98-061

        Petitioners appeal from the decision of an impartial hearing officer which upheld a recommendation by respondent's committee on special education (CSE) that their son be enrolled in a half-day high school equivalency diploma (GED) program in respondent's high school and a half-day vocational program of the Board of Cooperative Educational Services of Steuben and Allegheny Counties (BOCES) for the 1998-99 school year. The appeal must be sustained in part.

        Petitioners' son, who is eighteen years old, was initially identified as a learning disabled student while repeating kindergarten in the Andover Central School District. He entered respondent's schools for the first grade in the 1988-89 school year. The boy has remained classified as learning disabled while in respondent's schools. His classification as learning disabled is not disputed in this proceeding, 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]).

        When evaluated at the Genesee Hospital Developmental Unit in November, 1997, the boy achieved a verbal IQ score of 80, a performance IQ score of 83, and a full scale IQ score of 80 (Exhibit D-9C). The psychologist who evaluated petitioners' son reported that the boy often searched for words to express himself, and appeared to have significantly delayed auditory processing skills. He further reported that the child had great difficulty performing short-term auditory memory tasks, as well as visual-motor expressive tasks, including writing. The psychologist indicated that the boy was functioning at the 11-year old range in most areas of language processing, and that his short-term automatic memory skills were more significantly delayed. The boy showed strength in his visual observation skills and spatial relation skills. Although the boy demonstrated strong logical reasoning skills, his slow and methodical approach on timed tasks resulted in lower scores. His performance in transferring information from one page to another using paper and pencil was extremely weak. However, he did not manifest a weakness in either visual perception or organization.

        In an educational assessment which was performed at the Genesee Hospital Developmental Unit in March, 1998, petitioners' son displayed difficulty expressing his ideas, as well as a slow rate of processing (Exhibit D-9B). The evaluator noted that the student performed best when tasks were presented to him at a concrete level, and that his interpretation of language tended to be quite literal. On the Woodcock Reading Mastery Test - Revised, the boy achieved grade equivalent scores of 2.1 for word identification, 2.2 for word attack, and 2.2 for passage comprehension. On the Woodcock Johnson Revised Test of Achievement, he achieved a grade equivalent score of 6.3 for applied mathematical problems, using a calculator. His visual problem abilities were assessed using the Raven's Progressive Matrices. His performance was reported to be within the low average range when norms for 16 1/2 year olds were used, but he was slightly older than that when the test was administered. The evaluator reported that the boy could accurately solve problems when the visual organization was readily apparent, but he was less successful when he had to infer that organization. The evaluator further reported that the boy's functional writing skills were severely limited. She indicated that he was able to produce basic noun-verb sentences, but had significant difficulty expanding upon his ideas, applying appropriate punctuation markers, and encoding (spelling) in context.

        The boy's speech/language skills were also assessed at the Genesee Hospital Developmental Unit in October, 1997 (Exhibit D-9D). His speech was described as rapid with low volume and a slight distortion of sibilant sounds due to an overbite. The boy's receptive language skills were assessed to be within the average range, but he had significant deficits in the area of language expression. The evaluator noted that the boy had difficulty recalling information from his long-term memory, which contributed to his poor ability to define and describe. His expressive language was further compromised by difficulty formulating grammatically appropriate sentences. I note that in February, 1997, the CSE had discontinued the boy's speech/language therapy, upon the recommendation by his speech/language therapist who reported that the student showed no effort and was unlikely to make progress with her (Exhibit 21). A pediatric neurologist who examined the boy in November, 1997 reported that the results of the exam were essentially normal (Exhibit D-9E and F).

        Petitioners' son was reportedly enrolled in regular education classes, but received support services while in the first, second and third grades. Thereafter, he was reportedly enrolled in special classes. During the 1996-97 school year, the boy was in the ninth grade. He reportedly began to attend a BOCES program in the afternoon, while still enrolled in one of respondent's special education classes for the first part of the school day.

        The boy reportedly enjoyed attending the BOCES program and his overall attitude about school was reportedly positive until an incident occurred on the school bus transporting him to the BOCES on May 17, 1997. A female student on the bus accused petitioners' son of having inappropriately touched her. During the school district's investigation of the incident, the boy was transported by car, rather than bus, to the BOCES. Respondent's secondary school principal subsequently determined that both students had inappropriately touched each other, and directed that petitioners' son continue to be transported separately by car to the BOCES for the remainder of the school year because "a greater severity attached to [the boy's] action" (Exhibit D-13). The boy was reportedly counseled about the matter (July 29, 1998 Transcript, page 93). The boy's father sent a letter to the principal protesting his determination, but the matter was apparently not pursued.

