98-049

       Petitioners appeal from the decision of an impartial hearing officer which found that respondent had not failed to implement certain portions of their daughter’s individualized education program (IEP). Petitioners further appeal the hearing officer’s failure to determine their claim that respondent had failed to comply with the IEP requirement for modified homework assignments. In addition, petitioners appeal the hearing officer’s failure to award their daughter "compensatory education." Petitioners also appeal from the hearing officer’s decision not to recuse himself based upon his employment as an educational consultant, and because they claim that respondent did not comply with the Regulations of the Commissioner of Education in appointing him. Respondent cross-appeals from that portion of the hearing officer’s decision which found that it failed to implement three portions of the child’s IEP "only and to the extent that petitioner may claim the student was denied a free appropriate public education." The appeal must be sustained in part. The cross-appeal must be dismissed.

        Respondent has raised a cross-appeal on what appears to be a conditional basis. A cross- appeal should only be asserted when a respondent believes it has legitimate issues, not as a claim in the event it loses the appeal. I find that there is no basis in fact to overturn the decision of the hearing officer on the three portions of the IEP in question, namely the provision of books on tape, class notes, and large print books.

        Preliminarily, I will address the procedural issues raised in this appeal. Petitioners claim that respondent did not select the hearing officer in accordance with the procedure prescribed by Section 4404 (1) of the Education Law and 8 NYCRR 200.2 (e). Specifically, petitioners argue that because the case immediately preceding their was case settled before any hearing was conducted, the hearing officer appointed to that case should have been appointed to hear their case. Respondent argues that its practice of proceeding to the next name on the list after a hearing officer had been contacted or appointed to conduct a hearing was consistent with the regulations in place at the time the hearing was requested. I agree. Section 4404 (1) of the Education Law provides that the board of education shall appoint an impartial hearing officer from a list of available hearing officers according to a rotation selection process prescribed in the Regulations of the Commissioner of Education. Section 200.2 (e) of the Regulations of the Commissioner of Education which was in effect at the time the hearing was requested in this proceeding required that the list of hearing officers be maintained on a rotational basis, and that hearing officers who conducted hearings were required to be placed on the bottom of the list in the order of the date of their appointment. The hearing officer whose name preceded the hearing officer selected for the present case had accepted an appointment. Although that hearing officer did not actually conduct a hearing because the matter before him was settled, I find that the regulation must be interpreted to mean that once an appointment is accepted by a hearing officer, he or she should be regarded as having conducted a hearing, whether the matter is settled or a hearing actually takes place.

        Petitioners also argue that the hearing officer should have recused himself because he was the president of a company that contracted with school districts to provide various services, and as such, should be considered an employee of a school district, for the purposes of Section 4404 (1) of the Education Law. That statute bars employees of school districts from serving as hearing officers. Additionally, petitioners claim that the hearing officer had a personal and/or professional interest which conflicted with his objectivity, in violation of 34 CFR 300.507 (a)(2) and 8 NYCRR 200.1 (s), because he could risk losing contracts if he decided against school districts. Respondent argues that the prohibition against employees of school districts serving as hearing officers does not apply to independent contractors.

        In a pre-hearing conference on March 10, 1998, the hearing officer indicated that he was the president of Educational Resource Associates, and that he had contracts with two school districts to provide employee assistance programs and that he conducted disciplinary hearings for another district. Additionally, he indicated that he had a contract with the Genessee County Department of Social Services which requires him to interact with the school districts in Genessee County. Based upon the information before me, I find that the hearing officer was not precluded from serving in this matter as a result of his contracts with other school districts. He was not an employee of any school district, school or program serving children with disabilities, nor was he associated with a corporation which was performing services pursuant to a contract with respondent ( cf. Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 240 [1988]). I further find that petitioners have not established that the hearing officer had a personal or professional interest which would conflict with his objectivity in the hearing.

