92-025

Petitioners appeal from the determination of a hearing officer which denied petitioners' request that they be reimbursed by respondent for petitioners' expenditures in unilaterally placing their child in the Norman Howard School, an approved private school, for the 1991-92 school year. They also appeal from the hearing officer's denial of their motion that he recuse himself from conducting the hearing. The appeal must be sustained.

Petitioners' child, is now 18 years old. The child was initially classified as speech/language impaired by respondent's committee on special education (CSE) in March, 1982, when he was in the second grade in a local parochial school. He had been referred to the CSE because he had bilateral vocal cord nodules, which gave his speech a raspy, difficult to comprehend quality. The child received speech/language therapy through the end of the 1982-83 school year, at which time the CSE concluded that he no longer required such therapy. In April, 1983, the child was enrolled in the third grade in respondent's Sherman Elementary School, where he received resource room services upon the CSE recommendation that such services be provided on a diagnostic basis. A psychological evaluation of the child performed in February, 1983, had suggested that the child might have a learning disability, because of visual and processing deficits. The child achieved a verbal IQ score of 114, a performance IQ score of 102, and a full-scale IQ score of 110. The child exhibited relative strength in language concepts, expressive vocabulary and comprehension skills, although there was a wide range of subtest scores. The evaluator opined that the child appeared to be unwilling to invest himself in academics, and suggested that he receive resource room services on a short-term basis.

On October 12, 1983, the CSE recommended a change in the child's classification to learning disabled. The child has continued to be classified as learning disabled, which is not in dispute in this appeal. A psychological evaluation of the child in August, 1985, revealed that the child's cognitive functioning was within the average range, but that the child displayed deficiencies in verbal and language functioning when his attention and concentration were required. The child's reasoning skills, perceptiveness and spatial relations skills were described as being age appropriate. However, there was a marked decline in the child's performance on written tasks, because of deficiencies in the child's visual motor coordination. In the most recent psychological evaluation of the child in April, 1990, the evaluator noted an improvement in the child's ability to attend aurally. However, the child's fine motor skills and visual integration skills continued to be below average. Based on the child's verbal ability the evaluator found that the child's written expression was significantly below that expected of the child. The evaluator also reported that the child exhibited frustration and anger because of the limitations upon his performance caused by his visual motor weaknesses.

Since the child's classification as learning disabled in 1983, he has received resource room services for one period per day, except as noted below. In June, 1984, petitioners and respondent's staff agreed that the child should be retained in the fourth grade for the 1984-85 school year. At petitioners' insistence, resource room services were not provided during the Fall of 1984, although the child did receive supplemental assistance in respondent's skills center. The school building pupil personnel services team referred the child to the CSE in January, 1985, because the team concluded that the child was not benefitting from an exclusively regular education program.

Petitioners removed the child from public school at the end of the 1984-85 school year. The child completed fifth and sixth grades in a private school. In the Spring of 1987, the child was evaluated at the Children's Developmental Unit of the Genesee Hospital in Rochester, New York. Although the evaluation revealed that the child had progressed in both reading and mathematics, he was described as overwhelmed, intimidated and sad. The educational evaluator recommended that the child receive help with organizational skills, including placement in a classroom which had a consistent structure. A neurologist found that the child displayed symptoms of a multiple tic disorder.

In September, 1987, the child returned to respondent's schools as a seventh grader at the Rush-Henrietta Junior High School. Although his individualized education program (IEP) for the 1987-88 school year described his program as "part-time special education," the record reveals that the child received resource room services for one period per day, to assist him in spelling, language arts and organizational skills. A follow-up evaluation of the child at the Genesee Hospital in the Fall of 1985 revealed that the child displayed less anxiety and had improved his performance in reading and mathematics. The child's writing was described as deficient in quantity because of his graphomotor deficits and the child's neurologist reported that the child's tic activity had decreased.

During the 1988-89 school year, the child continued to receive one period per day of resource room services in eighth grade. At the conclusion of that school year, the child withdrew from public school, to enroll in a private high school for the 1989-90 school year. The child was not academically successful in the private high school, and returned to the Rush-Henrietta Senior High School, in January, 1990. The child's IEP for the remainder of the 1989-90 school year reveals that his ninth grade program included Regents level courses in earth science, global studies, mathematics and English, with supplemental instruction in a resource room for one period per day. The child's resource room teacher reported that she was unable to work on developing the child's basic skills during the resource room period, because she had to devote extensive time to assisting the child with his regular class assignments. The child failed the English, first year global studies and earth science courses. He was not eligible to take the Regents earth science examination because he failed to complete the requisite number of laboratory exercises. After attending summer school, he passed the English and global studies courses.

