94-031

Petitioner's son, who is 20 years old, was classified as learning disabled for most of the time he attended respondent's schools. In a neurological evaluation performed in November, 1991, the child exhibited soft signs of a neurological impairment. By agreement of the parties, an independent evaluation of the child's reading skills was conducted by an educational consultant in June, 1992, when the child completed the eleventh grade. The consultant found that the child's word recognition skills were at a beginning fourth grade level. His spelling skills were found to be at the late fifth grade level. The consultant opined that the child had profound difficulty with his speech/language organization skills. Unlike a dyslexic child, this child's ability to code and decode words was reportedly superior to his ability to comprehend language. The consultant further opined that the child's problem with reading comprehension was unlikely to improve significantly with any academic intervention. At the child's annual review, which was held on April 2, 1992, the CSE recommended that the child's classification be changed from learning disabled to multiply disabled/learning disabled. Although the record does not reveal a basis for the change in the child's classification, his classification is not in dispute. Therefore, I do not reach the issue of the child's classification (Hillerv. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]).

Prior to the 1990-91 school year, the child had been in a self-contained special education class for most of the time he was in respondent's schools. The child's individualized education program for the 1990-91 school year, when the child was in the tenth grade, provided that the child would receive special education instruction for various academic subjects, and regular education instruction for other subjects. In February, 1991, resource room services for reading and speech/language therapy were added to the child's IEP.

Petitioner became involved in a dispute with the CSE about the adequacy of the child's evaluations. At her request, an impartial hearing commenced in December, 1990, but adjourned because the parties reached an agreement concerning additional evaluations for the child. The hearing was reconvened periodically over an eighteen month period. For the 1991-92 school year, when petitioner's son was in the eleventh grade, the parties agreed that the child would be enrolled in regular education classes for English and social studies, two subjects in which he had previously been instructed in special education classes. The parties further agreed that the child would continue to receive resource room and speech/language therapy during the 1991-92 school year. They subsequently agreed in April, 1992, to have an independent consultant review the adequacy and appropriateness of the reading instruction provided to the child by respondent, in yet another effort to end the impartial hearing which had been commenced in December, 1990. Finally, on July 21, 1992, the hearing officer rendered his decision, in which he held that respondent had provided the child with appropriate instruction in reading, based upon the opinions which the independent consultant had expressed.

Petitioner appealed from the hearing officer's decision. In Application of a Child with a Handicapping Condition, Appeal No. 92-35, dated October 7, 1992, the State Review Officer affirmed the hearing officer's decision with regard to the child's reading program, but held that the hearing officer had erred by not addressing petitioner's request for an order directing respondent to pay for certain independent evaluations. Respondent was ordered to pay for independent neuropsychological and speech/language evaluations of the child, and to reimburse petitioner for the cost of a neurological evaluation. Respondent initiated a Federal Court action to review the decision in Appeal No. 92-35. Although respondent's motion for summary judgment has been denied (Hyde Park CSD v. Peter C., by his Mother, Sharon C. and State Review Officer, 93 Civ. 0250 [S.D.N.Y., 1993]), the Court proceeding has not been concluded. As a result of the "pendency", provisions of Federal and State law (20 USC 1415 [e][3]; Section 4404 [4] of the Education Law), the independent evaluations have not been performed.

The issues in the appeal arise from the CSE's annual review of the child's progress during the 1991-92 school year and its recommendation for his educational program during the 1992-93 school year. Although scheduled to take place on March 27, 1992, the annual review was postponed until April 2, 1992, because of the unavailability of the parent member of the CSE on the former date. On April 2, 1992, petitioner and her advocate met with the CSE, which reviewed the results of various evaluations. The child's resource room teacher disclosed that the child's reading comprehension skills had improved. The child's speech therapist did not attend the meeting, and had not completed an updated report of the child's progress. However, she had reportedly orally advised a member of the CSE about the child's progress. The CSE agreed that the child should receive an occupational therapy evaluation, and an updated speech/language evaluation which was to include an auditory processing evaluation. The CSE recommended that the child's classification be changed to multiply disabled/learning disabled, and that he continue to receive resource room services and speech/language therapy during the 1992-93 school year. The child's IEP provided that he would receive one period per day of resource room services, with additional periods of resource room to be scheduled "opposite" physical education, i.e., on the days when he did not have physical education. The child was to receive one hour of speech/language therapy twice per week. The record reveals that such therapy was provided in the child's home by a licensed speech pathologist employed by an agency with which respondent contracted. Respondent approved the CSE's recommendation on May 14, 1992.

