97-096

        Petitioners appeal from a decision of an impartial hearing officer which upheld a recommendation by respondent's committee on special education (CSE) that their daughter be declassified, and be placed in a regular education program with transitional support services for the 1996-97 school year. In doing so, he denied petitioners' request that respondent be ordered to reimburse them for the cost of the girl's tuition at the Windward School for that school year. The appeal must be dismissed.

        Respondent argues that petitioners' appeal should be dismissed as untimely because it was commenced more than 40 days after petitioners' attorney had reportedly received the hearing officer's decision (cf. 8 NYCRR 279.2 [b]). The hearing officer rendered his decision on October 22, 1997. Respondent asserts that the decision was forwarded to its attorney on or about that date. Petitioners allege that their attorney did not receive a legible copy of the hearing officer's decision until on or about November 8, 1997. On November 17, 1997, they served their notice of intention to seek review upon respondent's Superintendent of Schools. The petition in this appeal was served on December 19, 1997. From the copies of the correspondence between petitioners' attorney and the hearing officer which are annexed to the petition as Exhibit A, it appears that the hearing officer initially faxed a copy of the decision, and thereafter mailed a copy of the decision to petitioners' attorney. He subsequently mailed a second copy of the decision. Given the fact that petitioners promptly notified respondent of their intention to bring an appeal, and the fact that respondent does not appear to be prejudiced by delay in their appeal, I will not dismiss the appeal as untimely.

        The child in this proceeding was born in Honduras. She was reportedly very ill during the first few months of her life, and she may have suffered oxygen deprivation as a result of her illness. Although her other developmental milestones were reported to be normal, the child did not speak until she was two and one-half years old. In March, 1990, the child's hearing and speech/language skills were evaluated at the Greenwich Hospital in Greenwich, Connecticut. Her hearing was found to be normal. Although the child produced the speech sounds expected of a child of her age, she had difficulty speaking words containing more than one syllable. The evaluator reported that many of the child's spontaneous intelligible utterances were not sentences, and that the sentences which she did utter were highly stereotypic. In a subsequent letter to the child's mother dated June 28, 1990, the speech/language evaluator opined that the child's difficulty in speaking was neurological in origin. In any event, the girl began to receive speech/language therapy at the Greenwich Hospital in April, 1990

        In June, 1990, petitioners referred the child to respondent's committee on preschool special education (CPSE). The psychologist who evaluated the child for the CPSE in July, 1990 reported that the child was cognitively functioning in the average range, with a discrepancy between her verbal and non-verbal performance. She indicated that the child needed to develop her language processing and graphomotor (handwriting) skills, and to increase her attention span. The child's speech/language skills were also evaluated for the CPSE in July, 1990. The evaluator reported that the child exhibited delays in both her receptive and expressive language skills, and she recommended that the child be enrolled in a special education preschool program with speech/language services. In September, 1990, the CPSE recommended that the child be placed at the Mamaroneck Preschool Program for Children with Special Needs on a one-half day, ten-month basis. The CPSE also recommended that she receive speech/language therapy.

        At its annual review of the child in April, 1991, the CPSE determined that the child had made good improvement during the 1990-91 school year, but that she continued to have severe expressive language problems. It recommended that she remain classified as speech-impaired, and continue in the Mamaroneck Preschool Program for Children with Special Needs and receive speech/language therapy during the 1991-92 school year. The CPSE also recommended that parent counseling be provided.

        On June 1, 1992, the child was referred because of her age to the CSE by the CPSE to determine whether she should be classified as a child with a disability while in kindergarten during the 1992-93 school year. On June 16, 1992, the CSE recommended that she be classified as speech-impaired, and that she be placed in a regular education class and receive both individual and small group speech/language therapy as well as consultant counseling services. Respondent was reportedly unable to provide speech/language to the child during the fall of 1992, and it agreed to pay for the private speech/language therapy which petitioners had obtained for the girl until it was able to employ a speech/language therapist in December, 1992.

        In January, 1993, the child's mother asked the CSE to re-evaluate the child to ascertain whether the girl was learning disabled. On March 11, 1993, the CSE recommended that the child remain classified as speech-impaired, and not be classified as learning disabled. It also recommended that the child no longer receive speech/language in a small group because her speech articulation needs could be more appropriately addressed by individual speech/language therapy and because respondent did not have an appropriate grouping in which she could receive such therapy. Petitioners did not agree with the recommended change in their child's speech/language therapy.

