92-018

Petitioner seeks review of the determination of a hearing officer modifying the recommendation by respondent's committee on special education (CSE) of an educational program for petitioner's child for the 1990-91 school year, and denying petitioner's request that respondent be ordered to contract with another school district for the child's instruction. The appeal must be dismissed.

Petitioner's child was initially evaluated by respondent's school psychologist in December, 1982, when the child was in second grade. The evaluation was conducted because the child had been diagnosed as having epilepsy and petitioner was concerned with the child's educational progress. The school psychologist reported that the child was functioning within the superior range of intellectual development, and that achievement tests revealed that the child had well developed skills in all of the basic academic areas. The child's mother testified at the hearing that no CSE meeting was held with regard to the child in 1982, but that her concerns had been addressed when she arranged with respondent's then superintendent to have the child transferred to another elementary school in the Wappingers school district.

The record reveals virtually nothing of the child's academic career through the remainder of elementary school. A report from the Columbia Presbyterian Medical Center reveals that the child had been hospitalized five times for abdominal distension, which condition was brought under control in 1986. However, the report states that he began receiving instruction at home in 1986, because he experienced periodic episodes of confusion, hostility, physical violence, and recurrent headaches which interfered with his school placement. On April 14, 1988, the child's neurologist recommended that the child continue to receive instruction at home through June, 1988. The child was briefly enrolled in the Ossining Union Free School District, at the beginning of the 1988-89 school year, but returned to respondent's school in November, 1988. The child's neurologist again recommended that the child receive instruction at home. On August 15, 1989, the child's neurologist opined that there was no medical reason for the child to remain out of school. The child returned to school at the beginning of the 1989-90 school year.

In November, 1989, the child was evaluated for recurrent seizures at the Columbia Presbyterian Hospital. The hospital's discharge summary reveals that, despite several attempts to provoke seizures, no paroxysmal events were recorded and the child remained asymptomatic except for fleeting head pains. However, after testing had been discontinued and shortly before his discharge, the child was reported to have had an episode of somnolence preceded by some confusion, which his neurologist described as characteristic of the child's condition. The neurologist also stated that the child would be seen by a psychiatrist.

On December 17, 1989, petitioner asked respondent's coordinator of special education to have the child classified as other health impaired, in view of his persistent health problems which had prevented him from attending classes on a regular basis. The child was evaluated by respondent's school psychologist, who reported that the child achieved a verbal IQ score of 139, a performance IQ score of 112, and a full scale IQ score of 128. The child achieved grade equivalents of 12.9 in mathematics, 11.4 in reading recognition, 12.8 in reading comprehension and 11.7 in spelling. At the time of the evaluation, the child was in the ninth grade. The school psychologist reported that the child appeared to be an anxious and timid individual who exhibited obsessive-compulsive behaviors, and who tended to isolate himself from social interaction. In view of the child's poor academic performance because of frequent absences, the school psychologist recommended that the CSE obtain clarification of the child's medical status, including an updated neurological evaluation and a psychiatric evaluation.

On March 30, 1990, the CSE recommended that a neurological evaluation and a psychiatric evaluation be obtained, before reaching a conclusion about the nature of his handicapping condition. On April 3, 1990 petitioner requested that an impartial hearing be held. The CSE received a letter dated April 11, 1990 from the child's neurologist, which provided additional information about the child. On May 2, 1990, the CSE recommended that the child be classified as other health impaired. The CSE further recommended that the child's educational program consist of two periods per day of resource room services and three hours per day of instruction at home, and that the program be reviewed after four weeks of its implementation. On June 1, 1990, the CSE recommended that the child receive instruction at home through August, 1990. A dispute arose about the implementation of the child's IEP. At an impartial hearing held on June 27, 1990, a stipulation was entered on the record providing for the amount and scheduling of tutoring which respondent would provide the child during the summer.

By letter dated August 29, 1990, the child's neurologist informed respondent's coordinator of special education that the child was medically capable of attending a regular public high school, and did not need to be placed in a wheelchair accessible building or need the services of a personal aide for physical safety. The neurologist stated that the child had a particular form of epilepsy which affects the limbic structure of the brain. The limbic structure of the brain influences personality and behavior more than motor functioning.

On September 14, 1990, an impartial hearing was held, at petitioner's request, to review petitioner's assertion that respondent had breached the stipulation concerning the instruction to be provided to the child. At the hearing, petitioner asserted that respondent had prevented her child from attending school, and that respondent did not have a high school which was accessible for a disabled child. Petitioner requested that the hearing officer direct respondent to contract with another school district for the child's instruction. Respondent asserted that petitioner's refusal to allow the child to undergo a neurological evaluation and an occupational therapy evaluation had precluded the CSE from preparing the child's IEP for the 1990-91 school year, and asked the hearing officer to issue an interim order directing that the child undergo the requested evaluations. The parties stipulated that respondent could select a neurologist and a physician specializing in evaluating occupational therapy needs from a list of names provided by the hearing officer to perform the evaluations and that after the evaluations were conducted, the CSE would meet to prepare the child's IEP.

