Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Brockport Central School District
Sharon M. Kehoe, Esq., attorney for petitioner
Harris, Beach and Wilcox, L.L.P., attorneys for respondent, Alfred L. Streppa, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision which upheld some of petitioner's challenges to the manner in which respondent's committee on special education (CSE) had recommended that petitioner's son be declassified, but which denied petitioner's request that respondent be ordered to provide compensatory education to the child. Respondent cross-appeals from the hearing officer's determination that it had unreasonably delayed its approval of petitioner's request for independent psychological and educational evaluations, and that it had erred in failing to promptly schedule an impartial hearing upon receipt of petitioner's request for a hearing. It also challenges the hearing officer's ruling that respondent failed to have a plan for declassification support services developed and implemented in a timely fashion. The appeal must be sustained in part. The cross-appeal must be sustained in part.
There are a number of procedural issues which I must address before reaching the merits of the appeal and cross-appeal. The first has to do with petitioner's submission of a reply to respondent's answer and answer to respondent's cross-claim. Petitioner's attorney mailed an unverified copy of the reply and answer to the Office of State Review in early August, 1998, with the explanation that petitioner was temporarily unavailable and would verify the reply and answer upon her return from an out-of-town trip. Respondent's attorney objected to the submission of unverified pleadings (see 8 NYCRR 275.5). Petitioner's attorney was orally advised by the Office of State Review that petitioner's reply and answer had to be verified. On November 9, 1998, the Office of State Review reviewed an amended reply and answer to the cross-appeal which was verified by petitioner's attorney. Respondent's attorney objected to that pleading. Petitioner's attorney contended that she was authorized to verify petitioner's pleading. I disagree. Section 275.5 of the Regulations of the Commissioner of Education provides in material part that: "An answer shall be verified by the oath of the respondent submitting such answer", with one exception which is not applicable to the instant appeal. With respect to the reply portion of petitioner's pleading, it must be noted that 8 NYCRR 279.6 limits an additional pleading such as a reply to a response to the procedural defenses raised in the answer and to any additional documentary evidence submitted with the answer. In this instance, the reply is not responsive to the three documents annexed to respondent's answer, but merely reargues the merits of petitioner's case. Under the circumstances, I will not accept petitioner's reply and answer to the cross-appeal.
After respondent had submitted its answer and cross-appeal, its attorney advised the Office of State Review that the child had reportedly been removed from petitioner's custody and placed in a foster home in the Hilton Central School District. Respondent's attorney suggested that the appeal might be moot. I must point out that there is no evidence in the record before me which establishes that petitioner no longer has legal custody of the child, or that her son no longer resides in respondent's district. Even if the child is no longer residing in the Brockport Central School District, it would not make petitioner's claim of procedural unfairness moot (Heldman v. Sobol, 962 F. 2d 148 [2d Cir., 1992]; Hiller v. Bd. of Ed. Brunswick CSD, 687 F. Supp. 735 [N.D. N.Y., 1988]).
Petitioner's son is 14 years old. He was reportedly found to have a bilateral high frequency sensorineural hearing loss at an early age. Thereafter he was classified as a preschool child with a disability because of a speech delay, and was enrolled in a BOCES special education program. He remained in the BOCES special education program until he entered respondent's kindergarten in the fall of 1989. The child was placed in a regular education kindergarten class while he reportedly continued to receive speech/language therapy which had begun when he was a preschooler. The child had difficulty academically and behaviorally, and was referred to the CSE. A school psychologist who evaluated the child reported that there was a significant discrepancy between the child's verbal and performance IQ scores, and suggested that he might have an attention deficit disorder (ADD).
In May, 1990, the CSE recommended that the boy be classified as learning disabled. It also recommended that he be placed in a half-day special education class and receive speech/language therapy and counseling while in the first grade during the 1990-91 school year. The child's educational program was reportedly similar for the second grade during the following school year. For the third, fourth and fifth grades, the child was placed in "blended" classrooms, where he apparently received some special education instruction while in a regular education setting. I note that his individualized education program (IEP) for the 1994-95 school year (Exhibit P-35) indicated that he would receive an unspecified amount of consultant teacher services, 30 minutes of speech/language therapy three times per week, and one session of family counseling per month. His IEP also indicated that, when tested while in the fourth grade during the spring of 1994, the child had achieved grade equivalent scores of 4.0 for reading and 4.8 for mathematics, but only 2.0 for written language.