        During the 1997-98 school year, the boy was enrolled in a 15:1 special education class in respondent's high school, and continued to attend the BOCES vocational program in the afternoon. The boy had reportedly not wanted to return to respondent's high school, but had done so at petitioners' urging. He reportedly began to have conflicts with his tenth grade special education teacher and the high school administrator. By letter dated December 11, 1997, the high school principal advised petitioners that their son had not attended school since November 19, 1997. The principal sent a similar letter to petitioners on February 9, 1998, in which he indicated that the boy had not attended school since January 7, 1998. I note that the boy's BOCES teacher also reported on the boy's poor attendance in four progress reports (Exhibit D-24). By December 4, 1997, the student had reportedly been absent from the BOCES on 20 days, which increased to 41 days by February 15, 1998. The record reveals that respondent's high school principal had advised the boy that he could not attend the BOCES vocational program if he did not attend the high school for the academic portion of his educational program. He reportedly did so as a means of persuading the boy to attend the high school. The boy reportedly stopped attending respondent's high school and the BOCES in January, 1998. A CSE meeting to review the boy's educational program was scheduled to occur on January 14, 1998, but it was postponed at the request of the boy's mother until the results of an independent evaluation could be obtained (July 29, 1998 Transcript, page 26).

        As noted above, the boy was independently evaluated at the Genesee Hospital Developmental Unit in the fall of 1997 and spring of 1998. In a summary which respondent reportedly did not receive until April 23, 1998, the evaluation team reported that the boy had severe developmental reading and written language disorders, as well as developmental math and coordination disorders, and an expressive language disorder (Exhibit D-9A). The team recommended that the boy's basic functional skills be developed within the context of a vocational training program. It suggested that the boy would benefit from a "full vocational program", and that a combination GED and BOCES program appeared to be most appropriate. The team recommended that an adult literacy approach be used to develop the boy's reading skills, in accordance with the Genesee educational evaluator's report. In that report, the evaluator had suggested that the boy could participate in either an alternative, multisensory, remedial reading program designed to develop the phonological skills of disabled adolescents and adults, or a program which focused upon the acquisition of functional, survival reading skills needed for work and independent adult living. I note that at the hearing, the evaluator testified that it would be ideal for the boy to be involved in both types of reading programs. The evaluation team recommended that the boy receive speech/language therapy for occupational language development. It noted that there had been difficulties between the boy's family and the school district, and suggested that the family would benefit from advocacy which was designed to foster a cooperative, collaborative development of a program for the boy.

        By letter dated March 27, 1998, the high school principal informed petitioners that respondent had " ... decided not to fund the GED program for the 1998-99 school year". The principal indicated that as a result petitioners' son would not be able to attend the BOCES GED program (Exhibit D-7). In a letter dated April 2, 1998, petitioners' attorney wrote to the high school principal, who is also respondent's CSE chairperson, requesting that the boy be placed in a full-day BOCES program consisting of the GED program and a vocational program with a specific focus such as auto mechanics. The attorney suggested that it was to the boy's credit to remain away from school, and indicated that the boy would develop serious emotional problems if he remained in respondent's program (Exhibit D-5).

        On May 21, 1998, petitioners' attorney requested a hearing on their behalf. She asserted that the boy had not been provided with the type of instruction which met his needs and allowed him to benefit from his education (Exhibit D-6). The attorney also alluded to the boy having been excluded from his BOCES vocational program by respondent because of his failure to attend classes in respondent's high school. She requested that the boy be provided with an educational program during the summer. On June 17, 1998, respondent's attorney sought a clarification of petitioners' hearing request, noting that the CSE had not yet conducted its annual review of the boy to prepare his individualized education program (IEP) for the 1998-99 school year. Petitioners' attorney agreed that the CSE might be able to address petitioners' concerns, but requested that respondent appoint an impartial hearing officer so that the date for a potential hearing could be established.

        The CSE met with petitioners on July 9, 1998. Their attorney was not present, but respondent's attorney attended the meeting. The minutes of the CSE meeting reveal that the CSE discussed the boy's needs and the services which petitioners had requested through their attorney (Exhibit D-11). The CSE also discussed the boy's proposed IEP goals and objectives. It recommended that the boy receive 60 minutes of consultant teacher services five times per week while attending a regular education GED class in respondent's high school, and that he receive 30 minutes of speech/language therapy in a group three times per week at the high school. The IEP indicated that the boy would be mainstreamed for 60 minutes of physical education three times per week, and that he should have the benefit of a variety of testing modifications, including having his answers scribed (Exhibit D-10). The CSE meeting minutes reveal that the CSE proposed to have the boy's GED teacher, who was a certified special education teacher, serve as his consultant teacher and scribe. Petitioners reportedly did not object to their son's proposed educational program, except for its location in respondent's high school.

