96-050

        Petitioner appeals from an impartial hearing officer's determination to terminate the hearing in this proceeding, and to remand the matter back to respondent's committee on special education (CSE). The hearing officer had noted that the record before him included a number of evaluations of petitioner's child which had been performed by agreement of the parties, but which had not been reviewed by the CSE. He directed the CSE to review those evaluations, as well as to consider the child's performance during the 1995-96 school year, in preparing a new individualized education program (IEP) for the child. Petitioner asks that the hearing officer's determination be annulled on the ground that the hearing officer allegedly refused to allow petitioner and her lay advocate to question him about his appointment as the hearing officer, that the hearing officer was allegedly not appointed in accordance with the procedures prescribed by State statute and regulation, and that the hearing officer exceeded his jurisdiction by failing to determine if the child's IEP for the 1995-96 school year was appropriate in directing that the CSE prepare an IEP for the 1996-97 school year. The appeal must be sustained in part.

        Petitioner's son is eleven years old. During the 1995-96 school year, the child was enrolled in a regular education fifth grade class, with resource room services, in respondent's School 13. The record reveals that the child had been seen for an attention deficit disorder (ADD) at the New York Hospital Cornell Medical Center on an out-patient basis, since January, 1993. He has reportedly received medication for his ADD. In July, 1995, the child's psychiatrist reported to respondent's CSE chairperson that the child had a history of impulsive and disruptive behavior in the classroom, and that he had difficulty maintaining satisfactory relationships with his peers.

        Petitioners' son attended the St. John the Baptist School for kindergarten through the second grade. Petitioner enrolled the boy in another private school, the Good Counsel School, for the third and fourth grades. The child's report cards for the second through the fourth grades reveal that he achieved passing grades in each subject, but that he reportedly had some difficulty completing assignments, and expressing some of his thoughts in writing. Upon a standardized achievement test which was administered to him in March, 1995 when he was in the fourth grade, the child achieved national percentile scores of 91 in total reading, 70 in total language, 96 in total mathematics, and 54 in spelling.

        In January, 1994, petitioner referred her son to respondent's CSE. A school psychologist who evaluated the child in May, 1994, reported that the child had achieved a verbal IQ score of 128, a performance IQ score of 127, and a full scale IQ score of 130. She reported that the child's perceptual motor skills were delayed by approximately one year, as were his spelling skills. The child's reading decoding skills were delayed by less than one year, while his mathematics skills were at a grade appropriate level. Projective testing revealed that the child might have feelings of insecurity, confusion and frustration, and that he appeared to have low self-esteem and difficulty socializing with his peers. Although the CSE met with petitioner in May, 1994, the IEP from that meeting (Petitioner's Exhibit 1) reveals that the required supervisor/special education teacher member of the CSE was not present (cf. 34 CFR 300.344 [a][1]), and that the CSE did not make a recommendation as to either the child's classification or educational program. When the CSE did reconvene in November, 1994, it recommended that the child be classified as learning disabled, and that he remain in a regular education fourth grade class, with resource room services five times per week. Although respondent reportedly offered the child a placement in its schools, petitioner chose to maintain the child's enrollment in the fourth grade of the Good Counsel School for the 1994-95 school year. She accepted respondent's offer of resource room services, which were reportedly made available to the child in the public school which was closest to his private school.

        Although the child received satisfactory marks in the fourth grade, he reportedly had difficulty maintaining his attention and interest in the curriculum. The child's fourth grade teacher noted on the boy's report card that his needs exceeded Good Counsel's program. In a letter dated July 16, 1995, the child's parents advised the CSE that the child would not be allowed to return to the Good Counsel School in the Fall of 1995 because the private school could not meet his special education needs, and his needs as a gifted student. They asserted that their son required a challenging curriculum which was geared toward gifted pupils, and presented in a small class by a teacher experienced in instructing children with ADD, learning disabilities, and gifted children.

        In September, 1995, the child was enrolled in a regular education fifth grade education class in respondent's School 13, where he received resource room services five times per week. The CSE reviewed the child's placement on November 1, 1995, when it recommended that his classification be changed to emotionally disturbed. I note that the psychologist in the New York Hospital - Cornell Medical Center had reported in March, 1995, that the child did not reflect the profile of a depressed child, and that he exhibited only a moderate level of anxiety. She described the child as being impulsive, yet also being a perfectionist. The child's psychiatrist had indicated to the CSE that the boy was impulsive. His fifth grade teacher had also advised the CSE that the child was impulsive, and that he had difficulty remaining on task. The IEP which the CSE prepared on November 1, 1995 indicated that the child had some difficulty relating appropriately to adults and peers. The IEP further indicated that the boy had minimal academic deficits, but he needed to improve his study skills, and his writing skills. The CSE also recommended that the child continue to receive resource room services five times per week. On December 16, 1995, petitioner expressed her dissatisfaction with the child's IEP and requested that the CSE meet again with her.