In the spring of 1995, the child's special education (consultant) teacher reportedly indicated that the child had organizational difficulties which did not impair his ability to be successful in the classroom, but did impact upon his ability to complete homework assignments. The results of the child's achievement testing in March, 1995 were consistent with prior test results. He earned a grade equivalent score of 5.8 for total reading, within a percentile range of 54-67. On the Key Math Test, his total score was at the 98th percentile. However, he achieved percentile scores of 50 for thematic maturity, 75 for contextual vocabulary, 37 for syntactic maturity, and 25 for contextual style on the Test of Written Language-2 which was administered to him in the fall of 1995.
On April 28, 1995, the CSE recommended that petitioner's son be declassified. In a letter to the child's parents dated April 29, 1995 (Exhibit P-42), respondent's CSE chairperson advised the parents that:
"If you object to this recommendation, you have the right to a hearing. You may also appeal the decision resulting from a formal hearing, should you be in disagreement with the outcome of the hearing. Please see the Procedural Due Process attachments for greater detail of this procedure."
The CSE chairperson testified that a due process description (P-18) accompanied each notice sent by the CSE to a parent. By letter dated May 1, 1995, petitioner objected to the CSE's recommendation, and requested that another CSE meeting be held. She did not ask for an impartial hearing. On May 5, 1995, the child's regular and special education teachers advised the CSE that petitioner's son would need transitional support services (see 8 NYCRR 200.1 [pp]) because of his organizational difficulties. On June 14, 1995, the CSE chairperson asked the building principal to prepare a transitional support plan. On June 23, 1995, the child's special education teacher and a school psychologist prepared a transitional support plan for the child (J-21). However, the plan was reportedly misplaced, and therefore not immediately implemented when petitioner's son entered the sixth grade in the fall of 1995.
On October 23, 1995, petitioner requested that her son be re-evaluated by the CSE. Her request was treated as a new referral of the child to the CSE. The child was evaluated by a school psychologist on November 10, 1995. The psychologist reported that the child's teachers described him as cooperative and capable of completing mainstream academic work and learning the organizational skills necessary to work independently. The boy was reportedly receiving passing grades, but he needed to be refocused in class and he engaged in very little peer interaction. The school psychologist noted that the boy's reasoning skills were superior to his recall skills, but the latter were still in the average range. She indicated that the child's achievement test scores demonstrated that he was making progress, but noted that he needed help with organizing his belongings and tasks. However, the psychologist believed that the boy was receiving help with organization through respondent's "LIFE" program and through the child's transition support plan. The child also reportedly participated in group counseling. The school psychologist did recommend that he receive a language assessment.
The CSE meeting to review the results of the child's evaluation was to have been held on November 29, 1995, but was rescheduled to December 20, 1995 at petitioner's request. On December 20, 1995, the CSE recommended that the child not be classified because he reportedly did not meet the State criteria for classification (Exhibit D-16).
By letter dated December 21, 1995 (Exhibit P-38), petitioner requested an impartial hearing and mediation (see Section 4404-a of the Education Law). She also requested that her son have a neuropsychological evaluation. On January 9, 1996, a CSE co-chairperson sent petitioner forms to be completed for the mediation process, and asked her to provide a rationale for having a neuropsychological evaluation performed. On January 19, 1996, petitioner withdrew her request for mediation and asked for another meeting with the CSE (Exhibit J-23). Her request to meet with the CSE was deemed to be a new referral (Exhibits D-17). On March 13, 1996, the CSE reviewed the child's progress in the sixth grade. It concluded that he still did not meet the criteria for classification as a child with a disability, but did recommend that he and his family receive counseling (Exhibit J-25). The CSE also indicated that a transitional support plan would be put into place.
On or about April 1, 1996, petitioner requested mediation. Respondent's Director of Pupil services sent petitioner a form to be completed so that the request for mediation could be forwarded to the Center for Dispute Settlement. The Director testified at the hearing that respondent did not receive a copy of the completed form from petitioner.
