98-051

         Petitioner appeals from an impartial hearing officer's decision upholding a recommendation by respondent's committee on special education (CSE) that petitioner's son attend regular education classes and receive once-per-week counseling during the 1997-98 school year, and denying petitioner's request for reimbursement for the private school tuition which she paid during that school year. The appeal must be dismissed.

        Petitioner's son is 12 years old. He has reportedly attended the Stephen Gaynor School since kindergarten. The Stephen Gaynor School is a small private school for children with disabilities in New York City. It has not been approved by the State Education Department to instruct children with disabilities. Although the Board of Education could not place the child in an unapproved school (see 20 USC 1412 [6]; Section 4402 [2][b][2] of the New York State Education Law), the fact that the school was unapproved would not preclude petitioner's claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]).

        A private psychologist who began seeing the boy in November, 1990, when he was four years old, reportedly diagnosed petitioner's son as having a pervasive developmental disorder because of significant impairments in his social relatedness and communication skills. When evaluated by a CSE psychologist in 1991, the child was reportedly unable to participate in structured testing. However, he achieved a composite score which was in the superior range when tested with the Stanford-Binet in 1994. On the Wechsler Intelligence Scale for Children-III which was administered to him in 1996, the child's verbal IQ score was reportedly in the high average range, while his performance IQ and full scale IQ scores were reportedly in the average range (Exhibit 1).

        The child was re-evaluated by a school psychologist on February 22, 1997. The school psychologist, who administered only projective tests to the child, noted that on January 8, 1996, the child's private psychologist had reported that the boy could become easily overwhelmed or discouraged, and became quite anxious when he could not control what was going on around him. The school psychologist reported that petitioner's son was cooperative and involved during testing. He opined that the child had a dynamic personality, and was open and inquisitive, as well as willing to interact and relate to others. The school psychologist also reported that the child perceived himself to be competent and worthwhile, but felt that the environment was not always friendly to him. The school psychologist believed that the child's ability to deal with situations or stimuli which scared him had improved.

        On April 5, 1997, one of respondent's educational evaluators evaluated the boy, who was then nearing the end of the fifth grade. She reported that the boy had achieved a grade equivalent score of 11.4 for total reading on the Woodcock Reading Mastery-R. His subtest scores ranged from 16.9 for word attack skills to 6.4 for passage comprehension. On the latter subtest, the evaluator noted that the child had not checked or re-read passages to locate answers, although he was permitted to do so. The boy achieved grade equivalent scores of 9.9 for basic concepts, 7.6 for operations, and 7.8 for applications on the Key Math-R, as well as 12.9 for spelling on the Kaufman Tests of Educational Achievement. The educational evaluator also reported that the child's writing skills were age appropriate.

        The child was observed in his music and mathematics classes at the Stephen Gaynor School by a CSE representative on April 11, 1997. The CSE representative reported that the child had acted appropriately in both classes. She also reported that the child's mathematics teacher described the boy as insecure, and had indicated to her that the child was ready for regular education, but had some social problems. The CSE representative further reported that the child's reading teacher had indicated that the boy's reading decoding skills were at the sixth to seventh grade level, and his reading comprehension was at a 4.5 grade equivalent.

        In a progress report at the end of the 1996-97 school year by the Stephen Gaynor School, petitioner's son was described as having sixth grade independent reading skills and seventh grade instructional reading skills. The child had just completed the fifth grade. He was also described as having outstanding decoding, and very good sight word recognition skills. However, his reading comprehension skills were reported to be approximately at a 4.5 instructional level. The report indicated that he could not independently get the main idea, or make inferences at this instructional level. His listening comprehension skills were reported to be approximately at the 4.5 grade level. The boy's spelling skills were reported to be approximately at the eighth grade level. His expository writing was described as organized and sophisticated, and his handwriting was described as beautiful. In mathematics, the child's independent skills were reported to be at a 6.3 grade level, and his instructional skills were reported to be at a 6.5 grade level. The child's social studies teacher reported that the child could write cohesive paragraphs that were rich in both content and detail. No problems were noted in the child's perceptual functioning, ability to follow directions, and listening skills. He was described as seeing things as being black or white, and having trouble formulating opinions in developing his own thoughts. However, he could expand his thoughts, if given verbal cues. Behaviorally, it was noted that the child could be defensive and bossy, that he benefited from talking out his problems, and was a social leader. He had reportedly improved his ability to work in a group, and had made more of an effort to enjoy social situations in school.

