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 City School District of the City of New York
Ben M. Arai, Esq., attorney for petitioner
Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Robert J. Cicero, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which found that an annual review of the individualized education program (IEP) of petitioner's child which a subcommittee of respondent's committee on special education (CSE) had conducted on November 17, 1994, was invalid because the subcommittee lacked a required member, and which directed respondent to conduct another annual review. Petitioner contends that the hearing officer erred by not finding that respondent's failure to comply with the procedural requirements imposed by the Individuals with Disabilities Education Act "IDEA" (20 USC 1400 et seq) constituted a denial of a free appropriate public education to her child. She requests that respondent be ordered to provide compensatory education to the child. The appeal must be dismissed.
There is no information in the record about the educational experience of petitioner's son, who is thirteen years old. In a notice to petitioner, dated February 28, 1994, the chairperson of the CSE of respondent's Community School District 26 indicated that the child had been referred to the CSE for an evaluation. Petitioner gave her consent for the evaluation. In a social history, the child was described as having been enrolled in several schools, where he was unsuccessful despite, being a capable student. The child's cognitive skills were reported to be within the average range, when they were assessed in March, 1994. The child's evaluator described the child as slow to respond, but reflective. The boy's graphomotor (handwriting) skills were reported to be somewhat delayed. The child reportedly exhibited sensitivity, passivity, and a lack of affect, and the evaluator opined that the child's dependency could lower his self-esteem.
In a speech/language evaluation which was also performed in March, 1994, the child used age appropriate vocabulary and grammar during conversations. He achieved scores in the average range on tests of his speaking and listening vocabulary, and listening and reading grammar. However, he reportedly had difficulty on tests which required extensive reading and writing and the use of related vocabulary and grammatical skills.
On April 5, 1994, the CSE recommended that the child be classified as learning disabled. It further recommended that the child receive services in respondent's supplemental instructional services-I (SIS-I) program, i.e., resource room services, for one period each school day. The CSE further recommend that the time limits be waived during tests. Respondent offered a placement for the child in its Intermediate School 74. On April 12, 1994, petitioner accepted the recommended program and placement.
The record reveals that the child was enrolled in regular education seventh grade classes, plus his resource room class, in I.S. 74 during the 1994-95 school year. On November 17, 1994, petitioner came to I.S. 74 for parent-teacher conferences. At the hearing in this proceeding, petitioner testified that she met with her child's teachers, including his resource room teacher. During her meeting with the resource room teacher, petitioner expressed her concern about the low grades which her child had reportedly received on his report card, which is not included in the record before me. Petitioner testified that she asked the child's resource room teacher about the child's IEP, and that the teacher informed her that it was a time consuming process to go over the IEP, but she could do so. Petitioner further testified that the resource room teacher asked her to sign a blank page of a new IEP, and that the teacher told her: "Trust me, I'll take care of it." Petitioner testified that she subsequently received a completed IEP, by mail. The record indicates that a "Notice of Recommendation of IEP Meeting", dated January 20, 1995, was sent with a copy of the IEP to petitioner. The IEP (Petitioner's Exhibit A), indicates that a conference was held on November 17, 1994, and that the resource room teacher and the health coordinator assigned to I.S. 74 attended the conference. Each individual signed the IEP. A special education supervisor signed a portion of the IEP which indicates that is for "Annual Review Only". November 27, 1995 is indicated on the IEP as the next projected date for review of the IEP.
On March 22, 1995, petitioner requested that an impartial hearing be held to determine the validity of the purported annual review conducted on November 17, 1994. A hearing was held on April 25, 1995. At the hearing, the child's resource room teacher denied petitioner's assertion that she had asked petitioner to sign a blank portion of the IEP. The teacher testified that she had prepared the IEP before the November 17, 1994 meeting, and had discussed it with petitioner at that meeting. She further testified that petitioner had not objected to any of the proposed IEP annual goals and short-term instructional objectives. According to the teacher, her customary practice is to prepare a draft IEP, which is discussed with the child's parents. If the parents have no objection, the IEP is signed by the parents and the teacher, and is submitted to the special education office in the school for "printing". Thereafter, a copy of the IEP is mailed to the parents.