By letter dated August 8, 1996 (Exhibit J-1), petitioner asked the CSE for an independent evaluation of her son for a learning disability, an emotional disability, and a hearing disability, because she believed respondent's evaluation of her son to be deficient. She indicated that her attorney had advised her that respondent had to either pay for the independent evaluation, or initiate a hearing to prove that its evaluation was appropriate. On August 28, 1996, the Director of Pupil Services responded with a request for more information: "Specifically, I need to know which evaluation you are referring to in your letter and essentially the areas of the evaluation which you feel are deficient" (Exhibit J-2).
In September, 1996, petitioner's attorney disputed respondent's right to elicit more information from petitioner about the requested independent evaluation, and she indicated that the boy was being privately evaluated. Respondent's attorney asserted that respondent was not obliged to determine whether it would pay for an independent evaluation until its CSE had examined a report of the results of the evaluation and the bill for such evaluation. In any event, respondent subsequently agreed to pay for an independent psychoeducational evaluation if it were performed by either of two specified evaluators, and to hold another CSE meeting after the evaluation was performed (J-5). I note that one of those evaluators did an educational evaluation of the child on December 3, 1996 (P-36). The independent evaluator reported that the child demonstrated exceptional visual reasoning skills, and evidenced strength in both reading and mathematics. However, the child's written language was below his oral language, and his handwriting was of poor quality. The evaluator offered various suggestions for improving the child's academic performance. A CSE meeting was scheduled to take place on December 20, 1996 to review the results of the independent evaluation. However, the teacher and parent members of the CSE were unavailable on that date.
On November 18, 1996, petitioner's attorney asserted that respondent had violated petitioner's rights by not scheduling an impartial hearing in response to a written request for a hearing which petitioner had allegedly made on August 14, 1996. At the hearing, neither of the alleged addressees of petitioner's request remembered receiving the request. Petitioner's attorney informed respondent's attorney that she expected that hearings would be held under the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (504). In response to the attorney's request, respondent appointed different hearing officers to hear petitioner's claims under IDEA and 504, respectively. The hearing officer in this proceeding, which is held under the IDEA, was appointed on December 3, 1996.
On January 14, 1997, petitioner's attorney asked for the "completion" of the independent evaluation which petitioner had requested, and renewed her request for an IDEA hearing (Exhibit J-8). On January 21, 1997, respondent's attorney replied that respondent would "immediately implement" the independent evaluation process upon receipt of information from petitioner or her attorney about the type of evaluation which they sought. Respondent's attorney also indicated that he would be writing to schedule a hearing, if that was petitioner's wish (Exhibit J-9). Respondent's attorney and petitioner's attorney then corresponded about possible hearing dates.
During February, March and April, 1997, the parties engaged in efforts to resolve their differences about the nature of the boy's educational program and the services which should be provided to him. They reportedly reached an agreement on a 504 accommodation plan for the boy's educational program. However, they did not resolve their dispute about respondent's alleged violation of the child's and/or petitioner's due process rights. In March, 1997, respondent's attorney contacted the hearing officer in this proceeding to schedule the hearing. On April 8, 1997, the hearing officer and the parties' attorneys agreed to begin the hearing on June 5, 1997. At that time, petitioner's attorney acknowledged that a settlement had been reached with regard to the child's 504 accommodation plan, but she asserted that respondent had failed to properly implement the plan, and that its alleged failure to do so was a due process violation to be addressed in this IDEA proceeding. Respondent asserted that the issue was beyond the hearing officer's jurisdiction and should be raised with the 504 hearing officer.
The hearing continued for an additional thirteen days, ending on March 2, 1998. During the hearing, respondent sought and obtained an order from a New York State Supreme Court Justice compelling petitioner to testify at the hearing. Petitioner did testify during one day, but reportedly declined to appear at the hearing for the conclusion of her redirect testimony. Nevertheless, the hearing officer held that respondent had not been harmed by petitioner's failure to complete her testimony.
In her decision which was rendered on May 14, 1998, the hearing officer noted that the scope of this IDEA proceeding had been limited to petitioner's due process complaints, notwithstanding a request by petitioner's attorney to broaden the hearing to include a challenge to the child's classification, program and placement (Exhibit P-48). The hearing officer found that some of respondent's due process notice of CSE meeting violated the provisions of 8 NYCRR 200.5 (a)(3) with regard to such matters as listing the names of the district representatives who would attend CSE meetings and indicating that petitioner had the right to be accompanied by the individuals of her choice to those meetings. However, she held that the defects in the CSE's notices did not afford a basis for invalidating the CSE's recommendation. She also found that the CSE had adequately explained the basis for its recommendation. The hearing officer rejected petitioner's assertion that she had not received notice of her due process rights, and held that petitioner should have requested an impartial hearing if she wished to challenge the CSE's recommendation to declassify her son. The hearing officer also dismissed petitioner's contention that respondent had violated the "pendency" provisions of Federal and State law by implementing the CSE's declassification recommendation. She noted that pendency did not attach until an impartial hearing had been requested, which was initially done in December, 1995.
