99-025

         Petitioners appeal from the decision of an impartial hearing officer which denied their request for tuition reimbursement for the cost of their son's tuition at the Bishop Dunn Memorial School (Bishop Dunn) for the 1998-99 school year. The appeal must be dismissed.

        Preliminarily, I note that respondent asks that I accept its answer, which was not served within 10 days after the petition was served upon the Board of Education (cf. 8 NYCRR 279.5). A copy of the petition was served upon respondent on April 9, 1999. It was reportedly forwarded to respondent's counsel on April 13, 1999. However, respondent's counsel reportedly did not receive the petition until May 12, 1999, after he had learned from the Office of Counsel of the State Education Department that the petition had been filed with that office. Respondent served its answer on May 15, 1999. In the absence of any objection to respondent's request, I will accept respondent's answer.

        Petitioners' son was 12 years old and in the sixth grade at Bishop Dunn at the time of the hearing. Bishop Dunn is a private school which has been approved by the State Education Department to instruct children with disabilities. The child attended the St. Joachim/St. John Middle School (St. Joachim/St. John) for kindergarten during the 1991-92 school year, and remained there through the fifth grade. While in the first grade during the 1992-93 school year, the child reportedly exhibited significant difficulties with phonics and was transported to one of respondent's schools during his lunch hour to receive remedial reading (Exhibit PE-D). During the 1993-94 school year, the child repeated the first grade, and reportedly earned excellent grades (Exhibit PE-D).

        The child was promoted to the second grade for the 1994-95 school year. He was reportedly referred to respondent's committee on special education (CSE) by his mother, who believed that he had reading difficulties. In a psychological evaluation conducted on April 28, 1995 (Exhibit PE-C), the district's psychologist reported that the child displayed significant difficulty in understanding concepts and processing directions, and that he displayed some frustration. On the WISC-III, the child achieved a verbal IQ score of 106, a performance IQ score of 100, and a full scale IQ score of 104, placing him in the average range of intellectual functioning. He demonstrated strengths in long-term memory, verbal concept formation, word knowledge, social judgment, visual organization and processing speed. Weaknesses were noted in the areas of attention and concentration, distractibility, short-term memory, sequencing and working under time pressure. The psychologist concluded that the child appeared to learn at a below average rate, and required a multi-modal learning approach which would hold his attention. On the Norris Educational Achievement Test (NEAT), the child scored significantly below grade level in the areas of spelling and comprehension. The child's perceptual skills were found to be at an age appropriate level. The psychologist concluded that although the child exhibited some areas of weakness that would require intervention, he did not meet the criteria for classification as a child with a disability.

        The child successfully completed the second grade during the 1994-95 school year. However, his reading difficulties reportedly began to resurface in third grade during the following school year. He reportedly achieved below average scores in reading, language, mathematics and spelling on the California Tests of Basic Skills which were administered to him in March, 1996. Nevertheless, he was reportedly promoted to the fourth grade in St. Joachim/St. John.

        When the child was in the fourth grade, he was referred for a private psychological evaluation by his mother, who was concerned about her son's difficulty with reading and other school work. The evaluation was conducted on various dates in January and February, 1997 (Exhibit PE-D). The psychologist noted that the child reportedly participated in a summer enrichment program, which included reading tutoring, for the past three summers. She reported that the child had some hearing loss in his left ear due to scar tissue, but that according to a speech/language pathologist he had adapted well with no need for special recommendations. On the WISC-III, the child achieved a verbal IQ score of 98, a performance IQ score of 110, and a full scale IQ score of 104. The psychologist opined that the boy's full scale IQ score was probably not a valid estimate of his true abilities because of the disparity among his subtest scores. In the verbal domain, the child demonstrated relative strength in his fund of knowledge, indicating that he had good long-term memory skills. In the performance domain, the child demonstrated relative strength in the areas of perceptual speed and grapho-motor skills. The psychologist noted that while the child's WISC-III results indicated that he had adequate learning abilities, all of his scores on the achievement tests were below grade level, despite his good effort and cooperation on all tasks. She further noted that the child's performance on tests where he applied his knowledge was better than his performance on tests measuring basic or rote skills. Additionally, she noted that he was able to achieve at a level more consistent with his ability on the applied problems (math) subtest where questions were read aloud and answered orally, suggesting that the method of presentation affected his performance. The psychologist reported that the child's reading decoding skills were below grade level, noting that he was unable to process letters and numbers on an automatic level. She recommended that the child be referred to the CSE in his district.