        By letter dated July 10, 1998, petitioners' attorney advised respondent's attorney that petitioners wished to proceed with the hearing (Exhibit P-2). She alleged that the Board of Education had decided to discontinue its practice of sending GED students to the BOCES and to create its own GED program in retaliation for petitioners having requested a hearing, and expressed concern about respondent's ability to establish a suitable program by September, 1998.

        The impartial hearing in this proceeding began on July 29 and continued on July 30, 1998. It concluded on August 6, 1998. The hearing officer rendered his decision on August 21, 1998. He found that the IEP which the CSE prepared on July 9, 1998 failed to describe the boy's academic, social, physical and management needs as required by 8 NYCRR 200.4 (c)(2)(i), and lacked clearly measurable goals and objectives as required by 8 NYCRR 200.4 (c)(2)(iii). The hearing officer found that the IEP lacked goals and objectives for the speech/language which the CSE had recommended, and it did not include counseling or attendance incentives. He further found that the IEP did not mention the remedial reading which the CSE had recommended that the boy receive. He also determined that the child's GED teacher could not be his consultant teacher because she could not consult with herself. The hearing officer remanded the matter to the CSE to develop a new IEP in accordance with his instructions. He noted that the CSE might have to set priorities for the services which it would recommend because it did not appear to be feasible to provide the amount of services which the CSE had apparently intended to recommend. The hearing officer directed that the boy be placed in respondent's GED program, which he found to be consistent with the requirement that the Federal and State requirement that each child with a disability be placed in the least restrictive environment (see 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]).

        Petitioners challenge the hearing officer's decision upon a number of grounds. Their attorney has submitted an affidavit alleging that the hearing officer did not have the exhibits which petitioners introduced at the hearing when he rendered his decision. I have considered her affidavit and that of respondent's attorney, who alleges that the hearing officer returned the hearing record to the CSE chairperson after the decision was rendered. The CSE chairperson thereafter sent the record, including petitioners' exhibits, to respondent's attorney. Respondent's attorney then filed the record with the State Education Department. The record before me includes petitioners' exhibits. I find that petitioners' claim that the hearing officer did not have their exhibits when he rendered his decision is without merit.

        Petitioners assert that the hearing officer disregarded the testimony given by two of their witnesses on August 6, 1998 because he did not include the August 6 hearing date on the coversheet for his decision, or include the names of those two witnesses on a list of witnesses which appeared on the second page of his decision. They also assert that the hearing officer did not refer to the testimony of the two witnesses in his decision. However, I note that he did not refer specifically to the testimony of other witnesses in his decision, and I am not persuaded that he ignored the testimony of petitioners' two witnesses merely because they were not included on the list of witnesses in his decision.

        Petitioners contend that the hearing officer failed to determine that respondent had not performed a triennial evaluation of their son. They assert that no evaluation had been performed since 1994, prior to the private evaluation which they obtained from the Genesee Hospital Developmental Unit in the fall of 1997. I must agree with respondent that petitioners failed to raise this issue either in their request for a hearing, or their opening statement at the hearing. Moreover, their son's IEP dated February 27, 1997 (Exhibit D-22) refers to educational evaluations performed in 1996 and 1997, a psychological evaluation performed in 1995, a physical examination performed in 1996, and a social history which was obtained in 1995.

        I reach a similar conclusion with regard to petitioner's argument that the hearing officer should have determined that it was inappropriate for the high school principal to impose discipline upon their son because the principal is also the chairperson of the CSE. The issue was not raised at the hearing. I must also note that the boy was not suspended from school, and he continued to be transported to the BOCES, though he was transported on a separate vehicle. If petitioners wish to challenge the accuracy of the principal's letter finding that their son had behaved inappropriately (Exhibit D-13), their remedy is to request a hearing in accordance with the provisions of 34 CFR 300.567. A hearing of that nature is conducted pursuant to the regulations implementing the Family Educational Rights and Privacy Act (see 34 CFR 99.23)

        Petitioners assert that the hearing officer erred by not finding that their due process rights were violated because respondent's attorney attended the CSE meeting without prior notice to them that the attorney would be present at the meeting. Their position is that they should have been notified of all of the individuals who would attend the CSE meeting, and that there is a prohibition against allowing school attorneys attending CSE meetings. The hearing officer found that it may have been "ill advised" for respondent's attorney to attend the CSE meeting, but there was no prohibition against him attending the meeting. The relevant Federal regulation in effect when the CSE was held was 34 CFR 300.344 (a) which specified certain required participants at CSE meetings. Paragraph (5) of that regulation also indicated that the participants could include "Other individuals at the discretion of the parent or agency". I note that the U.S. Department of Education's Office of Special Education Programs recently opined that the regulation did not prohibit legal advocates from participating in IEP meetings prior to a request for a due process hearing, while noting that attendance at such meetings should be limited to individuals having an intense interest in the child (30 IDELR 541). I note that in this instance, a hearing had been previously been requested. The opinion also noted that a 1997 amendment to the Individuals with Disabilities Education Act would, as of July 1, 1998, limit the individuals invited to attend a CSE meeting by either the child's parents or school district to those having knowledge or special expertise regarding the child.

