00-003

        Petitioner appeals from an impartial hearing officer's decision holding that respondent had not denied a free appropriate education (FAPE) to his son in the school years prior to the 1999-2000 school year, and denying petitioner's request for compensatory education for the boy. The appeal must be dismissed.

        At the outset, I note that respondent's answer to the petition and the record of the hearing were filed well after the time periods prescribed by 8 NYCRR 279.5 and 279.7 (b). Respondent's attorney requests that I accept the late answer on the grounds that he is a sole practitioner who has been engaged in several other matters which are pending in the U.S. District Court. He asserts that petitioner's son has not been harmed by the delay because he is receiving a FAPE. However, one of the issues in this appeal is whether the child is in fact receiving a FAPE. Moreover, the attorney's engagement in court does not excuse respondent's failure to promptly provide the record after receipt of petitioner's notice of intention to seek review. While I will accept the answer, I caution respondent to ensure that it complies with the provisions of Part 279 of the Regulations of the Commissioner of Education in the future.

        Petitioner's son is eleven years old. He entered kindergarten in the fall of 1993. He reportedly had difficulties in kindergarten, and was referred for an evaluation. In March, 1994, he was tested, and reported to have achieved a verbal IQ score of 100, a performance IQ score of 86, and a full scale IQ score of 93. A neurologist who evaluated the child in August, 1994 reported that the child had a short attention span and was easily distracted. The neurologist also reported that the boy's neural functioning was within normal limits, but that he appeared to have an attention deficit disorder (ADD). She recommended that he be placed in a small structured educational environment in which a behavior modification system was used.

        In September, 1994, the child was initially classified by respondent's committee on special education (CSE) as multiply disabled, because he was he was reportedly other health impaired and speech impaired. He was reportedly placed in a self-contained special education class with a 12:1+1 child to adult ratio for the first grade. He also reportedly received speech/language therapy. I note that the boy's individualized education program (IEP) is not part of the record which is before me. The boy reportedly remained in a 12:1+1 class for the second grade during the 1995-96 school year. During that school year, the child's speech/language therapy was reportedly reduced, and ultimately terminated (Exhibit D-27). Although a speech/language evaluation was reportedly performed in March, 1996, a report of that evaluation is not part of the record (Transcript, page 66). His IEP for that school year is also not in the record.

        In January, 1996, the boy achieved grade equivalent (and standard) scores of 2.1 (89) for letter identification, 1.4 (75) for passage comprehension, 1.2 (76) for word attack, 1.3 (63) for word comprehension, and 1.3 (64) for word identification on the Woodcock-Johnson Reading Test, and "1M" (78) for spelling on the Wide Range Achievement Test (Exhibit D-27).

        The child reportedly remained in a 12:1+1 special education class for the third grade during the 1996-97 school year. In December, 1996, the CSE met with petitioner at his request because he was concerned about his son's performance in school (Exhibit D-27). Notwithstanding the fact that the child's speech/language therapy had been terminated because his speech/language had reportedly improved, the CSE recommended that he remain classified as multiply disabled because he was other health impaired and speech impaired (Exhibit D-27). It also recommended that he be placed on a 12-month basis in a 12:1+1 special education class, and that he receive an occupational therapy evaluation (Exhibit D-28). The CSE noted that petitioner had obtained a private functional vision assessment of his son, the results of which are not in the record.

        At the CSE's recommendation, the boy's triennial evaluation was conducted in January, 1997. The child achieved a verbal IQ score of 106, a performance IQ score of 104, and a full scale IQ score of 106. The school psychologist who evaluated the child noted that his freedom from distractibility index score of 87 indicated that the child's ability to pay attention even in a structured setting was significantly lower than his intellectual functioning. Relative weaknesses in the child's auditory short-term memory and his ability to do mental computations were also noted. The school psychologist reported that the child's visual motor integration skills were age appropriate. She also reported that projective testing revealed that the child might be experiencing negative feelings about his school performance. She recommended that he remain in a special class, but that gradual mainstreaming be considered (Exhibit (D-22).