The health coordinator, who is listed on the IEP as having been a participant at the November 17, 1994, annual review acknowledged at the hearing that she had not attended the meeting, and could not remember the date when she signed the IEP. The special education supervisor, who had reviewed and signed the IEP, testified that IEPs are prepared on a computer from information provided by teachers, and are given back to the teachers prior to the parent-teacher conferences. However, he was unable to recall when he had received the IEP for petitioner's child.
At the hearing, respondent's attorney conceded that the purported "annual review" held on November 17, 1994 was a nullity. However, she asserted that the IEP which had been prepared on April 5, 1994 was still valid, and urged the hearing officer to order the CSE to reconvene to prepare a new IEP.
The hearing officer's decision was rendered on May 22, 1995, and amended on June 23, 1995. She framed the issue as whether the IEP which was prepared on November 17, 1994, was valid. The hearing officer noted that respondent had conceded that the purported annual review which was conducted on November 17, 1994 was invalid, because the only participants at the meeting were the parent and the child's teacher. A child's IEP must be reviewed at least annually (34 CFR 300.343 [d]; 8 NYCRR 200.4 [e]). Federal regulation requires that the participants at any meeting to prepare or review a child's IEP include a representative of the school district, other than the child's teacher, who is qualified to provide, or supervise the provision of special education; the child's teacher; at least one of the child's parents; the child, if appropriate; and other individuals at the discretion of the parent or school district (34 CFR 300.344 [a]). State law and regulation provide that an annual review of a child's IEP must be conducted by the CSE or a subcommittee of the CSE, which in cities of more than 125,000 inhabitants must consist of at least the child's teacher, a representative of the school district who is qualified to provide, administer, or supervise special education, and a school psychologist when a new psychological evaluation is reviewed or a child is being considered for a transfer to a more restrictive program (Section 4402  [b]  [b] [i] of the Education Law; 8 NYCRR 200.4 [e] ). In this instance, the attendance of a school psychologist was not required, since there was no new psychological evaluation of the child and a change in his placement was not being considered. The hearing officer found that the CSE subcommittee was invalidly composed because it did not include a representative of the school district who was qualified to provide, administer or supervise special education, other than the child's teacher. She further found that the purported annual review held on November 17, 1994 was invalid, and ordered the CSE or a validly constituted subcommittee to reconvene for the purpose of conducting the child's annual review. The hearing officer also dismissed, without prejudice, respondent's request for an impartial hearing with regard to petitioner's request for an independent evaluation, which is not germane to this proceeding.
Neither party challenges the hearing officer's determination that the purported annual review held on November 17, 1994 was a nullity (see also Application of a Child with a Disability, Appeal No. 95-4; Application of a Child with a Disability, Appeal No. 95-5). Petitioner asserts that the annual review held on November 17, 1994 was invalid, and that the resulting IEP was "fraudulent". Respondent argues that petitioner is not aggrieved by the hearing officer's decision, because the hearing officer found that the annual review was invalid, which necessarily means that the IEP allegedly developed at that review is invalid.
Petitioner contends that the hearing officer erred by not making specific findings that respondent had violated the IDEA procedural safeguards pursuant to 20 USC 1415 (a) and (b); that respondent's failure to conduct an annual review was a per se violation of the IDEA; that respondent's procedural violations constituted a denial of a free appropriate public education (FAPE) to the child; and that respondent had violated the child's rights under Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the Americans with Disabilities Act (42 USC 12101 et seq), and the Fourteenth Amendment to the United States Constitution. Petitioner has identified three alleged procedural violations by respondent: (1)the failure to conduct an annual review within twelve months after the April 5, 1994 CSE meeting at which the child's IEP was prepared; (2) the failure to provide petitioner with notice that an annual review would be conducted; and (3) the failure to inform petitioner of her right to obtain review of the action taken at the purported annual review.
