94-032

One procedural issue must be addressed before reaching the substantive issues of the appeal. Petitioner asks me to consider 16 documents which are annexed to her petition as exhibits, but which were not part of the record before the hearing officer. Respondent objects to the inclusion of the 16 documents in the record of this appeal. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 93-22; Application of a Child with a Disability, Appeal No. 94-5). Although petitioner is not represented by an attorney in this appeal she was represented by an attorney at the hearing in this proceeding. Thirteen of the sixteen documents which petitioner wishes to have considered could have been introduced at the hearing, but were not. Three of the thirteen documents, Exhibits 4, 11, and 14, I will accept, because the record would be incomplete without them. Exhibit 11 to the petition is a page from the child's individualized education program (IEP) for the 1990-91 school year which reflects certain standardized test results which were discussed at the hearing and which the hearing officer asked respondent to provide from its records. Exhibit 14 to the petition is a brief written statement of the child's condition prepared by the child's psychiatrist about which the parties stipulated at the hearing. Exhibit 4 is a brief written statement by the child's physician about the care he provided to her for treatment of her hypertension, which medical condition was also discussed at the hearing.

Three of the sixteen documents (Exhibits 5, 6 and 13) were prepared after the hearing. Exhibits 5 and 6 are, respectively, letters by petitioner's former attorney and by a consultant who testified at the hearing. The attorney and the consultant expressed their belief that the hearing officer's rulings and comments during the hearing were prejudicial to petitioner's case. However, the hearing officer's comments and rulings are recorded in the hearing transcript which is part of the record before me. Although the attorney alludes to off-the-record remarks which the hearing officer is alleged to have made, I find that the attorney's assertions, which were not made under oath or affirmation, cannot be considered as evidence in this appeal. The third document is a description of the child by an administrator of the private school which the child attends. The administrator testified at the hearing. I find that the document is not required to make the record complete. Therefore, I will not accept Exhibit 5, 6, or 13.

Petitioner's daughter is 20 years old, and will become ineligible because of her age to receive educational services after the 1994-95 school year. She initially was classified as physically handicapped in 1978, when she was enrolled in respondent's pre-school home tutoring program. During the 1980-81 school year, the child's classification was changed to physically handicapped/neurologically impaired, and was again changed to learning disabled in 1982. In 1990, the child's classification was changed to other health impaired. She is presently classified as multiply disabled, which is not in dispute. The record reveals that the child's cognitive skills are within the mildly retarded range. She has mild Cerebral Palsy, which has affected her motor planning skills and her speech articulation. Respondent has provided the child with speech/language therapy, physical therapy and occupational therapy. The child also has scoliosis, for which she must wear a back brace. Petitioner's daughter has been under the care of a psychiatrist for treatment of an obsessive compulsive disorder, separation anxiety, and functional, nocturnal enuresis. She reportedly learns well using various modalities.

The child reportedly did not speak until she was six or seven years old. When she became eligible to attend kindergarten in September, 1979, she was placed in a Board of Cooperative Educational Services (BOCES) special education class for hearing impaired children, where she reportedly received instruction in the use of sign language. In 1980, the child was placed by respondent in the Bishop Dunn School, a private school which is approved by the State Education Department as a school for children with disabilities. She remained in the Bishop Dunn School through the 1987-88 school year. The child returned to respondent's schools for the next two school years, during which she was placed in a self-contained special education class in respondent's middle school.

During the 1990-91 and 1991-92 school years, the child was educated in a self contained special education class in respondent's South Campus High School. The child, who was 17 years old when the 1991-92 school year began, received a vocational evaluation at the BOCES in October, 1991. In her evaluation, the child expressed an interest in having a career in the areas of child care or recreation. She demonstrated relative strength in the aptitude areas of general learning, verbal skills, form perception and color perception and relative weakness in the aptitude areas involving dexterity and motor coordination. The child's IEP for the 1991-92 school year included exploratory vocational and career goals, which were apparently to be pursued within her self-contained special education class. The record reveals that the child was enrolled in a regular education English class during the 1991-92 school year. Her special education teacher for that school year testified at the hearing that she taught the child various life skills, including making grocery lists, shopping in a supermarket, budgeting, writing checks and bank deposit slips, filling out job applications and interviewing techniques.

