Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Wappingers Central School District
Shaw and Perelson, L.L.P., attorneys for respondent, Michael K. Lambert, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision which denied her request for an order requiring the Board of Education to reimburse her for the expenditures she incurred while visiting her son's private school for a parent and family weekend in the fall of 1999, and requiring it to provide assistive technology to the boy during an eight-week trial placement at the private school. The appeal must be sustained in part.
Petitioner's son is 20 years old. His prior educational history is set forth in Application of the Board of Education of the Wappingers Central School District, Appeal No. 97-29, and Application of a Child with a Disability, Appeal No. 98-1. He was classified as learning disabled by respondent's committee on special education (CSE). On June 29, 1999, the CSE prepared the student's individualized education program (IEP) for the 1999-2000 school year (Exhibit D-1). The CSE recommended that petitioner's son be placed in the Brehm Preparatory School (Brehm), which is located in Carbondale, Illinois. The minutes of the CSE meeting indicated that Brehm would evaluate the student's need for remedial reading, writing, and speech/language services (Exhibit B). The CSE did not recommend that he receive any related service. It indicated on his IEP that the student should have access to a calculator and recorded lectures, and have his answers on tests recorded. However, the CSE did not recommend that he have the use of any specific assistive technology devices or services. The student’s IEP provided that his assistive technology needs would be determined by Brehm.
Respondent placed the student in Brehm, with petitioner's concurrence. A "Parent and Family Weekend" was scheduled to take place at Brehm during the weekend of October 28, 1999. A notice from the school to the parents of its students indicated that parent/teacher conferences would be held beginning on Friday morning of that weekend, and that parents who did not intend to participate in the weekend activities were required to arrange for their children to come home for the weekend (Exhibit C).
In a letter dated October 1, 1999, petitioner asked respondent for an impartial hearing and a Section 504 (of the Rehabilitation Act of 1973) hearing to resolve two issues. First, petitioner asserted that her son had been denied a free appropriate public education (FAPE) because he had not been provided with assistive technology and specialized equipment in a timely manner for his eight-week diagnostic evaluation at Brehm. The second issue was whether petitioner had been denied "full and meaningful parental participation" because respondent had not paid for airfare, lodging, meals, and rental car expenses so she and her husband could have conferences with their son's teachers.
A hearing was held on November 16, 1999. At the outset of the hearing, petitioner indicated that she wanted respondent to provide proof that the hearing officer had been appointed from respondent's rotational list of potential hearing officers (Section 4404  of the Education Law), " … if we have another hearing date" (Transcript p. 5). She further indicated that she would accept the school attorney’s statement, if there was not another day of hearing. The school district attorney had previously stated that the hearing officer had been selected from petitioner's rotational list (Transcript p. 4).
Petitioner asserted that, during a prior school year, her son had been found to need a voice-activated word processor because of his dysgraphia. She also disputed the accuracy of the IEP provision indicating that Brehm would conduct an assistive technology evaluation to determine her son’s needs for assistive technology devices or services. Petitioner contended that it was unfair to make him wait for Brehm to complete an evaluation of his assistive technology needs. Respondent asserted that the CSE was scheduled to meet with petitioner in a few days to determine what assistive technology devices or services should be provided to the student, and argued that petitioner’s claim was premature.
With respect to the second issue, petitioner reiterated her contention that respondent’s refusal to pay for her expenditures to attend the parents’ weekend at Brehm interfered with her right to fully participate in her son’s education. She asserted that she and her husband had appointments with her son’s teachers and a psychiatrist during the weekend, and that respondent should also have sent the CSE chairperson or another school district representative to the parents’ weekend. Respondent’s attorney argued that the parents’ weekend was not a CSE meeting, so there was no need to send a district representative. He asserted that respondent had offered to let petitioner use the district’s telephone to communicate with her son’s teachers. The Board of Education’s attorney argued that respondent had no legal obligation to pay for the expenses petitioner and her husband incurred by attending the parent and family weekend at Brehm.
