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 Roosevelt Union Free School District
Hofstra Disabilities Law Clinic, attorney for petitioner, Jo Anne Simon, Esq., of counsel
Dunn and Smith, Esqs., attorneys for respondent, Oliver A. Smith, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which upheld an alleged recommendation by respondent's committee on special education (CSE) that petitioner's child be provided with three hours of resource room services per week while enrolled in regular education classes in respondent's junior-senior high school, during the 1995-96 school year. The appeal must be sustained in part.
At the outset, I note that petitioner has raised a question about my impartiality as the State Review Officer, pursuant to 8 NYCRR 279.1 (c)(1) and (2) which read as follows:
"(1) State review officers shall not be designated to conduct State-level review with respect to a hearing to which the State Education Department, or any educational program operated by the State Education Department, is a party."
(2) State review officers shall not have jurisdiction to review the actions of any officer or employee of the State Education Department."
In a letter to the Counsel of the State Education Department, dated October 25, 1995, a legal intern associated with petitioner's attorney alluded to the State Education Department's alleged assumption of control over the Roosevelt Union Free School District, and asked whether that might affect the impartiality of a State Review Officer of the State Education Department.
The intern was apparently referring to Chapter 145 of the Laws of 1995, which took effect on July 19, 1995. Chapter 145 was enacted upon a legislative finding that there might be a serious need for corrective action to be taken in respondent's school district. It authorized the New York State Board of Regents to create a district review panel, which may include no more than one employee of the State Education Department, to prepare in consultation with respondent and submit to the Regents, a corrective action plan to improve student achievement, ensure that school facilities meet all applicable health and safety standards, and assure that the district's fiscal and administrative practices are sound. Upon approval of the corrective action plan by the Board of Regents, respondent must implement the plan. If the district review panel created by the Board of Regents determines that respondent has not implemented a portion of the plan, the Commissioner of Education may direct that respondent be superseded by the district review panel to the extent necessary to ensure successful implementation of the corrective action plan. The district review panel may recommend to the Board of Regents that respondent's members be removed from office, if the panel determines that respondent has significantly failed to meet the goals of the corrective action plan.
On November 15, 1995, an Assistant Counsel of the State Education Department responded to the intern's inquiry. She asserted that respondent is implementing a corrective action plan, and continues to be responsible for managing the affairs of the school district. I find that the provisions of Chapter 145 of the Laws of 1995 do not indicate that the State Education Department is to operate respondent's schools, or even that the district review panel is to operate respondent's schools. Petitioner has not offered any evidence that the State Education Department is operating respondent's educational program. I must also note that the actions of respondent's CSE which are the subject of this proceeding occurred before the enactment of Chapter 145 of the Laws of 1995. Therefore, this proceeding does not involve a review of any action by an officer or employee of the State Education Department. In the absence of any evidence that I would be required to review the act of any officer or employee of the State Education Department, or any educational program of the State Education Department, I find that there is no basis for me to recuse myself from this State-level review.
Petitioner's son will be 14 years old in less than two weeks. The child was initially classified as learning disabled in 1990, when he was in the third grade. His learning disability involves a deficit in his ability to process language, which may manifest itself in an inability to comprehend some classroom instruction. In his most recent evaluation, which petitioner obtained for the boy at the Child Development Center of the Nassau County Medical Center (CDC) in August, 1994, the child achieved a verbal IQ score of 107, a performance IQ score of 96, and a full scale IQ score of 102. Those scores were consistent with the results of prior evaluations of the child. The psychologist who evaluated the child reported that the child demonstrated strength in his ability to recognize abstract concepts within specific concrete examples, and relative weakness in sequential reasoning. Although the boy made no scoreable errors on a test of his visual motor integration skills, the psychologist noted that the child's test performance indicated that his grapho-motor (handwriting) ability might be inadequate.
An educational evaluation was also completed at the CDC. The evaluator reported that the child manifested a weakness in his short-term visual recall, when a kinesthetic-motor response was required. He also manifested weaknesses in all auditory skills, especially with regard to the ability to store auditory stimuli and thereafter reproduce the correct image. The boy, who had completed the sixth grade in respondent's schools in the 1992-93 school year, and had repeated the sixth grade in a private school during the 1993-94 school year, achieved grade equivalent scores of 5.1 in letter-word identification skills, 9.8 in word attack skills, 8.3 in passage comprehension skills, 7.3 in mathematical calculation skills, and 8.0 in mathematical application skills. The boy's writing skills ranged from a grade equivalent of 5.2 in dictation (spelling) to 11.7 in writing samples. In a separate, individually administered reading test, the boy achieved grade equivalent scores of 5.8 in reading vocabulary, and 5.1 in reading comprehension. The evaluator noted that the child had difficulty decoding words with irregular patterns and silent letters, and with foreign words which were used in English. She opined that the boy's subtle learning disability was manifested by his memory deficits and slow work style.
