93-028

     Petitioners appeal from the decision of an impartial hearing officer which held that petitioners' child did not require a twelve-month educational program in 1992, and denied petitioners' request for reimbursement for the expenditures which they incurred in order to have the child participate in a day camp program during the Summer of 1992. The appeal must be dismissed.

        Petitioners' child was initially referred to the CSE in 1988, at which time the CSE recommended that the child not be classified. Petitioners and respondent were thereafter involved in a protracted dispute concerning the child's evaluation. Following three appeals to the Commissioner of Education (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 6; Application of a Child with a Handicapping Condition, 30 id. 211; Application of a Child Suspected of Having a Handicapping Condition, 30 id. 433) and one appeal to the State Review Officer (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-44), the child's evaluation was completed. On February 7, 1992, the CSE recommended that the child be classified as multiply handicapped (autistic and learning disabled). The child's classification is not disputed.

        The CSE further recommended that the child, who had been instructed at home by petitioners for almost two years, be enrolled for all subjects in a special education class with a 15:1 child to adult ratio in respondent's Violet Avenue School, and that she receive occupational therapy three times per week. In February, 1992, the child entered the special education class on a one-half day basis, and within one month began attending school on a full-time basis.

        On May 1, 1992, the child's occupational therapist reported that the child's upper limb coordination had improved, but her muscle activities were not always smoothly executed. The therapist also reported that the child's organization of written work had improved. The occupational therapist further reported that the child had adjusted nicely to school and the classroom environment, and recommended that the child's occupational therapy be decreased to two times per week during the 1992-93 school year.

        On June 3, 1992, the CSE conducted its annual review of the child and prepared the child's individualized education program (IEP) for the 1992-93 school year. At the CSE meeting, the child's mother asserted that the child needed a program during the summer to meet her social, emotional and management needs, and asked the CSE to recommend a twelve-month program for the child. The CSE chairperson testified at the hearing in this proceeding that the CSE considered the child's academic and non-academic needs as outlined on her IEP and questioned the child's teacher about the child's achievement and needs. The teacher, who did not testify at the hearing, advised the CSE that the child's reading and mathematics skills were at or above her grade level, and that the child had adjusted well to school and had become an active member of the class. The chairperson also testified that the CSE concluded that the child would not regress in any of the four areas of need outlined in the child's IEP (see 8 NYCRR 200.1 [ak]), if she did not have a program during the Summer of 1992.

        For the 1992-93 school year, the CSE recommended that the child remain in a 15:1 special education class on a ten-month basis, and that the child's progress be reviewed by mid-year to ascertain whether she should be mainstreamed for instruction. The CSE further recommended that the child receive occupational therapy twice per week and that the child's therapist consult with the child's teacher once per month. At petitioners' request, the CSE agreed to have the child examined by respondent's physiatrist to determine if the child required occupational therapy during the Summer of 1992.

        Prior to the physiatrist's examination of the child, petitioners enrolled the child in the Little People's Summer Workshop of Marist College (Workshop). At the hearing, the child's mother testified that one or more members of the CSE had suggested that petitioners enroll the child in the Workshop, which provided a crafts and recreational program for the child. No academic instruction was provided at the Workshop.

        On June 26, 1992, respondent's physiatrist examined the child, for the purpose of assessing her need, if any, for occupational therapy during July and August, 1992. The physiatrist reported that the child's handwriting and functional adaptability had improved, while the child continued to exhibit mild incoordination and motor planning processing delays. Noting that the child would be attending the Workshop, the physiatrist recommended that the child receive consultant occupational therapy services once every two weeks to assist in the development of her motor coordination and social skills and to preclude the loss of recently acquired skills. The record reveals that an occupational therapist employed by respondent provided consultant services, i.e., advice to the staff of the Workshop, on three occasions during the six-week Workshop program. The physiatrist also concurred with the CSE's recommendation that the child receive occupational therapy twice per week when school resumed in September, 1992, to facilitate the development of the child's writing skills and fine motor coordination.

        At petitioners' request, the CSE met on July 29, 1992, to discuss the child's IEP goals and objectives. The record does not reveal if any changes were made in the child's IEP. At the hearing, the parties offered conflicting accounts about whether the appropriateness of a summer program for the child was even discussed at the July 29 CSE meeting. Neither the child's teacher nor the physiatrist attended the meeting. Federal regulation requires that the child's teacher be a participant in any meeting in which the child's IEP is prepared, reviewed, or revised (34 CFR 300.344[a][2]). Therefore, the results of the July 29, 1992 meeting are a nullity (Application of a Child with a Disability, Appeal No. 93-11). However, the CSE recommendation which is under review was developed at the June 3, 1992 CSE meeting. I hold that the invalid composition of the CSE at the July 29 meeting does not provide a basis for annulling the CSE's June 3, 1992 recommendation.

