96-035

          Petitioner appeals from the decision of an impartial hearing officer which upheld respondent's refusal to provide an instructional program to petitioner's son during the Summer of 1995, and which dismissed petitioner's claim that a member of respondent's staff had "retaliated" against the boy. The appeal must be sustained in part.

        Petitioner's son, who is seventeen years old, was the subject of another proceeding, in which the child's mother and the board of education separately appealed from the decision of another impartial hearing officer (see Applications of a Child with a Disability and of the Board of Education of the Morrisville-Eaton Central School District, Appeal Nos. 96-21 and 96-23). The hearing officer in the prior proceeding found that the individualized education program (IEP) which respondent's committee on special education (CSE) had prepared for the child's special education program during the 1994-95 school year was procedurally and substantively flawed. He further found that the Gow School, a private school in which petitioner had unilaterally enrolled her son for the 1994-95 school year, had provided the child with appropriate special education services. The hearing officer further found that equitable considerations supported the parent's claim for the tuition reimbursement. Therefore, he ordered the board of education to reimburse the parent in the amount of $18,850 (see School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The board of education's appeal from the hearing officer's decision was dismissed. The parent's appeal was sustained, only with respect to her claim that she should be reimbursed for the cost of no more than five trips for the child between his home and the private school.

        During the pendency of the prior proceeding, the parties agreed that petitioner's son should be independently evaluated by a psychologist, at respondent's expense. It should be noted that respondent's CSE had recommended that the child's classification be changed from learning disabled to multiply disabled, notwithstanding its own psychologist's recommendation that the boy be classified as other health impaired (see 8 NYCRR 200.1 [mm][10]). In any event, the child was reportedly independently evaluated for the purpose of assisting the parties when they planned the child's educational placement and program for the 1995-96 school year.

        The independent psychological evaluation was performed in Syracuse, New York, during March, 1995. In his written report, which is not dated, and was reportedly not received by the parties until August 28, 1995, the psychologist briefly summarized the child's history of inappropriate behavior in school, poor work habits, and short attention span. He noted that the child had been diagnosed as having an Attention Deficit Hyperactivity Disorder (ADHD), when he was in the "pre-first" grade. After various private interventions while he was in the early elementary grades, the boy was classified as learning disabled in 1990, when he was in the fifth grade. The psychologist noted that the child had received resource room services, after he was classified, and that he had received counseling as a related service, during the sixth and the eighth grades. He further noted that the child's classification had been changed to multiply disabled, and that the boy was attending the Gow School for the ninth grade, during the 1994-95 school year.

        The psychologist opined that the child's behavioral difficulties appeared to be associated with a persistent state of hyperarousal, which was manifested by an over-anxious state resulting in a significant attentional dysfunction. He noted that the child's disability made it difficult for him to organize and complete work, retain academic information, and learn new information because of his inflexibility in adjusting to environmental changes. He also reported that the child evidenced mild Dysthymia, as indicated by persistent feelings of sadness, indecisiveness, poor motivation, and poor self-esteem. He noted that the child had engaged in a pattern of disobedient and negativistic opposition to authority figures.

        The psychologist reported that the child had performed in the average to superior ranges in various cognitive, perceptual, and motor measures. Petitioner's son achieved a verbal IQ score of 101, a performance IQ score of 91, and a full scale IQ score of 97, but the psychologist opined that the child's anxiety and attentional dysfunction had affected the IQ test results. He further opined that the boy's anxiety and attentional dysfunction had also affected the child's performance on the academic achievement tests which the psychologist administered to the child. The psychologist reported that the boy had achieved standard scores of 98 in reading, 84 in spelling, and 78 in arithmetic. He opined that the child's attentional limitations had precluded him from fully profiting from his academic experiences, which had led to a moderate impairment in his academic skills.

        The psychologist reported that the child had not evidenced a neuropsychologically mediated learning disability, but had evidenced considerable academic difficulty which was attributable to his attentional limitations, poor sustained concentration, low frustration tolerance, and inadequate study skills. He recommended that the child's classification be changed to other health impaired. The psychologist also recommended that the child receive " ... intensive (daily) tutorial instruction in reading decoding, spelling, and arithmetic," from a learning disability specialist. He suggested that a "multisensory technique", such as the Orton-Gillingham approach, be used to teach reading. The psychologist opined that the child required a structured program, involving a stable daily routine and well defined goals. He suggested that the child be provided with individual, group and family psychotherapy, and that medication be used to address the child's anxiety and attentional dysfunction. He also suggested that an aide be assigned to assist the child to develop his organizational ability. The psychologist opined that the nature of the courses which the child had taken at the Gow School during the 1994-95 school year were not sufficiently basic to address the child's needs, and that the private school's teaching staff did not appear to understand the nature of the child's behavioral difficulties.