No testimony was taken at the hearing. Although petitioner asserted at one point that she wanted to present witnesses to show that her only interest in attending the parent and family weekend was to see how her son was doing at Brehm (Transcript p. 71), it was ultimately agreed that the hearing officer would close the record and rule upon the legal objections which respondent had raised to petitioner’s claims (Transcript p. 79).
The hearing officer rendered his decision on December 11, 1999. He noted that the CSE had been about to determine what assistive technology devices and services should be provided to the student during the 1999-2000 school year, and he declined to substitute his judgment for that of the CSE on the matter. The hearing officer also declined to order respondent to reimburse petitioner for her travel expenditures in connection with the parents’ weekend at Brehm in October 1999, upon a finding that there was no basis in law for him to do so.
Petitioner asks that the hearing officer’s determination be annulled on the ground that she had asked at the hearing for a redacted copy of respondent’s rotational list for appointing hearing officers and respondent failed to provide the list to her. A board of education must select an impartial hearing officer from its rotational list (Section 4404  of the Education Law; 8 NYCRR 200.2 [e][ii]). It is the board’s obligation to demonstrate that the hearing officer has been properly appointed from the list (Application of a Child with a Disability, Appeal No. 96-35; Application of a Child with a Disability, Appeal No. 96-60). However, I find that respondent met its burden of proof when petitioner accepted its attorney’s representation that the hearing officer had been properly appointed (Transcript p. 5). Petitioner acknowledges the understanding which was reached at the hearing, but she argues that once respondent received her notice of intention to seek review of the hearing officer’s decision, it was compelled to provide her with evidence of the hearing officer’s appointment. I disagree with petitioner. The State Review Officer does not review issues which have been settled at the hearing, as this issue clearly was.
Petitioner contends that the hearing officer erred in concluding that there was no legal basis to order respondent to reimburse her for her expenditures for attending the parent and family weekend at Brehm. She asserts that she attended the weekend in order to participate in her son’s education, which was consistent with the intent of law and regulations. Petitioner refers to 8 NYCRR 200.12 (a); 34 CFR Part 99; and 34 CFR 104.33 (c)(1) and 104.39 (b). I must first note that 34 CFR Part 104 contains the regulations implementing the provisions of Section 504 of the Rehabilitation Act of 1973. The hearing in this matter was held pursuant to that statute and the Individuals with Disabilities Education Act (IDEA) and its State counterpart, Article 89 of the Education Law. Although an IDEA hearing may be used to resolve Section 504 claims at the local level, New York State law makes no provision for administrative review of hearing officer decisions involving Section 504 claims (Application of a Child with a Disability, Appeal No. 96-37; Application of a Child with a Disability, Appeal No. 99-10). Consequently, I do not review petitioner’s Section 504 claims in this appeal. Similarly, 34 CFR Part 99 contains the regulations implementing the Family Educational Rights and Privacy Act (FERPA). Those regulations provide for separate means of redress (see Subparts C and E).
Under the IDEA and Article 89 of the Education Law, the frequency of trips to and from school may be reasonably limited in accordance with the criteria set forth for State reimbursement in 8 NYCRR 200.12 (Application of a Child with a Disability, Appeal No. 95-66). When overnight lodging is required because of the distance between a child’s home and the residential school the child attends, the school district may be required to pay for the reasonable expenses of the student’s parents for travel, food, and lodging (EHLR 257:448). The Office of Special Education Programs of the U.S. Education Department has opined that the reimbursement of a child’s parents for other transportation expenditures not involving transporting the child to and from school, such as to attend conferences at the school, must be determined on a case-by-case basis (EHLR 213: 164). The OSEP opinion indicated that parental trips to and from school which could be considered to be contributing to the achievement of the student’s IEP annual goals would be included within the Federal definition of the term "related services" to be provided at no cost to the parents as part of the student’s free appropriate public education.