The child's triennial evaluation was completed in May, 1992. She obtained a verbal IQ score of 76, a performance IQ score of 62, and a full scale IQ score of 69. In academic testing completed in January, 1992, the child had achieved grade equivalent scores of 5.0 in reading recognition, 2.8 in reading comprehension, 3.9 in spelling, and 2.2 in mathematics.

For the 1992-93 school year, respondent's CSE recommended that the child be instructed in a self-contained special education class with a 12:1+1 child/adult ratio in respondent's North Campus High School, and that she also receive special occupational education to be provided by the BOCES. The child's special education teacher for the 1991-92 school year testified that when the child's annual review to plan her program for the 1992-93 school year was held it was decided that the child would begin an adaptive child care course at the BOCES in the afternoon and attend the special education class in the North Campus High School in the morning. However, her IEP did not set forth any annual goal for the child care course. The CSE also recommended that the child receive small group and individual speech/language therapy, physical therapy, and occupational therapy. The child was to continue working toward achieving a local certificate (8 NYCRR 100.6), rather than a Regents or local high school diploma.

During the Summer of 1992, petitioner enrolled her daughter in a summer program of the Maplebrook School, a private school located in Amenia, New York. At the hearing in this proceeding, petitioner testified that she had enrolled the child in the private school because she was concerned about the child's academic progress and the effect which a classmate's behavior had upon her daughter during the 1991-92 school year. Petitioner decided to maintain the child's placement as a day student in the Maplebrook School for the 1992-93 school year, although there is no evidence in the record that the child's former classmate attended the North Campus High School which the CSE had recommended for petitioner's child. In any event, petitioner did not challenge the CSE's recommendation that the child be educated in respondent's North Campus High School, or seek tuition reimbursement for the 1992-93 school year. Respondent provided transportation for the child.

On March 3, 1993, the CSE met with petitioner to prepare the child's IEP for the 1993-94 school year. The CSE recommended that the child be placed in a 12:1+1 special education class in the North Campus High School, with small group speech/language therapy once per week, individual speech/language therapy once per week, physical therapy twice per week and occupational therapy three times per year. The recommended occupational therapy service was intended to be a consultation by a therapist to ensure that the child's fine motor skills did not regress. The IEP indicated the extent of the child's participation in regular education programs with the notation "As per schedule". However no schedule was attached to the IEP which is in the record (cf. 8 NYCRR 200.4 [c][2][iv]). At the hearing in this proceeding, the teacher of the recommended special education class testified that the details of the child's schedule, including her participation in regular education courses, would have been completed during the Summer of 1993 after the teacher had consulted with the high school guidance department. She further testified that the child might have been scheduled to take a regular education course in child development. However, petitioner testified that the proposed course had not been discussed with her. In any event, a CSE cannot delegate its responsibility to determine the subjects for which a child requires special education, and by implication the subjects for which the child should receive regular education instruction (Application of a Child with a Disability, Appeal No. 94-29).

The child's IEP for the 1993-94 school year did not expressly provide for a program of vocational education, although it included the same vocational/career annual goals as had appeared on her IEP for the 1992-93 school year. At the hearing in this proceeding, petitioner acknowledged that the CSE had intended to recommend that the child's educational program include one half-day of academic instruction and one-half day of vocational instruction or work-related experience. However, petitioner had requested that the child's vocational training be deferred so that her educational program could focus upon the development of life skills. The CSE apparently acquiesced with petitioner's request.