Although the issue of whether respondent had given petitioner written notice that an annual review would be conducted (8 NYCRR 200.4 [e] ) was briefly raised at the hearing in this proceeding, neither party pursued the issue, which was not addressed by the hearing officer in her decision. I must find that there is no basis in the record upon which I could decide whether the required notice was provided. A board of education must also provide the parent of a child with written notice of the CSE's (subcommittee's) recommendation which is embodied in the child's IEP, and such notice must also indicate the parent's due process rights (8 NYCRR 200.5 [b]  [c]). The issue of the notice of recommendation was not raised at the hearing. However, I note that petitioner's Exhibit A includes the notice of recommendation, which refers to petitioner's due process rights. On March 2, 1994, when petitioner consented to having the child evaluated, she signed a form indicating that she had received a copy of the publication "Special Education: A Guide for Parents", and acknowledged that her due process rights had been explained to her. Consequently, I find that petitioner has not established that respondent failed to inform her of her due process rights.
The hearing officer found that the purported annual review was invalid, under State law, because the CSE subcommittee was not properly constituted. In this appeal, petitioner contends that the hearing officer should also have found that the purported annual review violated various federal statutes and a portion of the United States Constitution. However she offers no legal authority to support her contention that the hearing officer was required to make such findings. As noted above, the CSE subcommittee was not validly constituted under either IDEA or the New York State Education Law. I find that the hearing officer's failure to indicate that the subcommittee's composition was not valid under Federal law, as well as State law, does not afford a basis for concluding that petitioner is aggrieved by the hearing officer's decision.
I find that there is no merit to petitioner's contention that respondent's actions denied a FAPE to her child. In determining whether respondent's failure to have a validly constituted CSE subcommittee resulted in a denial of FAPE to the child, I have considered the fact that when the purported review occurred, the child had a valid IEP for which no review was necessary prior to April, 1995. I must also note that the provisions of the IEP which was allegedly prepared at the November 17, 1994 meeting are very similar to those in the child's IEP from April 5, 1994. Petitioner removed her child from school in March, 1995. Although petitioner asserts that the child was harmed because he did not receive an appropriate education, as a result of the invalidly composed CSE subcommittee, there is simply no evidence in the record to support that assertion. However, my decision should not be construed as approving or condoning the practice which respondent's witnesses described for conducting IEP reviews. Respondent must ensure that its CSE subcommittees are properly constituted and that the subcommittees develop each child's IEP with the child's parents. Respondent's staff may prepare draft IEPs to be discussed at annual reviews (Application of a Child with a Disability, Appeal No. 93-40).
With regard to petitioner's request that respondent be directed to provide the child with compensatory education, I find that there is no basis for the requested remedy. Compensatory education is a permissible remedy under the IDEA when a child has been excluded from school or denied appropriate services for an extended period of time (Burr by Burr v. Ambach, 863 F. 2d 1071 [2d Cir., 1988]; Mrs. C v. Wheaton, 916 F. 2d 69 [2d Cir., 1990]; Lester H. v. Gilhool, 916 F. 2d 865 [3d Cir., 1990]; Miener v. State of Missouri, 800 F. 2d 749 [8th Cir., 1986]).
The record reveals that there has been a serious breach in the cooperative relationship between the child's parent and the school district which must exist for this child to receive the assistance he needs to address his special education needs. Petitioner and respondent have a mutual obligation to develop and implement the child's educational program (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ; Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2d Cir., 1989]). Petitioner would be well advised to work with respondent's staff, rather than to disparage their motivation, as evidenced by her concluding remarks at the hearing. I urge the parties to work together for the child's benefit.
THE APPEAL IS DISMISSED.