        On or about June 2, 1995, petitioner and respondent's then CSE chairperson met with the psychologist to discuss his findings and recommendations, which had not yet been reduced to writing. Petitioner testified at the hearing in this proceeding that the psychologist had explained that her son needed individual instruction in all "core" academic subjects, as well as study skills and organization, and that the boy's program of remediation should be started as soon as possible. The former CSE chairperson testified that she did not recall that the psychologist had discussed a summer instructional program for the child, and she believed his recommendations were intended for a program to be implemented in September, 1995 for the 1995-96 school year. However, the former CSE chairperson acknowledged that she and petitioner discussed the possibility of a summer tutorial program for the child, either during or immediately after the meeting with the psychologist.

        On June 6, 1995, petitioner and the former CSE chairperson met with respondent's superintendent of schools, who also testified at the hearing in this proceeding. All three witnesses agreed that the psychologist's oral recommendations were discussed. Although the psychologist had not explicitly recommended that the child receive a summer instructional program, all three witnesses agreed that they had also discussed the possibility of providing some kind of instructional program to the child during the Summer of 1995. However, the three individuals appeared to have different recollections of the details of that instructional program.

        When petitioner met with the superintendent of schools and the then CSE chairperson in June, 1995, petitioner and respondent were still engaged in the impartial hearing which was being held to review the child's IEP which the CSE had recommended for the 1994-95 school year. Petitioner testified that she had told the superintendent at the June 6, 1995 meeting that she still intended to pursue her claim for tuition reimbursement for the 1994-95 school year in the impartial hearing. At the hearing, the superintendent testified that it was his perception that " ... in order for us to do this type of programming, in addition there was going to have to be a reimbursement for the Gow School ... " (Transcript page 84). He acknowledged that petitioner had not expressly indicated that she would not allow the child to participate in a summer program, unless respondent agreed to pay for the child's tuition at the Gow School for the 1994-95 school year. In any event, the superintendent informed petitioner that he would have to discuss the matter with the board of education, which he subsequently did in an executive session of the board on June 26, 1995. The superintendent testified that respondent's members indicated to him that they wished to continue with the hearing, rather than agree to pay for the child's tuition. Respondent's president testified that he could not recall the details of the discussion during the executive session, but he testified that the superintendent had summarized "events" for the board of education.

        In response to a telephone inquiry from petitioner about the status of a summer program for her son, the superintendent indicated, in a letter dated July 7, 1995, that he had discussed a summer program with petitioner in the context of a settlement of the pending impartial hearing, and that the summer program had not been further explored. He noted that the child's IEP for the 1994-95 school year did not provide for a twelve-month program, and expressed his opinion that " ... there is no basis for a special education program over the summer" (Exhibit S-2).

        Petitioner testified that she contacted the then CSE chairperson about having a CSE meeting, after she received the superintendent's letter. The CSE chairperson reportedly told petitioner that certain required members of the CSE were unavailable. In late July, 1995, another individual assumed the position of CSE chairperson. However, the CSE did not meet with petitioner until September 7, 1995. The minutes of that CSE meeting reveal that the report of the private psychologist was reviewed, but the CSE made no recommendation.

        The second matter which is the subject of this proceeding involves an alleged incident which occurred on August 10, 1995, after petitioner's son had testified at the hearing involving his IEP for the 1994-95 school year. Petitioner claims that the superintendent's secretary refused the child's request to use a telephone in the school district's central office to summon one of petitioner's friends to bring the boy home. In a letter to petitioner, which was dated September 6, 1995, the superintendent of schools informed her that he had investigated the alleged incident on August 10, 1995, and that his secretary had not heard any request by the child to use the telephone. At the hearing, the secretary testified that she had not heard the boy ask to use the telephone.