Petitioner did not challenge the CSE's recommendation of March 3, 1993. However, she enrolled the child in the Maplebrook School for the 1993-94 school year. In a letter to the CSE chairperson, dated October 8, 1993, petitioner asked to meet with the CSE to discuss the child's educational program. At a meeting of the CSE on November 4, 1994, petitioner asked the CSE to recommend that respondent reimburse petitioner for her expenditures for the child's tuition at the Maplebrook School during the 1993-94 school year. The CSE agreed to meet again with petitioner, after respondent's Director of Pupil Personnel Services and respondent's school psychologist had observed the child at the Maplebrook School. The two school employees conducted their observation on November 15, 1993, and petitioner visited the special education class which the CSE had recommended on the following day. After an unsuccessful attempt to meet with petitioner in December, 1993, the CSE reconvened with petitioner and her attorney on January 12, 1994. Petitioner was orally informed by the CSE that it would not recommend that respondent support the child's placement in the Maplebrook School. However, the CSE agreed to review various annual goals and objectives which had been suggested by petitioner at the CSE meeting. Approximately one week before the January 12, 1994 CSE meeting, the child became a residential student in the Maplebrook School.

The CSE met again with petitioner on February 4, 1994, at which time the CSE amended the child's IEP for the 1993-94 school year by adding an annual goal for the child to develop and demonstrate an improvement in the critical activities required for daily living. The 12 objectives for the new goal included using public transportation, handling money, opening a bank account, ordering food in a restaurant, planning weekly food menus, performing various household tasks, and interacting with non-disabled peers. These objectives were similar to the objectives which petitioner had suggested at the January 12, 1994 CSE meeting. One of the objectives of the new IEP goal was that the child would apply appropriate decision-making skills related to her work-study program. In her testimony, petitioner conceded that the CSE had discussed having the child participate in a work-study program, but that she had opposed such a program because she believed that the child could benefit more from a program of instruction in life skills.

By letter dated March 28, 1994, petitioner asked that an impartial hearing be held to review the CSE's recommendation. The hearing commenced on May 16, 1994 and concluded on June 22, 1994. At the opening of the hearing, petitioner's attorney and respondent's attorney stipulated that the child's classification as multiply disabled was not in dispute, and that petitioner did not object to the procedure employed by the CSE nor did she object to the substantive provisions of the child's IEP. They further stipulated that there was no disagreement about the appropriateness of the related services which the CSE had recommended. The attorneys represented to the hearing officer that the issue which he would have to decide involved " ... the method of delivery of the goals and objectives on the IEP" (page 26).

The hearing officer rendered his decision on September 11,1994. After an extensive analysis of the evidence adduced with respect to both the program recommended by the CSE and the Maplebrook School, the hearing officer found that respondent's program was appropriate and the least restrictive environment for the child during the 1993-94 school year. He further found that the child would have been instructed with children having similar needs in the special education class recommended by the CSE, as required by 8 NYCRR 200.6 (a)(3). The hearing officer also found that the program of the Maplebrook School was not appropriate for the child, because the hearing officer believed that the child had not made satisfactory progress there and because the private school was not the least restrictive environment for the child. In view of his findings, the hearing officer denied petitioner's request for reimbursement for the 1993-94 school year.

Petitioner challenges the impartiality of the hearing officer. She asserts that the hearing officer smiled or nodded his head approvingly when respondent's witnesses testified, but was hostile towards petitioner's witnesses whom he had closely questioned and whose testimony he allegedly threatened to disregard. She also asserts that the hearing officer made various inappropriate remarks during frequent off-the-record discussions e.g., he allegedly told petitioner "lady your daughter will never be whole" (Petition, paragraph 15-g). In its answer, respondent denies petitioner's assertions.