The hearing officer found that the CSE had failed to draft an appropriate transitional support plan which was in fact prepared by a school psychologist and the child’s special education teacher. The hearing officer also found that the child's IEP for the 1994-95 school year was defective because it did not address the needs of the child and his family for counseling. The hearing officer declined to order respondent to provide compensatory education to the child because such an award would be premised upon the inappropriateness of the CSE's April, 1995 recommendation to declassify the child, an issue which was beyond the scope of this proceeding.
Petitioner contends that the hearing in this proceeding was conducted unfairly because it was scheduled to take place at times when she was unavailable, since she had to be at home supervising her son. She asserts that she had advised the hearing officer that she was unable to attend a hearing during school hours because her son was at home with her and had requested that the hearing be held late in the afternoon, in the evening, or on Saturdays, but respondent would not agree to her request. Federal and State regulations require that hearings be conducted at a time and place which is reasonably convenient to the parent and child (34 CFR 300.512 [d]; 8 NYCRR 200.5 [c]. It is not clear from the record when this became an issue, but it appears to have arisen on the sixth day of the hearing on September 4, 1997, when petitioner was to have begun her case. The record indicates that petitioner left the hearing as it began, but her attorney remained with the case. However, there is no evidence in the record to substantiate petitioner's claim that it was not reasonably convenient to hold hearings during normal business hours for the school district. Consequently, I find that her complaint is without merit.
Petitioner also argues that it was unfair of the hearing officer to allow respondent to subpoena her to testify at the hearing after respondent had rested its case. As noted above, the validity of that subpoena was, in effect, upheld by a State Supreme Court Justice. In addition, I note that Federal regulation explicitly accords to each party to a hearing the right to compel the attendance of witnesses (34 CFR 300.508 [a]). While that right is not unfettered, I am not persuaded by the record that respondent abused its right to call petitioner as a witness. The question is whether petitioner's testimony was relevant and material. I find that it was. She had unique knowledge about some of the issues presented, e.g., what, if any, notice of due process rights did she receive. There was an unusual procedural development in this proceeding after respondent had rested its case. Respondent's attorney had testified at the hearing on June 5, and July 31, 1997 about his interaction with petitioner and her counsel during the 1996-97 school year. On October 9, 1997, after respondent had rested, petitioner's attorney testified about similar matters. At the next hearing date on October 15, 1997, respondent's attorney raised the issue of the propriety of an attorney testifying on behalf of his or her client (cf. Disciplinary Rules 5-101 and 5-102, Appendix to the Judiciary Law; Application of a Child with a Handicapping Condition, Appeal No. 92-27). The parties and the hearing officer subsequently agreed that the testimony of both attorneys should be redacted from the record. While petitioner's testimony was not rebuttal evidence, it was nevertheless useful, and I find that petitioner was properly subpoenaed to testify.
Petitioner also challenges the validity of the list of hearing officers maintained by respondent for appointment on a rotational basis as required by Section 4404 (1) of the Education Law and 8 NYCRR 200.2 (e)(1). Petitioner demonstrated that at the time of the hearing, respondent's rotational list included only three names (Exhibit P-50), while there were 30 names of certified hearing officers who were willing to conduct hearings in Monroe County on the State Education Department's list (Exhibit P-51). Petitioner contends that respondent's small list made it more difficult to commence the hearing in a timely manner. Petitioner is correct that respondent's rotational list should have included the names of all certified hearing officers who were available to serve in the district (8 NYCRR 200.2 [e]). However, I must note that a challenge to the hearing officer's appointment should be raised promptly at the beginning of the proceeding (Application of a Child with a Disability, Appeal No. 98-5), which was not done in this instance. In its answer, respondent asserts that it has created a new rotational list which includes the names of all certified hearing officers who are available to serve in Monroe County.