        On September 8, 1992, petitioners requested that an impartial hearing be held to review the CSE's alleged failure to allow petitioners to meaningfully participate in planning the child's educational program and to provide the child with an appropriate educational program. They also sought to challenge the validity of the CSE meeting of July 29, 1992 on the ground that the child's teacher did not attend the meeting, as required by Federal and State regulations (34 CFR 300.344 [a][2]; 8 NYCRR 200.4 [c][3]).

        A hearing was held on November 24, 1992. In a written statement, the child's mother raised the issue of reimbursement for the expense of the child's attendance at the Workshop. The mother also questioned the manner in which the hearing officer had been appointed. The hearing officer adjourned the hearing to afford respondent an opportunity to present evidence concerning the hearing officer's appointment. The child's mother appealed from the hearing officer's interim ruling. In Application of a Child with a Handicapping Condition, Appeal No. 92-46, the mother's appeal was dismissed, and the matter was remanded to the hearing officer to expeditiously obtain additional evidence and decide whether he had been validly appointed. On January 20, 1993, the hearing resumed. Petitioners, who had moved to Rhode Island, did not attend the reconvened hearing. The hearing officer held that his appointment was improper because respondent could not establish how the hearing officer had been informed of his appointment. While agreeing with the hearing officer's conclusion the child's mother nevertheless appealed from the decision on the ground that the hearing officer had failed to grant her the relief she had sought in the hearing. The appeal was dismissed (Application of a Child with a Disability, Appeal No. 93-10). However, respondent was directed to appoint a hearing officer to consider petitioners' claims, including what, if any, relief would be warranted by respondent's failure to establish that it had validly appointed a hearing officer on a timely basis.

        The hearing which is the subject of this appeal was held on May 4, 1993. At the hearing, the child's mother requested that petitioners be reimbursed for the cost of the Workshop ($840) and for the cost of the child's transportation to the Workshop ($109.20). She also asserted a claim for $75 as a "finder's fee" for selecting the Workshop and a claim for her expenses in attending the hearing ($148.20), and sought attorney's fees.

        In a decision dated June 21, 1993, the hearing officer held that respondent had met its burden of proving the appropriateness the CSE's recommendation of a ten-month educational program, and that petitioners were not entitled to be reimbursed for their expenditures under the three-pronged test established in School Committee of the Town of Burlington v. Dept. of Education Massachusetts, 471 U.S. 359.

        Petitioners raise both procedural and substantive objections to the hearing officer's decision. They assert that the hearing officer failed to render a decision within 45 days after a request for a hearing was received as required by Federal and State regulations (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c][11]). In this instance, petitioners requested a hearing on September 8, 1992. However, the two intervening appeals necessarily delayed the completion of the hearing. In Application of a Child with a Handicapping Condition, Appeal No. 93-10, respondent was directed to appoint a hearing officer within 30 days after the date of that decision, which was rendered on March 29, 1993. The record reveals that the hearing officer in this matter was appointed on April 8, 1993, and the hearing was convened on May 4, 1993. In his decision, the hearing officer stated that his decision was delayed because the transcript mailed on May 21, 1993 by the hearing stenographer was not delivered, and that he did not acquire a copy of the transcript until June 4, 1993. The hearing officer's decision was rendered on June 21, 1993. Respondent has not explained why the hearing was not commenced until almost one month after the hearing officer was appointed, although respondent bears the responsibility of assuring that hearing officer decisions are rendered on a timely basis. Nevertheless, a failure to render a timely decision does not per se afford a basis for annulling a hearing officer's decision (Application of a Child with a Handicapping Condition, Appeal No. 92-32).

        Petitioners also assert that the hearing officer violated their right to preclude the introduction of evidence the substance of which had not been shared with them at least five days before the hearing (cf. 34 CFR 300.508 [a]; 8 NYCRR 200.5 [c][9]). The right to preclude such evidence may be waived. Upon the record before me, I find that petitioners waived their right with regard to respondent's exhibits 1 and 3. Respondent's exhibit 2, a letter written by the child's mother to an employee of the State Education Department, was admitted after the hearing officer stated that his only alternative to not admitting the exhibit was to adjourn the hearing for five days. The child's mother withdrew her objection and the exhibit was admitted into evidence. I have previously held that such comments by hearing officers are inappropriately inhibiting (Application of a Child with a Handicapping Condition, Appeal No. 92-43). Nevertheless, the exhibit had little, if any, relevance to the issues in the hearing. I find that the hearing officer's error is an insufficient basis for annulling the hearing officer's decision.