        In February, 1997, an occupational therapist evaluated the child. She noted that his behavior was immature at times, and that he often used "baby talk". However, the child was able to remain focused during the evaluation. His visual perceptual skills were reported to be well above average, and his visual motor skills were reported to be in the high average range. The child's upper limb speed and dexterity were in the average range. The occupational therapist reported the child's printing was legible, and she opined that he did not require occupational therapy (Exhibit D-23).

        The CSE subcommittee reconvened on April 18, 1997. The child's parents were invited, but did not attend the meeting (Exhibits D-21 and P-8). The IEP which was prepared at that meeting indicated that the child was to continue in a 12:1+1 special education class, with mainstreaming only for extra curricular activities (Exhibit P-8). His annual goals included improving his reading, writing, spelling, math and handwriting skills, as well as developing self-confidence. Petitioner did not seek review of the subcommittee's recommendation.

        In March, 1998 while in a fourth grade self-contained class, the boy achieved grade equivalent (and standard) scores of 4.5 (104) for operations, 5.4 (113) for basic concepts, and 6.4 (122) for applications on the Key Math Test. In April, 1998, a subcommittee of the CSE recommended that the child remain classified as multiply disabled, and be enrolled on a 12-month basis in a 12:1+1 special education class for the 1998-99 school year (Exhibit D-16). The boy's parents had been invited to the meeting but did not attend it (Exhibit D-18). They did not seek review of the subcommittee's recommendation.

        At the beginning of the fifth grade in September, 1998, petitioner's son achieved grade equivalent scores of 8.6 for auditory discrimination, 5.8 for auditory vocabulary, 1.3 for phonetic analysis, 2.0 for structural analysis, and 3.4 for reading comprehension on the Stanford Diagnostic Reading Test, and 3.0 for computation, 4.6 for number systems, and 5.6 for applications on the Stanford Diagnostic Math Test (Exhibit D-8). The Woodcock Reading Mastery Test was administered to him six months later in March, 1999. He achieved grade equivalent scores of 3.7 for word identification, 2.3 for word attack, 4.7 for word comprehension, 3.7 for passage comprehension, and 4.3 for reading comprehension.

        A CSE subcommittee met with the child's parents and their advisor on March 29, 1999 to conduct the child's annual review. The child's teacher reported that he continued to function below grade levels in all academic areas, and had difficulty remaining on task. She also reported that he had great difficulty expressing himself in writing. The teacher noted that the child had been mainstreamed for fifth grade math during the 1998-99 school year, but he was unable to keep up with the reading portion of the curriculum and had great difficulty in a large group setting without individual support. The subcommittee recommended that the child remain classified as multiply disabled. It also recommended that he remain in a self-contained class for instruction during the summer of 1999, and during the 1999-2000 school year at respondent's Tackan Elementary School.

        The CSE subcommittee chairperson advised the CSE chairperson that the boy's parents had requested that a number of additional services be added to their son's IEP, including at least 30 minutes per day of intensive phonics based instruction on a one-to-one basis, one hour per day of such instruction during the summer, books on tape, and various assistive technology devices. They had also requested that the child's IEP indicate that tests other than reading tests be read to their son. The subcommittee advised the parents that their requests would have to be considered by the CSE. The subcommittee chairperson also indicated that the boy would begin to receive instruction from a reading teacher in a group of two for one hour twice per week, and that he would be tutored for 30 minutes per week before the start of school.

        On April 16, 1999, the CSE met with the child's parents to review the IEP. The CSE denied their request for 30 minutes of one-to-one phonics training because the boy was receiving phonics training from his special education class teacher who was trained in the Orton-Gillingham methodology, and he was being tutored twice per week by respondent's tutor for the remainder of the 1998-99 school year. It also denied their request for 60 minutes of one-to-one phonics training each day during the summer. The CSE had agreed to arrange for an assistive technology evaluation, and to add the testing modification of having tests read for the child to his IEP. It also agreed to their request that the child be paired with another student to read math word problems, and their request for a weekly communication system between the child's teacher and his parents during the next school year. The parents were also given applications to obtain taped books. The CSE recommended that the child remain in his 12:1+1 special education class through the summer of 1999, and receive reading instruction in a group of no more than five children twice per week. For the 1999-2000 school year, the CSE recommended that the child be placed in inclusion classes for English, math, social studies, and science, while continuing to receive specialized reading instruction in a special education class. It further recommended that he receive resource room services in a group of no more than five, five times per week.

