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Application of a CHILD SUSPECTED OF HAVING A DISABILITY, by her parents for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Brewster Central School District


Donoghue, Thomas, Auslander & Drohan, Esqs., attorneys for respondent, James P. Drohan, Esq., of counsel


         Petitioners appeal from part of an impartial hearing officer’s determination that their child be evaluated without parental consent and which also upheld the recommendation of respondent’s Committee on Special Education (CSE) that their child be classified as speech impaired and placed in an inclusion class and provided with speech and language therapy as a related service in respondent’s Garden Street Elementary School. The appeal must be sustained in part.

        At the outset, I must address a procedural matter. Petitioners timely served respondent with a notice of intention to seek review and a notice with petition to appeal and review the hearing officer’s determination. A copy of the petition was personally served upon the school district clerk on August 31, 2000. The Regulations of the Commissioner of Education require service of an answer to the notice with petition within 10 days after the date of service of the copy of the notice with petition (8 NYCRR 279.5). Respondent’s answer was due on September 10, 2000. However, the answer was not served until November 3, 2000. Respondent asks that its late answer be accepted. It points out that it promptly transmitted the hearing record to the New York State Education Department upon receipt of petitioners’ notice of intention to seek review. However it failed to submit a timely answer because a new employee who was unaware of the significance of the petition when it was served did not promptly forward it to the school district attorney. Under the circumstances, I will not exercise my discretion to excuse respondent’s delay (Application of a Child with a Disability, Appeal No. 00-017, Application of a Child with a Disability, Appeal No. 94-15, Application of a Child with a Disability, Appeal No. 93-34, Application of a Child with a Handicapping Condition, Appeal No. 92-43). I have not considered respondent’s answer or memorandum of law.

        The Regulations of the Commissioner of Education also provide that the notice with petition shall advise the respondent that "[i]f an answer is not served and filed in accordance with the provisions of such regulations [of the Commissioner of Education], the statements contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by a State review officer of the State Education Department. " 8 NYCRR 279.3. However, to do that would foreclose me from complying with my obligation to examine the entire record and to make an independent decision (20 USC 1415[g], 34 CFR 300.510 [b][2][i]). Therefore, I will deem the relevant and material facts alleged in the petition to be true unless inconsistent with the evidence in the record (cf., Matter of Arlington Central School District v. State Review Officer of the New York State Education Department, 185 Misc. 2d 560 [2000], appeal pending).

        Petitioners’ daughter and her twin sister entered respondent’s kindergarten class in the 1998-99 school year. By March 1999, the child had missed 43 days, reportedly because of medical problems relating to breathing, adenoids, and allergies. When it became apparent that the child had delayed speech and language skills, she was provided with non-mandated speech and language therapy twice a week, beginning in January 1999. The child’s kindergarten teacher referred the student to respondent’s Committee on Special Education (CSE) in the spring of 1999 because of a concern with the child’s communication skills (Parents’ Exhibit B, Transcript, p. 236).

        A school social worker interviewed the petitioners for a social history on March 25, 1999 (District Exhibit 5). The child’s developmental milestones were reported to be unremarkable. Petitioners described their child as "pleasant, stubborn, spoiled, and happy" and family relationships as "good". The child’s father did not want his child to "experience pain", to be made to "feel different", or to use the special education process as a "crutch".

        Respondent’s educational evaluator observed the child during a music lesson in her class. The evaluator reported that the child did not or was not able to participate fully in class activities including individual singing, group singing, or group movement. Although the child was cooperative, she appeared to have some difficulty understanding directions (District Exhibit 4).

        Respondent’s school psychologist examined the child on May 4 and May 10, 2000 (Parents’ Exhibit B). The child achieved a full-scale standard score of 66 on the Wechsler Preschool and Primary Scale of Intelligence-R, placing her in the 2nd percentile, or the borderline intelligence range. However, the school psychologist noted that the child answered some of the questions impulsively, and the psychologist concluded that the child’s scores should be considered to be minimal estimates of her cognitive potential. She indicated that the child’s performance on the Children’s Adaptive Behavior Scale was also suggestive of greater cognitive potential. The child’s results on the Social Ratings Scale showed that she presented with interpersonal difficulties within the school environment, and had difficulty in most language interaction areas and with task related behaviors, many of which had a verbal component. The child’s visual-motor integration skills were reported to be below grade and age expectations. The school psychologist recommended that the child’s speech and language therapy be continued.

        A speech and language evaluation of the child was conducted by a district speech/language therapist on May 9, 1999 (District Exhibit 3). The therapist concluded that the child’s conversational speech appeared to be quite delayed, with articulation errors, syntax errors, short incomplete sentences, and difficulty with comprehension affecting her speech. She reported that the child had a significant expressive and receptive language delay of almost three years, with relatively stronger receptive than expressive language skills. The speech/language therapist opined that without intervention, the child’s language delay would seriously affect her ability to be successful in school. She recommended that the child be provided with speech and language therapy three times a week in a small group, with emphasis on improving both articulation and language skills.