        The hearing officer did not address petitioners' challenge to the adequacy of the notice inviting them to attend the CSE meeting. Federal regulation (34 CFR 300.345 [b][1]) and State regulation (8 NYCRR 200.5 [a][3]) provide that a notice for a prospective CSE meeting shall inform the child's parents of the persons who are expected to attend the meeting. The State regulation also requires that the person's titles be identified. The notice which was sent to petitioner (Exhibit P-3) indicated that the boy's teachers would attend, but did not identify them by name. The CSE meeting minutes (Exhibit D-11) reveal that three of the boy's teachers attended the meeting. The notice of the meeting did not indicate that the school attorney would attend the meeting. I find that respondent did not comply with the regulations with respect to the anticipated meeting participants.

        Petitioners raise one other procedural due process issue. They contend that respondent was dilatory in scheduling the hearing in this proceeding. They requested a hearing on May 21, 1998. The hearing was deferred until after the July 9, 1998 CSE meeting, and did not begin until July 29, 1998. I have reviewed the correspondence between the parties' attorneys about holding a hearing, and I am not persuaded that respondent intentionally sought to deny petitioners a hearing. However, I must remind respondent of its obligation to promptly schedule hearings upon receipt of requests for them.

        The central issue in this appeal involves the appropriateness of the CSE's recommendation that petitioners' son be enrolled in respondent's GED program for part of the school day during the 1997-98 school year. I note that at the hearing and in this appeal, petitioners have alleged that respondent voted not to contract with the BOCES for a GED program during the 1997-98 school year in "retaliation" for petitioners having requested that their son attend the BOCES GED program. Respondent presented documentary evidence and sworn testimony to establish that its decision, which was made in March, 1997, had nothing to do with any specific student, and was based upon budgetary concerns. I find that there is no credible evidence to the contrary.

        Petitioners contend that the hearing officer's decision is inherently contradictory because it upholds the CSE's recommendation that the boy attend respondent's GED program, while finding that the IEP which the CSE prepared for the boy is seriously defective. Respondent bears the burden of establishing the appropriateness of the educational program which its CSE recommended (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify a student's needs, establishes annual goals and short-term instructional objectives which are related to the student's educational deficits, and provides for the use of appropriate special education services to address the student's special education needs. As noted above, the hearing officer found that the boy's IEP did not adequately describe his educational needs, lacked appropriate goals and objectives, and failed to delineate the special education services, e.g., consultant teacher services, which would be provided to the boy. I do not review the hearing officer's unchallenged finding about the IEP's inadequacies. However, it does not follow that the hearing officer erred in determining that the boy could be educated in respondent's GED program.

        I must note that the GED program, whether provided by respondent or the BOCES, is a regular education program. Although petitioners object to respondent's GED program on the grounds that it did not yet exist when the CSE made its recommendation and they allege that the program which respondent implemented in September, 1997 differs from the program which respondent's witnesses described at the hearing, I find neither argument to be persuasive. The record reveals that respondent's GED program was pending approval by the State Education Department when the hearing began, but the Department approved the program on July 30, 1998 (Exhibit D-20). The supplementary affidavits which both parties submitted with regard to how the program was being operated in the fall of 1998 do not, in my judgment, afford a basis for concluding that respondent's GED program would have been academically inappropriate for the boy. Although the GED program is a regular education program, I note that respondent has hired a certified special education teacher with experience teaching life skills to older students for its GED program. The boy's reading needs were to be met by instruction from a certified reading teacher. At the hearing, the reading teacher demonstrated her familiarity with multisensory teaching techniques, which the boy would require.

        Petitioners contend that the hearing officer ignored or minimized the significance of their son's opposition to returning to respondent's high school for his GED program. The boy's opposition appears to have been based primarily on the alleged conflict which he had with his special education teacher during the last month of the 1996-97 school year and the first few months of the 1997-98 school year. I find that there is very little evidence of the alleged conflict in the record which is before me, and note that the boy was not scheduled to have the same teacher for the program recommended by the CSE for the 1998-99 school year. I have considered the recommendations of the evaluators at the Genesee Hospital Development Unit, one of whose members testified at the hearing. Although the staff psychologist briefly referred to "interpersonal conflicts within a specific and limited context", he did not identify the extent of those conflicts, or indicate that he had performed any specific assessment to ascertain what effect the alleged conflicts had upon the child.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.