An occupational therapy evaluation of the child was conducted on May 17, 1992. The evaluator reported that the child's fine motor, visual perceptual and visual motor skills were within normal limits, and opined that occupational therapy need not be provided to the child. He noted that the child appeared to retain more information when presented both visually and auditorily, and recommended that the child's teacher use varying stimuli when presenting information to the child. On May 7, 1993, respondent's consulting physiatrist, a physician specializing in skeletal and muscular disorders, opined in writing that the child's motoric functions did not limit him educationally.

At the April 2, 1992 CSE meeting, petitioner requested that the child be provided with speech/language therapy during the Summer of 1992. The CSE minutes reveal that the CSE deferred action on petitioner's request, and that the child's speech/language therapist was to attend the next CSE meeting and discuss the child's need, if any, for speech/language therapy during the Summer of 1992. The child's speech/language therapist completed her evaluation on May 7, 1992. She reported that the child had demonstrated significant growth, in his receptive and expressive language skills, since his previous evaluation in January, 1991. Nevertheless, the child's performance was reported to be well below age norms, and the therapist recommended that the child continue to receive speech/language therapy twice per week to increase his receptive and expressive skills. Although the CSE chairperson testified that the therapist had been asked to address the issue of services during the Summer of 1992, the therapist testified that she had not been asked to address that issue, and her report did not deal with the issue of summer services. The CSE chairperson testified at the hearing in this proceeding that the CSE did not receive the updated speech/language evaluation until June 2, 1992. By letter to petitioner, dated June 23, 1992, the CSE chairperson sent a copy of the updated evaluation, with the comment that if petitioner wished to meet with the CSE to discuss the evaluation she should make a written request for a meeting.

A CSE meeting was scheduled to be held on July 23, 1992, but was canceled because the child's resource room teacher would not have attended the meeting. However, the child's speech/language therapist testified that she would have attended the meeting. The next CSE meeting was scheduled to be held on September 1, 1992. Neither the resource room teacher nor the speech therapist attended the meeting, which was adjourned at petitioner's request. Petitioner and the CSE were reportedly precluded from meeting thereafter because petitioner's advocate was physically unable to attend a CSE meeting as a result of illness and respondent lacked the facilities to conduct such a meeting by telephone conference call.

The CSE did not meet with petitioner until June 2, 1993, at which time the CSE reviewed the child's progress during the 1992-93 school year. His speech therapist, who attended the meeting, reported that the child had continued to make significant progress, and that his total language skills approximated those of a 16 year old child, i.e., approximately two years below his actual age. Petitioner requested that the CSE recommend that the child be provided with speech/language therapy after graduation. However, the CSE did not recommend that the child's IEP for the 1992-93 school year be changed, and did not prepare an IEP for the ensuing school year because the child was scheduled to graduate from high school in June, 1993. The record reveals that petitioner's son had passed each of the Regents Competency Tests required for a regular education high school diploma (8 NYCRR 100.5 [a]), and that he received the requisite number of course credits to obtain a regular high school diploma. He graduated from high school with a regular diploma on June 26, 1993.

By letter dated April 22, 1993, petitioner requested that an impartial hearing be scheduled, but did not specify the subject of the requested hearing. In response to a request by respondent's attorney for more information, petitioner commenced an appeal to the Commissioner of Education pursuant to Section 310 of the Education Law, in which she asserted that she was not required to identify the reasons for her request that a hearing be held. However, the Commissioner disagreed, finding that respondent's request was entirely reasonable, given the fact that the parties had concluded a hearing approximately one week before petitioner's request (Appeal of a Student with a Disability, 33 Ed. Dept. Rep. 31).