        On April 30, 1999, petitioner requested an impartial hearing. In his request he asserted that he and his wife had not received reports about the child's academic progress, and that his child's proposed IEP goals for the 1999-2000 school year were vague. He also asserted that his son's proposed IEP failed to address the boy's need for intensive structured phonetic instruction. He contended that respondent had denied a FAPE to his child, and requested that respondent provide compensatory education in the form of daily individual intensive structured phonetic instruction and instruction in spelling and writing during the summer and throughout the 1999-2000 school year. He also asserted that respondent should provide textbooks on tape to his child.

        A hearing was held on June 21, 1999. Petitioner, through his lay advocate, challenged the appropriateness of his son's classification as multiply disabled. He asserted that neither a speech/language evaluation nor a neurological evaluation had been recently performed to provide a basis for the child's continuing classification as multiply disabled. Petitioner also challenged his son's IEP annual goals as being too general. He contended that the proposed inclusion classes for the child during the 1999-2000 school year were inappropriate because the CSE had failed to recommend adequate special education support to maintain the child in those classes. Petitioner's advocate noted that the child's parents had not attended CSE meetings in prior years, and asserted that respondent had failed to persuade them of the importance of their attendance at those meetings.

        The hearing officer rendered his first decision in this proceeding on August 4, 1999. He noted that the child's classification was premised upon the belief that he was other health impaired as well as speech impaired, and he found that there was no evidence that the child had been re-evaluated to ascertain if he continued to have either disabling condition. The hearing officer also noted that respondent's school psychologist had opined during her testimony that that petitioner's son was probably learning disabled, but had not taken the necessary steps to confirm the validity of her opinion. The hearing officer further found that the child's parents had failed to take an active role in their child's education at least in part because respondent had made little effort to convince them to attend the meetings at which the boy's IEP's were developed. He held that respondent's policy regarding the attendance of parents at CSE meetings did not comply with the intent or letter of the law. While not making specific findings about the contents of the boy's IEP, the hearing officer indicated that petitioner's objections to the IEP "must be given serious consideration". He rejected petitioner's assertion that the CSE had recommended inclusion classes for reasons of administrative convenience rather than the child's needs, but he believed that it was critical for respondent to develop a clear-cut plan to assist the child in moving from a self-contained class to an inclusion program. He also found merit to petitioner's request that the boy be provided with books on tape, rather than merely giving applications for such books to his parents.

        The hearing officer directed the CSE to reconvene to conduct the necessary evaluations, determine whether the child was learning disabled, and prepare an appropriate IEP for him. He also directed respondent to develop a written policy to convince parents to participate in their children's CSE meetings, including a procedure to record the steps taken to convince parents to attend those meetings (see 34 CFR 300.345 [d]). The hearing officer also directed the CSE to develop a specific, written plan to provide for the child's successful transition to an inclusion program, including daily individual instruction if necessary. He directed the CSE to consider whether books on tape were appropriate, and if so, he directed that they be provided to the child at respondent's expense. The hearing officer indicated that he would retain jurisdiction, and he asked the parties to inform him whether the issues had been resolved or were reasonably close to being resolved by no later than the end of September, 1999.