        The CSE conducted its annual review of the child on July 26, 1993. It noted that respondent's speech/language therapist had reported that the girl had met certain annual goals and objectives on her IEP for the 1992-93 school year, while the child's private speech/language therapist had indicated that the girl had continued to have a severe expressive language delay. The CSE recommended that the child remain classified as speech-impaired for the 1993-94 school year. It also recommended that she be enrolled in a regular education class, but receive direct consultant speech/language therapy for 30 minutes twice per week. Two days after the annual review, the child was evaluated by a speech/language pathologist at the Westchester County Medical Center. That evaluator concluded that the girl exhibited a moderate expressive language disorder, and a mild speech articulation problem. She opined that the articulation problem would best be addressed in a language-based class, while the expressive language disorder would require speech/language therapy.

        Petitioners did not accept the CSE's recommendation. They unilaterally enrolled the child in the Windward School for the 1993-94 school year. Petitioners also transported their child to that school during the 1993-94 school year. The Windward School is a private school for children with learning disabilities, and is located in White Plains, New York. I note that the private school has not been approved by the State Education Department to provide instruction to children with disabilities. Upon receipt of a letter from the child's mother indicating petitioners' disapproval of the child's IEP for the 1993-94 school year, the CSE chairperson requested that an impartial hearing be held. Petitioners opposed the request for the hearing because they were pursuing a complaint against respondent with the United States Department of Education. The hearing was adjourned once, and then apparently cancelled.

        In July, 1994, respondent's CSE recommended that the child continue to be classified as speech-impaired, and that she be enrolled in a regular education second grade class with direct consultant speech/language therapy for 30 minutes, twice per week. Petitioners did not accept the CSE's recommendation, and they chose to continue the child's placement in the Windward School for the second grade during the 1994-95 school year. Respondent provided transportation to the child.

        In June, 1995, an administrator of the Windward School reported that the child's reading and spelling skills had improved significantly during her two years at the school, but she indicated that reading comprehension, vocabulary, and written and oral expression continued to be difficult for the child. The administrator opined that the child continued to fit the profile of the children attending the Windward School, and that she required a highly structured educational program which the private school provided to her. At the end of second grade, the child achieved grade equivalent scores of 1.9 for vocabulary and 2.0 for reading comprehension on the Stanford Reading Achievement Test, and 1.9 for concepts, 1.7 for computation, and 1.6 for applications on the Stanford Mathematics Achievement Test.

        The CSE conducted its annual review of the child in August, 1995 to prepare the IEP for the 1995-96 school year. Although the child's mother had requested that the CSE change the child's classification to learning disabled, the CSE recommended that the child be classified as speech-impaired for the 1995-96 school year. It also recommended that the child receive "Consultant Teacher/Resource Room" for three hours per week, and speech/language therapy in a group for 30 minutes, twice per week. The child’s IEP provided for the use of various testing modifications, including extended time limits, having test directions/questions read to her, separate locations, and using simplified language. Petitioners again chose to re-enroll their daughter in the Windward School for the 1995-96 school year. Respondent once again provided transportation to the child.

        The child was evaluated by respondent's speech/language therapist in September, 1995 when the child was entering the third grade and was eight years seven months old. On the Receptive One-Word Picture Vocabulary Test, the child obtained a standard score of 91 and a language age equivalent of seven years ten months, which placed her in the low-average range for receptive language vocabulary development. On the Expressive One-Word Picture Vocabulary Test, she obtained a standard score of 103 and a language age equivalent of eight years eleven months, indicating that she had average expressive language ability. Her standard score of 46 on a language processing test placed her in the average range for language processing. Although she exhibited weakness in two areas: multiple meanings and attributes, her scores were nevertheless still within the average range.