A hearing officer must avoid even the appearance of impropriety (Application of a Child with a Handicapping Condition, Appeal No. 91-10; Application of a Child with a Disability, Appeal No. 94-8), and must render an impartial decision based upon the evidence in the record. Inappropriate remarks by a hearing officer could afford a basis for concluding that the hearing officer was biased. However, in the absence of further evidence of the alleged off-the-record remarks by the hearing officer, I must confine my review of the hearing officer's conduct to the record of the hearing. I have carefully reviewed the hearing transcript for evidence of actual or apparent bias on the part of the hearing officer. The record reveals that the hearing officer took an active part in questioning the witnesses presented by both parties, notwithstanding the fact that both parties were represented by attorneys. It is the responsibility of a hearing officer to assure that adequate, competent evidence is presented at a hearing to afford a basis for making findings on the relevant issues of the matter. The hearing officer's close questioning of several witnesses before the attorneys had completed their examinations of the witnesses was unnecessary, in my opinion. However, I find that the limitations which the hearing officer placed upon the testimony of petitioner and her witnesses were premised upon the legal requirement that there be an appropriate foundation for the opinions they wished to express, and that their answers be responsive to the questions asked of them. Notwithstanding petitioner's perception that the hearing officer's questions or rulings upon objections to questions demonstrated his bias, I find that the record does not support the allegation that the hearing officer was biased.

On two occasions, the hearing officer indicated that he might "strike" i.e., not accept the testimony of a witness. During the testimony of petitioner's educational consultant, there was a colloquy between the hearing officer and the two attorneys about respondent's objections to two successive questions asked by petitioner's attorney. The consultant attempted to become involved in the discussion, although it was not appropriate to do so. The hearing officer's remark to the consultant that "... you are either going to follow my directions or I will disregard your entire testimony." to be unwarranted and injudicious. It does not, however, evince bias against the petitioner. The second instance of threatening not to accept testimony involved an attempt by respondent's attorney to compel an administrator of the Maplebrook School to disclose what petitioner's child had said to her during group counseling sessions, despite the administrator's reluctance to do so. Noting that the administrator was not a licensed psychologist, the hearing officer advised the witness that her conversations with the child were not privileged under the provisions of the Civil Practice Law and Rules, and indicated that he might disregard all of her testimony if she did not answer the attorney's question. The administrator then responded to the attorney's question. Although the hearing officer may have been technically correct with regard to the issues of licensure and privileged communications, the whole line of questioning which respondent's attorney and the hearing officer pursued was unnecessarily intrusive and of limited relevance to the issues in this case. Therefore, I find that the hearing officer erred in compelling the witness to testify. Despite this, I do not find that either instance of threatening to ignore testimony constituted bias (Application of a Child with a Disability, Appeal No. 94-31). The hearing officer's written decision in this proceeding reveals that he in fact considered the testimony of both witnesses.

One other ruling by the hearing officer must be considered. Prior to the commencement of the hearing, petitioner's attorney asked respondent's attorney to allow petitioner's educational consultant to observe the special education class in which the CSE had recommended that the child be placed. However, respondent's attorney did not agree to the other attorney's request. Petitioner's attorney apparently raised the issue either before the hearing record was opened, or in an off-the-record discussion on the first day of the hearing. When she asked the hearing officer to rule upon her request at the beginning of the second day of the hearing, he ruled that the request was untimely, while noting that petitioner had observed the recommended class. The same issue was recently presented in another appeal which also involved respondent. In Application of a Child with a Disability, Appeal. No. 94-29, it was held that precluding a parent's consultant from observing a recommended class denied the parent a full opportunity to present evidence and testimony. In that appeal, as in this matter, the consultant testified that he was precluded from rendering an opinion about the appropriateness of the recommended class because of his inability to observe the class. I find that the hearing officer erred in denying petitioner's request for an order authorizing the consultant to observe the class.

The central issues in this appeal are whether the educational program which the CSE recommended for the 1993-94 school year was appropriate to meet the child's educational needs, and if not, whether the Maplebrook School's program was appropriate for her needs. Respondent bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal 93-9). To meet its burden, respondent must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSE v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.50 [b]; 8 NYCRR 200.6 [a][1]). An appropriate program begins with an IEP which accurately reflects the results of the evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals in short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). In this instance, there were two IEPs for the 1993-94 school year. The first was prepared at the March 3, 1993 CSE meeting, while the second was an amended version of the first IEP and was prepared on February 2, 1994. Since it was respondent's responsibility to have an appropriate program available to the child at the beginning of the 1993-94 school year, I must consider the provisions of the first IEP (Application of a Child with a Disability, Appeal No. 94-29). In reviewing the IEP, I am aware of the fact that petitioner stipulated at the hearing that she did not dispute the contents of her child's IEP. However, the contents of the IEP were discussed at the hearing, and I find that the appropriateness of respondent's program necessarily involves a consideration of the provisions embodied in that IEP.