        Petitioner requested that an impartial hearing be held, in a letter to respondent dated September 6, 1995. She asserted that her son had been denied a summer instructional program because she would not abandon her claim for tuition reimbursement for the 1994-95 school year, and that retaliatory measures had been taken against her son by school district employees. The hearing in this proceeding began on October 18, 1995, and concluded on March 7, 1996. The hearing officer rendered his decision on April 5, 1996. The hearing officer noted that the child's IEPs for the 1994-95 and 1995-96 school years were the subjects of two other hearings, and that the child's IEP for the 1993-94 school year had provided for a ten-month, rather than a twelve-month, instructional program for the child. The hearing officer found that there was no evidence in the record before him to afford a basis for concluding that the child would significantly regress, if he did not receive instruction during the Summer of 1995. With respect to petitioner's assertion that the matter of a summer program for her son should have been referred to the CSE, he found that there was no written request for a CSE meeting, and that State regulation did not provide a time limit within which a CSE must meet after it has been requested to do so. The hearing officer also found that the alleged incident of retaliation by the superintendent's secretary was not an issue within his jurisdiction as an impartial hearing officer.

        Petitioner challenges the hearing officer's decision on both procedural and substantive grounds. She argues that the hearing officer was not properly appointed by respondent. I note that the hearing officer did afford petitioner the opportunity to present evidence with regard to this issue, but orally ruled that it was " ... not an appropriate issue to come before me ... " I find that the hearing officer erred in his ruling (Application of a Child with a Handicapping Condition, Appeal No. 92-46).

        At petitioner's request, the president of the board of education testified about the hearing officer's appointment. The president testified that he had not made any arrangements to appoint a hearing officer in response to petitioner's hearing request, and was not aware that any other member of the board of education had been involved in the appointment of the hearing officer. Copies of respondent's meeting minutes were introduced to show that respondent had not appointed the hearing officer until January 22, 1996, when respondent voted to make a nunc pro tunc appointment of the hearing officer in this proceeding.

        The name of the hearing officer in this proceeding was one of five which appeared on respondent's rotational list (see Section 4404 [1] of the Education Law and 8 NYCRR 200.2 [e][1]), which was established by respondent at its annual organizational meeting on July 10, 1995. The individual whose name appeared above that of the hearing officer in this proceeding was serving as the hearing officer in the hearing involving the child's IEP for the 1994-95 school year. Therefore, Mr. Penner, the hearing officer in this proceeding, was the next available hearing officer, and should have been appointed by respondent to serve as the hearing officer in this proceeding. Although respondent ultimately ratified the selection of Mr. Penner from respondent's rotational list, the matter does not end there.

        When petitioner questioned the hearing officer's appointment at the beginning of the hearing, she sought to ascertain who had selected Mr. Penner as the hearing officer, and who had spoken to him about becoming the hearing officer in this proceeding. A board of education may not delegate its responsibility to appoint a hearing officer to its superintendent of schools (Application of a Child with a Handicapping Condition, Appeal No. 92-19; Application of a Child with a Handicapping Condition, Appeal No. 92-32; Application of a Child with a Handicapping Condition, Appeal No. 92-46). The fact that a hearing officer is to be appointed from a rotational list does not relieve respondent of its obligation to promptly appoint a hearing officer, after it receives a request for a hearing.

        In this instance, the record does not reveal who selected the hearing officer. The hearing officer stated that he was orally notified of his appointment, on September 11, 1995, by a female whom he could not identify, and that he subsequently received a letter from the superintendent of schools, dated September 14, 1995, thanking him for agreeing to be the hearing officer, and providing him with the names and addresses of the parties and their representatives. Although the superintendent of schools testified at the hearing, he was not questioned about his role, if any, in the selection of the hearing officer. Nevertheless, the only written evidence of his selection in September, 1995 is the superintendent's letter of September 14, 1995. Under the circumstances, I find that it was respondent's responsibility to demonstrate how the hearing officer had been selected, and that it failed to do so.

        In determining what is the appropriate remedy in this case, I have considered the fact that respondent ultimately ratified the selection of Mr. Penner to be the hearing officer, and the fact that there is no evidence that any school district employee who testified at the hearing had any ex parte conversation with him prior to the hearing (see Application of the Board of Education of the Ellenville Central School District, Appeal No. 94-43; Application of a Child with a Disability, Appeal No. 95-44). I have also considered the fact that it is one year after petitioner sought to obtain a summer program for her son, and that an order remanding the matter for another hearing would simply delay the resolution of this matter. I have examined the issues to be decided, and find that they can be addressed upon the record which is before me. Therefore, I will not remand this matter for a new hearing. However, I caution respondent to ensure that in the future it appoints hearing officers in accordance with the applicable statute and regulation.