An occupational therapy evaluation was completed on November 6, 1990, and a neurological evaluation was conducted on November 16, 1990. The physician who performed the occupational therapy evaluation recommended that the child receive occupational therapy as a related service. The neurologist reported that he had not observed any significant abnormalities in his test of the child, but opined that the child suffered with a paroxysmal disorder with several types of small seizures.

On November 21, 1990, the CSE recommended that the child attend school for six periods each day, and that he receive instruction in social studies at home. After a period of transition, the child would receive all instruction at respondent's Roy C. Ketcham High School. The CSE also recommended that the child receive occupational therapy once per week, and that teachers use alternative test techniques including flexible scheduling and revised test formats. The record does not reveal whether respondent approved the CSE's recommendation.

On November 21, 1990, the hearing resumed. The hearing continued on 21 additional days, ending one year later on November 26, 1991. In a decision dated February 4, 1992, the hearing officer denied respondent's request that the child be declassified, on the ground that respondent could not impeach the recommendation of its CSE that the child be classified as other health impaired. Noting that most of the hearing had been devoted to petitioner's assertion that respondent and its staff were prejudiced against her and her family, the hearing officer found that petitioner had failed to prove that assertion. The hearing officer further found that the child's IEP was appropriate, but directed that the child be enrolled in respondent's John Jay High School because that school has fewer stairs than the Ketcham High School. The hearing officer also directed respondent to notify petitioner, in the event the child required assistance in the school nurse's office because of his physical condition, and to afford the child a reasonable opportunity to make up school assignments missed because of absence for medical reasons.

On March 18, 1991, petitioner commenced this appeal. In her petition, petitioner asks me to rule upon issues of fact presented in the evidence, but does not identify any factual finding by the hearing officer with which she disagrees. Indeed, petitioner does not expressly challenge the hearing officer's conclusions about the appropriateness of the child's IEP or petitioner's failure to meet her burden of proof concerning her charge of prejudice. Instead, petitioner asserts that the 17 month duration of the hearing was a violation of her due process rights under Federal regulation. She further asserts her due process rights were violated during the hearing, because the hearing process was equated with litigation, the hearing officer terminated the examination of one or more of petitioner's witnesses, denied her the right to present witnesses, and required her to make a profer, i.e. a showing of what a potential witness could be expected to testify about, as well as to submit a list of potential witnesses. Petitioner also objects to the hearing officer's inclusion of respondent's September, 1990 request for additional evaluations in the hearing which petitioner had requested. Petitioner requests that I direct respondent not to appoint the hearing officer who conducted the hearing in this case to serve as a hearing officer in any future hearing involving petitioner.

I find that the IEP prepared at the November 21, 1990 CSE meeting was fatally flawed because none of the child's teachers attended the CSE meeting, in violation of Federal and State regulation (34 CFR 300.344 [a][2]; 8 NYCRR 200.4 [c][3]). Although the hearing officer should have remanded the matter back to the CSE upon the discovery of this defect at the hearing held on December 18, 1990, there is no purpose remanding the matter at this late date, which is well beyond the school year for which the IEP was intended. The record does not disclose whether the CSE has prepared an IEP for the 1991-92 school year, and the appropriateness of any recommendation by the CSE for such school year is not part of this appeal.

I have carefully considered the entire record in this appeal, consisting of a 3000 page transcript and approximately 400 pages of exhibits, with particular concern for petitioner's assertion that she was denied due process of law during the hearing. Petitioner's complaint about the inclusion of the evaluation issue raised by respondent in the hearing which she requested is without merit. At the September 14, 1990 impartial hearing, petitioner's lay advocate asserted that one of the issues before the hearing officer was the CSE's refusal to meet with petitioner about the child's program for the 1990-91 school year. Respondent's counter-assertion that petitioner had impeded the process of preparing an IEP by not permitting additional evaluation was directly relevant to the issue raised by petitioner, and logically addressed by the hearing officer in attempting to resolve the dispute between the parties.