A CDC speech/language pathologist, who evaluated the child in July, 1994, reported that the child achieved standard scores of 95 in receptive language skills, and 93 in expressive language skills. The evaluator described the boy's speech as intelligible, but lacking precision. He reported that the boy worked more slowly than many children, and recommended that the child use a tape recorder to assist him in taking notes in class. The speech pathologist also suggested that a speech/language therapist work with the child's teacher to recommend specific strategies for the child. There is no dispute about the child's classification as learning disabled.
Petitioner's child entered kindergarten in September, 1986. He was reportedly evaluated by respondent during the 1988-89 school year, when the boy was in the second grade. Although the CSE's recommendation is not in the record before me, it reportedly recommended that the child not be identified as a child with a disability. On standardized, group administered achievement tests which the child took near the end of the second grade, the boy achieved grade equivalent scores of 3.7 in reading, 2.6 in language, 2.5 in spelling, and 4.3 in mathematics.
In March, 1990, when the boy was in the third grade, petitioner had the child evaluated at the CDC, because she was concerned about the child's reversal of letters and his slowness in copying information which was written on the blackboard in school. The CDC evaluators found that the child had weakness in his short-term memory and visual motor integration skills. Petitioner asked respondent's CSE to review the results of the CDC's evaluation of the child. The CSE accepted the CDC results, in lieu of performing its own evaluation. In May, 1990, it recommended that the child be classified as learning disabled, and that he receive resource room services five times per week in the fourth grade during the 1990-91 school year. Although the child's individualized education program (IEP) indicated that the child was to receive 1:1 resource room services, respondent alleges that there was a typographical error on the IEP, and that the child received resource room services in a group of five children. The CSE also recommended that the child receive speech/language therapy, but its recommendation was not included in the child's IEP, and the child did not receive the service. The child's fourth grade teacher reported that the child had difficulty concentrating, which occasionally prevented him from completing his work in a timely manner.
The child continued to receive resource room services in the fifth and the sixth grades in respondent's elementary school. He also reportedly received speech/language therapy in the fifth, and part of the sixth, grade. At the end of the fifth grade, the child achieved grade equivalent scores of 3.2 in reading and 5.7 in mathematics. His grade equivalent scores at the end of the sixth grade were 5.2 in reading and 6.6 in mathematics. The boy reportedly achieved scores above the Statewide reference point on the New York State Pupil Education Program sixth grade reading and mathematics tests.
Although the child should have been re-evaluated by the CSE within three years after his March, 1990 evaluation at the CDC (8 NYCRR 200.4 [e]), the CSE failed to perform a triennial evaluation of the child. In its answer to the petition, respondent asserts that the child was removed from the Roosevelt School district before the triennial could be performed. Respondent is apparently alluding to the fact that petitioner unilaterally enrolled the child in the Whispering Pines School, a private school in Westbury, New York, for the 1993-94 school year. The record does not reveal when petitioner enrolled the child in the private school. The CSE prepared the child's IEP for the 1993-94 school year, on June 16, 1993. In any event, it must be noted that a CSE is not relieved of its obligation to re-evaluate a child simply because the child's parent intends to enroll the child in a private school.
The IEP which the CSE prepared for use during the 1993-94 school year provided that the child would receive resource room services four times per week in an in-district placement. Respondent did not provide any special education services to the child during the 1993-94 school year, when the child attended the Whispering Pines School. At the private school, the child repeated the sixth grade, which he had passed in the prior school year while in respondent's schools. He reportedly had academic difficulty in the private school. At the hearing, respondent's CSE chairperson testified that respondent's staff was unaware of the child's academic difficulties until late in the 1993-94 school year, but did not otherwise explain why respondent had not made arrangements to provide the child with the resource room services which the CSE had recommended. On standardized tests which were administered to him in the private school in April, 1994, the child achieved grade equivalent scores of 5.8 in reading, 5.1 in spelling, 4.8 in language, and 5.4 in mathematics.