        Petitioners further assert that the hearing officer's decision is not supported by the record. Respondent bears the burden of establishing the appropriateness of the ten-month program recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-15). To meet its burden, respondent must demonstrate that the recommended program is consistent with its obligation to provide the child with a free appropriate public education, i.e., that the program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176). Whether a child with a disability requires a twelve-month program in order to obtain a free appropriate public education depends upon the nature and extent of the child's disability.

        Section 4402 (2)(a) of the New York State Education Law requires boards of education to furnish suitable educational opportunities for children with disabilities. The statute provides that special education and related services may be provided during the months of July and August, " ... with respect to students whose handicapping conditions are severe enough to exhibit the need for a structured learning environment of twelve-month duration to maintain developmental levels ... " The U.S. Department of Education has opined that a rule limiting eligibility to children who require a structured learning environment is inconsistent with the requirements of the Federal statute that the individual needs of the child be considered (17 EHLR 419). State regulations were subsequently amended to require CSEs to consider the eligibility of children for twelve-month programs and services "in accordance with their need to prevent substantial regression," in addition to considering the programs such children are in during the ten-month school year (8 NYCRR 200.6 [j]; Appeal of a Child with a Handicapping Condition, 31 Ed. Dept. Rep. 17). The term "substantial regression" is defined by State regulation to mean:

" .. a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year." (8 NYCRR 200.1 [an])

        The regression/recoupment standard set forth in State regulation reflects the standard which the Federal Courts have adopted (Cordrey v. Euckert, 917 F^2d 1460 [6th Cir., 1990]; Alamo Heights Indep. Sch. Dist. v. State Bd. of Ed. et. al., 790 F^2d 1153 [5th Cir., 1986]; Johnson v. Indep. Sch. Dist. No. 4, 921 F^2d 1022 [10th Cir., 1990], cert. den. --U.S.--, 114 L.Ed. ^2d 79). It does not require that children with disabilities actually experience regression in their skills before they can become eligible for summer programs and services. However, there must be a reasonable basis for concluding that regression would occur without the provision of summer programs or services.

        In this instance, petitioners do not contend that the child requires a twelve-month program to maintain her academic skills. They assert that the child's social-emotional, management and physical needs impair her ability to learn and that such needs require that she be provided with a twelve month program. They further assert that the crafts and athletic activities of the workshop provided the child with an opportunity to improve her coordination and motor planning skills, as well as her social skills, and that the hearing officer ignored the recommendation by a neuropsychologist that the child receive a twelve-month program.

        The child's special education needs: academic, social, management and physical, are set forth in the child's IEP for the 1992-93 school year. The record also includes proposed IEP goals prepared by the child's mother which reveal the extent of the child's skills and needs. The child's actual IEP and petitioners' proposed IEP goals do not provide a basis for concluding that the child has either unusual or severe social and management needs. Indeed, the CSE chairperson's testimony concerning the child's academic performance and social behavior in the 15:1 special education class is not refuted in the record. The child's academic and social success in a class which she did join until well after the school year had begun reasonably suggests that she will be able to rapidly recoup skills not practiced during July and August. The CSE chairperson testified that the child's special education teacher during the 1991-92 school year had opined to the CSE that the child would not regress if she were not enrolled in a program during the summer. The CSE chairperson also testified that the CSE had considered the possibility of regression by the child not only in her academic skills, but also with regard to her social and emotional needs.

        Petitioners rely upon the June 26, 1992 report by respondent's physiatrist and a December 10, 1990 report by a neuropsychologist as evidence of the child's need for a twelve-month program. However, the physiatrist's report addresses the child's occupational therapy needs, and does not recommend that the child attend the workshop. Rather, it notes that the child would be attending the workshop and recommends that consultant occupational therapy services be provided. The neuropsychologist's report is not included in the record. Instead, the hearing officer read into the record a portion of one paragraph of the report. The quoted portion of the report opined that the child was a slow learner, and that "...it may be important for [the child] to receive a twelve-month educational program." In view of the child's subsequent success in school, I do not find the 1990 report to be persuasive.

        Upon the record before me, I find that the CSE's recommendation that the child receive a ten-month, rather than a twelve-month program was appropriate to meet the needs of the child. Consequently, petitioners are not entitled to be reimbursed for their expenditures.

        I have considered petitioners' other arguments, and find them to be without merit.

THE APPEAL IS DISMISSED.