96-046

       Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education that petitioner's son should be educated in a self-contained special education class during the 1995-96 school year. The appeal must be sustained.

        Petitioner's son, who is thirteen years old, has been classified as learning disabled. In November, 1994, the child was evaluated by respondent's school psychologist, who reported that the child had achieved a verbal IQ score of 98, a performance IQ score of 110, and a full scale IQ score of 104. The school psychologist noted that the child demonstrated average verbal reasoning skills when given much reassurance and unlimited time to complete the test tasks. The boy's nonverbal problem solving skills were reported to be in the above average range. However, the child evidenced deficits in his short-term memory. The school psychologist reported that the child also had difficulty maintaining his concentration. She opined that the child's short-term memory deficits and his inability to maintain his concentration significantly affected his cognitive functioning. When tested by the school psychologist, the child was in the fifth grade, having repeated kindergarten. On the Wide Range Achievement Test Revised, the child achieved grade equivalent scores of beginning second grade in reading, end of first grade in spelling, and end of fourth grade in arithmetic. The child's classification as a child with a learning disability is not in dispute in this proceeding.

        Petitioner's son was initially classified as learning disabled/hearing impaired, when he was in the second grade during the 1991-92 school year. At that time, the child was enrolled in the schools of the City School District of the City of Ogdensburg which had reportedly provided remedial instructional services to the child. The Ogdensburg school psychologist who had evaluated the child reported that the child had scored in the below average range on one intelligence test, but that on two other intelligence tests which did not require the child to process verbal information, the child's scores were in the middle of the average range. The school psychologist indicated that the child had a significant deficit in his ability to process verbal information, and he noted that a prior evaluation had revealed that the child had a mild hearing loss in both of his ears. He also noted that the child could not consistently identify all of the letters of the alphabet, or match sounds to letters. The boy could not read or spell even simple words. The school psychologist reported that the child had low average receptive vocabulary skills, and average expressive vocabulary skills. The boy's visual motor integration skills were reported to be in the average range. He also manifested mild delays in his adaptive behavior skills. Although the Ogdensburg school psychologist recommended that the child be educated in a self-contained special education class, petitioner opposed that recommendation. The Ogdensburg CSE reportedly recommended that the child receive resource room services during the 1991-92 school year. For the 1992-93 school year, the Ogdensburg CSE reportedly recommended that the child be placed in a self-contained special education class with a 12:1:1 child to adult ratio. Petitioner rejected the CSE's recommendation, and withdrew her child from the Ogdensburg schools. She enrolled her son in the schools of the Heuvelton Central School District, where he remained for the 1992-93 and 1993-94 school years.

        The boy was classified as learning disabled, and received resource room services while in the third and fourth grades in Heuvelton. Although his scores on the third grade Pupil Evaluation Program reading and mathematics tests were reportedly above the State reference point, the child's reading and spelling skills remained well below grade level. On standardized achievement tests which were administered to him in May, 1994 when he was in the fourth grade, the child achieved grade equivalent scores of 1.7 in reading decoding, 1.6 in reading comprehension, 1.9 in spelling, 4.5 in mathematical computation, and 5.2 in mathematical applications. During the 1993-94 school year, the child had reportedly received 40 minutes of "pull-out", and 40 minutes of "push-in" resource room services per day. For the 1994-95 school year, the Heuvelton CSE recommended that the child be enrolled in a 12:1:1 special education class for instruction in all subjects, except mathematics and "specials", e.g. music, art and physical education.

        Petitioner withdrew her son from the Heuvelton schools, and enrolled him in the fifth grade of respondent's Westmoreland Road Elementary School for the 1994-95 school year. On October 7, 1994, respondent's CSE recommended that the child continue to be classified as learning disabled. It also recommended that the boy receive 90 minutes of resource room services per day. The CSE further recommended that a speech/language evaluation of the child be performed. Petitioner accepted the CSE's recommendation.

