Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Wappingers Central School District
Raymond G. Kruse, Esq., attorney for respondent
Although no testimony was taken at the brief hearing in this proceeding, the record before me includes the prior hearing officer's decision and the decision State Review Officer affirming the hearing officer's decision, both of which provide information necessary to resolve this appeal. Petitioner's son, who is 18 years old, has received instruction at home since 1988 because of reportedly poor health. In October, 1990, the child was classified by the CSE as other health impaired, apparently because of possible Cushing's Syndrome, hypertension, lactose intolerance, gastrointestinal problems and difficulty on steps and walking from class to class. Although the child's classification is not in dispute in this proceeding, I note that in September, 1991, the CSE recommended that the child be declassified. A hearing officer subsequently upheld the CSE's recommendation to declassify the child, but the hearing officer's decision was annulled by the State Review Officer on the ground that respondent had not proven that the CSE's recommendation was appropriate (Application of a Child with a Handicapping Condition, Appeal No. 92-32).
Pursuant to his initial IEP of October 15, 1990, the child was to receive 1:1 instruction at home with the instructional objectives of improving his reading, writing and spelling skills. The IEP provided that the time limits for completing tests would be waived for the child. Petitioner accepted the child's IEP, but requested that a hearing be held to determine whether the child's IEP should be amended to include the use of a word processor to assist the child with his written assignments. At the hearing, four of the child's teachers testified that the use of a word processor would improve the child's written expression skills. The hearing officer ordered that the child's IEP be amended to include provision of a word processor as specialized equipment (8 NYCRR 200.4 [c][vii]).
The Board of Education of the Wappingers Central School District appealed from the hearing officer's decision to the State Review Officer. The State Review Officer noted that the child's written expression skills had not been formally evaluated, notwithstanding the fact that one of respondent's school psychologists had indicated that the child had a deficit in written expression and the child's English teacher had advised his guidance counselor that the child had significant difficulty completing written assignments. The State Review Officer dismissed the Board of Education's appeal upon a finding that the hearing officer's decision was supported by substantial evidence.
In a letter dated August 23, 1994, petitioner asked respondent for an impartial hearing with regard to what petitioner termed the non-compliance with both an impartial hearing officer's order and a State Review Officer's decision. A hearing officer was appointed by respondent on or about September 16, 1994. The hearing officer scheduled the hearing to begin on October 7, 1994.
At the beginning of the hearing, petitioner asserted that respondent had not complied with the order of the prior hearing officer that the child be provided with a word processor, in the almost three years since the State Review Officer had affirmed the hearing officer's order. She acknowledged that respondent had provided the child with a computer, which was identified for the record as an Apple IIe, and a printer. However, petitioner asserted that the computer was not equipped for "spell check" or "grammar check", which are computer programs used to help detect spelling and grammatical errors in text. The software package with which the computer had been provided to petitioner's child was identified by the hearing officer as "Apple Works". The hearing officer, who described himself as conversant with the Apple IIe computer, tested the child's computer, and reported for the record that the "Apple Works" software provided by respondent contained word processing, spread sheet and data base programs.
No testimony was taken, and no other evidence was introduced. The hearing officer opined that respondent had complied with the prior hearing officer's decision to furnish the child with a word processor, because the "Apple Works" program which respondent had provided included a word processing function. He denied petitioner's request that the child's English teacher testify about the child's writing ability and the effectiveness of the computer and software provided by respondent. The hearing officer dictated his findings that respondent had been required to provide the child with a word processor, and that respondent had complied with the terms of the prior hearing officer's decision. However, he "suggested" that respondent provide the child with a word processing program which had spell check and/or grammar check, if the district had such a word processing program. If respondent did not have a word processing program with those features, the matter was to be remanded by order of the hearing officer to the CSE. The CSE would then determine whether the child's IEP should be amended to include a spelling and/or grammar check program.