        Although it is not clear from the record, the child was apparently referred again to the respondent's CSE in early 1997. Evaluations were conducted between February and June, 1997. The CSE reportedly agreed in June, 1997 to classify the child as learning disabled (Exhibit IHO-8).

        A multisensory language evaluation was conducted on July 1, 1997 after the child had completed the fourth grade (Exhibit SD-5). On the Woodcock Reading Mastery Test, the child achieved a grade equivalent score of 3.9 in letter identification. On the word identification subtest, a measure of sight word vocabulary, the child achieved a grade equivalent score of 3.2. The child achieved a grade equivalent score of 2.4 on the word attack subtest, which measures an individual's ability to analyze the form and sound of unknown words. On the word comprehension subtest, the child achieved a grade equivalent score of 2.1. The evaluator noted that the child could not read the stimulus words, but that he performed much better when the words were read to him. The child achieved a grade equivalent score of 2.4 on the passage comprehension subtest. The child's total reading cluster was at a 2.6 grade level, his basic reading skills were at a 3.0 grade level, and his reading comprehension cluster was at a 2.2 grade level, all of which were in the well below average range.

        On the Test of Auditory Analysis Skills (TAAS), the child's score was at the late first grade level. The evaluator noted that the child demonstrated a deficit in phonemic awareness. On the Rapid Automatized Naming Test (RAN), which assesses an individual's ability to rapidly retrieve information from memory and to retrieve linguistic information while reading and writing, the child demonstrated a severe deficit. The evaluator who tested the child in July, 1997 concluded that he had a "double deficit" specific language disability in phonemic awareness and rapid automatized naming. She opined that he would benefit from the use of multisensory language techniques in reading and language instruction.

        The child continued at St. Joachim/St. John's for fifth grade during the 1997-98 school year. In a letter dated September 18, 1997 to petitioners (Exhibit SD-4), the chairperson of respondent's CSE summarized her recent discussions with petitioners who had reportedly indicated that they did not accept the special education services which the CSE recommended for their son because those services (reportedly resource room and speech/language therapy) were to be provided at a local public elementary school, rather than at St. Joachim/St. John's. She further confirmed that petitioners were aware of their due process rights, but they preferred to resolve their differences through further meetings with respondent's staff.

        The CSE met with the child's parents and their attorney on October 8, 1997. The minutes from that meeting referred to previous meetings held in June and August, 1997, where it was determined that the child should be classified as learning disabled, and receive resource room services and speech/language services to be provided at one of respondent's schools (Exhibit IHO-8). Those minutes indicated that the parents requested that the child's special education services be provided to him at St. Joachim/St. John's. The CSE did not grant that request. The minutes further indicated that the child's individual education plan (IEP) would be reviewed at a meeting scheduled for October 17, 1997. At that meeting, petitioners discussed the arrangements for transporting the boy to and from respondent's Forrestal School, where he would be receiving the recommended special education services. The CSE recommended that he receive 180 minutes of resource room services per week, and 60 minutes of speech/language therapy per week. The child's IEP indicated that a calculator, spell checker, and recorded books would be provided to him, and that various testing modifications would be employed for him.