        On October 19, 1994, respondent's speech pathologist reported that the boy's communications skills were delayed, although his listening vocabulary was in the average range. As noted above, respondent's school psychologist evaluated the child in November, 1994. She indicated that the child's teachers had reported that he had difficulty comprehending concepts presented in literature, language arts, social studies, and science, even with the extensive modifications which had been made for him. However, he was demonstrating a strong rate of growth in mathematics, with extensive modifications. The school psychologist reported that the child met the State regulatory criteria for classification as learning disabled in reading and writing (8 NYCRR 200.1 [mm][6]). She opined that the continued modification of the regular education curriculum might not adequately address the child's needs, and recommended that the CSE consider placing the child in a special education class for instruction in all academic subjects, except mathematics.

        The CSE met again, on November 18, 1994. Petitioner did not attend the meeting. The CSE recommended that the amount of the child's resource room services be increased from 90 minutes per day to 120 minutes per day, and that he receive speech/language therapy twice per week. Petitioner did not accept the CSE's recommendation. On January 6, 1995, the CSE met again, without petitioner. The child's resource room teacher reported that the fifth grade curriculum continued to be difficult for the child, even though school materials were read to him. She also reported that the child tried hard, but was becoming more and more frustrated. The CSE indicated that it preferred the increased resource room services which it had recommended on November 18, 1994, but it nevertheless recommended that the child continue to receive 90 minutes of resource room services per day for the remainder of the 1994-95 school year, and that he should receive speech/language therapy, if petitioner would agree. The record reveals that petitioner did not agree to have the child receive speech/language therapy, and respondent has not provided that related service to him.

        On May 12, 1995, the CSE conducted its annual review of the child, and prepared the child's individualized education program (IEP) for the 1995-96 school year. Petitioner did not attend the CSE meeting. However, the CSE minutes indicate that the CSE was aware of petitioner's opposition to any change in the child's educational program. Nevertheless, the CSE recommended that the child be enrolled in a 12:1+1 special education class, except for sixth grade mathematics, during the 1995-96 school year. In its minutes, the CSE indicated that it had considered providing the services of an individual teacher assistant to the child, but it had concluded that neither those services, nor the continued provision of resource room services, would improve the level of the child's academic skills. The CSE also indicated that in view of petitioner's likely rejection of its recommendation, respondent should initiate an impartial hearing (cf. 34 CFR 300.504 [b][ii]).

        On or about May 24, 1995, respondent appointed a hearing officer, who reportedly had difficulty scheduling a hearing on the matter. Petitioner informed the hearing officer that she had not requested, and did not want to have, a hearing. On July 11, 1995, the hearing officer declared the matter closed. In a letter dated August 28, 1995, respondent's Director of Special Programs and Services informed petitioner that her son would be assigned to a special education class in respondent's middle school for the 1995-96 school year. In a brief note dated September 6, 1995, petitioner requested that an impartial hearing be held, because she did not wish her child to be put in a special education class.

        On September 19, 1995, respondent appointed the hearing officer in this proceeding. The hearing officer scheduled a pre-hearing conference to be held on September 25, 1995. However, petitioner reportedly did not receive the hearing officer's letter scheduling the conference which was rescheduled to take place on October 4, 1995. The hearing officer canceled that conference, when he did not obtain a timely response from petitioner, indicating whether she would attend the conference. Petitioner was not present when the hearing began on October 11, 1995. The hearing officer stated that he had spoken to petitioner who had told him that she could adjourn the hearing as often as she wished. The hearing officer opined that petitioner appeared to be using the pendency of Federal and State law to preclude respondent from implementing its CSE's recommendation. He indicated that a guardian ad litem should be appointed to protect the interest of the child (see 8 NYCRR 200.1 [p]). State regulation provides that a guardian ad litem is to be appointed from a list of surrogate parents which each board of education is to maintain (8 NYCRR 200.2 [e][2]). However, respondent did not have a list of surrogate parents. The hearing officer directed respondent to compile a list of surrogate parents by no later than the next meeting of the board of education.

        When the hearing resumed on November 3, 1995, petitioner was assisted by an advocate from the Learning Disability Association, and by a guardian ad litem for the child. The parties agreed that the child would be placed on a trial basis in a self-contained special education class for language arts and reading for a 10-week period. During those 10 weeks the child did not receive resource room support for his regular education subjects, but petitioner indicated that she would provide a tutor for the child. Respondent also agreed to have the child independently evaluated at its expense. It was further agreed that the CSE would review the results of the independent evaluation as well as the child's performance during the 10 week trial period, and would make a new recommendation for the child's educational program. The hearing officer retained jurisdiction over the matter, in the event that petitioner wished to challenge the CSE's subsequent recommendation.