Petitioner had the child re-evaluated by the CDC in the Summer of 1994. The boy's grade equivalent score on an individually administered reading achievement test was comparable to that which he had attained on the group administered test at the private school, while his performance on an individually administered mathematics achievement text at the CDC was at the seventh to eighth grade level, or about two grades above his performance on the April, 1994 group administered test. A comparison of the 1990 CDC test results with the 1994 CDC test results reveals that the child made appropriate gains in his picture vocabulary, word analysis, passage comprehension, and mathematical application skills, but only slight progress in his sight word vocabulary. The CDC evaluation team reported that the child had a receptive-expressive language disorder, as well as a developmental coordination disorder. The team recommended that a speech/language therapist consult with the child's regular education teacher, and that the child use a tape recorder to take notes and be given extra time to complete assignments.
Petitioner received a letter from the CSE chairperson indicating that on June 7, 1994, the CSE had recommended that respondent contract with the Westbury Union Free School District to provide resource room services to the child, who was to remain at the private school. Thereafter, she received another letter indicating that on July 14, 1994, the CSE recommended that the child be educated in one of respondent's self-contained special education classes, for all academic subjects except mathematics and science. On September 13, 1994, the CSE prepared an IEP for the child, who was to receive resource room services for 180 minutes per week, while enrolled in the Whispering Pines School. The child's IEP did not reflect the results of the CSE re-evaluation, which reportedly had been completed in August, 1994, and which petitioner testified she had given to the CSE.
The record indicates that the child returned to the Whispering Pines School for the 1994-95 school year, during which he was enrolled in the seventh grade. The Westbury Union Free School District provided resource room services to the child, although its resource room teacher was not provided with a copy of the child's IEP. The resource room services began in November, 1994, and ended in April, 1995, when petitioner withdrew the child from the Whispering Pines School. The child's teacher in the Whispering Pines School indicated on the child's report card that his poor organizational skills hindered his performance, and that the child had not completed many assignments. At petitioner's request, standardized achievement tests were administered to the child in May, 1995. When tested, the child was receiving instruction from petitioner at home. The child achieved grade equivalent scores of 8.4 in reading vocabulary, 6.3 in reading comprehension, 7.4 in total reading, 9.2 in mathematical computation, 7.6 in mathematical concepts and application, and 8.2 in total mathematics.
At petitioner's request, a meeting of the CSE was scheduled to take place on May 2, 1995. However, the meeting had to be adjourned because there was no parent member of the CSE present, as required by Section 4402 (1) (b) (1) of the Education Law. The CSE reconvened on June 6, 1995, when it reportedly recommended that the child receive 180 minutes per week of resource room services. The notice of recommendation which petitioner received from the CSE chairperson indicated that the child's placement was to be determined "... when documentation is submitted from Whispering Pines School and Home Instruction".
By letter dated June 12, 1995, addressed to respondent's president, petitioner asked for an impartial hearing to review the alleged recommendation by the CSE, and the alleged failure of respondent's Superintendent of Schools to provide her with certain information and documents so that she could prepare an individualized home instruction plan (see 8 NYCRR 100.10 [c]).
The hearing in this proceeding was held on July 20, 1995. At the outset of the hearing petitioner's lay advocate questioned the appointment of the hearing officer, whose name did not appear on the list of hearing officers who were presently certified by the State Education Department as having successfully completed the Department's hearing officer training program (cf. Section 4404  of the Education Law, 8 NYCRR 200.1 [m]). The hearing transcript reveals that the hearing was briefly recessed so that the hearing officer and the advocate could discuss the matter with a representative of the State Education Department. The hearing officer indicated on the record that he had previously taken a State Education Department hearing officer training course in 1988, and had been retrained in 1991. However, the hearing officer had not completed the next required retraining in 1994. He indicated that he intended to be retrained in August, 1995. Following their conversation with the Education Department representative, the hearing officer stated that he and the advocate had been advised that the hearing officer could continue in this proceeding, if petitioner consented. Neither party objected to the hearing officer continuing to serve in this proceeding.
The hearing officer rendered his decision on August 23, 1995. He framed the issue before him as whether the child should be placed in a regular education class, with resource room services, or in a private school which specialized in instructing children with disabilities. He concluded that the child should be placed in a regular education class in respondent's junior-senior high school with resource room services, during the 1995-96 school year. He premised his decision upon finding that the child had not had "the opportunity to take advantage of all services offered to him" by respondent's CSE, and that the proposed placement would be the least restrictive environment for the child. However, the hearing officer ordered the CSE to reconvene for the purpose of adding the related service of counseling to the child's IEP and to develop a "strategic plan for incorporating transition services into his IEP". He ordered respondent to provide the child with 10 hours per week of home tutoring, until petitioner accepted the child's placement in respondent's junior-senior high school, or due process proceedings had been completed. The hearing officer also denied petitioner's request for reimbursement for the cost of the child's evaluation by the CDC, on the ground that petitioner's advocate did not raise the issue until she made her closing statement at the hearing.