When the hearing in this proceeding began on June 1, 1993, petitioner's advocate asserted that the hearing had been requested because the child's IEP for the 1992-93 school year had never been completed. The advocate briefly identified 36 portions of State regulation and seven portions of Federal regulation which respondent's action and/or inaction allegedly contravened. At the request of the hearing officer, the parties subsequently clarified the issues to be determined. Petitioner asserted that she had been denied an opportunity to meaningfully participate in the preparation of the child's IEP on April 2, 1992, and that the CSE had failed to complete such IEP. She further asserted that the CSE had failed to act in a timely manner upon her request for services during the Summer of 1992. In addition, petitioner asserted that the child's IEP did not provide him with an appropriate program to address his deficits in reading comprehension and vocabulary. Petitioner claimed that the child had not completed the requirements for graduation from high school, and asserted that the Regents Competency Test had been improperly administered to him. Although conceding that the child wanted to graduate with his peers in June, 1993, petitioner asserted that the CSE had not provided the child with an appropriate notice detailing the consequences of receiving a high school diploma. She sought an order compelling respondent to provide her son with compensatory education.

The hearing continued for a total of 16 days over a 13 month period. It was concluded on August 5, 1994. The hearing officer rendered his decision on August 15, 1994. In his decision, the hearing officer rejected petitioner's assertion that the IEP prepared for the child on April 2, 1992 was incomplete, notwithstanding the CSE's intention to obtain further evaluations of the child. However, the hearing officer found that the CSE should have obtained updated reports on the child's reading and speech/language needs, and shared those reports with petitioner, prior to the April 2, 1992 meeting. The hearing officer further found that the CSE had failed to hold a timely meeting to discuss the results of the evaluations which it obtained after the annual review. Specifically, he found that the advocate's illness should not have precluded the CSE from holding a follow-up meeting to the April 2, 1992 annual review meeting. Substantively, the hearing officer found that respondent had provided the child with an appropriate instructional program during the 1992-93 school year. The hearing officer held that the child's graduation from high school had rendered moot the issue of respondent's procedural violations.

Petitioner challenges the hearing officer's impartiality, on the grounds that the hearing officer had a conflict of interest because he was the Director of Pupil Personnel Services and the CSE chairperson of the Monticello Central School District, and that respondent failed to disclose the procedure by which the hearing officer had been appointed.

In relevant part, State regulation provides that an impartial hearing officer shall:

" ... 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 ... " (8 NYCRR 200.1 [s][1]).

Petitioner contends that the hearing officer had a conflict of interest because any ruling he might have made in this proceeding could have a great impact upon the Monticello Central School District in which he is employed. However, she has not provided any factual basis for her contention. A hearing officer's concurrent employment by another school district would not per se afford a basis for finding that he lacked the requisite impartiality for service as a hearing officer (Application of a Child with a Handicapping Condition, Appeal 91-46; Application of a Child with a Handicapping Condition, Appeal No. 91-47; Application of a Child with a Disability, Appeal No. 94-6). In July, 1993, approximately one month after the hearing officer in this proceeding was appointed, Section 4404 (1) of the Education Law was amended to require the Commissioner of Education to implement a plan by no later than July 1, 1996 to ensure that individuals employed by school districts, schools or programs serving children with disabilities not serve as hearing officers until at least two years after they terminate such employment. To date, there is no such plan. Absent any evidence of actual bias on the part of the hearing officer, I find that the hearing officer properly declined to recuse himself from this proceeding.

In order to avoid even the appearance of impropriety, school district employees who may be called as witnesses or who were otherwise involved in the matters to be reviewed by a hearing officer may not be involved in the hearing officer's selection (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 195; Application of a Child with a Handicapping Condition, Appeal No. 92-25; Application of a Child with a Handicapping Condition, Appeal No. 92-46). Respondent's superintendent of schools and a member of the board of education testified at the hearing in this proceeding about the manner in which the hearing officer had been appointed. The hearing officer asserted on the record that he had been contacted by respondent's district clerk about serving as the hearing officer, and he was subsequently notified of his appointment by respondent. Upon the record before me, I find that there is no merit to petitioner's assertion that respondent failed to provide information about the hearing officer's appointment, and I further find that there is no evidence of any impropriety in the hearing officer's appointment.