Petitioner contends that her due process rights were violated by respondent and the hearing officer in scheduling and completing the hearing in this proceeding. Each school district must ensure that a final written decision is rendered by a hearing officer within 45 days after the district receives a request for a hearing, although the hearing officer may grant extensions of that time limit at the request of either party (34 CFR 300.512 [a] and [d]). In this instance, petitioner challenges the hearing officer's determination that the first request for a hearing was made on November 18, 1996, and that petitioner's and respondent's attorneys were engaged in settlement negotiations between November, 1996 and February, 1997. She also challenges the hearing officer's determination that she had been appointed by respondent to conduct the hearing on December 3, 1996.
Petitioner contends that she initially requested a hearing on August 8, 1996, when she requested an independent evaluation (Exhibit J-1). I find that the record does not support her contention. Petitioner's August 8, 1996 request was for an independent evaluation. While she alluded to a hearing if her request for an evaluation was not granted, she was merely repeating what her attorney had reportedly told her might happen. I find that the hearing officer correctly determined that the hearing in this proceeding was first requested on November 18, 1996 (Exhibit J-6). While petitioner appears to challenge the hearing officer's finding that she was appointed by respondent on December 3, 1996, the gist of her position appears to be that she was not promptly notified of the appointment on that date. Even if I were to assume that petitioner should have been notified more promptly, I find that there is no basis in fact or law for annulling the hearing officer's finding that she was appointed by respondent on December 3, 1996.
In her request for a hearing (Exhibit J-6), petitioner's attorney asserted that the CSE had denied petitioner's request for an expedited meeting, had set illegal requirements or conditions upon an independent evaluation for the child, and had violated petitioner's due process rights. As noted above, respondent did agree to pay for an independent educational evaluation and to hold a CSE meeting. The evaluation was conducted, but the CSE meeting scheduled for December 20, 1996 did not take place because two of the required members were unavailable. Petitioner and her attorney met with respondent's attorney and school staff on December 20, 1996, but the parties could not resolve their differences. On December 21, 1996, petitioner asked for an impartial hearing and mediation (Exhibit P-38). Although another meeting was held with the child's teachers on January 8, 1997, there was still no resolution of the issues. As noted above, petitioner's attorney renewed her request for a hearing on January 14, 1997 (Exhibit J-8), after which the attorneys for both parties corresponded about possible hearing dates (Exhibits J-9, D-20, P-14, P-15, P-16). In February, 1997, the attorneys corresponded about a possible settlement (Exhibits J-10 and J-11). On March 10, 1997, a meeting was held with a school building team to discuss a 504 accommodation plan for the child. ''Later that month, the attorneys corresponded about a settlement (Exhibits J-15, J-16, J-17). Although the hearing had been tentatively set to begin on March 5, 1997 (Exhibit P-17), it was not held. The parties reportedly reached agreement on most of the provisions of a 504 accommodation plan for the child, but were unable to agree upon the remaining procedural issues and petitioner's request for payment of her legal fees. The hearing in this proceeding did not begin until June 5, 1997, nearly seven months after it had been requested.
The resolution of disputes by agreement is of course preferable to litigation. While respondent appears to have acted in good faith in attempting to meet with petitioner and her attorney and arrive at a mutually satisfactory conclusion of their disagreement, I note that petitioner does not appear to have waived her right to a prompt resolution of the matter by a hearing officer. I do agree with the hearing officer that respondent's actions prior to formally offering a settlement in February, 1997 could be construed as part of the process of negotiation. However, the fact remains that the hearing in this proceeding did not begin for several months after petitioner's attorney had requested a hearing. Under the circumstances, I must find that the hearing should have been commenced more promptly. I must also note that the appropriate remedy would have been an appeal to the Commissioner of Education pursuant to Section 310 of the Education Law for an order compelling the prompt commencement of the hearing.
Petitioner contends that the hearing officer erred by not allowing her to prove that respondent had committed "substantive due process violations", and had violated Section 504. With respect to her 504 claims, I must note that petitioner's attorney requested hearings under both IDEA and 504. Her request (Exhibit J-6) clearly contemplated that there would be separate hearings on her IDEA and Section 504 claims. When this IDEA hearing began, the 504 hearing had not begun. However, petitioner's attorney acknowledged that the parties had agreed upon a 504 accommodation plan, but she nevertheless wanted to raise respondent's alleged failure to implement the 504 accommodation plan in the IDEA hearing. I find that the hearing officer properly declined to consider petitioner's 504 claims in this proceeding because an alleged violation of Section 504 is not necessarily a violation of IDEA, and there was another forum to resolve petitioner's 504 claims. Indeed, portions of the 504 hearing transcript are exhibits in the record of this proceeding.