        A triennial psychological evaluation was done on February 16, 1996. In her report, the school psychologist referred to teacher reports which indicated that the child's reading decoding and comprehension skills were very good, but that she apparently lacked confidence in class and sometimes needed verbal prompting and direction to help her determine an answer. Her addition and multiplication skills were described as satisfactory, but she needed to improve her skills in subtraction and division. The school psychologist reported that the child had achieved a verbal IQ score of 113, a performance IQ score of 106, and a full score IQ score of 110. She noted that the child's subtest scores did not reflect a great deal of intra- or inter-scatter among the subtests. Although the child exhibited some weakness in visual sequencing, analysis and synthesis, part-whole relations, common sense and short-term memory, the school psychologist reported that the child's scores in these areas were nevertheless within the average range. On a test of her visual motor integration skills, the child obtained an age equivalent score of 9.0 to 9.11, placing her at or above her age expectancy. The school psychologist did not administer projective testing but discussed teacher comments about the child's shyness in class. She suggested that the child continue to receive verbal prompting in class and be given the opportunity for "think" time to help overcome her shyness and hesitancy. She indicated that the girl would benefit from continued praise and confidence building, and would also benefit from group counseling with a focus upon adoption.

        On May 31, 1996, the child was observed in her reading class at the Windward School by one of respondent's school psychologists, who reported that the child fluently read a passage from a book and appropriately answered the teacher's questions about what she had read. The observer noted that the child did not volunteer answers in class.

        In an update of the child's social history which was done on June 5, 1996, the child's mother indicated that her daughter was in good health and was not taking any medication. The mother also indicated that the child was very helpful and was cooperative at home, but had difficulty with "inferential language".

        In June, 1996, a Windward School administrator reported that the child had become a reasonably fluent decoder and had made gains in her reading comprehension skills. However, she asserted that vocabulary and written and oral expression remained difficult for the child, and that the child had begun to struggle in mathematics because of difficulty with the language of word problems. She further asserted that the child continued to need the structured, small group educational program which the Windward School provided. On the Stanford Reading Achievement Test which was administered to her at the end of the third grade, the child achieved grade equivalent scores of 2.2 for vocabulary and 2.3 for comprehension. Her grade equivalent scores for mathematics were 4.5 for concepts, 1.8 for computation, and 2.6 for applications. The child scored above the statewide reference points on the Regents Competency Third Grade Reading and Mathematics Test, meaning respondent would not have been required to provide her with remedial assistance (see 8 NYCRR 100.3 [b] [3]).

        The CSE's annual review of the child had been scheduled to take place on June 12, 1996, but it was postponed at petitioners’ request (Exhibits 69,70, 75, 76). A dispute arose between the parties about additional testing of the child in June (Exhibits 80, 81, 82). I note that on May 29, 1996, the child's mother had sought mediation (see Section 4404-a of the Education Law) of an unidentified dispute with the school district (Exhibit 77). Although a mediation session was scheduled to take place on June 21, 1996, that session was allegedly cancelled because respondent intended to have its attorney attend the mediation session (Exhibit 79-A). In any event, the parties did not use the mediation process.

        The CSE did not conduct its annual review until September 12, 1996, at which time it recommended that the child be declassified. It also recommended that she receive declassification support services (see 8NYCRR 100.1 [q]). The CSE meeting minutes indicated that a special education teacher, a psychologist and a speech/language pathologist would provide those support services and monitor adjustment and progress during the 1996-97 school year (Exhibit 90). The CSE minutes also indicated that the CSE had considered whether the child met the criteria for a classification as either speech-impaired or learning disabled. After reviewing the results of the child’s triennial testing and reports from her teachers, the CSE determined that the girl did not exhibit a language impairment which adversely affected her classroom functioning, nor did she evidence a severe discrepancy between her expected and actual achievement.

        By letter to respondent’s Director of Special Education which was dated September 30, 1996, petitioners’ attorney asked for an impartial hearing. Petitioners maintained their child's unilateral placement at the Windward School for the 1996-97 school year. Respondent transported the child to the private school. In his letter, the attorney indicated that the "… subject of the hearing will include but not be limited to the 1996-97 school year recommendation." (Exhibit 93). I note that in his opening statement when the hearing began on November 8, 1996, petitioners’ attorney asserted that the "…scope of this hearing is for the reimbursement for tuition for this [the 1996-97 school] year…But one cannot lose sight of history." (November 8, 1996 Transcript, page 14).