        On August 25, 1999, the Wechsler Individual Achievement Test was administered to petitioner's son by a reading specialist, as part of an academic skills assessment. The child achieved grade level (and standard) scores of 4.5 (94) for basic reading, 3.9 (92) for reading comprehension, 2.3 (74) for spelling, 4.9 (99) for math reasoning, 4.8 (96) for numerical operations, more than 12.9 (122) for listening comprehension, and K.2 (76) for written expression. On the Slingerland Screening Tests, the child's performance was reported to be below average in visual, auditory, and kinesthetic functioning. The reading specialist reported that the child's performance evidenced difficulty in receptive-expressive integration. While he displayed some impulsivity during the evaluation, the child did remain focused (Exhibit D-32). I note that a subsequent IEP which is annexed to the petition reveals that a speech/language evaluation was performed on August 26, 1999. On the Test of Language Development – Intermediate, the boy achieved percentile scores of 50 for listening and 55 for speaking. A school psychologist who had reviewed the report of the boy's speech/language evaluation reported that the evaluator had indicated that designation of the child as speech impaired was no longer appropriate (Exhibit D-33).

        On September 15, 1999, petitioner's advocate asked the hearing officer to reconvene the hearing because the CSE had not met to implement his decision. On the same day, respondent mailed a notice to the boy's parents that the CSE would meet on September 29, 1999. On September 27 and 28, 1999, the child was evaluated by a school psychologist, who reported that the child had achieved a verbal IQ score of 97, a performance IQ score of 102, and a full scale IQ score of 99 (Exhibit D-33). She reported that the child's overall verbal comprehension, perceptual organization, and ability to concentrate were all in the average range. She opined that the child did not appear to have any visual-perceptual deficits which contributed to his academic difficulties. Although the child's visual memory was described as very poor, his organizational skills were reported by the school psychologist to be adequate. She also reported that the child had age appropriate social concerns and appeared to be generally happy. However, she noted that the child could become easily confused, and resort to more childish behavior when embarrassed or feeling insecure. The school psychologist suggested that it might be appropriate to change his classification to learning disabled, but she urged that his attentional difficulties not be overlooked.

        On September 29, 1999, the CSE prepared a new IEP for the 1999-2000 school year (Attachment D to the petition). In that document, the child's classification was changed to learning disabled. The CSE continued to recommend that he be placed in sixth grade inclusion classes for instruction in English/language arts, math, social studies, and science, and in regular education classes for art, music, physical education and technology. It also recommended that he receive 40 minutes of special education instruction in study skills five times per week. The child's new IEP described various supplemental aids and services which were to be provided to him, and the various testing modifications which would be used with him.

        The hearing officer reconvened the hearing on October 1, 1999. Since the parties had not disclosed the additional evidence which they intended to submit five days before the reconvened hearing, the hearing officer announced that the parties had agreed to adjourn the matter until October 15, 1999. The hearing did not resume until October 25, 1999. Petitioner's lay advocate indicated that petitioner was not contesting respondent's current provision of a FAPE to his son (October 25, 1999 Transcript, page 327). Instead, the advocate requested that the hearing officer order respondent to provide the child with compensatory education to make up for the FAPE he had allegedly not received prior to the revision of his IEP for the 1999-2000 school year. In essence, petitioner asserted that the deficiencies noted by the hearing officer in his prior decision regarding respondent's failure to document its attempts to convince petitioner and his wife to attend CSE or CSE subcommittee meetings prior to March, 1999, his son's previous classification as multiply disabled, and the provisions of the boy's initial IEP for the 1999-2000 school year were proof that respondent had not provided a FAPE to the boy prior to that school year. As a remedy for respondent's alleged denial of a FAPE, petitioner requested that his son receive one-on-one instruction for one hour per day in addition to the instruction provided to him during the school day for the remainder of the 1999-2000 school year.

        The hearing officer rendered his final decision in this proceeding on December 4, 1999. He found that respondent had complied with the directions which he gave to it in his August 4, 1999 decision. The hearing officer noted that petitioner, through his advocate, was not challenging the boy's amended IEP for the 1999-2000 school year. He framed the issues to be determined as whether respondent had provided a FAPE to the boy prior to his August 4, 1999 decision, and if not, whether it should be ordered to provide compensatory education to the boy. Relying upon the results of the WIAT which was administered to the boy in August, 1999, and the written comments by the child's teachers for the 1999-2000 school year, the hearing officer found that the child's academic deficiencies had been identified and addressed by respondent in the years prior to the 1999-2000 school year. Although the child continued to have significant difficulty with spelling and written expression, the hearing officer concluded that the record did not support the conclusion that the boy had been denied a FAPE. Therefore, he denied petitioner's request for an award of compensatory education.

