98-050

       Petitioner appeals from an impartial hearing officer's decision which found that the individualized education program (IEP) for the 1997-98 school year which respondent's committee on special education (CSE) prepared for petitioner's daughter was appropriate. Petitioner contends that the hearing officer rendered her decision before affording petitioner the opportunity to present her case. The appeal must be sustained.

        Respondent contends that this appeal is untimely because it was not commenced within 40 days after receipt of the hearing officer's decision, as is required by the provisions of 8 NYCRR 279.2 (b). Petitioner asserts that her petition was late by no more than 10 days, and that her delay should be excused because the decision was unexpected and because she was unrepresented by counsel when it was received. She further asserts that she attempted to serve her pro se petition upon a secretary for respondent's former superintendent of schools, and was given an extension of time by the State Review Officer to re-serve her petition. In the absence of any evidence of harm to respondent caused by petitioner's delay, I will excuse her delay.

        Petitioner's daughter sustained various injuries, including a closed head injury, in an automobile accident in June, 1995. At the time of the accident, the girl was fifteen years old and was attending respondent's high school. In August, 1995, petitioner's daughter was placed in the Hilltop Manor Center for Brain Injury Rehabilitation (Hilltop), where she underwent a comprehensive program, including physical therapy, occupational therapy, speech/language therapy, psychological services, and social services. At the time of her transfer to Hilltop, the girl was reportedly comatose. However, she gradually regained her cognitive and motor functions (Exhibit 165). The child was referred to respondent's CSE in August, 1995. She was also observed by respondent's school psychologist and a speech/language pathologist in December, 1995.

        On January 16, 1996, the CSE recommended that the child be classified as traumatic brain injured (TBI), but it deferred making program and placement recommendations pending the girl's discharge from Hilltop. Petitioner's daughter was discharged from Hilltop on or about February 16, 1996. The Hilltop staff noted that the girl responded appropriately to social conversation but did not produce vocalizations, and that her ability to maintain attention and process and remember information was mildly impaired. The staff recommended that she be placed in a small structured classroom, with mainstream electives so that she could interact with her peers. On February 13, 1996, the CSE recommended that the girl receive two hours of home tutoring per day, as well as speech/language therapy five times per week, physical therapy four times per week, and occupational therapy three times per week. Petitioner apparently accepted the CSE's recommendation.

        On April 16, 1996, the CSE reviewed the girl's educational program. It recommended that the girl receive an educational technology assessment to ascertain what, if any, technological devices would assist her education. The CSE reconvened on May 1, 1996 in part to consider petitioner's request for a standing table for her daughter. It also discussed the child's continuing need for a technology assessment. The CSE recommended that the girl receive two hours of tutoring at home three times per week and two hours of therapy and counseling during the summer of 1996 to prepare her to return to high school in the fall of 1996.

        On July 1, 1996, the CSE recommended that petitioner's daughter attend an eleventh grade homeroom, and be enrolled in regular education tenth grade English, science, social studies and business mathematics courses, with the 1:1 assistance of a full-time consultant teacher. It further recommended that she receive 40 minutes of individual speech/language therapy five times per week, 60 minutes of individual physical therapy three times per week, and 30 minutes of group counseling per week. The IEP which the CSE prepared for the child indicated that she would have the use of a computer, wheelchair, communication board, standing table, push cart, restorator, powder board, and walker (Exhibit 57). Petitioner attended the CSE meeting, and reportedly did not object to the CSE's recommendations.

        The CSE amended the girl's IEP on September 24, 1996, to increase her occupational therapy to a total of 180 minutes per week, at least part of which was to be used to address her eating difficulties. The CSE also recommended that the meals which were prepared for the girl at home be warmed up at school for her. It discussed concerns about additional equipment and modifications of the school, and it agreed to consider recommending a twelve-month program, i.e., extended school year (ESY), at a future CSE meeting. Petitioner reportedly did not object to the CSE's recommendations.

        On December 3, 1996, the CSE further amended the girl's IEP to provide for her use of a vestibulator frame, platform swing, standing box, and recorded text. It also amended her testing modifications and some of her occupational therapy goals and short-term objectives. Once again, petitioner reportedly did not object to her child's IEP (Transcript, pages 50-51).

        In January, 1997, four of the girl's regular education teachers and her consultant teacher expressed concern about her ability to keep up with the course work in her regular education classes. The consultant teacher reported that the girl was making progress socially, but was having difficulty academically. She indicated that the girl had difficulty interpreting and comprehending material, as well as remembering information. The consultant teacher indicated that the girl's academic performance was also hampered by her inattention, lack of motivation, and fatigue, and she recommended a change in the girl's academic placement.

        On February 6, 1997, respondent's CSE recommended that the girl receive a neuropsychological evaluation by Dr. Allan Yozawitz in Syracuse, New York, at respondent's expense. The CSE also amended the girl's IEP to provide that she would be enrolled in special education classes with a 15:1 pupil to teacher ratio for instruction in English and social studies.