        Petitioners’ attorney asked for the hearing officer to recuse himself from this proceeding because of an appearance of impropriety resulting from the fact that respondent’s attorney was also the attorney for the Greenburgh Central School District. The hearing officer was a member of the Greenburgh Board of Education at the time of the hearing. The hearing officer, who is an attorney, acknowledged that he had voted for Mr. Green’s contract to be Greenburgh’s attorney, but he ruled that there was no conflict of interest in serving as the hearing officer in this proceeding, and he denied the motion to recuse himself (November 8, 1996 Transcript, page 10).

        The hearing continued on December 19, 1996 and July 10, 1997. After respondent had completed its case, petitioners sought to introduce 105 exhibits ranging from their attempt to adopt the child in 1987 to correspondence from the State Education Department to respondent’s Director of Special Education in June, 1997. Respondent opposed petitioners’ attempt to introduce many of these documents on the ground that they were broadening the scope of the hearing. It was agreed that the hearing officer would rule upon the question on or before the final day of the hearing on August 4, 1997. On that day, the hearing officer ruled that 39 of petitioners’ proposed exhibits were inadmissible because they were outside the scope of the hearing, which was limited to petitioners’ claim for tuition reimbursement for the 1996-97 school year. Most of the excluded exhibits were copies of correspondence between the child’s mother and school staff. The hearing officer did admit into evidence copies of the child’s prior IEPs and earlier evaluations.

        In his decision which was dated October 22, 1997, the hearing officer rejected petitioners’ contention that the CSE’s recommendation was fatally flawed because there was no representative of the Windward School at the CSE’s meeting which was held on September 12, 1996. He found that the child’s teacher at the Windward School was not the required teacher member of the CSE (see section 4402 [l]][b][l] of the Education Law), and that respondent was not required to ensure that a representative of the Windward School attend the CSE meeting because respondent had not placed the child in that private school. The hearing officer dismissed petitioners’ claim that the CSE had failed to adequately evaluate their daughter prior to recommending that the child be declassified. He found that the CSE was not expressly required by the Regulations of the Commissioner of Education to conduct an educational evaluation, and that the information which the CSE did have about the child’s educational performance was adequate to form a basis for making its recommendation. The hearing officer further found that the child’s last speech/language evaluation which was done in September, 1995 was not "stale" as petitioners claimed, and could be relied upon by the CSE in recommending that the child be declassified. He determined that the CSE had considered all of the relevant information, and that its recommendation to declassify the child and provide her with transitional support services was appropriate. Having made that determination, the hearing officer declined to consider the appropriateness of the Windward School’s services for the child during the 1996-97 school year, and he denied petitioners’ request for tuition reimbursement.

        Petitioners contend that the hearing officer erred by not granting their motion to recuse himself because of the appearance of a conflict of interest. Respondent argues that the hearing officer met the regulatory criteria for impartiality set forth in 8 NYCRR 200.1(s) because the hearing officer was not an employee of any school district and did not have any personal or professional interest which would conflict with his objectivity. The regulation reads, in material part, as follows:

(s) Impartial hearing officer means an individual assigned by a board of education pursuant to Education Law, section 4404 (1), or by the commissioner in accordance with section 200.7 (d)(1)(i) of this Part, to hear an appeal and render a decision. Commencing July 1, 1996, no individual employed by a school district, school or program serving students with disabilities placed there by a school district committee on special education may serve as an impartial hearing officer and no individual employed by such schools and programs may serve as an impartial hearing officer following termination of such employment. An impartial hearing officer shall:

(1)  be independent, shall not be an officer, employee or agent of the school district or of the board of cooperative educational services of which such school district is a component, or an employee of the Education Department, shall not have a personal or professional interest which would conflict with his or her objectivity in the hearing, and shall not have participated in any manner in the formulation of the recommendation sought to be reviewed; and…"