Petitioner also asserts that the hearing officer's rulings upon the evidence and other matters in the hearing demonstrated that the hearing officer was in fact biased. I find that her assertion that the hearing officer should not have adjourned the hearing on June 1, 1993 until a date after the child had graduated from high school is without merit. The hearing officer agreed to adjourn the hearing to afford the parties an opportunity to disclose their evidence five days in advance of the hearing (8 NYCRR 200.5 [c][9]). An adjournment for this purpose was required by petitioner's ill-advised tactic of not disclosing in advance the subject of the hearing. Prior to adjourning the matter, the hearing officer had been advised by respondent's attorney that the latter would consult with the superintendent of schools about the child's acceptance of a diploma not being deemed to be a waiver of his right to obtain compensatory education. Although respondent's attorney advised the hearing officer on the following day that respondent appeared to be taking a different position than had been expressed by the attorney, it does not follow that the hearing officer acted in bad faith in granting the adjournment, or that any right of petitioner has been impaired as a result of the adjournment.

Petitioner contends that the hearing officer displayed a lack of impartiality by refusing to allow petitioner to introduce certain documents into evidence, and by admonishing her advocate "to move on" at certain points during the hearing and limiting the advocate's attempts to discuss events which had occurred prior to the April 2, 1992 CSE meeting. However, I find that the hearing transcript of more than 1400 pages reveals that the hearing officer treated the parties fairly in ruling upon evidentiary matters, and afforded the parties a full opportunity to present their respective positions on the relevant issues. Although I agree with the petitioner that her Exhibit 41 should not have been excluded from the record for the reason given by the hearing officer, his ruling does not afford a basis for concluding that the hearing officer was biased. I have considered petitioner's Exhibit 41 in rendering this decision. On occasion, the hearing officer advised the advocate that an issue in which she was attempting to pursue had already been fully addressed. I find that the hearing officer correctly limited the scope of the hearing to procedural and substantive issues involved with the child's educational program during the 1992-93 school year. Petitioner previously litigated the appropriateness of the child's educational program during the 1991-92 school year in Application of a Child with a Handicapping Condition, Appeal No. 92-35, and may not relitigate that issue in this proceeding. Petitioner also challenges the manner in which the hearing officer issued two subpoenas at her request. However, the record reveals no basis for concluding that the hearing officer acted improperly. Accordingly, I find that there is no evidence in the record to support petitioner's assertion that the hearing officer was biased.

Petitioner seeks an order requiring respondent to provide her son with remedial reading, writing and mathematics instruction, and speech/language therapy and auditory processing remediation, until the child has appropriate skills "for entrance into a community college." The initial question to be determined is what effect does her son's receipt of a regular high school diploma have upon petitioner's claim for additional services. The Federal Individuals with Disabilities Education Act (20 USC 1400 et seq) affords children with disabilities between the ages of 3 and 21 the right to receive a free appropriate public education, provided that such children between the ages of 18 and 21 are not entitled to receive such services if State law does not require that school districts provide tuition-free instruction to non-disabled children in that age group. Section 3202 (1) of the New York State Education Law provides that a person over 5 and under 21 years of age who has not received a high school diploma is entitled to attend the schools of the district in which the person resides. Therefore, the receipt of a high school diploma normally terminates the right of a child with a disability to receive a free appropriate public education under New York law (Matter of Handicapped Child, 20 Ed. Dept. Rep. 368; Matter of Handicapped Child, 20 id. 562), and under Federal Law (Gorski v. Lynchburg School Board, 875 F. 2d 315 [4th Cir., 1989, unpublished opinion, see EHLR 441:414]).