        Petitioners’ daughter was twelve years old and in the sixth grade at the time of the hearing. Her parents noticed that she had reading problems when she entered kindergarten in respondent’s district. She has reportedly received remedial assistance in reading and mathematics since the first grade. In November, 1996, when the child was in the fifth grade, petitioners obtained private reading instruction for one year for their daughter at the Huntington Learning Center in Lockport, New York. In March, 1997, petitioners requested an impartial hearing. At the same time, they referred their daughter to respondent’s committee on special education (CSE), which arranged to have the child evaluated.

        In an educational evaluation conducted in March and April, 1997, the child achieved a verbal IQ score of 110, a performance IQ score of 98, and a full scale IQ score of 101 on the WISC-R, placing her in the average range of intellectual functioning. On the Woodcock-Johnson Psychological Educational Battery Tests of Achievement - R, the child achieved grade equivalent scores of 4.0 for broad reading and 5.1 for broad math. She also achieved grade equivalent scores of 6.3 for word attack, 4.5 for reading vocabulary, 4.5 for reading comprehension, and 4.3 for basic reading skills.

        A psychological evaluation was conducted in April, 1997 by the school psychologist, who noted that the child was frustrated by her lack of success in reading. The school psychologist reported that the child’s performance on verbal reasoning tasks was better than her performance on nonverbal reasoning tasks. She also noted that the child exhibited weaknesses in her ability to sustain attention, concentrate, and exert mental control, i.e. the attend to and hold information in short-term memory while performing some operation with that information. The school psychologist opined that the child’s weakness in mental control could increase the time it takes for her to process complex information, draining her mental energies and possibly resulting in frequent errors in her work. Having reviewed the results of the child’s educational evaluation, the school psychologist opined that the child did not display a significant discrepancy between her ability and her academic achievement. She noted that although the child had not yet mastered the basics in reading and mathematics, the child had learned skills to compensate for her difficulties. The school psychologist also indicated that the child’s higher level thinking skills were developing despite the gaps in her academic building blocks. She recommended that the child continue to receive remedial assistance to improve basic skills in reading and mathematics. She further recommended that the child’s teachers be made aware of the child’s difficulty attending, i.e., paying attention. Additionally, the school psychologist suggested that the child be provided regular reinforcement focusing on the her accomplishments so that her self-concept remained positive.

        In August, 1997, petitioners had their daughter privately evaluated by a psychologist because they were concerned about the stress and frustration she experienced due to reading and writing difficulties. The private psychologist reviewed the results of the child’s April, 1997 tests administered by respondent’s school psychologist. He noted that the child had strong verbal reasoning skills, but that she struggled with tasks that required focused concentration, short-term auditory memory and cognitive manipulation. He indicated that such weaknesses are classic in children with reading problems. In assessing the child’s achievement in reading, spelling, writing, and mathematics, the private psychologist noted that her word recognition, spelling, oral reading speed and accuracy, and math computation skills were delayed. The private psychologist reported that the child had adequate short-term visual memory, but had deficient short-term verbal memory. She did not easily register information the first time she heard it, and she was weak at learning a series of sound symbol associations. The child’s visual motor integration was reported to be weak, while she was somewhat stronger at the component skills of visual perception and fine motor coordination. The private psychologist reported that the child had not yet learned to decode the phonetic structure of written English. He opined that the child manifested the symptoms of a "Specific Reading Disability," a language-based deficiency in word decoding, spelling and writing caused primarily by poor phonological processing. The child’s ability to sustain attention was noted to be somewhat below average, and the private psychologist opined that her attention problems were the consequence of the frustration and exhaustion associated with reading. The private psychologist recommended that the child be classified as learning disabled because of the discrepancy between her IQ and academic achievement. He indicated that she should receive intensive reading remediation, emphasizing phonetic decoding. He also made recommendations to encourage reading, improve comprehension, spelling, writing, memorization and math computation.