While not specifically defined by petitioner, the term "substantive due process" apparently refers to the bases which the CSE had for recommending that the child be declassified in April, 1995, and subsequently recommending in December, 1995 and March, 1996 that he not be classified. However, the "substantive" issues of the educational services which the child was to receive in the 1996-97 school year were reportedly resolved by the parties' agreement in April, 1997 to the terms of the child's 504 accommodation plan. Petitioner's attempt to broaden the scope of this proceeding in July, 1997 (Exhibit P-48) appears to be the result of her frustration with the lack of progress in the parallel 504 proceeding. Her suggestion that the IDEA hearing should now focus on the child's "classification, program, placement, and related services" went well beyond the original hearing request, and raised the distinct possibility of two hearing officers deciding the same claims brought under different statutes. I find that the hearing officer did not abuse her discretion by declining to broaden the scope of this proceeding.
Petitioner also asserts that the hearing officer erred by failing to find that respondent had violated her son's rights under the Family Education Rights and Privacy Act (FERPA) and Part 200 of the Regulation of the Commissioner of Education. In essence, petitioner contends that respondent failed to maintain a record of all individuals who had obtained access to her son's records, and had erred by disclosing the fact that he had been declassified to individuals who had no legitimate reason for knowing that fact. Although petitioner has referred to FERPA, I find that the relevant Federal regulations are 34 CFR 300.563 and 300.572. The first requires that a school district shall keep a record of parties obtaining access to a child's education records, except the child's parents and authorized employees. Therefore, contrary to what petitioner asserted at the hearing, respondent was not required to maintain a record of each school employee who accessed her son's files.
34 CFR 300.572 provides in part that an agency like respondent must preserve the confidentiality of pupil records. Petitioner objects to the fact that after her son was declassified, respondent's Director of Pupil Personnel Services sent a memo to respondent's four building principals in which he listed the names of the declassified pupils and reminded the principals that the pupils would be entitled to receive transitional support services (Exhibit D-8). Other individuals, such as the CSE chairperson, school psychologists, instructional specialists and the Superintendent of Schools received copies of Exhibit D-8. While I agree that the list of recipients might have been more narrowly targeted, I do not find that respondent violated the child's confidentiality rights.
Petitioner challenges the hearing officer's determination that respondent did not violate the pendency provisions of Federal and State law (20 USC 1415 [e], now [j]; Section 4404  of the Education Law) by not providing him during the 1995-96 school year with each of the special education services he had received when he was classified as a child with a disability. Pursuant to the pendency provisions, a child with a disability or a child suspected of having a disability who has been referred to a CSE must be maintained in his or her current educational placement until any due process proceeding has been completed, unless the child's parents and the school district agree upon another placement. The critical question is what was this child's placement when this due process proceeding was initiated. Petitioner's son had received consultant teacher services during the 1994-95 school year, but those services were discontinued for the 1995-96 school year because the CSE had recommended in April, 1995 that he be declassified. When this proceeding was commenced by a request for a hearing on November 18, 1996, the child was therefore not receiving special education services. Petitioner asserts that it was not necessary to request a hearing in order for pendency to attach, but that it was the legislative intent that there would be no change in a child's program without parental consent or a ruling by a third party. I disagree. Federal and State regulations explicitly define the circumstances under which parental consent is required before a school district may act (34 CFR 300.354 [b]; 8 NYCRR 200.5 [b]). Neither regulation requires parental consent for a child's declassification. I am aware that the notices for the CSE meetings to be held on November 29, 1995, December 20, 1995, and March 13, 1996 included the sentence: "Please be assured that no changes will be made in [the child's] placement without your consent." However, I must note that the notice sent to petitioner after the CSE recommended that her son be declassified did not indicate that the declassification was subject to petitioner's consent (Exhibit P-42).