For the 1990-91 school year, the child again received one period per day of resource room services. The child passed local courses in second year global studies, general mathematics, general biology and driver education. He failed a tenth grade English course, and did not pass the course after attending summer school. He also failed art and music because he did not take the final examinations in the latter two subjects. The child's anecdotal record reveals that on six occasions during the 1990-91 school year, he was assigned to an "instructional study hall", i.e. an in-school suspension facility, for a variety of offenses. The child was suspended from school for four days for having been under the influence of alcohol in school, and he was also suspended for two days for assaulting another child.

On June 5, 1991, the CSE conducted its annual review of the child. The CSE chairperson testified at the hearing that the petitioners did not attend the CSE meeting. For the 1991-92 school year, the CSE recommended that the child continue to receive one period per day of resource room services.

On July 15, 1991, petitioners requested that the CSE schedule a meeting to review the child's 1991-92 IEP. In a telephone conversation with the CSE chairperson, the child's mother revealed that petitioners sought to have the child's IEP revised to provide for the child's placement at the Norman Howard School. The record does not reveal why the CSE meeting was not held within 30 days after petitioners' request (cf. 8 NYCRR 200.4 [c]).

By letter of August 5, 1991, the CSE chairman advised petitioners that the principal of the child's school had requested a CSE review, which was to be conducted on September 4, 1991. The CSE chairperson admitted at the hearing that petitioners' July 15, 1991 request was the only reason for holding the September 4 meeting. The petitioners gave their consent to a further evaluation of the child which the CSE requested. The record does not reveal what, if any, additional evaluation was performed. In a memo to the CSE, dated September 3, 1991, the child's resource room teacher for the 1990-91 school year advised the CSE that the child was not working up to his potential, and was less able to attend to a task than he had been during the preceding year. The resource room teacher opined that the child required a more structured environment, and immediate help to regain skills which the child had lost.

On September 4, 1991, the CSE met with petitioners. The CSE recommended that the child be placed in an Option 2 special education class operated by the Board of Cooperative Educational Services of the First Supervisory District of Monroe County (BOCES) at a school district site to be determined later. The IEP which was prepared at the September 4, 1991 meeting provided that the child would receive 25 hours of special education per week. The IEP failed to specify the subjects in which the child would be mainstreamed, providing instead that they would be determined later (cf. 8 NYCRR 200.4 [c][2][iv]). A written summary of the CSE meeting revealed that the child would be referred to the BOCES, which would contact petitioners about a specific program for the child. At the recommendation of the BOCES, petitioners subsequently visited a BOCES special education class in the Honeoye Falls-Lima Central School District. Respondent approved the CSE recommendation on October 8, 1991.

By letter dated September 9, 1991, petitioners advised respondent that the child would be transferred to the Norman Howard School. In a letter dated September 18, 1991, petitioners requested that an impartial hearing be held to review the child's placement for the 1991-92 school year. A hearing officer was appointed by respondent. However, the hearing was postponed at the request of petitioners. The hearing commenced on February 25, 1992, and continued on March 3, 1992.

By decision dated April 10, 1992, the hearing officer held that the CSE had deprived petitioners of their opportunity to fully participate in the development of the child's placement, by not discussing alternatives to the placement which the CSE ultimately recommended. The hearing officer also held that respondent had failed to meet its burden of proof with regard to the appropriateness of the recommended BOCES placement, because of the absence of information about the suitability of grouping with other children in the proposed placement (8 NYCRR 200.6 [a][3]), and the lack of specificity concerning mainstreaming opportunities for the child. The hearing officer directed the CSE to reconvene to prepare a new IEP for the child. With respect to petitioners' claim for tuition reimbursement, the hearing officer found that there was insufficient evidence in the record to demonstrate the appropriateness of the child's placement in a school in which there would be no opportunity for mainstreaming with non-handicapped peers, and denied petitioners' tuition claim.

At the outset of the hearing, the hearing officer disclosed to the parties that, as the Director of Pupil Services of the Pittsford Central School District, he had regular contact with respondent's Director of Pupil Services, who is also the chairperson of respondent's CSE. The hearing officer further disclosed that he had also had professional dealings with employees of the advocacy organization which represented petitioners at the hearing. In response to questions from petitioners' advocate, the hearing officer further disclosed that he had also had a professional relationship with a BOCES special education principal who was expected to be a witness at the hearing, in that the Pittsford district had placed children in the BOCES program administered by the principal. Petitioners' advocate requested that the hearing officer recuse himself from the hearing. The hearing officer denied the advocate's request.