        On July 23, 1997, the CSE met with petitioner to conduct its annual review of the child. The CSE recommended that the child remain classified as learning disabled, and that he be educated in regular education classes. It further recommended that he receive 30 minutes of counseling in a group of three students once per week. It also recommended that he have extended time limits for testing, and that he be tested in a separate location. The individualized education program (IEP) which the CSE prepared for the child included a single annual goal, which was to further develop his coping skills.

        On or about August 15, 1997, petitioner received a final notice of the CSE's recommendation. On that day, she requested that the CSE reconvene, preferably during the third week of September, 1997. In a letter dated September 24, 1997, petitioner reiterated her request for a new CSE meeting, and submitted letters from the child's psychologist, his psychiatrist, and his physician. The physician opined that the child had a learning disability, but did not explain the basis for his opinion.

        The boy's psychologist reported that the child was capable of emotional engagement, and that his emotional difficulties were secondary to "severe sensory and motor processing deficits", which in her opinion suggested the diagnosis of "multi-system developmental disorder." She opined that the child showed significant delays in language and communication, social and interpersonal behavior, sensory integration and motor planning, impulse control, and regulation of affect, anxiety and attention. The psychologist asserted that the child's needs had to be addressed in a comprehensive, interactive framework which provided opportunities for affective engagement with teachers, administrators and specialists who knew him and his needs. She further asserted that although the child could perform quite well in structured situations such as a formal evaluation, his performance during an evaluation did not provide an accurate picture of how he would function in a less structured, more complex and ambiguous school environment. The psychologist also reported that the child became easily overwhelmed and disorganized when too much was going on around him. She asserted that the child needed to be placed in a small, self-contained school setting with a high adult-to-student ratio of at least one adult for every 8-10 children, and a total school enrollment of not more than 125 students (Exhibit 9).

        The psychiatrist opined that the child should be diagnosed as having a Developmental Disorder not otherwise specified with features suggesting both a Pervasive Developmental Disorder (PDD) and features of an Attention Deficit Disorder (ADD), particularly distractibility. The psychiatrist also reported that the child demonstrated significant scatter in his cognitive skills ranging from the low end of the sixth grade to the high end of the sixteenth grade when he was entering the sixth grade. He noted that the child was receiving twice weekly cognitive-emotive therapy from his psychologist, as well as sensory integration training twice per week, in addition to attending the Stephen Gaynor school. He opined that the schooling which he was receiving at the private school was imperative for his progress (Exhibit 10).

        The CSE reconvened on October 8, 1997, when it reportedly reviewed the letters by the psychologist, psychiatrist, and physician. The CSE, which did not include the members who had participated in the July 23, 1997 meeting, adhered to the recommendations which were made at the July meeting. In a final notice of recommendation dated October 16, 1997, petitioner was offered a placement for her son in respondent's Middle School 54, which is in Community School District 3.

        An impartial hearing which was requested by petitioner was held on January 26, 1998 and May 13, 1998. After the hearing was concluded, the hearing officer received a letter written by the child's psychologist on May 11, 1998. The psychologist reasserted the views which she had expressed in her letter of September 8, 1997, which had been presented to the CSE.

        The hearing officer rendered her decision on July 31, 1998, and amended her decision on September 3, 1998. In her decision, the hearing officer noted that a board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]).

        The hearing officer noted that petitioner had not formally challenged her son's classification as learning disabled, but that her attorney had suggested in his closing statement that the child could also be considered other health impaired (see 8 NYCRR 200.1 [mm][10]). The hearing officer concluded that learning disabled was the more appropriate classification, notwithstanding the fact that the child did not manifest a significant discrepancy between his expected achievement and his actual achievement (cf. 8 NYCRR 200.1 [mm][6]). The hearing officer found that the child had been appropriately evaluated by the CSE, and that the special education service of counseling which the CSE had recommended for the boy was reasonably calculated to allow him to receive educational benefits. She rejected petitioner's claims that the CSE's recommendation was erroneous premised solely upon her son's standardized test results, and should be annulled because it was at odds with the recommendations by the child's psychologist and psychiatrist. With respect to petitioner's contention that her son would become overwhelmed and disorganized in a general education setting, the hearing officer found that petitioner had not presented solid evidence that this would occur, or that it could not be addressed through the counseling which the CSE had recommended that the child receive. Having concluded that the recommendation by the CSE for the 1997-98 school year was appropriate, the hearing officer held that petitioner was not entitled to the relief of tuition reimbursement.