        Respondent asserts, and I agree, that a member of a school district's board of education is not an employee of that school district. A school board member is a school officer, who would be precluded from serving as an impartial hearing officer in the school district of which he is a school officer, which is not the case in this instance. Petitioners have not identified a specific personal or professional interest of the hearing officer which conflicted with his objectivity. However, the matter does not end there. An impartial hearing officer must avoid even the appearance of impropriety (Application of a Child with a Handicapping Condition, Appeal No. 91-10; Application of the Bd. of Ed. of the Pittsford CSD, Appeal No. 91-14). In both of those appeals to the State Review Officer, the attorney representing the school district was also the attorney for a neighboring school district which was the full-time employer of the hearing officer. The State Review Officer noted that the attorney provided legal advice to the hearing officer and would legally represent the hearing officer if the latter were sued with regard to his employment by the other district, and concluded that there was an appearance of impropriety. I reach the same conclusion in this appeal. In doing so, I must emphasize that there is no evidence in the record of any bias by the hearing officer. Although I have found that the hearing officer should have recused himself to avoid the appearance of impropriety, his failure to do so does not, in my judgment, warrant remanding the matter for another hearing, which would only further delay the outcome of this proceeding.

        I have considered the hearing officer's evidentiary and other procedural rulings. I find that he acted well within his discretion in limiting the scope of the hearing to the 1996-97 school year, and in excluding certain documentary evidence and/or testimony which related to the dealings of the parties in prior school years, in view of the representation by petitioners' counsel at the outset of the hearing that the subject of the hearing was petitioners' request for tuition reimbursement during the 1996-97 school year. Both sides were afforded the opportunity to briefly describe the events leading up to the CSE's recommendation for the 1996-97 school year, and to introduce the relevant documents, such as the child's prior evaluations and IEPs. I must note that certain alleged procedural violations by respondent in the years preceding the school year in question were the subject of complaints to the State Education Department and the U.S. Department of Education. Although petitioners have attached copies of correspondence relating to those complaints to their petition, I have not reviewed those matters, which are outside the scope of my jurisdiction (see 8 NYCRR 279.1 [c][2]). Additionally, I must note that the State and Federal Education Departments have the power to order respondent to take corrective action when appropriate.

        The central issues in this appeal are whether the CSE had adequate information upon which to base its recommendation to declassify the child and whether that recommendation was appropriate. Respondent bears the burden of establishing the appropriateness of the CSE's recommendation that the child no longer be classified as a child with a disability (Application of a Child with a Disability, Appeal No. 97-90). It asserts that the information which the CSE had obtained from the child's evaluations, as well as the information provided to the CSE by the child's private school, led to the inescapable conclusion that the child no longer had a classifiable disability. Petitioners contend that the evidence which is before the CSE clearly demonstrated that their daughter continued to require special education.

        I must note that the Individuals with Disabilities Education Act (20 USC 1400 et seq.) was amended as of June, 1997 to prescribe certain procedures to be followed when a school district proposes to declassify a child. Those statutory provisions do not apply in this instance because the CSE's recommendation preceded the effective date of the amendments to the Federal statute. However, the Federal regulations implementing Section 504 of the Rehabilitation Act of 1973 require that a child be evaluated before there is any significant change in the child's placement (34 CFR 104.35 [a]). I find that the provisions of this regulation were applicable to the action taken by respondent's CSE. In order to comply with the regulation, a school district must ensure that the tests and other evaluation materials have been validated for the specific purpose for which they are used and administered by trained personnel in conformance with the instructions provided by the tests producer, and that test and other evaluation materials are tailored to assess specific areas of educational need.

        In this instance, the petitioners do not challenge the validity of the tests employed by the CSE, but they assert that the speech/language evaluation upon which the CSE relied when the CSE made its recommendation was at least one year old. That evaluation by respondent's speech/language therapist was performed on September 8, 1995, shortly after the CSE had recommended that the child remain classified as speech-impaired for the 1995-96 school year. It was therefore not used as a basis for determining that she was speech-impaired during the 1995-96 school year. As noted above, the standardized test results which were obtained in that evaluation indicated that the child's speech/language skills were in the average range. Having reviewed the written report by the Head of the Windward Lower School at the end of the 1995-96 school year (Exhibit 89), as well as her testimony at the hearing, I find that there is no basis to infer that the child's speech/language skills declined in the interim between the September, 1995 speech/language evaluation and the CSE's recommendation to declassify the child in September, 1996. Therefore, I find that the CSE could have reasonably relied upon the September, 1995 speech/language evaluation as an accurate description of the child's speech/language skills.