        In August, 1997, the child was evaluated by a pediatric neurologist who noted that the child was tense and anxious about her reading. The pediatric neurologist reported that the child took a long time to process information, and a much longer time to put the information down on paper. On the Slosson Word Recognition Test, the child’s reading decoding skills were assessed to be at the 3.5 grade level. The pediatric neurologist noted that the child "reads by configuration, often guessing." On the Boder Test for reading and spelling patterns, the child’s reading quotient was assessed to be 71%, which was reportedly in the dyslexic range. The child’s mistakes were due to a lack of phonic decoding skills. The child’s spelling was reported to be on a second grade level. The pediatric neurologist reported that the child had difficulty with vowel sounds and miscued verbal information frequently. On the Bender Test, the child had difficulty putting the figures on paper, and it was noted that she pressed very hard on the paper. She achieved a seven year developmental level for immediate recall. The pediatric neurologist reported that the child had difficulty in math based upon her performance on the Durrell Math Analysis. The child pushed hard on the paper, and had difficulty editing, recognizing mistakes and paying attention to detail. On the Durrel Reading Analysis, the child stumbled through the second grade story, wrote in running sentences, continued to demonstrate misspelling and miscuing, and had problems with vowel sounds. The child also had a distinct difficulty in immediate auditory sequential recall. The pediatric neurologist concluded that the child had developmental dyslexia and opined that the child had a learning disability in auditory processing and retrieval, and written language. She noted that the child was at least two years below her present class placement. The pediatric neurologist recommended that all of the child’s sixth grade texts be put on tape. She also recommended the child be taught with the Orton-Gillingham (OG) method of teaching students with dyslexia. The OG method is a structured, sequential, multisensory approach to teach children language arts. Finally, the pediatric neurologist recommended that the child receive some special training in pattern recognition utilizing linguistic programs and the Glass analysis. The pediatric neurologist suggested that the child needed computer assisted instructions, and that she needed to learn to use a word processor and spell checker. She indicated that the child needed intensive instruction on a daily basis, as well as modifications to her program to help her to feel more comfortable.

        On August 22, petitioners requested a hearing reportedly based upon a CSE decision made in May, 1997. On October 17, 1997, the parties entered into a settlement agreement wherein the parents withdrew their request for a due process hearing, and the district agreed to classify the child as learning disabled. The district also agreed to schedule a CSE meeting to develop an appropriate IEP for the child.

        On November 6, 1997, respondent’s CSE met to develop the child’s IEP. The CSE recommended that the child be classified as learning disabled. The child’s classification is not in dispute, and I do not review its appropriateness (Hiller v. Bd. of Ed. Brunswick CSD, et al., 674 F. Supp. 73 [N.D.N.Y., 1987]) . The CSE further recommended that the child be placed in regular education classes for social studies, mathematics and science, and that she be placed in self-contained classes for English and reading. Additionally, the CSE recommended that the child receive resource room services five times per week for 40 minute sessions, remedial reading two to three times per week for 40 minute sessions, and individual counseling once per week for 30 minute sessions. The child was to be provided various test modifications and special equipment including books on tape, large print books for science and social studies, a line magnifier and a Franklin Speller. The IEP also provided that class notes were to be provided to the child. The IEP included goals for reading and homework. Under strategies to evaluate achievement of objectives/performances (procedures, schedules) in the reading section of the IEP, the Fernald-based method was specified. In the present levels of performance section of the IEP, the child was described as needing to have modified homework assignments of no more than one hour per day, and that she should not be penalized for missing assignments which exceed such time frame. By letter dated November 19, 1997, respondent advised petitioners that it had accepted the recommendation developed by its CSE for their child.

        In an occupational therapy evaluation conducted on November 19, 1997, the occupational therapist observed that the child’s pencil execution lacked fluidity of movement, that she exerted hard pressure and would rotate the paper to avoid midline crossing. She noted that the child took longer to reproduce tasks that required writing and copying, and that those tasks were laborious for her. The child exhibited weaknesses in tasks involving visual memory, visual sequential memory and visual figure ground, which influence retention/recall and information, reading and writing activities. The occupational therapist also observed that the child had difficulty with motor planing skills which could impact on academic performance, self-esteem, completion of work, and the ability to follow directions. While the occupational therapist did not recommend direct occupational therapy intervention, she provided classroom suggestions to teachers and compensatory learning strategies to enhance the child’s learning styles.