        An educational evaluation was completed on April 14, 1999 (District Exhibit 4). Petitioners’ daughter exhibited weaknesses in long-term information retrieval, short-term memory skills, her overall fund of knowledge, and auditory processing skills. On achievement tests, the child scored at the 1st percentile for letter-word identification, the 2nd percentile for applied math problems, the 18th percentile for math concepts and vocabulary, the 11th percentile for dictation, the 17th percentile for the humanities, and the 19th percentile for both science and social studies. The evaluator opined that the child’s weak language skills and articulation errors may have impacted upon the results of her cognitive and achievement tests, and recommended that they be considered minimal estimates of her ability. She suggested that a multi-sensory approach to learning be used with the child, and that she be provided with visual outlines and graphic organizers to assist her with listening tasks. In addition, she suggested that the child be given opportunities for small group instruction.

        Respondent’s CSE convened on May 19, 1999, to review the results of the child’s evaluations. It recommended that petitioners’ daughter be classified as speech impaired, because of her significant language delays and below expected academic achievement. It also recommended that the child receive special education services in a "Special Class/included Setting," and that she receive 30 minutes of speech/language therapy in a group of no more than five students three times per week (District Exhibit 2). The child’s mother attended the CSE meeting, and the minutes of the meeting indicated that the petitioners were in agreement with the CSE’s recommendations. (District Exhibit 2). The CSE minutes also indicated that there was no parent member of the CSE present at the meeting (cf. § 4402[1][b][1] of the New York State Education Law).

        The child was enrolled in a first grade inclusion classroom at the Garden Street Elementary School in the fall of 2000. The class consisted of both regular and special education students, and was taught by a regular education teacher and a special education teacher. Petitioners’ daughter was unable to separate from her father to enter the class. At one point, district staff reportedly reached out to disentangle the child’s fingers from her father’s to facilitate her entrance into the classroom. Petitioners thereafter placed their child in a parochial school. After a short time there, and further unsuccessful efforts by respondent to encourage the child’s enrollment in the recommended inclusion class, petitioners apparently decided that they no longer wished the child to participate in the recommended program and/or in any of respondent’s special education programs. They subsequently arranged for her to be educated at home by respondent.

        On or about February 25, 2000, the Board of Education appointed an impartial hearing officer for the purpose of obtaining authorization to conduct a psychiatric evaluation of the child in the absence of parental consent for such evaluation, and for a review of the child’s recommended placement. The hearing commenced on May 5, 2000, with both parties being represented by counsel. After hearing argument from counsel and testimony by two witnesses, the hearing officer adjourned the proceedings to June 1, 2000, with the consent of the parties. When the hearing reconvened on June 1, the parties asked the hearing officer to allow the time to be used for settlement discussions. The parties placed a possible stipulation on the record at the end of the day and agreed to reconvene on June 8, 2000, either to proceed with the original hearing or for a report on implementing the settlement. On June 8, 2000, counsel for petitioners advised the hearing officers that her clients were not available. The hearing officer further adjourned the matter to June 23, 2000 at the parties’ request.

        On June 23, 2000, counsel for petitioners advised the hearing officer and the respondent that she was required to withdraw from the proceeding because her clients were not communicating with her. Petitioners were not present at the hearing. In order to allow the petitioners time to obtain new counsel, the hearing officer adjourned the matter to July 13, 2000. Petitioners did not appear before the hearing officer on that date. The hearing officer telephoned the child’s father, who advised the hearing officer that petitioners would not appear at the hearing and were being represented by new counsel. Without objection from petitioners, the hearing officer contacted the new counsel, who advised her that he had not committed to represent petitioners but was considering the matter. The hearing officer adjourned the matter to July 21, 2000 to allow petitioners time to be represented by new counsel. The hearing officer also directed that copies of the transcript of the day’s proceedings be provided both to petitioners and their potential new counsel.

        Petitioners did not appear on July 21, 2000, despite having been informed by the hearing officer that the hearing would proceed on that date. Citing the number of times the school district had appeared, the fact that a full day of testimony had already been taken, and the opportunity given petitioners to attend and present their case, the hearing officer decided to proceed with the hearing. The hearing ended that day with the testimony of respondent’s Director of Special Education and the school psychologist.

        In her decision dated August 2, 2000, the hearing officer ordered respondent to conduct an evaluation of the child, including a psychiatric evaluation, "in the absence of parental consent" as authorized by 8 NYCRR 200.5(b)(1)(i)(c). She also decided that that respondent had appropriately classified the child as speech impaired and appropriately placed her in an inclusion class with the related service of speech/language therapy.

        Petitioners challenge the fairness of the hearing and the appropriateness of the recommended school program. They seek another hearing, and the enrollment of their child and her twin sister in classes in another school district at respondent’s expense. Petitioners assert that their witnesses never had the opportunity to testify, that their prior attorney had a conflict of interest, and that the hearing officer had made up her mind before they were able to present their case.