        At the hearing in this proceeding, the special education teacher who taught language arts and reading to the child during the 10-week trial period testified that the child had made slow progress in her class. While in the special education class, the child received phonetically based instruction in reading. The teacher testified that she had also worked with the child to improve his ability to write the letters of the alphabet, because he was occasionally unable to read what he had written. A teaching assistant who was assigned to the special education class went with petitioner's son to his mainstream social studies and science classes, and assisted him in those classes. Nevertheless, the child reportedly had difficulty doing his work in the mainstream classes, because of his severe reading disability and his failure to complete homework assignments.

        On January 24, 1996, the child's independent educational evaluation was performed at the Learning Disability Association of the Mohawk Valley. The independent evaluator reported that the child achieved an independent reading grade equivalent score of 2.2 on the Spache Diagnostic Reading Scale. She noted that the child could not recognize basic sight words beyond those which appear on the Dolch List. The child's listening comprehension skills were reported to be at a grade equivalent of 5.2. The evaluator also evaluated the child's spelling skills, which were found to be below the 2.0 grade level. She recommended that the child receive direct instruction in phonics skills, and that encoding (spelling) skills be addressed simultaneously with decoding (reading) skills. The evaluator further recommended that accommodations, such as taped texts, or having texts read to him, be made to help the child comprehend his sixth grade content material.

        On February 15, 1996, the CSE reviewed the results of the independent evaluation, and the child's progress during the 10-week trial period of primary special education instruction in language arts and reading. The CSE chairperson testified at the hearing that the CSE recommended that the child be educated in a self-contained class for all subjects, except mathematics and science. It should be noted that there is no IEP from the February 15, 1996 CSE meeting in the record because a new IEP was apparently not prepared (cf. 8 NYCRR 200.4 [c][2]).

        Petitioner did not accept the CSE's recommendation, and her son returned to a fully mainstreamed instructional program, with resource room services. The hearing in this proceeding resumed on April 1, 1996, and it concluded on April 18, 1996.

        On May 30, 1996, the hearing officer rendered his decision in this matter. He found that the child was appropriately classified as learning disabled because of the significant deficits in his reading and writing skills. The hearing officer noted that petitioner appeared to be somewhat confused about the nature of special education as evidenced by her request for an impartial hearing in which she asserted that her child should not be in special education, but could remain in the resource room program. He pointed out that the central issue was not whether the child should receive special education services, but whether the CSE had recommended appropriate special education services for the child which were consistent with the requirement that he be educated in the least restrictive environment. He noted that the child had made minimal progress in reading and spelling since he was in the first grade in 1991. The hearing officer further noted that the child had received various supportive services in Ogdensburg, Heuvelton and Whitesboro, but that such assistance had not successfully addressed the child's educational disability. He found that the nature and severity of the child's disability was such that the child could not be satisfactorily educated with the use of supplementary aids and services. The hearing officer further found that the proposed self-contained special education class for language arts and social studies would provide the child with appropriate special educational services in the least restrictive environment.

        Respondent contends that the appeal should be dismissed as untimely, State regulation requires that the petition in an appeal to the State Review Officer must be served upon the board of education, the district clerk, or the chief school officer within 40 days after a parent has received the hearing officer's decision (8 NYCRR 279.2 [a]). The record reveals that the petition was served on July 2, 1996. However, it does not reveal when petitioner received a copy of the hearing officer's decision. Respondent bears the burden of proving its affirmative defense that the appeal is untimely (Application of a Child with a Disability, Appeal No. 93-38; Application of a Child with a Disability, Appeal No. 95-1), which means that it must show when petitioner received the hearing officer's decision (Hyde Park CSD v. Peter C., Sharon C. and the State Review Officer, 93 Civ. 0250 [S.D. N.Y., 1994]). It has not done so in this appeal.