Petitioner disagrees with the hearing officer's conclusion that the CSE adequately described the basis for its recommendation that her son be declassified. She asserts that the CSE failed to comply with various provisions of the Regulations of the Commissioner of Education. In material part, 8 NYCRR 200.4 (c) (1) provides that when a CSE finds that a child is ineligible for classification, it must indicate the reasons why the child was found to be ineligible and it must provide a copy of its recommendation to the child's parent pursuant to 8 NYCRR 200.5 (a). In this instance, the notice which was sent by the CSE to petitioner after it recommended that the child be declassified, indicated that the reason for the recommendation was that the child " … has made good improvement and does not meet the criteria for classification" (Exhibit P-42). The hearing officer found that "Although the letter does not provide detail, a basis for the decision is stated." Petitioner suggests that the CSE's statement did not inform her or respondent of the level and degree of her son's progress. I find as did the hearing officer, that the CSE at least literally complied with the regulatory requirement. I agree that the CSE could have provided more specific information about the child in its rationale, but it did invite petitioner to review her son's school records where more detailed information about his performance could be obtained. Indeed, the CSE chairperson conceded in her testimony that more information could have been provided. However, the issue before me is whether Exhibit P-42 complies with the regulation, which I find it did.
Petitioner asserts that the hearing officer erred by failing to find that respondent had not complied with the time limits imposed by State regulation for holding CSE meetings. Although this child had once been classified, he was not a "student with a disability", when petitioner referred him to the CSE on October 23, 1995. Therefore, the CSE was required to make its recommendation within the shorter of either 30 days after receipt of petitioner's consent to evaluate the boy, or 40 days after the referral (8 NYCRR 200.4 [c]). In this context, the term "days " means school work days (8 NYCRR 200.1 [m]). The CSE agreed to meet within the regulatory time limit on November 19, 1995, but petitioner expressly requested an adjournment knowing that there might be a month's delay (Exhibit D-12). The meeting was held on December 20, 1995. The next day, petitioner requested mediation and a hearing. However, she withdrew her request for mediation on January 19, 1996, when she again referred the child to the CSE. The CSE did not meet with her until March 13, 1996. Respondent concedes the facts, but argues that it was unreasonable for petitioner to refer her son to the CSE within less than 30 days after the December 20, 1995 CSE meeting. A CSE should grant any reasonable request for a meeting (34 CFR Part 300, Appendix C, Question 11). Although petitioner was obviously dissatisfied with the CSE’s recommendation on December 20, 1995 that her son not be classified, it does not follow that the CSE was obligated to immediately reconvene to reconsider its recommendation, absent some new development such as a new evaluation, or a significant change in his school performance. There is no evidence of any such new development. Therefore, I find that petitioner’s assertion is without merit.
Petitioner also challenges the hearing officer’s finding that the record before her did not afford a basis for an award of compensatory education. She repeats her assertion that the hearing officer unfairly denied her the opportunity to present evidence with respect to substantive due process violations and Section 504 violations at the hearing, which I have already found to be without merit. In addition, she contends that the hearing officer’s finding that her child’s IEP for the 1994-95 school year was inadequate, as well as evidence that respondent failed to provide the services which were on the IEP, were sufficient to support an award of compensatory education. Respondent asserts that the child received all of the special education and related services on his 1994-95 IEP which petitioner requested, and that in any event, petitioner’s challenge to the child’s 1994-95 IEP is untimely. In its cross-appeal, respondent also asserts that the record does not support the hearing officer’s determination about the child’s IEP.
The hearing officer noted that respondent had not objected to the timeliness of petitioner’s challenge to the 1994-95 IEP, and she found that the IEP was defective because it did not specify the amount and kind of consultant teacher service which was to be provided (see Application of a Child with a Disability, Appeal No. 98-24), and its related service goals did not address the child’s needs for individual and family counseling. Portions of the testimony of the child’s consultant teacher and respondent’s family counselor at the 504 hearing were introduced in the IDEA proceeding for the purpose of showing what services had in fact been provided to the child. However, that testimony provided slim support for a finding that the IEP itself was defective.
I find that petitioner’s claim for compensatory education must fail. The courts have concluded that compensatory education, i.e., special education services which are provided to a student after the student is no longer eligible because of his or her age, or receipt of a high school diploma, to receive services, is a permissible remedy under the IDEA when the student has been excluded from school or denied appropriate services for an extended period of time (Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir., 1988]; Mrs. C. v. Wheaton, 916 F. 2d. 69 [2d Cir., 1990]). This child remains eligible to receive services. In addition, the defects in the IEP noted by the hearing officer would not constitute "gross" procedural errors (see Garro v. State of Connecticut, 23 F. 3d 734 [2d Cir., 1994]).