        In a November, 1997 progress report, the child's resource room teacher indicated that she was focusing on increasing the child's reading skills using a multisensory program. She also indicated that she had observed an improvement in his skills in the short time she had worked with the child. Additional progress reports were prepared in February, 1998, April, 1998 and June, 1998 (Exhibit SD-6) indicating that the child had made improvements in reading, that he used many of the strategies he had been taught to decode unknown words, and that his self-confidence had improved. The resource room teacher noted that she was working on writing skills and strategies to improve the child's essays, as well as his cursive handwriting skills. She indicated that he would need to continue the program on a daily basis the following year.

        A Level One Technology Assessment was prepared by one of respondent's occupational therapists on February 3, 1998, with the assistance of the child's speech therapist, resource room teacher and the language consultant who had evaluated the child in 1997 (Exhibit SD-1). The occupational therapist noted that the boy was supposed to use books on tape, a calculator, a spell checker and a mini cassette recorder to help him with his work, but that there appeared to be problems with the integration of the devices into his school and study skills. The occupational therapist also indicated that the child needed direct instruction on how and when to use the devices at school and at home. She recommended that school staff and parents assist the child in using the equipment to further refine and reinforce his skills, which was a prerequisite for consideration of the use of more sophisticated devices by the child.

        In progress reports dated February and June, 1998, the child's speech/language therapist indicated that the child was cooperative and attentive, and that he had made progress in developing his language skills. Although the child had made gains, she recommended that he receive 30 minutes of speech/language therapy in a group twice per week (Exhibit SD-7).

        The CSE began its annual review of the child on June 3, 1998. The child's parents requested that their son be placed at Bishop Dunn at respondent's expense. The CSE did not agree with that request, but it did not make a final decision about the child's educational program. Instead, it adjourned for two weeks. By letter to the CSE dated June 9, 1998, the child's father requested that a technology evaluation be conducted by a recognized independent evaluator. He also requested that he be provided with the qualifications of the occupational therapist who performed the Level One Technology Assessment. In a second letter dated June 9, 1998, the child's father expressed concern about the review and development of his son's IEP annual goals, the implementation of the child's testing modifications, and the absence of progress reports from the child's resource room teacher. He suggested that the CSE postpone its meeting until after his son's neurological and assistive technology evaluations were completed in the summer. The CSE reconvened on June 18, 1998. Although there is an IEP for the child bearing that date in the record (Exhibit IHO-9), I note that the CSE chairperson testified that the CSE agreed to postpone a final decision in the matter until more information had been received, at the request of the child's parents (Transcript, page 45).

        In a report of a private neurological evaluation dated July 27, 1998 (Exhibit SD-3), the neurologist reported that the child performed at an age appropriate level on the Raven Progressive Matrices and the Peabody Picture Vocabulary tests, suggesting that he had average cognitive abilities. However, he demonstrated significant problems with phonetic integration in spontaneous spelling and reading. The neurologist described the child's reading as slow and halting, and noted that the child tended to make a number of word substitutions. He indicated that, in terms of decoding, the child was able to read at an early fifth grade level, but that his significant effort at decoding appeared to have an adverse effect on his overall comprehension. Nevertheless, the neurologist noted that the child understood well enough to answer questions correctly. The neurologist characterized the child's mathematics skills as fair to poor. The child demonstrated some gaps in his ability to perform operations involving multiplication and division. The neurologist indicated that the child also demonstrated significant difficulties with auditory sequential processing.

        The neurologist concluded that the child had a mild neurologic impairment in the form of a language-based learning disability characterized by a lack of verbal fluency and reading difficulty with phonetic integration errors. He indicated that there was evidence of an attention deficit disorder and that the child might be a candidate for a trial of medication to enhance his attention abilities. The neurologist expressed concern about the child's self-esteem and suggested that the child receive psychological support. He noted that the child's family hoped to have special education provided "within the context of his present parochial school", and that "this would seem reasonable under the circumstances".