        On December 16, 1997 the child was screened for auditory processing difficulties. The speech language pathologist reported that the child’s performance was below average in auditory number memory forward and auditory word memory, which evaluate a student’s ability to recall auditory sequences and measures ability to hear one-syllable words, two syllable words and compound words and repeat them. The child performed within the average range on all other subtests. The speech language pathologist recommended that the classroom teacher and the child’s parents be provided strategies to enhance the child’s auditory memory skills as well as her auditory processing skills.

        On December 18, 1997, the child’s mother signed a consent to placement indicating her agreement with the CSE’s recommendation for her daughter. On February 10, 1998, petitioners requested an impartial hearing alleging that respondent failed to implement several provisions of their daughter’s IEP. On March 16, 1998, petitioners unilaterally enrolled their daughter in the Victory Christian Academy.

        The impartial hearing was held on March 27, March 30, March 31, and April 3, 1998. The hearing officer rendered his decision on July 10, 1998. He found that respondent failed to provide textbooks on tape, large print books and class notes on a timely basis to the child as it was required to do pursuant to her IEP. However, he further found that the evidence did not support petitioner’s claim that respondent had failed to implement the child’s specialized reading program. The hearing officer ordered the CSE to convene to review the elements of the child’s IEP prior to the commencement of the school year in September, 1998. He further ordered that large print books be made available to the child, and that an aide be available to convert notes and handouts into an oral record.

        Petitioners appeal from that portion of the hearing officer’s decision which found that the child’s specialized reading program had been implemented. Petitioners claim that the IEP provided that the child would receive reading instruction through the Fernald method and that no evidence was submitted to demonstrate that the special education teacher was using such method resulting in a violation of the IEP. Respondent argues that it did implement the child’s reading program in the manner required by the IEP. Respondent claims that the method called for in the IEP for reading instruction was a multi-sensory, Fernald-based method, and that the child’s special education teacher was using a multi-sensory approach with the child which was essentially the same as the Fernald method.

        I must note that the CSE was not required to specify a teaching methodology in the child’s IEP (Application of a Child with a Disability, Appeal No. 95-15). However, respondent’s CSE indicated in the child’s IEP that a multi-sensory, Fernald-based method for reading instruction would be provided to her. While the record clearly demonstrates that the child was receiving multi-sensory instruction, there is no evidence describing the Fernald method, nor is there any definitive evidence that it was being used by the child’s special education teacher. The reading coordinator at the school testified that the child’s special education teacher was "following an auditory visual approach which is similar to the Fernald, maybe not labeled Fernald, but definitely the multi-sensory approach." Based on the record before me, I find that respondent has failed to show that it implemented the reading program which was in the child’s IEP. An IEP must be implemented as written (Application of a Child with a Disability, Appeal No. 95-85).

        Petitioners assert that the appropriate remedy for respondent’s apparent failure to provide reading instruction using the Fernald method for the three months the child was in school after her IEP was approved, and its failure to provide class notes, books on tape, and large print books during that period would be a six-week program of private tutoring, three sessions per week. Compensatory services may be an appropriate equitable remedy where a board of education failed to provide the services recommended by its CSE (Application of a Child with a Handicapping Condition, Appeal No. 91-12; Application of a Child with a Handicapping Condition, Appeal No. 92-40). However, the degree of injury or harm is undecipherable from this record. I note that the school district had only a short period of time to implement the program before petitioners unilaterally placed their daughter in a private school. Furthermore, there is no evidence of the child’s program or performance in the private school. I find that the evidence is insufficient for me to ascertain whether any harm has resulted, or if the requested compensatory services would be meaningful or compatible with the child’s current educational needs. I shall direct the CSE to review the child’s current educational needs and recommend additional services to enable the child to address any deficiency that may have resulted from respondent’s failure to provide the reading program recommended by its CSE.

        I have considered petitioners’ other assertions, including their claim regarding the child’s homework assignments, and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the CSE shall convene to review the child’s current educational needs and recommend additional services to enable the child to address any deficiency that may have resulted from respondent’s failure to provide the reading program recommended by its CSE and the other deficiencies noted by the hearing officer.