Petitioner challenges the hearing officer's decision on procedural and substantive grounds. Although she and her advocate at the hearing ultimately consented to having the hearing officer hear and determine the matter, petitioner now argues that the hearing officer should not have been appointed by respondent because he was not on the State Education Department's list of trained hearing officers. Section 4404 (1) of the Education Law requires boards of education to select individuals from a list of available hearing officers who have successfully completed a hearing officer training program conducted by the State Education Department. State regulation provides, in material part, that:
" ... In order to obtain and retain such a certificate [as a hearing officer], an individual shall:
(i) successfully complete a training program, conducted by the department ... and
(iii) attend such periodic update programs as may be scheduled by the commissioner." (8 NYCRR 200.1 [s])
From the limited record which is before me, there does not appear to be any factual dispute that the hearing officer's name was not on the list of certified hearing officers from which respondent was required to make its appointment of a hearing officer. The issue is whether respondent's error in failing to make an appointment as prescribed by statute and regulation could be cured by obtaining the consent of the parties to this hearing officer's selection. I find that respondent's omission could not be overcome by the parties' consent to the selection of the hearing officer. The requirement that hearing officers be trained, and periodically retrained, was intended to assure that the rights of the parties under Federal and State law are safeguarded and that the children who are the subject of these proceedings receive the free appropriate public education to which they are entitled. Those rights should not be deemed to have been waived by consent of the parties, neither of whom was represented by counsel in this proceeding. I find that the hearing officer's decision must be annulled because of the invalidity of his appointment.
There are additional reasons why the hearing officer's decision must be annulled. State regulation provides that either party at a hearing shall have the right to prohibit the introduction of any evidence, the substance of which has not been disclosed to the party at least five days before the hearing (8 NYCRR 200.5 [c]). The record reveals that petitioner's advocate challenged respondent's right to offer any documentary evidence at the hearing because it had not disclosed its intention to offer the evidence at any time before the hearing commenced. The hearing officer ruled that the hearing would continue, and that petitioner could object to the introduction of any exhibit. Petitioner, through her advocate, did not object to the admission of the first seven exhibits offered by respondent. Near the end of the hearing, petitioner did object to respondent's attempt to submit additional exhibits, and renewed her objection to the receipt of any evidence from respondent because of its violation of the five-day disclosure rule. The hearing officer admitted all seven exhibits.
The right to preclude the introduction of evidence under the five-day rule is waivable (Application of a Child with a Disability, Appeal No. 93-28). Although I agree with the hearing officer that the right to preclude the introduction of evidence under the five-day rule must be exercised with respect to documents as they are offered for introduction into evidence, it is clear from the record that petitioner had a continuing objection to the introduction of each of the seven exhibits submitted by respondents. The hearing officer should have asked petitioner whether she wished to exercise her right to preclude evidence as each document was offered. His failure to ask petitioner, and to rule upon her objection, as each exhibit was being entered constituted a serious infringement upon her due process rights.
I also find that the hearing officer's decision lacks substantive support in the record. The board of education 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 a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education 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 ), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a]).
An appropriate program begins with an IEP which accurately reflects the results of the evaluation 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 and 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). There is no evidence in the record of an IEP for the child to be followed during the 1995-96 school year. In response to petitioner's assertion that the CSE had not made an actual recommendation for the child's program and placement, respondent asserts that the CSE could not make a grade placement because it did not have the child's academic records from the Whispering Pines School when it met on June 6, 1995. However, the child's placement in a particular grade in a regular education program is not a matter to be determined by the CSE. Respondent has not submitted an IEP for the child, even with its answer. The absence of an IEP precludes any meaningful review by either the hearing officer or the State Review Officer (Application of a Child with a Disability, Appeal No. 94-13). Until an IEP has been prepared, it is not possible to determine whether the child's special education needs have been accurately identified, and appropriate annual goals have been prepared for him. Once the boy's needs have been identified and appropriate annual goals have been drafted, the next step in the IEP process is to select the special education services which would afford the child a reasonable opportunity of achieving his annual goals, and to recommend a specific program and placement.