In its cross-appeal from the hearing officer’s decision, respondent contends that the hearing officer erred in ruling that it had unreasonably delayed approving petitioner’s request for an independent evaluation, and had improperly limited petitioner’s choice of evaluators. Respondent asserts that its Director of Pupil Personnel Services did not deny petitioner’s request for an independent evaluation, but merely sought additional information from petitioner for the purpose of determining whether to honor her request. In any event, respondent is correct that it was not obliged as a matter of law to initiate a hearing within 45 days after receipt of petitioner’s request for an independent evaluation as petitioner’s attorney has asserted (OSEP Opinion, 16 EHLR 1080). However, it is equally true that a board of education may not unduly delay the initiation of a hearing to demonstrate the appropriateness if its own evaluation (Application of a Child with a Handicapping Condition, Appeal No. 90-1; Application of a Child with a Handicapping Condition, Appeal No. 92-19, Application of a Child with a Handicapping Condition, Appeal No. 92-35). In this instance, respondent has paid for an independent educational evaluation which was performed in December, 1996, and an independent psychological evaluation which was performed in April, 1997. It had also agreed to pay for a third evaluation in the fall of 1997, which was reportedly to assess the child’s auditory processing skills. Petitioner had requested that her son be independently evaluated for a learning disability, and emotional disability and a hearing disability in August, 1996. Under the circumstances, I find that the record supports the hearing officer’s decision with respect to respondent’s delay.
With regard to the hearing officer’s finding that respondent had improperly limited petitioner’s choice of independent evaluators, I must point out that the U.S. Department of Education has opined that a board of education may impose certain limitations upon the right of parents to obtain independent evaluations, such as reasonable travel distances, minimum qualifications of evaluators, and upper limits upon the cost of particular tests (1980 EHLR 211:227). While respondent’s list of evaluators was small, there is no evidence of other qualified evaluators in the record. Upon the record before me, I am compelled to find that there is insufficient evidence to support the hearing officer’s finding.
Respondent also challenges the hearing officer’s finding that it should have scheduled an impartial hearing in response to the request which petitioner made on December 21, 1995 for a hearing and mediation. Respondent notes that on January 19, 1996, petitioner cancelled her request for mediation and requested another CSE meeting. At the hearing, the CSE chairperson testified that she had assumed that petitioner wished to withdraw her hearing request, but she conceded that petitioner had not actually done so. I must note that while a board of education must inform the parent of a child with a disability about the availability of mediation, a parent need not pursue mediation as a precondition for an impartial hearing. Although the CSE chairperson’s inference may have been reasonable, it was nevertheless incumbent upon respondent to formally ascertain whether petitioner wished to proceed with an impartial hearing.
The board of education asserts that the hearing officer erred by finding that the CSE had failed to develop a plan for the child’s declassification support services, and respondent had failed to implement the plan in a timely manner. When a CSE recommends that a child be declassified, State regulation provides that the CSE’s recommendation shall
"(a) identify the declassification support services, as defined in section 100.1(q) of this Title, if any, to be provided to the student; and/or the student’s teachers; and
(b) indicate the projected date of initiation of such services, the frequency of provision of such services, and the duration of such services, provided that such services shall not continue for more than one year after the student enters the full-time regular education program." (8 NYCRR 200.4 [c][iii]).
Respondent’s CSE did not do this, but instead delegated this duty to the building principal, who had the school psychologist and the child’s special education teacher prepare a plan of services for the 1995-96 school year. At the hearing, respondent acknowledged that the plan was not immediately implemented. However, it is not clear from the record when all of the provisions of the plan were implemented. Consequently, I find that this part of respondent’s cross appeal is without merit.
I have considered the other contentions which petitioner and respondent have made and find that they are without merit.
THE APPEAL AND THE CROSS-APPEAL ARE SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer’s findings with respect to the delay in holding the hearing being attributable solely because of negotiations between the parties, the inadequacy of the child’s IEP for the 1994-95 school year, and respondent’s limitation upon petitioner’s choice of independent evaluators are hereby annulled.