Petitioners assert that the hearing officer erred in not recusing himself, in view of his employment as the Pittsford Director of Pupil Services and as the CSE chairperson of that school district. Petitioners characterize the hearing officer's relationships with the BOCES principal and with respondent's CSE chairperson as "direct ongoing business relationships". Petitioners assert that the hearing officer's familiarity with respondent school district and with the BOCES gave him a strong bias, which should not be ignored.

Federal and State regulations require that an individual conducting an impartial hearing have no 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]). State regulation also addresses the issue of a hearing officer's involvement with a BOCES:

"... An impartial hearing officer shall: (1) be independent, shall not be an officer, employee or agent of the school district or of the board of cooperative educational services of which such school district is a component, or an employee of the Education Department, shall not have a personal or professional interest which would conflict with his or her objectivity in the hearing, and shall not have participated in any manner in the formulation of the recommendation sought to be reviewed ..." (NYCRR 200.1 [p][1])

Neither Federal statute nor regulation expressly precludes employees of one school district from serving elsewhere as impartial hearing officers (Application of a Child with a Handicapping Condition, Appeal No. 91-46). The Commissioner of Education has held that State statute and regulation do not preclude an administrator of a school district from serving as an impartial hearing officer elsewhere (Application of a child with a Handicapping Condition, 29 Ed. Dept. Rep. 92; Application of a Child with a Handicapping Condition, 29 id. 138). However, the manner in which the hearing officer was selected in this case presents the appearance of impropriety. Exhibits 107 and 108 of the record reveal that the chairperson of respondent's CSE was involved in contacting prospective hearing officers, and recommended that respondent appoint the individual who served as the hearing officer in this case. The direct involvement of the CSE chairperson in the selection of a hearing officer, particularly in this instance where the chairperson not only testified, but also presented respondent's case to the hearing officer, reflects adversely on the system and presents at a minimum the appearance of impropriety (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 195). On these facts, I find that the hearing officer was required to recuse himself, upon petitioners' motion to do so.

I have also considered petitioners' assertion that the hearing officer exhibited bias in various evidentiary rulings which precluded petitioners from presenting their case. One of the hearing officer's rulings in question involved petitioners' attempt to have a witness employed by the BOCES speculate about the nature of the class in which the child might have been placed if the CSE had, in fact, provided the BOCES with adequate information about the child. The hearing officer also denied petitioners' request for the profiles of children in various BOCES classes in which the child might have been placed. However, the CSE did not make a specific recommendation for the child's placement. Information about classes or the children in such classes, when the CSE has not recommended a specific placement, is at best speculative. It was the CSE's responsibility to recommend a specific program from among the options set forth in (8 NYCRR 200.6) and to indicate the child's recommended placement (8 NYCRR 200.4 [a][2][iv] and [vii]). That responsibility cannot be delegated to a BOCES, which is a provider of services recommended by a CSE and approved by a board of education (Application of a Child with a Handicapping Condition, Appeal No. 92-3). In the absence of a specific recommendation by the CSE, the hearing officer correctly limited the inquiry into potential placements at the BOCES.

Petitioners also challenge the hearing officer's ruling concerning the admissibility of evidence about the child's performance at the Norman Howard School. The record reveals that when the hearing resumed on March 3, 1992, the hearing officer stated that he could not consider three exhibits because the information included in the exhibits was not available to the CSE when it made its recommendation on September 4, 1991. The exhibits to which the hearing officer referred are a class profile of the child's class at the Norman Howard School, a quarterly report on his academic performance at the Norman Howard School, and an invitation to an awards ceremony at the School. During the testimony of one the child's teachers at the Norman Howard School, the hearing officer sustained the objection by respondent's lay representative to any discussion by the teacher of the child's performance at the private school, on the ground that such information was not available to the CSE at its September 4, 1991 meeting. After petitioners' advocate explained the relevance of the teacher's testimony to petitioners' claim for tuition reimbursement, the hearing officer stated:

"I'll permit the examination and cross-examination of this witness and reserve my judgment in terms of whether or not any of the testimony will be considered in developing the decision subsequent to this hearing" (Transcript page 368).