I note that the New York State Education Law does not include transportation within its definition of the term "related services" (Section 4401 [k] of the Education Law). Instead, the state statute defines the term "transportation expense" for the purpose of state aid to be provided to school districts (Section 4401  of the Education Law). The statute authorizes the Commissioner of Education to establish by regulation a maximum number of trips between a student's home and the private residential school providing special services or programs to the student, which the Commissioner has done (8 NYCRR 200.12). State aid is to be paid for transporting the student from home to school at the beginning of the school year, and from the school to the student's home at the end of the year, plus no more than three additional trips to and from school for a student enrolled on a 10-month basis, or four trips for a student enrolled on a 12-month basis in the residential school. The regulation further provides for additional trips for the periods during which residential care is not provided to students at the school, and authorizes aid for the expenditures of a "volunteer escort" if the escort is required by the student's IEP, with certain conditions.
In Application of a Child with a Disability, Appeal No. 98-43, a parent was found to be entitled to be reimbursed for airfare, a hotel room, food, and a rental car for certain trips to visit his son at a residential school because the trips supported one of the student’s IEP goals. I have examined the student’s IEP in this proceeding. It indicates that his reading, math, and language skills are weak, and that he is classified as learning disabled. He is described as being impulsive, oppositional, and immature. His IEP annual goals include improving his reading, writing, math, organizational, and study skills, as well as his social skills and behavior. No goal relates specifically to this relationship with his family.
I have also considered the record’s limited description of the activities which were to take place during the parent and family weekend. Some of the activities involved the Brehm Parents and Alumni Association and were not directly related to the student’s education at Brehm. Exhibit 6 to the petition indicates that petitioner had nine appointments on Friday, October 29, and one appointment on Saturday, October 30, 1999, with individuals who were apparently Brehm staff. While meeting with the staff may have been helpful to petitioner and her husband, I am unable to find on this record that those meetings contributed to the achievement of the student’s IEP annual goals. However, as noted above, petitioner’s son would not have been provided with residential care during the weekend, and would therefore have been entitled to a round trip between his school and home. I find that equity requires that petitioner be reimbursed in an amount which is equivalent to what her son’s transportation expenses would have been for that weekend.
Petitioner contends that the hearing officer was misled as to the date when the CSE would meet to determine her son’s assistive technology needs. She asserts that the CSE did not meet until December 21, 1999, at which time it recommended that certain software programs be loaded into her son’s computer and that he be provided with the use of a scanner. Petitioner further asserts that respondent had not implemented the CSE’s recommendations as of the date she commenced this appeal. Respondent denies petitioner’s assertions, and denies the relevancy of matters which occurred after the conclusion of the hearing. I agree with respondent that the results of the subsequent CSE meeting are not part of this proceeding.
I have considered petitioner’s claim that respondent should have provided assistive technology devices or services to her son during his eight-week trial placement at Brehm because he had been previously determined to need such devices or services. Although petitioner refers to a prior decision of the State Review Officer in 1991 (Application of the Board of Education of the Wappingers Central School District, Appeal No. 91-35), I find that the decision is irrelevant because it did not involve this student. Petitioner also refers to prior evaluations of her son’s assistive technology needs. However, those evaluations are not in the limited record which is before me. The only IEP which is in record is the one which was prepared on June 29, 1999. As indicated above, that IEP provided that Brehm would determine the student’s need for assistive technology devices and services. Although the CSE must ultimately determine what, if any, services the student should receive, I find that the present record does not support a finding that he should have had the benefit of assistive technology devices or services during his eight-week trial placement at Brehm. The record does not disclose where the student was educated for the remainder of the 1999-2000 school year, or what services he received.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that it denied all compensation to petitioner for the parent and family weekend; and
IT IS FURTHER ORDERED that respondent shall pay petitioner the equivalent of a round-trip airfare and ancillary expenses between Brehm and the student’s home.