An IEP must adequately describe the child's present levels of performance (8 NYCRR 200.4 [c][2][i]). This child's IEP reflects her academic performance as of the 1991-92 school year, when she was last enrolled in respondent's schools. Since the child's IEP for the preceding year did not reveal whether the child had attained the goals and objectives set forth in the IEP for the 1991-92 school year, and since the CSE did not have information about the child's performance during the 1992-93 school year, there was no basis for the CSE to determine the level of the child's skills when it established her goals and objectives for the 1993-94 school year. Although the record reveals that the child has difficulties separating from her parent and adjusting to changes in routine, respondent's IEP did not disclose that information or address her needs in those areas. The child's IEP also failed to disclose her need to develop independent living skills.

As drafted in March, 1993, the child's IEP included annual goals for improving her skills in reading, writing, mathematics, social studies, and science. I find that those general goals and their more specific short-term objectives reflect an academic program which would have been of limited value to petitioner's daughter, who will soon "age-out" of school. Developing an understanding of the "critical issues of the United States and New York State history" and identifying "the characteristics and adaptions of living things to survival" are of limited relevance to a 20 year old student, who needs to be able to function as independently as possible and to become gainfully employed.

The two vocational goals on the child's IEP, which provided that she would "explore different career choices" and "develop and demonstrate an improvement in employability skills" reveal needs which should have been addressed earlier, so that the child could be better prepared for adult life by having had adequate vocational training. Although petitioner by her own admission has not been receptive to previous attempts by the CSE to address the child's vocational needs, I find that the CSE was nevertheless required to recommend an appropriate vocational educational program for the child. That recommendation must be reflected in the child's IEP (34 CFR Part 300, Appendix C, Question 50). Although a BOCES adaptive child care class for the child was discussed by the CSE, it failed to make any recommendation. At the hearing, the CSE chairperson testified that the child might also have been considered for a BOCES work-study program. However, she conceded that the work-study program did not become available until January, 1994.

In determining whether respondent's program would have provided the child with appropriate services, I find that she required primary special education instruction to develop functional academic skills, appropriate transition services, and specific vocational training. The teacher of the special education class recommended by the CSE provided a brief description of the activities which she used to prepare students to obtain and maintain employment, including writing letters to apply for jobs and conducting mock job interviews. The teacher also described the method which she used to provide instruction, including the use of manipulative materials to teach mathematics, which would have been appropriate for this child. However, the record lacks sufficient information about the reading instruction which the child would have received in the recommended class, which should have concentrated upon providing her with adequate sight word vocabulary to enable her to function in a variety of settings. Although the teacher testified that the child was socially immature and striving for independence, she did not explain how placement in her special education class would have addressed the child's social needs.

Transition services are defined by Federal regulation as:

" (a) ... a coordinated set of activities for a student, designed with an outcome-oriented process, that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.

(b) The coordinated set of activities described in paragraph (a) of this section must --

(1) Be based on the individual student's needs, taking into account the student's preferences and interests; and,

(2) Include needed activities in the areas of:

(i) Instruction;

(ii) Community experience;

(iii) The development of employment and other post-school adult living objectives; and

(iv) If appropriate, acquisition of daily living skills and functional vocational evaluation." (34 CFR 300.18 [a]+[b])