The hearing officer did not reveal in his written decision whether he had, in fact, considered the three exhibits and the teacher's testimony in reaching his conclusion that petitioners were not entitled to tuition reimbursement. To the extent that the hearing officer failed to consider the exhibits and testimony about the child's performance at the Norman Howard School, he clearly erred. The primary purpose of the hearing was to determine whether petitioners were entitled to tuition reimbursement. A parent is entitled to tuition reimbursement, if the placement recommended by the CSE is inappropriate, the placement selected by the parent is appropriate and equitable considerations support the claim for reimbursement (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359; Matter of Northeast CSD v. Sobol et. al., 170 AD 2d 80; Application of a Child with a Handicapping Condition, Appeal No. 90-8). In most cases, evidence about the child's performance in a private school selected by the child's parents subsequent to a CSE's recommendation is of limited probative value with regard to the appropriateness of the CSE's recommendation (Matter of Application to Reopen the Appeal of a Handicapped Child, 22 Ed. Dept. Rep. 9). However, such evidence is obviously relevant to a determination of the second element of the Burlington criteria for tuition reimbursement, i.e. whether the placement selected by the parent is appropriate.

The record before me is adequate to afford a basis for reaching a conclusion about petitioners' request for tuition reimbursement. The hearing officer's finding that respondent had not met its burden of proof concerning the appropriateness of the CSE's recommendation is not challenged by petitioners, and in any event, is supported by the record. The CSE did not, in fact, recommend a specific program for the child. The testimony of the CSE chairperson and the BOCES representative revealed that the CSE had recommended a BOCES program prior to ascertaining whether the BOCES had an appropriate program for the child. In essence, the CSE expected the parents to agree to the concept of a BOCES program, after which the CSE would provide the BOCES with specific information about the child so that the BOCES could ascertain what, if any, program might be appropriate. The CSE chairperson erroneously believed that information about the child could not be shared with the BOCES without petitioners' consent (cf. Appeal of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 323). Remarkably, the record demonstrates that the CSE took no action to obtain petitioners' consent to release information about the child to the BOCES so that the CSE could have a basis in fact for recommending a BOCES program.

Having found that the CSE failed to establish that it had recommended an appropriate program, I now turn to the central issues in this appeal: whether the record establishes that the Norman Howard School was appropriate for the child and whether equitable considerations support petitioners' claim for tuition reimbursement. The hearing officer found that the private school was not appropriate because it was not the least restrictive environment for the child. Federal and State regulations require that, to the maximum extent appropriate, each child with a handicapping condition must be educated in the least restrictive environment (34 CFR 300.550 [b][1]; 8 NYCRR 200.6 [a][1]). The record reveals that the child has significant deficits in organization and attention, which are of long standing duration. After years of minimal educational progress, the child is in serious jeopardy of obtaining a high school diploma, despite the consensus of the parties that the child is intellectually capable of meeting the requirement for a diploma. As of August, 1991, the child had only five and one-half units of high school credit, exclusive of local credit given for physical education and resource room.

The record reveals that the child's program at the Norman Howard School for the 1991-92 school year was focused upon both content area and the use of study skills, note taking, organizational strategies, and techniques for improving memory and the recall of information. The testimony of the child's educational evaluator at the Genesee Hospital, the admissions director of the Norman Howard School and the child's history teacher and advisor at such school establishes that the program of the Norman Howard School was appropriate to meet the child's needs, and that he was appropriately grouped with children having similar needs. Although the opportunity for mainstreaming is an important consideration, it must be considered in the context of what is an appropriate educational program for the child (Opinion of U.S. Department of Education, 18 IDELR 213). In view of this child's need for intensive remediation of his organizational and attentional deficits so that he can benefit from instruction generally, I find that petitioners have established that the Norman Howard School was an appropriate placement for the child during the 1991-92 school year.

I further find that equitable considerations support the awarding of tuition reimbursement. Written comments in the child's file by his resource room teacher in March and May, 1990 reveal that respondent was failing to provide an effective program of remediation. The one period per day of resource room which respondent has provided for a number of years, and the CSE had initially proposed for the 1991-92 school year, did not address the child's needs, despite the best efforts of his teacher. When informed that respondent intended to provide the child with the same level of service in the 1991-92 school year, petitioners promptly requested a review by the CSE, which was not held until classes had begun in the new school year. There is nothing in the record to suggest that petitioners did not cooperate at all times with respondent. When advised of the CSE's September 4, 1991 recommendation, the child's mother visited a potential BOCES class for the child. Despite respondent's assertion that it required petitioners' consent to release information to BOCES, the child's mother testified that respondent had not requested her consent, even after the CSE recommended a BOCES program. Therefore, I find that the third criteria of the Burlington decision has also been met.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer, except for his finding that respondent failed to meet its burden of proving the appropriateness of the CSE's recommendation, be, and the same hereby is annulled, and;

IT IS FURTHER ORDERED that, upon the submission of proof by petitioners to respondent of the amount of tuition paid by petitioners to the Norman Howard School for the child's tuition from September, 1991 through June, 1992, respondent shall reimburse petitioners for such payment.