        By letter dated March 6, 1997, petitioner's then attorney informed the CSE chairperson that petitioner agreed to have the neuropsychological evaluation performed, but she preferred that the evaluation be done by a psychologist in Binghamton. The attorney indicated that respondent should initiate a hearing if the matter could not be resolved satisfactorily. Respondent's attorney responded by noting that respondent had the right to select the evaluator (see Vander Malle v. Ambach, 673 F. 2d 44 [2d Cir., 1983]), and questioning respondent's authority to initiate a hearing for this purpose. On April 3, 1997, petitioner's then attorney requested an impartial hearing regarding the proposed neuropsychological evaluation. A hearing was scheduled to begin on May 9, 1997, but was rescheduled to accommodate the attorneys' schedules and an attempt to reach a settlement. On June 16, 1997, petitioner withdrew her request for a hearing. The girl's neuropsychological evaluation was subsequently performed by Dr. Yozawitz on September 23 and 30, 1997.

        On June 20, 1997, the CSE met to review the girl's progress and to determine her eligibility for an ESY program. The CSE determined that she was eligible for an ESY program, and it recommended that she be tutored for two hours per day, five times per week, and be assisted by an aide for three hours per day five times per week. It also recommended that the girl receive 60 minutes of individual physical therapy twice per week, 30 minutes of individual speech/language therapy five times per week, 30 minutes of individual occupational therapy three times per week, pending receipt of prescriptions for those related services, plus 30 minutes of individual counseling per week. I note that a physician prescribed those services on June 24, 1997. The recommended related services were to be provided at the local BOCES. Petitioner, who preferred that her daughter attend the Sullivan Diagnostic Treatment Center in Harris, New York, objected to the recommended ESY program, and requested that an impartial hearing be held to review the CSE's recommendation for an ESY program.

        In her June 20, 1997 hearing request, petitioner's then attorney indicated that the issues to be resolved at the hearing were the appropriateness of the ESY program, respondent's alleged failure to provide appropriate services during the 1996-97 school year (including some services listed in the girl's IEP), and respondent's alleged failure to make its high school fully accessible to the girl (Exhibit 119). Respondent arranged for the ESY services to be provided by the BOCES, and sought to obtain petitioner's consent to have those services provided, as is required by State regulation (8 NYCRR 200.1 [b]). Petitioner withheld her consent (Exhibit 137). Her daughter reportedly received at least some of the services at a hospital in Binghamton, New York during the summer. The parties' attorneys corresponded about suitable dates for the hearing before the hearing officer who had been appointed to conduct the previously cancelled hearing.

        On August 5 and 7, 1997, the CSE met to prepare the girl's IEP for the 1997-98 school year. Petitioner attended the first day of the CSE meeting, but was unavailable for the second day because her daughter was ill. However, she agreed to have the CSE proceed without her in writing IEP goals and objectives. It recommended that the girl be enrolled in 15:1 special education classes for English II and Social Studies II, and that she receive 40 minutes of resource room services per day, and have the full-time services of an aide. The CSE further recommended that the girl receive 30 minutes of individual speech/language therapy five times per week, 60 minutes of individual physical therapy three times per week, 30 minutes of individual occupational therapy three times per week, and 30 minutes of individual counseling once per six-day cycle. Each of the related services, except counseling was subject to the receipt of a physician's prescription for those services. The girl's physical therapy was to be provided in lieu of physical education. The girl's IEP (Exhibit 145) provided for a variety of testing modifications and special equipment, as had her IEP for the preceding school year.

        The hearing in this proceeding began on September 25, 1997. At the outset of the hearing, the parties' representatives agreed that the three issues to be determined were the appropriateness of the educational program which respondent provided to petitioner's daughter during the 1996-97 school year, the appropriateness of the ESY program respondent offered to provide during the summer of 1997, and the appropriateness of the educational program which it offered to provide during the 1997-98 school year. I note that petitioner was represented by a different attorney than the attorney who had filed the request for a hearing. The hearing officer was apprised of the fact the girl had not returned to school in September, and she urged petitioner to have her daughter return to school during the pendency of this proceeding. The girl reportedly returned to school in October, 1977, but left school in March, 1998.

        The hearing briefly resumed on October 30, 1997, but was adjourned because petitioner's attorney was ill. The record does not reveal why the hearing did not resume until April 7, 1998. In the interim, petitioner retained the services of another attorney on February 7, 1998. At or about that time, petitioner had telephoned the hearing officer to inform her that she was without counsel and that she had a number of concerns. The hearing officer suggested that petitioner express those concerns in writing to respondent, which petitioner apparently did thereafter. Respondent's CSE chairperson responded to petitioner that her questions had been previously addressed, " … including at the pending hearing" (Exhibit 167).

        On March 6, 1998, the CSE met to review Dr. Yozawitz' report of his neuropsychological evaluation of petitioner's daughter and the progress reports of the girl's service providers. Dr. Yozawitz reported that the child had made a good recovery of her cognitive and perceptual functioning from the trauma she sustained in her accident. However, she continued to evidence a moderate to severe motor dysfunction, as well as mild disturbances of her ability to sustain attention and concentrate. Dr. Yozawitz also reported that petitioner's daughter exhibited a maladaptive affective reaction to the physical and social stressors associated with her disability, and he diagnosed her as having an Adjustment Disorder with Mixed Anxiety and Depressed Mood, for which he recommended that she receive psychotherapy. He further recommended that the girl receive a twelve-month program of daily speech/language therapy, occupational therapy, physical therapy, and tutorial academic instruction. Dr. Yozawitz indicated that the girl's school-based therapeutic services should be supplemented with the services provided by the staff of an accredited head injury rehabilitation facility (Exhibit 165). The CSE recommended that the girl's physical therapy and occupational therapy be increased to five times per week.