        Although the CSE did not do a formal educational evaluation of the child prior to making its recommendation to declassify her, it did have the report written by the Head of Windward Lower School and the child's standardized achievement test results from the spring of 1996. The CSE also had information from its school psychologist who had evaluated the child in February, 1996, and observed her in class in February, 1996. The question then is what, if any, additional information would have been obtained about the child from a formal educational evaluation? Upon the record which is before me, I find that the CSE did not lack adequate information about the child because of its failure to have an educational evaluation performed.

        Petitioners challenge the procedure by which the CSE made its recommendation. They allege that the CSE met without its parent member and predetermined its recommendation prior to meeting with them on September 12, 1996. At the hearing in this proceeding, one of respondent's special education teachers who was not a voting member of the CSE testified that she, her supervisor, the CSE chairperson, and the school psychologist had reviewed the reports from the Windward School prior to the CSE's meeting. The teacher did not recall whether the parent member of the CSE had been present. Although declassification was discussed at the meeting in question, there is no evidence that the CSE's recommendation was predetermined, as petitioners have alleged.

        Petitioners assert that the CSE should have contacted a representative of the Windward School so that the representative could have participated in the CSE meeting. I note that they have not specifically challenged the hearing officer's determination that the child's teacher at the Windward School was not the required teacher member of the CSE. In any event, I concur with the hearing officer's determination. The hearing officer also determined that the CSE was not required to ensure that a representative of the Windward School attend the CSE's meeting because respondent had not placed the child in that private school. Federal regulations provide for the participation of a representative of a child's private school in CSE meetings when the child has been placed by the CSE in the private school (34 CFR 300.348), or when the child is receiving special education or related services from the school district (34 CFR 300.349). Although respondent apparently provided the child with transportation to the Windward School during the 1995-96 school year, there is nothing in the record which indicates that this transportation was provided pursuant to the provisions of Article 89 of the Education Law. Therefore I find that respondent was not required to ensure the participation of a representative of the Windward School in the CSE meeting of September 12, 1998.

        Turning to the question of whether the CSE's recommendation was appropriate, I note that the board of education bears the burden of establishing the appropriateness of the CSE's recommendation that a child not be classified as a child with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 93-18; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-42). A speech-impaired child is defined by State regulation as:

"A student with a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment which adversely affects a student's educational performance" (8 NYCRR 200.1 [mm][11]).

        Petitioners contend that their daughter has a language impairment which adversely affects her educational performance. However, the results of the September, 1995 speech/language evaluation do not support their contention that the child has a significant language impairment. Her receptive and expressive vocabulary skills were within the low-average and average ranges, respectively. Despite certain weaknesses in her language processing skills, those skills were nevertheless in the average range. I note that petitioners questioned how the child's failure to answer a single question on one subtest could yield an average score. That apparent discrepancy was explained by respondent's speech/language therapist at the hearing. Her explanation has not been rebutted. The child's academic achievement, as assessed by the Windward School in January, 1996 (the Gates-Mac Ginitie Reading Test) and May/June, 1996 (the Stanford Reading and Mathematics Achievement Tests) indicated that her reading and mathematics skills were mildly delayed. Moreover, as noted above, the child did achieve passing scores on her Regents Pupil Evaluation Program Third Grade Reading and Mathematics Tests in the spring of 1996.

        I have carefully considered the entire record, including the testimony of Ms. Klem, the Head of the Windward School's Lower Division, and the child's mother regarding the child's special educational needs. While I don't doubt their sincerity, I must find that their very general and conclusory statements do not afford me an adequate basis to disregard the objective evidence presented by respondent about the child's needs and academic achievement as of the end of the 1995-96 school year. I am of course aware that the child had been receiving instruction in small, structured classes at the Windward School. Although petitioners were concerned about how their child would function in a larger, less structured fourth grade class in respondent's schools, I find that the monitoring of her school performance by a school psychologist, special education teacher, and speech/language therapist pursuant to the CSE's recommendation for transitional support services would have been sufficient to allow the CSE to follow her progress, and make adjustments, if necessary, in her educational program. I must point out that a child need not be classified as a child with a disability in order to receive supportive services in a regular education setting (see Section 4401-a [5] of the Education Law and 8 NYCRR 100.1 [p]).

        I have considered petitioners' numerous other contentions which I find to be without merit.

THE APPEAL IS DISMISSED.