Petitioner seeks compensatory educational services as a remedy for what she argues were procedural and substantive errors by respondent while providing an education to her child. The courts have concluded that compensatory education, i.e., special education services to be provided to a child after the child is no longer eligible because of his or her age to receive such services, is a permissible remedy under the Individuals with Disabilities Education Act, when a child has been excluded from school or denied appropriate services for an extended period time (Burr by Burr v. Ambach, 863 F. 2d 1071 [2nd Cir., 1988]; Mrs. C. v. Wheaton, 916 F. 2nd 69 [2nd Cir., 1990]); Lester H. v. Gilhool, 916 F. 2nd 865 [3rd Cir., 1990]; Miener v. State of Missouri, 800 F. 2nd 749 [8th Cir., 1986]). Compensatory education, like tuition reimbursement, is an equitable remedy for the failure of a school district to provide that which it was obligated, but failed, to provide (Miener v. State of Missouri, supra). Therefore, I find that this child's graduation on June 26, 1993 did not foreclose petitioner from maintaining this proceeding for compensatory education services.

In determining whether petitioner's child was denied a free appropriate public education by respondent, I have considered petitioner's claim of alleged procedural violations by the CSE, as well as the appropriateness of the program which the child received. With regard to petitioner's claim that she was denied an opportunity for meaningful participation in the development of the child's IEP at the April 2, 1992 CSE meeting, I find that the record does not support her claim. The testimony of petitioner and the CSE chairperson at the hearing revealed that petitioner and her advocate discussed various provisions of the child's IEP with the CSE, including the need for the additional evaluations sought by petitioner and mentioned in the child's IEP. A CSE must afford the parents a meaningful opportunity to interact with the CSE but it is not obligated to accede to the parent's wishes with respect to each provision of an IEP (Application of a Child with a Disability, Appeal No. 93-41). I find that petitioner had meaningful opportunity to participate.

Petitioner challenges the appropriateness of the program provided by respondent on the ground that the IEP which was prepared on April 2, 1992 was incomplete. She asserts that the CSE failed to complete the child's IEP. I disagree with petitioner's assertion. The IEP, as drafted at the April 2, 1992 meeting, explicitly detailed the services to be provided to the child during the 1992-93 school year. Although the CSE agreed to petitioner's request for additional evaluations, it does not follow that the IEP was incomplete. An IEP may always be amended at a later date to reflect changed conditions, such as new evaluation data, new services, or additional goals and objectives. In this instance, a speech/language evaluation and an occupational therapy evaluation were completed after the April 2, 1992 CSE meeting. However, the speech/language evaluator recommended that the child receive the same level of services which the child's IEP provided, and the occupational therapist recommended that the child receive no services.

Federal and State regulations require that a child's IEP be reviewed, and if appropriate, revised periodically, but not less than annually (34 CFR 300.343 [d]; 8 NYCRR 200.4 [e]). In this instance, the CSE clearly indicated at its April 2, 1992 meeting that it would meet with petitioner to discuss the results of the evaluations which the CSE had agreed to obtain. Attempts to convene subsequent meetings on July 23, 1992 and September 1, 1992 were stymied by the unavailability of certain individuals to attend the meetings. Respondent had the responsibility to ensure that the required members of the CSE, such as the child's teacher, were in attendance. However, petitioner's insistence that the individuals who evaluated her child must attend the CSE meetings is without legal foundation. Federal regulation requires that a member of the evaluation team, or a representative of the school district who is knowledgeable about the evaluation procedures used and is familiar with the results of the evaluation, must attend the CSE meeting for a child who has been evaluated for the first time (34 CFR 300.343 [b]). However, neither Federal nor State regulation requires the presence of such individuals at subsequent CSE meeting. Although respondent may be technically correct in asserting that neither Federal nor State regulation required it to make an accommodation for petitioner's advocate by providing for a CSE meeting to be conducted by teleconference after the advocate's illness, I find that its failure to do so was unreasonable. Nevertheless, I am unable to find upon the facts before me that respondent's actions in the scheduling of CSE meetings denied the child a free appropriate public education.