Petitioner asserts that respondent cannot offer the child an appropriate placement, and asks that I order respondent to contract with either another school district or a private school for the child's instruction. Respondent argues that it can appropriately meet the child's needs in its own program. I find that neither party's position is supported by the record which is before me. Although I must find that respondent has failed to meet its burden of proof with respect to establishing the appropriateness of its program, it does not follow that respondent could not provide the child with an educational program which addresses the child's needs.
The CSE must prepare an IEP for the child. However, I find that the CSE lacks adequate information to accurately define the child's special education needs. There is no evidence in the record that the CSE has ever conducted an observation of the child in a classroom to ascertain the extent to which he requires special education services (cf. NYCRR 200.4 [b][viii]). There is little evidence of the child's present level of classroom skills, notwithstanding his report card for the 1994-95 school year and his May, 1995 standardized achievement test scores. The report card indicated that the child had deficits in his reading, spelling, and writing skills, as well as organizational problems which may have contributed to his failure to complete assignments. The report card also indicated that the boy was unable to remain on task and to work independently. The information set forth on his report card must be contrasted with the child's achievement test scores, which indicated that his academic skills were generally grade level appropriate. Since leaving the private school in April, 1995, the child has received home instruction. The parties disagree about the nature of the child's academic performance during the final quarter of the 1994-95 school year. They also disagree about whether he has in fact received the home tutoring services which the hearing officer ordered respondent to provide.
The limited information about the child's needs in the record suggests that the child has difficulty with processing language, short-term memory, and organization. He also has trouble remaining on task, and working independently. Academically, the child has deficits in reading, spelling and writing. At the hearing, the child's former resource room teacher expressed her concern about the child's social ability to function in a large regular education environment, such as respondent's junior-senior high school. The record also indicates that the child may require counseling. In view of the child's significant special education needs, his apparent lack of success in a regular education program with supplementary special education instruction during the 1994-95 school year, it is essential that the child receive meaningful special education services while the CSE obtains additional information to plan an appropriate educational program for him. I find that it is necessary for the child to be temporarily placed in an educational program in which the boy's classroom skills and special education needs can be accurately ascertained (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-20).
I note that the CSE had, at one point, proposed that the child be placed in a self-contained special education class, and that the record reveals that the Lowell School, which is an approved private school, indicated that its program would be appropriate for the child. In view of respondent's failure to provide resource room services to the child during the 1993-94 school year and the first three months of the 1994-95 school year, as well as its failure to prepare the child's IEP for the 1995-96 school year, I find that it would be equitable to order respondent to contract with the Lowell School for the child's instruction for the remainder of the 1995-96 school year. If the Lowell School does not have a position open for the child, respondent's CSE should contact the Long Island regional office of the State Education Department's Office for Special Education Services to obtain assistance in securing a comparable placement for the child.
In preparation for recommending an appropriate program and placement for the 1996-97 school year, the CSE must obtain a classroom observation, and it must obtain an assessment of the child's vocational skills, aptitudes and interests (8 NYCRR 200.4 [b][viii]). Since the child will be 15 years old during the 1996-97 school year, the CSE must also prepare a statement of needed transition services to be included in the child's IEP (8NYCRR 200.4 [c][v]). The CSE must also obtain a report of the child's performance from the Lowell School, or other placement, during the remainder of the 1995-96 school year. The CSE must determine the extent to which the child requires primary instruction in special education, as opposed to supplementary instruction in a resource room. In the event that the CSE determines that the child's academic needs could be met in regular education classes, it must consider the recommendation by the CDC evaluation team that the child's teacher have the assistance of a speech/language therapist to plan appropriate activities for the child. The CSE must also determine whether the child requires the related service of counseling.
In view of the foregoing, I find that petitioner's request for compensatory education is moot. With regard to petitioner's request for reimbursement for the cost of the independent evaluations which she obtained for her child at the CDC in 1990 and 1994, I note that Federal and State regulations provide that a parent of a child with a disability is entitled to obtain an independent educational evaluation at public expense. However, a parent's right to an independent evaluation is subject to the right of the school district to initiate a hearing to demonstrate the appropriateness of its evaluation (34 CFR 300.503 [b]; 8 NYCRR 200.5 [a]  [vi] [a]). Respondent is therefore obligated to pay for the child's independent evaluations, unless it initiates a hearing and establishes to the hearing officer's satisfaction that its evaluations were appropriate. It is apparent that respondent could not possibly prevail at a hearing with respect to the 1994 CDC evaluation, since respondent failed to perform its own triennial evaluation.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is hereby annulled; and
IT IS FURTHER ORDERED that within fifteen days after the date of this decision, respondent shall arrange for the child's enrollment in the Lowell School, in accordance with the tenor of this decision.