        On February 6, 1996, the CSE met again with petitioner, who reportedly asked that neurological, neuropsychological, and speech/language evaluations be performed. The CSE recommended that the child's classification be changed to other health impaired, and that he continue to receive resource room services five times per week. It also recommended that the child receive an occupational therapy evaluation and an assistive technology evaluation. In a letter of the same date, petitioner asked respondent to schedule an impartial hearing to review the CSE's failure to prepare an IEP at its meeting, and its alleged refusal to recommend the evaluations which petitioner had requested be performed. The record reveals that respondent's Director of Special Education advised petitioner on February 23, 1996 that the CSE would obtain neurological and speech/language evaluations of the child, and that respondent would pay for an independent neuropsychological evaluation of the child.

        On March 13, 1996, petitioner filed three more hearing requests with respondent. She asked that separate hearings be held, so as not to cloud the issues. Her request alluded to unspecified "violations" by the CSE, a false classification of the child by the CSE, the appropriateness of the CSE's recommendation of resource room services, and the timeliness of respondent's implementation of the CSE's recommendation of February 6, 1996. On or about April 17, 1996, respondent appointed the hearing officer in this proceeding. The hearing officer apparently agreed to accept jurisdiction to decide the issues raised in all four of petitioner's hearing requests. On April 22, 1996, petitioner filed a fifth request for a hearing concerning an alleged denial of her request under the Freedom of Information Law (Article 6 of the Public Officers Law) regarding a profile of her son's classroom and the teacher certification held by her son's teacher. This request was also apparently consolidated with her four prior requests, as the hearing officer had the power to do (Application of a Child with a Disability, Appeal No. 95-51).

        The hearing in this proceeding began on April 30, 1996. Petitioner was assisted by a lay advocate at the hearing. While conceding that there was no issue about the hearing officer's impartiality, the advocate nevertheless sought to question the hearing officer about the manner in which his name had been placed on respondent's list of hearing officers, and the manner in which he had been selected to conduct this hearing. The hearing officer briefly described his contact with respondent's Executive Assistant with regard to being appointed to conduct the hearing. At the hearing office's direction, respondent introduced into evidence copies of its list of hearing officers, and its resolution appointing him as the hearing officer. However, the hearing officer disagreed with the advocate's contention that respondent was required to present additional evidence regarding the manner in which he had been appointed. He denied petitioner's request that he recuse himself from conducting the hearing.

        Petitioner's advocate and respondent's attorney briefly discussed the fact that speech/language, assistive technology, occupational therapy and neuropsychological evaluations had been performed since the CSE last met, and that the CSE had not reviewed the reports of those evaluations. The parties agreed that the CSE would review the results of the child's evaluations at a meeting to be held on May 8, 1996, and that it would revise the child's IEP for the 1995-96 school year, if appropriate. Although petitioner agreed to have the CSE reconsider the child's IEP for the 1995-96 school year, her advocate requested that the hearing nevertheless continue with regard to petitioner's claim of procedural violations by respondent and its CSE. The hearing officer suggested that the hearing be held in abeyance pending the CSE's next meeting, in an attempt to ascertain whether the issues to be resolved could be narrowed.

        On May 8, 1996, the CSE reviewed the results of the child's occupational therapy evaluation. The evaluator reported that the child had exhibited a two-year delay on the Bruininks-Oseretsky Test of Motor Proficiency. She also reported that the child's handwriting reflected the deficiencies in his fine motor skills, as evidenced by the poor directionality, placement, size and spacing of his letters. She recommended that the child receive individual occupational therapy once per week. A speech/language therapist who had evaluated the child on March 19, 1996 reported that the child had a mild lisp, which was evident when he produced the sounds of the letters "s" and "z" . In lieu of special education speech/language therapy, the evaluator recommended that the child receive regular education speech improvement services once per week. The CSE accepted the recommendations of both evaluators. Petitioner reportedly challenged the adequacy of the child's speech/language evaluation. The CSE agreed to have the child re-evaluated to assess his auditory processing and receptive language skills. The CSE also considered the results of an assistive technology evaluation of the child which had been performed on March 18, 1996. The evaluator reported that the child had excellent computer skills, and that he did not require the use of specialized equipment to obtain access to computers. She recommended that the child be scheduled to use computers on a regular basis to work on his study and organizational skills, and to improve his social skills through interactive computer activities. The CSE reportedly accepted the evaluator's recommendations, and directed her to assist the staff of School 13 in implementing those recommendations.