        Shortly before respondent's answer was served, petitioner's attorney submitted an affirmation asserting that he had recently learned that the hearing officer's husband was employed as an assistant principal by respondent. The attorney also asserts that the hearing officer failed to disclose this fact prior to or during the hearing, thereby precluding petitioner from making a motion for the hearing officer to recuse herself. He argues that the hearing officer should have recused herself. In its answer, respondent acknowledges that the hearing officer's spouse is employed as an assistant principal in Community School District 6, and notes that petitioner is challenging a recommendation by the CSE of Community School District 3. Respondent contends that the hearing officer was not under an obligation to disclose her husband's employment. It also contends that petitioner has not established any factual basis that a personal or professional conflict of interest existed to interfere with the hearing officer's objectivity.

        Both Federal and State regulations define who may serve as an impartial hearing officer. The Federal definition which was in effect at the time of the hearing provides that:

"(a) A hearing may not be conducted

(1) By a person who is an employee of a public agency that is involved in the education or care of the child; or

(2) By any person having a personal or professional interest that would conflict with his or her objectivity in the hearing.

(b) A person who otherwise qualifies to conduct a hearing under paragraph (a) of this section is not an employee of the agency solely because he or she is paid by the agency to serve as a hearing officer"
(34 CFR 300.507).

An impartial hearing officer is defined by the Regulations of the Commissioner of Education as:

" … 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 or programs may serve as an impartial hearing officer following the 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" (8 NYCRR 200.1 [s]).

        Although the hearing officer was compensated by respondent to serve as the hearing officer in this proceeding, she is not deemed to be respondent's employee because she was paid for her services. Petitioner does not suggest, nor is there any evidence, that the hearing officer participated in any way in the formulation of the recommendation by the CSE of Community School District 3 which is the subject of this proceeding. The issue is then whether the hearing officer had a personal or professional interest which conflicted with her objectivity. Petitioner refers to Section 14 of the New York State Judiciary Law which prohibits a judge from deciding a matter to which he or she is a party, or is related by consanguinity or affinity to any party to the matter within the sixth degree. However, that statute does not apply to administrative officers (Grant v. Senkowski, 146 AD 2d 948 [3d Dept., 1987]). Nevertheless, administrative officers who exercise judicial or quasi-judicial powers must avoid even the appearance of impropriety (Grant v. Senkowski, supra; DeCamp v. Good Samaritan Hospital, 66 AD 2d 766 [2d Dept., 1978]). In Application of a Child with a Handicapping Condition, Appeal No. 91-10), the State Review Officer noted that New York's public policy with respect to administrative hearings was reflected in the following passage from the Manual for Hearing Officers in Administrative Adjudication published by the New York State Department of Civil Service:

"Adherence to Section 74 of the Public Officers' Law (State Code of Ethics) supra, should make a hearing officer realize that the essence of a fair hearing is in his absolute impartiality. He should have no personal interest in the outcome of the case. He should not be related by blood or marriage to any party, witness or representative. He should have no association presently or have had association previously, in business affairs or in his personal or social life with any party, witness or representative. He should have no prejudice or bias against certain people or against the type of issue he is called on to hear.

Not only must he be free of any personal interest, prejudice or bias, but he must also be free of any reasonable suspicion thereof."