With regard to petitioner's request to the CSE that her son receive speech/language services during the Summer of 1992, I find that the CSE failed to act in a timely or responsible fashion. Although the CSE reportedly deferred acting upon petitioner's request so that it could obtain a recommendation from the child's speech/language therapist, there is substantial reason to believe that the therapist was in fact never asked for an opinion on this matter. In any event, I find that the CSE should have promptly arranged a meeting with petitioner to discuss the results of the updated speech/language evaluation which the CSE had received. Nevertheless, I must note that the child would not have been eligible for speech/language services during July and August of 1992, unless he required such services to prevent a substantial regression in his speech/language skills (8 NYCRR 200.1 [qq]). At the hearing in this proceeding, the child's speech/language therapist for both the 1991-1992 and the 1992-93 school years testified that the child's speech/language skills had not regressed during the Summer of 1992. Since the child would have been ineligible for services, I will not require respondent to provide compensatory speech/language services as a remedy for the CSE's failure to act promptly upon petitioner's request.

Petitioner does not specifically challenge the contents of the child's IEP for the 1992-93 school year. At the hearing in this proceeding, she testified that the provision of resource room services to her child was not an issue in this proceeding. Nevertheless, her advocate extensively questioned respondent's staff about the nature of the services received by the child to improve his reading skills. The record reveals that respondent's resource room teacher provided individual instruction to improve the child's reading comprehension and vocabulary skills. Although the resource room teacher testified that the child could independently read a "good part of" his twelfth grade United States history book, the child's reading skills had been found to be at a fourth grade level in April of 1992. The record does not include standardized reading test results during the 1992-93 school year. On May 19, 1994, approximately one year after he graduated, the child was tested at a BOCES which reported that the child's independent reading skills had improved to the mid-fifth grade level.

The child received resource room services to supplement the instruction which he received in his regular education courses. The resource room services included not only instruction in reading but development of his organizational skills and assistance to him in meeting the requirements of his regular education courses. Although some of his regular education courses proved to be difficult for him, the child nevertheless passed all of his courses during the 1992-93 school year. The child testified that he had sought and received appropriate assistance from the resource room teacher and her teaching assistant. The record also demonstrates that the child achieved significant growth in his speech/language skills as a result of the speech/language therapy provided to him during the 1992-93 school year by respondent. In view of the fact that the child's special education services were provided to enable him to succeed in his regular education program and to achieve a regular high school diploma, I find that the child's successful completion of his twelfth grade courses and receipt of a high school diploma demonstrates that he was not denied a free appropriate public education.

Petitioner's claim for additional services appears to be premised, in part, upon her belief that her child should have attained particular levels of skill before becoming eligible to receive a regular education high school diploma. She does not dispute that the child obtained a sufficient number of high school credits to become eligible to receive a local diploma (8 NYCRR 100.5). At the hearing, she attempted to challenge the validity of the scores which the child obtained on Regents Competency Tests, which are also required for high school graduation. Her challenge was based upon the fact that all or portions of the tests were read to the child. However, the State Test Manuals included in the record reveal that the Regents Competency Tests may be read to children with disabilities whose IEPs expressly provide that they may have tests read to them, as was the case for petitioner's son. In any event, petitioner's concerns about the academic standards required by the State of New York for receipt of a regular high school diploma are not matters that either the hearing officer or I could address in a proceeding of this nature, which must be limited to the program and services provided by respondent.

With regard to petitioner's assertion that the CSE failed to provide her with adequate information about the consequences of the child's receipt of a high school diploma, I find that the record does not include any written evidence of such notice, which should have been included with the notice of the CSE's recommendation from its June 2, 1993 meeting. However, my review of the minutes of the CSE meeting of June 2, 1993, the testimony of the CSE chairperson, and the transcript of the initial day of the hearing in this proceeding on June 1, 1993 leads me to find that petitioner had actual notice of the fact that the child would not be eligible for educational services from respondent after he received his high school diploma.

THE APPEAL IS DISMISSED.