        On May 20, 1996, the hearing reconvened. Petitioner's advocate expressed reservations about the adequacy of the child's occupational therapy and speech/language evaluations. The hearing officer asked the CSE to promptly prepare a revised IEP for the child, and to implement the IEP for the remainder of the 1995-96 school year. He suggested that the parties monitor the child's progress to determine what, if any, additional modifications needed to be made in the boy's IEP. The hearing was then adjourned, because respondent's intended initial witness was unavailable.

        When the hearing resumed on June 12, 1996, petitioner's advocate identified eight issues which she wished to address in the hearing. She contended that respondent had failed to ascertain that the child had special education needs until petitioner referred her son to the CSE in January, 1994. The advocate also contended that the CSE had failed to evaluate the child in all areas of his suspected disability, and that its initial evaluation of the child in the Spring of 1994 was not conducted on a timely basis. She challenged the composition of the CSE at its meetings of May 31, 1994, November 23, 1994, and March 31, 1995. The advocate also contended that the CSE had no basis for changing the child's classification from learning disabled to emotionally disturbed on November 1, 1995. The advocate asserted that petitioner had been denied an opportunity to meaningfully participate in each of the CSE meetings, including the meeting held on February 6, 1996. She also asserted that the February 6, 1996 IEP had been prepared without any information having been provided by the child's teacher, and that it had not been implemented on a timely basis.

        Petitioner's advocate acknowledged that the appropriateness of the IEPs which had been prepared prior to February 6, 1996 was a moot issue. However, she contended that the hearing officer should nevertheless consider whether respondent has failed to conduct appropriate "child find" activities (See 8 NYCRR 200.2 [a][1]), as well as the other procedural violations which were alleged by petitioner, because they evidenced a continuing pattern of misconduct by respondent. The advocate contended that the child had been denied access to a free appropriate public education, as a result of respondent's alleged procedural violations.

        Respondent's Director of Special Education was examined and cross-examined, after which petitioner's advocate asked that the hearing be adjourned for the day. The hearing officer once again suggested that the hearing be postponed to afford the CSE another opportunity to revise the child's IEP, in light of the results of the child's independent neuropsychological evaluation which had been conducted in April, 1996. The evaluator's report had allegedly not been available to petitioner or the CSE at the May 8, 1996 CSE meeting. The hearing officer suggested that it would be "prudent" to remand the matter back to the CSE to review the evaluation reports, as well as the child's progress to date. He indicated that the CSE should prepare a new IEP, with petitioner's full participation. The hearing officer also indicated that petitioner could then seek review of the child's IEP for either the 1995-96 school year, or the 1996-97 school year. Petitioner's advocate asked the hearing officer whether he would address petitioner's request that all of her son's records be redacted to expunge any reference to the child's classification as emotionally disturbed. He suggested that petitioner simply file a written request with respondent to obtain that relief. Although petitioner's advocate accepted the hearing officer's "recommendation" that the matter be remanded to the CSE, she asserted that " ... we're not throwing out the rest of the requests on the impartial hearing, because the parent does not want to waive her rights" (Transcript, page 284). The hearing officer replied that: "We're really not asking you to do that." (Ibid).

        In a letter dated June 13, 1996 to the parties' representatives, the hearing officer indicated that he was "... interrupting the progress of this hearing," and remanding the matter back to the CSE to review the child's recent evaluations and his progress during the 1995-96 school year.

        Before I reach the issues presented by the parties in this appeal, I note that petitioner has submitted a second pleading, in which she has responded to the allegations set forth in respondent's answer. Since respondent has raised a procedural defense in its answer, and new documentary evidence is annexed to the answer, I will accept petitioner's pleading (8 NYCRR 279.6), despite its limited relevance to either the procedural defense or the new evidence presented by respondent.

        Respondent contends that I lack jurisdiction to consider the appeal because "... there has been no change in placement and no hearing." I find that respondent's contention is without merit. My jurisdiction is not dependent upon whether the child's placement has been changed. Section 4404 (2) of the Education Law authorizes a State Review Officer to review any determination of an impartial hearing officer relating to the nature of a child's disability, selection of an appropriate special education program or service and the failure to provide such program. In effect, respondent appears to argue that since the hearing officer closed the hearing without determining whether the educational program which respondent offered during the 1995-96 school year was appropriate, the State Review Officer may not review the hearing officer's determination. In that event, a party to one of these proceedings could not seek redress of a hearing officer's failure to hold a hearing, or to render a decision. I find that such a result would be inconsistent with the language of 20 USC 1415 (c) and Section 4404 (2) of the Education Law.