        In essence, petitioner challenges respondent's failure to provide her son with an instructional program during the Summer of 1995. The boy's previous IEPs had not provided for a twelve-month instructional program, and his IEP for the 1995-96 school year had not been prepared prior to the Summer of 1995, because the CSE was reportedly waiting for the written report of the child's evaluation by the private psychologist. Nevertheless, State regulation provides that when a student's parent believes that the student's educational program is no longer appropriate, the parent may refer the student to the CSE (8 NYCRR 200.4 [d][1]). In this instance, there is no evidence that petitioner made a written referral of her child to the CSE (cf. 8 NYCRR 200.4 [a]; Application of a Child with a Disability, Appeal No. 93-33). Nevertheless, she testified at the hearing that she asked to have her request for a summer program considered by the CSE, when she met with superintendent and the CSE chairperson on June 6, 1995. The superintendent could not recall if petitioner had asked to have the matter referred to the CSE.

        The CSE chairperson at that time testified that petitioner orally requested that the CSE meet to discuss a summer program, during a telephone conversation with the CSE chairperson in late June, or early July. The CSE chairperson also testified that the kind of program which she and petitioner had discussed was not necessarily a matter for the CSE. However, she also testified that the 1:1 tutorial instruction for three hours per day which they had discussed was intended to prepare the child for a transition from the Gow School back to respondent's schools. She further testified that the summer tutorial would have focused upon building and drilling the child's skills, with the assistance of a learning disabilities specialist. Given the child's disability and the nature of the proposed service, I am not persuaded by the former chairperson's assertion that this was not a matter for the CSE. Although petitioner did not submit a written referral, I find that respondent's failure to refer the matter to the CSE is inexplicable. In the future, respondent must ensure that its employees treat parental requests for changes in their children's special education programs as matters to be promptly considered by respondent's CSE.

        Petitioner's assertion that her son should have been provided by respondent with an instructional program during the Summer of 1995 must be considered in the context of State regulatory criteria for twelve-month educational programming (see 8 NYCRR 200.6 [j][1]) with certain exceptions which are not relevant in this instance, a student must:

" ... exhibit the need for a 12-month special service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression as determined by the committee on special education." (8 NYCRR 200.6 [j][1][v])

        The term "substantial regression" is defined in State regulation as:

" ... student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year." (8 NYCRR 200.1 [nn])

        The regression/recoupment standard set forth in State regulation reflects the standard which the Federal Courts have adopted (Cordrey v. Euckert, 917 F 2d 1460 [6th Cir. 1990] cert. den. 499 U.S. 938; Alamo Heights Indep. Sch. Dist. v. State Bd. of Ed. et. al., 790 F 2d 1153 [5th Cir., 1986], Johnsonv. Indep. Sch. Dist. No. 4, 921 F 2d 1022 [10th Cir., 1990], cert. den. 500 U.S. 905). It does not require that children with disabilities actually experience regression in their skills before they can become eligible for summer programs and services. However, there must be a reasonable basis for concluding that regression would occur without the provision of summer programs of services. In this instance, I concur with the hearing officer's finding that there was no evidence in the record that the child would substantially regress without a summer program.

        Petitioner appears to concede that her son does not meet the State regulatory criteria for provision of a 12-month educational program. However, she contends that the proposed summer program was not intended to be merely an extension of her son's ten-month academic program. Instead, it was to provide intensive remediation of her son's skill deficits, in order to prepare him for returning to respondent's school for the 1995-96 school year. She argues that a summer program should not be just for children who would substantially regress without a summer program, but should be provided for children whose skills are substantially below grade level. However, I find that there is nothing in the record before me to indicate that this child's needs are different from those of other children with disabilities whose skills are also below grade level, and whose needs are being addressed with a ten-month instructional program. I note that the psychologist who performed the independent evaluation did not expressly recommend that the child receive a summer instructional program.

        I also concur with the hearing officer's determination that the alleged retaliation incident was beyond the scope of his jurisdiction (Application of a Child with a Handicapping Condition, Appeal No. 92-37). Federal regulations accord parents the right to an impartial hearing concerning the evaluation, educational placement, or provision of a free appropriate public education to their children (34 CFR 300.504 [a][1][2]; 34 CFR 300.506 [a]). The alleged incident did not involve any of these matters.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.