English in June, 1990, despite receiving resource room services. The critical issue is that the pupil's learning style be accommodated in his regular education classes, so as to decrease his reliance upon the resource room to benefit from the instruction offered in his other courses. The IEP for the 1990-91, if implemented consistently by petitioner, should help the pupil attain that objective.

Respondents also request that the pupil's resource room teacher or another special education teacher accompany the pupil to at least two of his regular education classes every day. The teacher would observe the pupil in class, and support the instruction being given by providing immediate feedback and assisting with note-taking.

The psychologist who performed the neuropsychological evaluation testified that the pupil did not require this service. The BOCES evaluator testified that the pupil could benefit from this service, but did not testify that his program would be inappropriate without such service. I find that it is not essential that a special education teacher monitor the pupil's performance or assist the pupil in note-taking in the manner requested by respondents. The pupil's IEP, as revised in accordance with this decision, will provide a consistent and regular system of teacher feedback to be coordinated by the resource room teacher and will make provision for the use of a tape recorder and/or teacher prepared outlines or notes to assist the pupil with note-taking.

In addition to providing supplementary instruction to the pupil, the resource room teacher must have an essential role in developing the pupil's Phase II IEP with his other teachers and in working with those teachers on a regular basis throughout the year. I find that the pupil's IEP must provide and petitioner must ensure that the resource room teacher and the pupil's other teachers meet on a regular basis to assess the pupil's performance, and to prepare appropriate teaching strategies to accommodate the pupil's unique learning needs. The pupil's counselor should also be included in such meetings. I note that petitioner has offered to provide the pupil with nine periods of resource room services each week. I find that the resource room teacher's time would be better employed for some of those periods in providing consultative services to the pupil's other teachers. While I will afford petitioner some discretion in allocating the resource room teacher's time between direct instruction and consultation, I find that a minimum of two hours each week should be devoted to consultation and assistance to the pupil's other teachers.

In their cross-appeal, respondents assert that the hearing officer erred in finding that they had been afforded all of their due process rights by the Board of Education. They raise three issues. First, they assert that petitioner had no authority to unilaterally deem respondents' request for a hearing to have been withdrawn. Secondly, they assert that the CSE failed to provide them with adequate notice of the CSEs recommendation, by failing to disclose the other option considered by the CSE. Lastly, they assert that the petitioner unilaterally altered the pupil's program during the pendency of their request for a review of the CSE's recommendation.

I find that respondents have not established any basis for a finding that petitioner violated the requirements of 34 CFR 300.572 and 8 NYCRR 200.5 that a final decision be reached by a hearing officer within 45 days after a hearing has been requested. The record reveals that respondents agreed to a deferral of their request for a hearing while they met with the CSE in May, July and August, 1990.

With regard to the second issue raised by respondents, Federal and State regulations require that the parents of a child with a handicapping condition be notified of any action which a board of education proposes to take and that such notice include a description of other options considered and the reasons why those options were rejected (34 CFR 300.505 [a][2]; 8 NYCRR 200.5 [a][4][1] and 200.1 [x][2]). Respondents asserts, and the record reveals, that the notice of the CSE's recommendation to the Board of Education sent to respondents after the May 31, 1990 CSE meeting did not disclose other options considered by the CSE or the reasons why those options were not considered. Specifically, the record reveals that the option of a special class placement and respondents' request for one-to-one tutoring had been discussed by the CSE. I caution petitioner to comply with the notice requirement in the future.

Respondent's assertion that petitioner unilaterally changed the pupil's program during the pendency of the review of the CSE's recommendation is based upon the fact that the pupil has received five periods of resource room per week since returning to school in September, 1990. From March through June, 1990, the pupil had received eight periods of resource room per week, although his IEP provided for only five periods of resource room. The record reveals that the additional three periods were agreed upon by the parents and the CSE on a trial basis. The CSE chairperson's testimony that respondents opposed amending the pupil's IEP to expressly provide eight periods of resource room is unrebutted. Since a pupil's program is determined by the pupil's IEP, I find no basis for respondents' complaint.

THE APPEAL AND THE CROSS-APPEAL ARE SUSTAINED TO THE EXTENT INDICATED.

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

IT IS ORDERED that within 20 calendar days after the date of this decision, the CSE shall meet to revise the pupil's IEP in accordance with the terms of this decision.