        On August 24, 1998, petitioners requested an impartial hearing (Exhibit IHO-1). Attached to the hearing request was a formal complaint setting forth the following issues: the failure of the CSE to make a timely recommendation for the 1998-99 school year, the failure to provide appropriate special education services from the time the child began receiving remedial reading services, the failure to provide an appropriate assistive technology evaluation, the failure to provide a technology evaluation conducted by a recognized independent evaluator, the failure to provide reports in a timely fashion, unspecified violations of the October, 1997 IEP, and the failure to implement the recommendation of the neurologist (Exhibit IHO 1). Petitioners placed their son at Bishop Dunn for sixth grade during the 1998-99 school year. By letter dated October 16, 1998, petitioners advised the CSE of their son's placement at Bishop Dunn and requested tuition reimbursement.

        The CSE met on October 22, 1998, and developed the child's IEP (Exhibit IHO-8). It recommended that the child continue to be classified as learning disabled and that he receive a minimum of 180 minutes of resource room services per week in a group of no more than five students. It further recommended that the child receive individual speech therapy once per week for 30 minutes, group speech therapy twice per week for 30 minutes, and individual counseling once per week for thirty minutes. The CSE also recommended various testing modifications, as well as the use of a calculator, spell checker and books on tape at the discretion of the child's teacher. The comment section of the IEP included a notation ". . . the student would require a more structured program for the 1998-99 school year. Resource room assistance for one period of reading and one period to assist with the other areas of weakness." Another notation provided that the results of an upcoming technology assessment would be reviewed. There is also a notation that the child's distractibility was an issue. The IEP included several reading goals, two English/language arts/writing goals, three math goals, social/emotional goals as well as goals relating to study skills. The child was not provided resource room services by the district because he was placed in a small class at Bishop Dunn. The district did, however, provide the related services of speech/language therapy and counseling at Bishop Dunn (Transcript, page 26).

        The impartial hearing in this matter was held on November 19, 1998 and January 21, 1999. At the hearing, the hearing officer disclosed that 20 years earlier he and one of the partners of the law firm representing respondent had worked together as attorneys for a teachers' union, and since that time he had had only one contact with that attorney. The child's mother expressed concerns regarding the hearing officer's ability to be objective. The hearing officer stated on the record that such a remote relationship did not constitute grounds to recuse himself.

        In his decision which was rendered on March 10, 1999 the hearing officer reiterated his reasons for not recusing himself. He noted that although petitioners sought to challenge the appropriateness of the special education services which their son had received in prior school years, they had not identified any area of disagreement, except the fact that respondent had not provided those services at the child's private school. The hearing officer held that respondent was not required under the Individuals with Disabilities Education Act (IDEA) to provide special education services at the private school in which petitioners had enrolled their son, and that respondent had demonstrated that it had provided an educational program which met the child's special education needs. With regard to respondent's alleged delay in offering to provide an appropriate educational program for the 1998-99 school year, he found that the CSE delayed its recommendation for the 1998-99 school year at the parents' request. In addressing the issue of tuition reimbursement, the hearing officer found that the district provided an educational program that was appropriate to meet the needs of the child, and denied petitioners' request for tuition reimbursement. He also found while some reports were not promptly forwarded to the parents, such delay did not affect the outcome of the case. He directed respondent to promptly forward all reports to petitioners. Finally, the hearing officer found that there was no support in the record for the remaining issues raised by petitioners.

        Petitioners appeal from the hearing officer's decision challenging each ruling and finding. Initially, petitioners allege that the hearing officer erred in not recusing himself. The Regulations of the Commissioner of Education provide that an impartial hearing officer ". . . shall not have a personal or professional interest which would conflict with his or her objectivity in the hearing . . ." (8 NYCRR 200.1 [s][1]). I find that there is no evidence of any actual bias in the record. An impartial hearing officer must avoid even the appearance of impropriety (Application of a Child with a Disability, Appeal No. 94-32). I find that the hearing officer did so in this case. He promptly disclosed his former association with one of the attorneys in the law firm which represented respondent at the hearing, and asked for comments or questions. In response to a brief comment by petitioners' attorney that the child's mother did not believe that he could be objective, the hearing officer ruled that there was no basis for him to recuse himself. I concur with his ruling. The hearing officer's former association with one of the law firm's partners, who did not take part in the hearing, did not afford a basis for the hearing officer to recuse himself.