        Although the hearing officer was not literally related by marriage to any party because her spouse was not a party to this proceeding, I am troubled by her failure to at least disclose her husband's employment by respondent in Community School District 6. Impartial hearing officers are required to disclose all potentially conflicting interests at the outset of the hearing, so that any question about their impartiality can be addressed, and an adequate record can be developed for subsequent review (Application of a Child with a Handicapping Condition, Appeal No. 91-27). Despite the hearing officer's failure to disclose the fact of her spouse's employment by respondent, I find that her failure to do so does not afford a sufficient basis for annulling her determination (Application of a Child with a Disability, Appeal No. 95-41; Application of a Child with a Disability, Appeal No. 97-96). I have carefully reviewed the transcript and the hearing officer's decision, and I find that there is no evidence of any actual bias against petitioner.

        Petitioner asserts that the CSE which met on July 23, 1997 and again on October 8, 1997 did not include the child's teacher at the Stephen Gaynor School. However, the applicable Federal regulation (34 CFR 300.344) does not require that the private school teacher attend the CSE meeting because the child had not been placed in that school by respondent. Petitioner does not otherwise challenge the composition of the CSE at its July 23 and October 8 meetings.

        Petitioner asserts that the CSE classified her son as learning disabled, but notes that the diagnoses by the child's psychologist and psychiatrist "may fall within the category of other health impaired." As noted above, petitioner did not challenge her son's classification during the hearing, although her counsel suggested that the boy could be classified as other health impaired. I must note that 8 NYCRR 279.4 requires that a petition to the State Review Officer identify which parts of a hearing officer's decision the petitioner challenges. I find that petitioner has not identified the issue of the child's classification as an issue to be reviewed, and note that I am precluded from reaching the issue sua sponte (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]).

        The primary issue to be determined is whether the CSE recommended an appropriate educational program for petitioner's son for the 1997-98 school year. As noted above, respondent bears the burden of proving that its CSE's recommendation was educationally appropriate for the child. The CSE concluded that the child could perform satisfactorily in a regular education setting, with the support of weekly counseling. Petitioner recognizes that her son performed quite well on the standardized achievement tests which were administered to him in April, 1997 (see Exhibit 2). However, she contends that her son's high performance on those tests would not be an accurate predictor of how he would function in a regular classroom, citing the private psychologist's opinion (Exhibits 9 and A). I must point out that the private psychologist did not testify at the hearing, nor did she indicate in her written opinions that she had actually observed the child in an educational setting. Similarly, the private psychiatrist, who had examined the boy once shortly before opining in writing that the boy required a placement like the Stephen Gaynor School, did not appear to have any personal knowledge of the boy's performance in school. While the individual CSE members did not have personal knowledge of the child's performance in school, they did have objective test results, as well as a written observation report.

        At the hearing, the child's teacher for writing, spelling, geography, and English (but not reading) at the Stephen Gaynor School testified that the child's reading decoding skills were at the fifth or sixth grade level, and his reading comprehension skills were at fourth or fifth grade level. She acknowledged that the private school had not administered standardized tests to the boy. The teacher agreed that the boy's spelling skills were at a twelfth grade level as respondent's educational evaluator had reported, and she testified that his writing was at the sixth grade level. She also agreed that the child's mathematics skills were at the sixth grade level. The teacher asserted that the child's comprehension was very literal, and that he required cues from his teacher when more abstract reasoning was required. Nevertheless, I must point out that his performance on the standardized achievement tests clearly suggests that his reasoning skills are not deficient.

        The child's teacher also testified that the child had difficulty "reading social skills," and that he became frustrated on occasion and needed to remove himself from the classroom to quiet down. She opined that the boy required much "maintenance" by a teacher, and suggested that a regular education teacher would be unable to give the child as much attention as he needed. Although the child may well continue to have some emotional needs, I am not persuaded by the record which is before me that those needs are significant enough to require that he be kept out a regular education environment. Both Federal and State regulations require respondent to place each child with a disability in the least restrictive environment (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]). Respondent may place a child in a special education class only when the nature or severity of the child's disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. While I understand petitioner's apprehension about her child attending regular education classes, given the fact that he has never been in a regular education class, I am unable to conclude that the boy would be unsuccessful if placed in such a class and supported with the counseling which the CSE recommended. Accordingly, I must concur with the hearing officer's determination that respondent met its burden of proof with respect to the appropriateness of the educational program recommended by its CSE. In view of my finding that the recommended program was appropriate, petitioner's request for tuition reimbursement must be denied.

THE APPEAL IS DISMISSED.