        Petitioner contends that the hearing officer disregarded her due process rights by ending the hearing over the objection of her advocate. She also contends that the hearing officer's decision should be annulled on the ground that he was not properly appointed by respondent to serve as the hearing officer in this proceeding. Petitioner asks that respondent be directed to appoint another hearing officer to consider and determine the issues which her advocate raised at the hearing on June 12, 1996.

        Respondent argues that petitioner should be equitably estopped from challenging the hearing officer's termination of the hearing on the ground that her representative accepted the hearing officer's recommendation that the matter be remanded to the CSE.

        I agree with respondent that petitioner can not in all fairness now challenge the hearing officer's directive that the matter be remanded to the CSE to prepare a new IEP for the child, because she agreed to that disposition, through her lay advocate. However, I must point out that the hearing officer very clearly indicated that petitioner would have the right to challenge either the child's 1995-96 IEP, or his 1996-97 IEP. Indeed, I find that petitioner has not waived her right to challenge either IEP. It is also readily apparent from the transcript that petitioner's lay advocate did not waive petitioner's right to seek review of the other matters which her advocate had raised on June 12, 1996.

        I must note that the issue of whether the child's records should be amended to delete references to his one-time classification as emotionally disturbed is not an appropriate subject for a proceeding of this nature (Application of a Child with a Disability, Appeal No. 94-28). The relevant Federal regulation (34 CFR 300.570) prescribes a specific procedure for challenging the accuracy of student records, and provides that hearings for this purpose are to be conducted in accordance with the provisions of the relevant Family Educational Rights and Privacy Act regulation (34 CFR 99.22). Hearings conducted pursuant to that regulation are not subject to State- level review by the State Review Officer.

        With regard to petitioner's claim that respondent allegedly failed to conduct adequate child-find activities prior to her son's classification as a child with a disability, I agree with respondent that petitioner's claim is untimely.

        While in no way condoning what appear to be lapses on respondent's part in the timeliness of the CSE's initial recommendation for the child after his referral, and in the composition of the CSE at one or more meetings prior to the 1995-96 school year, I find that petitioner's claims about those matters are simply not relevant to the central issue of this appeal, i.e., whether the CSE had recommended an appropriate educational program for the child on February 6, 1996. I recognize that prior procedural irregularities such as an alleged failure to adequately assess the child in all areas of his suspected disability could have resulted in the provision of inadequate or inappropriate services to the child. However, the issues now are what were the child's needs during the 1995-96 school year, and did the CSE's recommendation adequately address those needs. If the answer to the latter question is no, then petitioner would be entitled to an appropriate remedy, regardless of the etiology of those needs.

        As noted above, petitioner is entitled to a hearing with regard to the adequacy of the child's IEP which was in effect when she requested a hearing. That IEP was prepared by the CSE on February 6, 1996. To the extent that the parties agreed to also include the IEP revisions which the CSE made on May 8, 1996 in this proceeding, the hearing officer may also consider the child's revised IEP. He or she may also consider any subsequent revisions to the child's IEP for the 1995-96 school year, which were made before the end of that school year. Since it is not entirely clear whether the parties explicitly agreed that the hearing officer in this proceeding would retain jurisdiction to hear petitioner's claims with regard to the 1995-96 school year, I will not remand the matter to that hearing officer.

        I must also note that neither the hearing officer nor respondent's representative appeared to have fully understood that respondent was obligated to demonstrate that the hearing officer was appointed by respondent as the next available individual on respondent's list of hearing officers (See Section 4404 [1] of the Education Law). Simply producing respondent's list of hearing officer's and its resolution appointing the hearing officer (which referred to his "random" selection) did not enable respondent to meet its burden of proof on the issue. I note that in an affidavit annexed to its answer, respondent's Executive Assistant has indicated that she did indeed contact prospective hearing officers on a rotating basis, as required by the Education Law. In any event, I note that there is no evidence that the hearing officer lacked the requisite impartiality. Indeed, petitioner's advocate acknowledged at the hearing that she was not challenging the hearing officer's impartiality. However, respondent was obliged to demonstrate that the hearing officer had been validly appointed.

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED. 

        IT IS ORDERED that the hearing officer's decision is hereby modified to provide that nothing therein shall preclude petitioner from initiating an impartial hearing with regard to her child's IEP of February 6, 1996, as amended, provided that she requests a hearing for that purpose within 30 days after the date of this decision.