        Petitioners claim that respondent failed to provide appropriate special education services to their son prior to the 1998-99 school year. However, I find that this issue is both untimely and moot (Application of a Child with a Disability, Appeal No. 93-27). The record shows that when the child was referred for an evaluation in 1995, he was found to be ineligible for classification, but was provided remedial reading. Had petitioners been dissatisfied with the CSE recommendation not to classify the boy, they should have advised the district at the time and pursued their due process rights. The State Review Officer is not required to determine issues which are no longer in controversy (Application of a Child Suspected of Having a Disability, Appeal No. 91-45;Application of a Child Suspected of Having a Disability, Appeal No. 95-52).

        With respect to the 1997-98 school year, petitioners do not challenge the actual program recommended by respondent's CSE, but rather they challenge the CSE's determination to provide the child's special education services at a public school. The hearing officer found, and I agree, that the sole issue is whether the child's special education services should have been provided at St. Joachim/St. John's. A board of education which has offered a free appropriate public education (FAPE) to a child is not obligated to pay for the cost of the child's regular or special education and related services at a private school in which the child has been unilaterally placed by his or her parents (20 USC 1412 [a][10][C][i]). However, Federal and State law require that boards of education make special education and related services available to children with disabilities who have been placed by their parents in private schools (20 USC 1412 [a][10][A]; Section 3602-c of the Education Law). The Individuals with Disabilities Education Act (20 USC 1400 et seq., hereinafter referred to as IDEA) as amended in June, 1997, authorizes a board of education to provide special education services to children on the premises of the private school in which they have been enrolled by their parents, but it does not impose an absolute obligation to do so. Instead, it is within the board of education's discretion to determine whether to provide such services on the private school's premises (Russman v. Mills, 150 F. 3d 219 [2d Cir., 1998]; K.R. by M.R. v. Anderson Community School Corp, 125 F. 3d 1017 [7^th Cir., 1997]; Foley v. Special Sch. Dist. of St. Louis County, 153 F. 3d 863 [8^th Cir., 1998], 28 IDELR 874). Respondent chose to provide the child's special education services at one of its schools, as it was entitled to do. While I have considered the neurologist's report upon which petitioners rely, I find that it does not provide a compelling educational justification for concluding that respondent's determination to provide the boy's special education services at a public school amounted to a denial of FAPE to him during the 1997-98 school year, or the 1998-99 school year.

        With respect to the 1998-99 school year, petitioners also claim that the child's IEP developed in October, 1998 was untimely. The hearing officer found that the CSE delayed its recommendation for the 1998-99 school year at the request of the parents. I agree. The record shows that the CSE met with petitioners on June 3, 1998 and again on June 16, 1998 for the purpose of preparing the child's IEP for the 1998-99 school year. However, the CSE deferred making a final recommendation until October, 1998 to accommodate the parents' requests for neurological and assistive technology assessments and additional time for the parents to explore alternative placements for their son.

        Petitioners are seeking an award of tuition reimbursement for the 1998-99 school year. Tuition reimbursement may be awarded if a school district is found to have violated the IDEA and certain other conditions are met (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). As noted above, there is no real dispute as to the appropriateness of the special education services which respondent offered to provide for the 1998-99 school year, except that the CSE's recommendation was allegedly late and petitioners preferred that those services be provided to their child at the site of his private school. I must therefore concur with the hearing officer's determination that respondent did not violate the IDEA. Since respondent did not violate the IDEA, it follows that petitioners are not entitled to the remedy of tuition reimbursement under the IDEA.

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

THE APPEAL IS DISMISSED.