Petitioner challenges the hearing officer's impartiality because of a remark made by the hearing officer during the hearing. She objects to the hearing officer's statement that:
"We are wasting everybody's money, and my job is to save the school district money as much as anything else." (Transcript, page 23)
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; Application of a Child with a Disability, Appeal No. 94-32). Inappropriate remarks by a hearing officer may afford a basis for concluding that a hearing officer was biased. Although the hearing officer's remark was inappropriate, I find that it does not afford a basis for finding that he was biased against petitioner. In essence, it was a continuation of the hearing officer's statement made shortly before the remark in question:
"I think the school district is being very foolish in this matter. I can see that this matter can be settled for three hundred dollars. Why you [respondent] are electing to go through this is beyond me." (Transcript, page 22)
Petitioner asserts that the hearing officer also evidenced his lack of impartiality by denying petitioner's request to have the child's English teacher testify about the child's writing skills and the limitations imposed upon his performance by the word processing program furnished by respondent. I disagree. As formulated by petitioner, the issue before the hearing officer was whether respondent had complied with the terms of the prior hearing officer's order to provide the child with a word processor. The resolution of that issue did not require the teacher's testimony about the child's present writing ability and needs, rather it required that the hearing officer examine the decision of the hearing officer and the State Review Officer and evidence about the computer and computer programs which respondent had provided to the child.
Petitioner also asserts that the hearing office failed to decide the issue with which he had been presented, i.e., the meaning of the term "word processor" in the prior hearing officer's order. I must first note that Federal and State regulations require that hearing officers make written findings of fact and decisions, copies of which are to be sent to the parties and to the state advisory panel (34 CFR 300.508 [a]; 8 NYCRR 200.5 [c]). Although the hearing officer dictated his findings to the court stenographer for inclusion in the hearing transcript, I find that such practice does not comply with the Federal and State regulatory requirement of written decisions by hearing officers. Accordingly, I must sustain petitioner's appeal to that extent. Contrary to petitioner's assertion, the hearing officer found that neither the prior hearing officer's decision nor the State Review Officer's decision explicitly directed respondent to provide the child with a word processor which had the spell check or grammar check features. I concur with the hearing officer's finding in this proceeding. Although the child's initial IEP included an instructional objective to improve the child's spelling, neither decision explicitly provided that a word processor was to be used to support this objective. Both decisions were premised upon the testimony of the child's teachers that the child could better express himself with the assistance of a word processor. However, the appropriateness of specific word processing programs was not raised or determined in the prior proceeding. The State Review Officer's decision in the prior proceeding was not appealed, and is therefore final (34 CFR 300.510 [d]). It cannot be "supplemented", or otherwise reopened, without violating the finality requirement of the Federal regulation. Therefore, I find that the hearing officer correctly denied petitioner's request to have the child's English teacher testify at the hearing in this proceeding.
Petitioner seeks a determination that respondent must provide a word processing program which includes the spell check and grammar check features as specialized equipment and adaptive devices needed for the child to benefit from instruction (8 NYCRR 200.4 [c][vii]). That determination must be made initially by the CSE because it prepares the child's IEPs, on which specialized equipment must be listed. The record in this proceeding does not reveal whether petitioner has raised the issue with the CSE at any time since the prior hearing officer's decision on August 26, 1991. Petitioner does assert that respondent has failed to either provide the child with the requested software or to raise the issue with the CSE within 30 days after the hearing officer's decision in this proceeding, as directed by the hearing officer. Respondent has neither admitted nor denied petitioner's assertion, which must be deemed to be true (8 NYCRR 279.3). Nevertheless, I find that the matter must be addressed first by the CSE, rather than by either a hearing officer or the State Review Officer because the record is inadequate to determine the child's present educational needs. I will direct the CSE to meet with petitioner forthwith to discuss the child's word processing needs and to make its recommendation.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the hearing officer is annulled, and;
IT IS FURTHER ORDERED that within 15 days after the date of this decision, respondent's CSE shall schedule a meeting with petitioner to consider whether the child's IEP should be amended to include the use of a word processor with spell check and grammar check, as specialized equipment; such meeting shall be held no later than 30 days after the date of this decision, unless petitioner agrees to meet at a later date.