I find that respondent's program did not provide appropriate transition services. In essence, the program reflected in the child's IEP of March 3, 1993 was a continuation of the academically oriented instruction which respondent had provided when the child was enrolled in its schools. It provided virtually no community experiences, except for an occasional field trip. Although not devoid of instruction in daily living skills, the program's focus was primarily academic. It also failed to provide for adequate vocational training. Federal regulation requires that the IEP of a child who is at least 16 years old include a statement of transition services, so that the CSE and the child's parents may identify and select the programs and services which could have a significantly positive effect upon the child's employment and independent living outcomes (34 CFR 300.346, Note 3). In this instance, there is little evidence either in the child's IEP or in the other evidence before me that petitioner and respondent have focused upon those outcomes for this child. Therefore, I must find that the hearing officer erred in finding that respondent had met its burden of proving that it had offered the child an appropriate program for the 1993-94 school year. In doing so, I note that petitioner asserts that the child's psychiatrist has opined that the child's return to respondent's school is "contraindicated" (Exhibit 14 to petition). I have accepted the exhibit for the limited purpose of establishing the treatment provided by the psychiatrist. The psychiatrist did not explain the basis for his opinion, nor is there any other evidence to support the psychiatrist's opinion. It is, therefore, disregarded.

A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]). Since I have found that the respondent did not meet its burden of proof with respect to the first Burlington criterion, I must now consider the appropriateness of the educational program which petitioner obtained.

The record reveals that the Maplebrook School is a private school which provided instruction to approximately 80 children, almost all of whom were residential students, during the 1993-94 school year. Most of the children had been classified as either learning disabled or multiply disabled. The Maplebrook School is not approved by the State Education Department as a school for children with disabilities for the purpose of State reimbursement to school districts for the cost of tuition. However, that fact is not dispositive of petitioner's claim (Florence County School District Four et al. v. Carter by Carter U.S , 114 S. Ct. 361 [1993]). Petitioner bears the burden of proof with respect to the second Burlington criterion, i.e., the appropriateness of the services which she obtained for the child. In order to meet her burden, petitioner must show that those services were "proper under the Act [Individuals with Disabilities Education Act]" (School Committee of the Town of Burlington, supra 370), i.e., that the private school offered an instructional program which met the child's special education needs.

At the hearing in this proceeding, an administrator of the Maplebrook School testified that the child was enrolled in the school's academic program, as distinguished from its career or vocational program. The IEP prepared for the child at the Maplebrook School also demonstrates that the child's instructional program was academically oriented, and provided goals and objectives similar to those on respondent's IEP. Although the child was reportedly enrolled in a prevocational "occupational preparation and guidance" class, her IEP did not reflect that fact, and the administrator testified that the child was not enrolled in any vocational course during the second semester of the 1993-94 school year. The administrator also testified that the child was paid by the school to serve as a gymnasium monitor. However, she did not provide any additional information about the job. When asked to explain what, if any, instruction the child had received in daily living skills, the administrator testified that the child had been taught in the evening to sort her laundry, fold her clothes, and clean her own area of the bathroom. The child received no training in cooking or general housekeeping, although her Maplebrook IEP included two objectives for food preparation.

Although a private school like Maplebrook need not comply with each provision of Federal or State regulation in order to be deemed to be appropriate for purposes of reimbursement of tuition by a school district, it must nevertheless provide an educational program which meets the child's special education needs. I must find that petitioner has failed to meet her burden of proof with regard to the appropriateness of the Maplebrook School's program to meet the needs of her child. Its program is similar to that of respondent, and has the same defects. It was primarily academically oriented, with minimal life skills instruction and no vocational instruction. As with petitioner's program, there is little, if any, evidence that the Maplebrook staff and petitioner had focused upon a coordinated set of services and activities to enhance the child's ability to transition from school to adult life.

I have considered petitioner's various other assertions, and I find them to be without merit.

Although petitioner obviously prefers to have her daughter attend the Maplebrook School, respondent must nevertheless offer the child an appropriate educational program for the 1994-95 school year. The child's IEP for that year, which is not involved in this proceeding, should address the child's academic, daily living and vocational needs, and be consistent with the Federal requirement for transition services.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer, to the extent that it found that respondent had offered an appropriate program to the child for the 1993-94 school year, is hereby annulled.