At the September 14, 1990 hearing, petitioner challenged the validity of the appointment of the hearing officer by respondent, as well as the impartiality of the hearing officer. Petitioner's advocate at the hearing established that a June 14, 1990 resolution of appointment of the hearing officer by respondent was in fact intended to apply to a hearing for another child. However, the hearing officer suggested that respondent be asked to retroactively approve his appointment, so that the hearing could go forward. Petitioner agreed to the proposed resolution. With regard to the impartiality of the hearing officer, I find that nothing in the record, either in the way the hearing officer was appointed or his conduct of the hearing, would afford a basis for finding that the hearing officer was not impartial. Petitioner also requested that an interpreter in Spanish be appointed for her husband, because English was not her husband's primary language. State regulation requires that an interpreter fluent in the dominant language of the child's home be provided at school district expense, where required (8 NYCRR 200.5 [c][3]). The hearing officer denied petitioner's request, upon a finding that petitioner's husband understood English sufficiently, based upon conversations with the individual at this and prior hearings. The record reveals no basis for overturning the hearing officer's finding.

Petitioner's assertion that the hearing was unduly long is entirely correct, but also disingenuous. The record reveals that petitioner began the presentation of her case on January 22, 1991. Petitioner made no attempt to challenge the proposed IEP. Instead, she attempted to establish that respondent and its staff were prejudiced against her through the testimony of 14 witnesses, all but two of whom were school district employees. The hearing officer accorded petitioner a great deal of leeway in presenting evidence of her interactions with respondent's staff from 1982 until the present. Petitioner dispensed with the services of her advocate for part of the hearing, after the advocate had not followed suggestions offered by the hearing officer and had made inappropriate remarks at the hearing. Petitioner acknowledged on the record that she made the decision to dispense with the service of her advocate, and had not been compelled to do so by the hearing officer. The record reveals that at the outset, as well as during the course of the hearing, the hearing officer carefully explained the relevant legal concepts and his rulings upon objections raised by the parties. On occasion, the hearing officer assisted petitioner by rephrasing her questions which were not in the appropriate form. The hearing officer also, on his own motion, objected to the form and/or content of some of the questions posed by respondent's attorneys at the hearing.

With regard to petitioner's assertion that the hearing officer did not permit a complete examination of each of her witnesses, I find that the hearing officer correctly terminated the examination of the witnesses after previously cautioning petitioner or her advocate about the irrelevancy and/or repetitiveness of their questions. At the request of respondent's attorney, the hearing officer ultimately insisted upon a profer, or offer of proof before permitting witnesses to testify, or permitting witnesses to continue to testify. An impartial hearing officer has the power and the duty to issue subpoenas, upon the request of a parent at an impartial hearing. However, the hearing officer may ask the parent to make an offer of proof prior to issuing subpoenas, in order to determine the relevancy of the proposed testimony (Application of a Child with a Handicapping Condition, 27 Ed. Dept. Rep. 290). I find that the hearing officer acted well within his power to insist upon some demonstration of relevance to proposed testimony or exhibits, after petitioner and her advocate had presented irrelevant and redundant testimony and evidence. In essence, petitioner raised a number of complaints about the services provided to her four children in respondent's schools, and her dispute with respondent's staff relating to her Freedom of Information Law requests and other matters. What was conspicuously absent from the evidence presented by petitioner was any proof that she had been treated differently than others who were similarly situated.

On November 26, 1991, respondent's attorney obtained a one hour delay in the commencement of the hearing, because of a conflicting court obligation. Petitioner requested an adjournment of the hearing, because she asserted it would be unfair for her child to begin his testimony on that date and possibly have to testify on an additional day. Petitioner had no other witness to present on that day. The hearing officer denied petitioner's request for an adjournment, and closed the hearing after petitioner's advocate stated that the child would not testify on that date.

The hearing officer's decision to terminate the hearing must be examined in light of the extensive length of the hearing, the futility of continuing with a hearing about a placement for a school year which had already concluded, and the repetitive nature of petitioner's case. I find that petitioner had been afforded more than an ample opportunity to present her case, and that much, if not all of the testimony and evidence which she sought to adduce as the hearing progressed was redundant with evidence previously introduced, or was clearly not relevant to petitioner's assertion of prejudice.

I must note that such extensive proceedings went far afield from the clear purpose of Federal and State law requiring the prompt review and determination of claims about the identification, programs and placement of disabled children. Despite the professed agreement of all parties at the outset of the hearing that the child should not be receiving instruction at home, the absence of any medical basis for continued instruction of the child at home, and the opinion of respondent's school psychologist that the child's continued social isolation at home would be injurious to his emotional health, the child has remained out of school throughout the prolonged hearing. He has been deprived of an opportunity to interact with his peers in a normal setting. At the hearing held on November 22, 1991, petitioner conceded that she still sought home instruction for the child. In essence, the system which was intended to protect the interests of the child has been misused so as to harm his interests, by maintaining him in an inappropriate placement during an extended hearing about matters which were at best tangentially relevant to the child's present educational needs.

THE APPEAL IS DISMISSED.