        On March 11, 1998, petitioner telephoned the hearing officer to request that the hearing be resumed. The hearing officer suggested that petitioner's new attorney should contact respondent's attorney. On March 24, 1998, the hearing officer sent a letter to the parties' attorney in which she indicated that petitioner had spoken to her on the two occasions noted above (Exhibit 158). By letter dated April 3, 1998, petitioner's attorney requested that the hearing officer recuse herself because she had spoken to petitioner (Exhibit 157). When the hearing resumed on April 7, 1998, petitioner's attorney did not appear because he reportedly believed that the hearing officer would recuse herself. The hearing officer advised petitioner's lay advocate and respondent's attorney that she had not received the recusal request. Upon being apprised of the request, the hearing officer declared that she had done nothing to compromise her impartiality, and denied the request to recuse herself. However, the hearing was adjourned because of the failure of petitioner's attorney to appear.

        The hearing did not resume until June 2, 1998. At that point, the CSE chairperson had completed her testimony, but no other witness had testified. To accommodate his schedule, Dr. Yozawitz was allowed to testify on behalf of petitioner. Petitioner was then sworn in and testified at the hearing officer's request because she was concerned about the girl not attending school. Petitioner testified that she believed that her daughter should not return to school until respondent had implemented each of Dr. Yozawitz's recommendations. She asserted that respondent's staff was not trained to provide appropriate services to her child, and that the school building lacked an accessible bathroom for the girl. Petitioner further asserted that respondent did not have an evacuation plan in case of fire, or a medical emergency contingency plan. She also raised other issues about her daughter's access to school activities, and the allegedly inappropriate contact with her daughter by respondent's then superintendent of schools.

        The hearing officer suggested that the school building be toured to ascertain if there were accessibility issues which needed to be addressed. Following the tour, she made suggestions for improving the accessibility of a school bathroom, and observed that the rest of the building appeared to be satisfactory in terms of accessibility. The hearing officer and the parties' attorneys discussed the implementation of the girl's IEP with at least some of Dr. Yozawitz's recommendations and the accessibility of the school building, in the context of attempting to secure the girl's return to school. It was agreed that respondent would continue to provide home tutoring for the remaining two weeks of the 1997-98 school year, and that petitioner would cooperate with respondent in having the girl re-evaluated. Petitioner's attorney raised the issue of payment of attorney fees and Dr. Yozawitz's witness fee. The hearing officer indicated that it was beyond her authority to award such fees (see Application of a Child with a Disability, Appeal No. 96-80). The hearing officer summarized the discussion which had occurred as follows:

"So the accepted agreement is that Mr. Sarzynski and Mr. Guyette [the parties' attorneys] will meet and somehow indicate to this hearing officer that they have reached agreement … or not reached agreement. In the case that they have not reached an agreement, this hearing will continue. If they have reached an agreement, the issues of this hearing are resolved and the request for the hearing will be withdrawn" (Transcript, pages 601-602).

        By letter dated July 13, 1998, respondent's attorney advised the hearing officer that he had not received a response from petitioner's attorney with regard to the settlement which was discussed at the hearing on June 2, despite having orally informed petitioner's attorney that respondent would be agreeable to the proposed settlement. He concluded by asking the hearing officer to " … advise us of the status of the hearing" (Exhibit 1 to the petition).

        In a memorandum to the parties and their attorneys, dated July 18, 1998, the hearing officer transmitted her decision, with the notation that it was not in the girl's best interest to delay the matter further. The hearing officer outlined the parties' respective positions and summarized the evidence and testimony which had been presented to her. She noted that the parties had reached a tentative agreement on June 2, 1998. The hearing officer then determined that the girl's IEP for the 1997-98 school year was adequate and appropriate, given the service provider's recommendations when the IEP was prepared in August, 1997, and that it was also appropriate as amended in March, 1998. She did not address the appropriateness of the girl's educational programs for the 1996-97 school year and the summer of 1997.

        Petitioner contends that the hearing officer violated her due process rights by rendering a decision before petitioner had been afforded an opportunity to present her case with respect to each of the issues which were identified at the outset of the hearing. Although I share the hearing officer's concern that this girl was not well served by the delayed due process proceeding which failed to resolve any of the issues, I am constrained to agree with petitioner that the hearing officer's decision must be annulled. The parties appeared to be close to an agreement to end this matter, but there is no evidence of an agreement in the record which is before me. Absent an agreement, it was the hearing officer's responsibility to proceed with a hearing at which each party had an opportunity to present evidence (8 NYCRR 200.5 [c][9]).

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that within 10 days after receipt of this decision, respondent shall appoint another hearing officer to conduct a hearing.