        Petitioner argues that the hearing officer's decision should be annulled because respondent failed to offer her mediation before the hearing commenced. Mediation is not required as a matter of Federal law (34 CFR 300.506, comment). However, Section 4404-a of the Education Law was amended, effective July 1, 1995, to require each board of education to inform parents of children with disabilities of the availability of the mediation of disputes regarding the provision of a free appropriate public education. Although I do not condone respondent's failure to provide that information to petitioner, I find that its failure to do so does not afford a basis for invalidating the hearing officer's decision. Mediation is intended to provide parents with a means of resolving their differences with their school districts without having to hold hearings, but mediation is not a prerequisite for holding a hearing.

        Petitioner also argues that her son should have been offered remedial reading, rather than a special education program, to address his deficient reading skills. Respondent contends that the record substantiates the recommendation which its CSE made, and which the hearing officer upheld. 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 CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]). An appropriate program begins with an IEP which accurately reflects the results of 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 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).

        As noted above, there is no evidence in the record of an IEP for the child to reflect the recommendation which the CSE made at its meeting on February 15, 1996. The CSE chairperson acknowledged in his testimony that the child's previous IEP for the 1995-96 school year, which had been prepared on May 12, 1995, and which did not provide that the child would be mainstreamed in science, had not been revised (Transcript, page 277). Although the child's IEP of May 12, 1995 was the initial subject for the hearing in this proceeding, that IEP was reportedly amended by the CSE at its meeting on February 15, 1996. The hearing officer upheld the CSE's recommendation of February 15, 1996, even though there was no IEP from that CSE meeting in the record. In the absence of an IEP from that CSE meeting, I find, as a matter of law, that there was no recommendation by the CSE to be reviewed in the hearing (Application of a Child with a Disability, Appeal No. 94-13).

        There is an additional reason why the hearing officer's decision must be annulled. Respondent's resolution appointing the hearing officer provided in part that:

"WHEREAS, Albert E. Shaw, Jr. has recommended James P. Walsh, 90 State Street, Albany, New York, as the Impartial Hearing Officer in this matter;

THEREFORE, BE IT RESOLVED, that James P. Walsh, be, and he hereby is, appointed as the Impartial Hearing Officer..." (Hearing Officer Exhibit 4).

        The record reveals that Mr. Shaw is respondent's CSE chairperson, and that he testified about the CSE's recommendation for the child's educational program at the hearing in this proceeding. It is well established that boards of education should avoid even the appearance of impropriety in the selection of hearing officers by not permitting school employees who will testify as witnesses or who may have otherwise been involved in the decision or action to be reviewed by the hearing officer to participate in the selection of the hearing officer (Application of a Child with a Handicapping Condition, 30 Ed. Dept., Rep. 195; Application of a Child with a Handicapping Condition, Appeal No. 92-25; Application of a Child with a Handicapping Condition, Appeal No. 92-46; Application of a Child with a Disability, Appeal No. 94-47; Application of a Child with a Disability, Appeal No. 94-37; Application of a Child with a Disability, Appeal No. 95-44).

        Although petitioner's appeal must be sustained for procedural reasons, I must note, as did the hearing officer, that this child has continued to fall behind his chronological peers, despite the remedial and special education services which he has received to date. I do not agree with petitioner's contention that respondent was required to offer a remedial reading program to her son, in lieu of special education services. The child has been identified as a child with a disability, and the record amply supports his classification. It is the CSE's responsibility to recommend special education services to address the child's special education needs. The CSE must take into account the child's progress, or lack thereof, in less restrictive settings, before it may recommend that he spend all or a portion of a school day in a self-contained class. In this instance, the record clearly demonstrates that the child requires primary special education to address the deficits in his reading and writing skills. Resource room services are by definition intended to provide supplementary instruction (8 NYCRR 200.1 [hh]). However, in determining the extent to which the child may require primary special education instruction in other subjects, the CSE must carefully consider whether the child can achieve some success in a mainstream environment with appropriate curriculum modifications, testing modifications, and the assistance of an individual aide. I note in particular that notwithstanding the recommendations by one of the child's prior teachers and by the independent evaluator, the CSE has not recommended that the child be provided with books on tape.

        THE APPEAL IS SUSTAINED 

        IT IS ORDERED that the decision of the hearing officer is hereby annulled.