        Petitioner challenges the hearing officer's decision on procedural and substantive grounds. He asserts that he contacted the hearing officer by telephone after receiving the hearing officer's August 4, 1999 decision because he was not pleased with it, and was told by the hearing officer that he had written the decision because "he did not want to upset the school district." I note that neither petitioner nor the hearing officer is an attorney, and they were apparently unaware of the inappropriateness of an ex parte conversation between the hearing officer and a party (see Application of a Child with a Disability, Appeal No. 93-49). A hearing officer must avoid even the appearance of impropriety (Application of a Child with a Disability, Appeal No. 96-58). While I am troubled by the hearing officer's alleged remark to petitioner, I find no evidence of a lack of objectivity by the hearing officer in the record which is before me. I have considered petitioner's objection to the manner in which the hearing officer conducted the hearing on October 25, 1999. Petitioner asserts that the hearing officer made it difficult for his advocate to question witnesses and for the witnesses to respond to questions. Although each party has a right to present evidence through documents and the testimony of witnesses, a hearing officer has the right and the duty to limit the evidence which is introduced to that which is relevant to the issues which he or she must decide. In this instance, the hearing officer asked the parties and the two witnesses who testified on October 25 to confine themselves to evidence which would help him determine whether or not respondent had provided a FAPE to petitioner's son prior to the 1999-2000 school year. I find that his directions to the witnesses were well within his authority as a hearing officer.

        Petitioner contends that the hearing officer's findings in his August 4, 1999 decision were sufficient to demonstrate that respondent had denied a FAPE to his son. In that decision, the hearing officer questioned the appropriateness of the child's continued classification as multiply disabled, as well as the educational program which the CSE had recommended for the 1999-2000 school year. The CSE recommended that the child's classification be changed to learning disabled, and revised his IEP for the 1999-2000 school year. When the hearing resumed in October, 1999, petitioner through his advocate indicated that he was no longer challenging his son's classification, or his educational program for the 1999-2000 school year. Since the deficiencies in the boy's program for the 1999-2000 school year had been corrected, I find that there is no basis upon which respondent could be held to have denied a FAPE to the child during the 1999-2000 school year.

        Although petitioner asserts that his son had not been properly evaluated or classified since 1996, I must note that petitioner never challenged his son's classification prior to instituting this proceeding in 1999. In essence, petitioner contends that his son has been learning disabled for some time, and that respondent failed to discern the nature of the boy's disability, or provide an appropriate educational program to address the special education needs resulting from that disability. While I agree with the hearing officer's finding concerning the inappropriateness of the boy's continued classification as multiply disabled, it does not follow that the educational program which had been provided to the boy prior to the 1999-2000 school year was necessarily inappropriate. The results of the boy's educational achievement testing in August, 1999 indicates that he has some weakness in reading, but his August, 1999 test scores are substantially better than his reading scores in January, 1996. However, the boy's spelling and writing skills continue to lag significantly behind those of his chronological peers. Respondent's educational program for the boy should obviously focus upon improving the boy's spelling and writing skills. Nevertheless, I cannot conclude on the record before me that respondent failed to provide a FAPE to the child prior to the 1999-2000 school year. The relief which petitioner seeks, i.e., an award of compensatory education, may be awarded when a student has been excluded from school, or denied appropriate services for an extended period of time (Burr by Burr v. Ambach, 863 F. 2d 1071 [2d Cir., 1988]; Mrs. C. v. Wheaton, 916 F. 2d 69 [2d Cir., 1990]). I find that there is no basis for such an award in this case.

THE APPEAL IS DISMISSED.