        The applicable federal and state regulations provide that petitioners have a right to present witness testimony at impartial hearings to consider whether a student should be evaluated in the absence of parental consent and to review CSE recommendations regarding student classification and the provision of appropriate special education services (8 NYCRR 200.5[Ii][3][iv], [ix], 34 CFR 300.509[a][2]). However, I find that petitioners were afforded ample opportunity to have witnesses testify and to be heard in the proceeding. When petitioners’ counsel reported to the hearing officer that she needed to withdraw from the proceedings, the hearing officer provided petitioners with the opportunity to secure replacement counsel to facilitate their being heard and their case presented. The hearing officer subsequently provided them with the opportunity to testify and to present witness testimony pro se. Thereafter, the hearing officer provided time for possible new counsel to represent the petitioners and/or to request an adjournment of the proceedings to consider representing them. At no time did the possible new counsel indicate that he had taken petitioners’ case, or request an adjournment.

        Petitioners presented no witnesses at the proceeding. Additionally, subsequent to the withdrawal of their counsel, neither petitioner was present at any of the proceedings. However, the record shows that this was not because the hearing process was closed to the petitioners, but because they chose not to participate in the process..

        A hearing officer must be fair in dealing with the parties and should take care to avoid the appearance of bias or prejudice. Application of a Child with a Disability, Appeal No. 96-38, Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-47, Application of a Child with a Handicapping Condition, Appeal No. 91-38, Application of the Board of Education of the Pittsford Central School District, Appeal No. 91-14.

        Having reviewed the entire record, I find that there is no basis to believe or to suspect that the hearing officer approached this matter with any unfairness or bias. Indeed, a review of the transcripts suggests that the hearing officer had great patience and an understanding of petitioners’ feelings and concerns. As noted above, the hearing officer consistently invited petitioners to participate in the hearing process so that she could hear and consider their concerns.

        Petitioners allege that their previous counsel had sided with the respondent to help that counsel in her career, and that she therefore had a conflict of interest. An attorney is obligated to exercise independent professional judgment on behalf of a client and may not engage in any conduct that constitutes a conflict of interest. I find that the petition fails to state a set of facts that would evidence conflict of interest by petitioners’ prior counsel in her representation of them at the impartial hearing. Moreover, my review of the hearing transcript for May 5, 2000, when petitioners’ prior counsel outlined her clients case and cross-examined respondent’s witnesses shows no evidence that prior counsel did not adequately represent her clients.

        Petitioners also challenge the appropriateness of the educational program recommended by respondent’s CSE and upheld by the hearing officer. A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        A CSE must include an additional parent of a child with a disability who resides in the school district or a neighboring school district, unless the parents of the child being considered by the CSE request that such additional parent member not participate (New York State Education Law § 4402[1][b][1][a]). An IEP prepared at one or more CSE meetings without the presence of the required parent member is invalid and unenforceable (Application of the Board of Education of the Smithtown Central School District, Appeal No. 00-023; Application of a Child with a Disability, Appeal No. 93-11; Application of a Child with a Handicapping Condition, Appeal No. 92-31; Application of a Child Suspected of Having A Handicapping Condition, Appeal No. 92-26; Application of a Child with a Handicapping Condition, Appeal No. 91-23; Application of a Child with a Handicapping Condition, Appeal No. 90-16).

        Although the May 19, 1999 IEP was arguably replaced by the IEP developed at a subsequent CSE meeting on October 7, 1999 (District Exhibit 1), I must note that the minutes of that meeting indicate that no parent member was present. There is no evidence in the record that petitioners requested that a parent member not participate in the CSE meetings involving their child. Therefore, I am obliged to find that the child’ IEPs for the 1999-2000 school year are invalid.

        Although I have found that the child’s IEPs were invalid because of a defect in the composition of respondent’s CSE, it does not follow that the school district is incapable of providing an appropriate education to the child. I have considered petitioners’ assertion about the trauma their daughter reportedly suffered during the attempt to separate her from her father so that she could enter the recommended inclusion class in the fall of 1999. However, I find that the record before me does not afford an adequate basis for granting the relief which petitioners have requested, i.e., an order compelling respondent to pay for the child’s education in another school district.

        The New York State Compulsory Attendance Law (Section 3205 of the New York State Education Law) requires children between the ages of six and sixteen to attend full time instruction. Although the parties have stipulated that the child’s pendency placement was the inclusion class at respondent’s Garden Street Elementary School, at the time of the hearing and for almost all of the 1999-2000 school year, the child was not attending school but enrolled in a home instruction program. Both parties have expressed their belief that this is not the proper educational programming for this child. Based on my review of the record, I agree. The child should be in an appropriate school program. Upon their receipt of this decision, if they are not already doing so, I encourage both parties to work together in accordance with the requirements of the applicable state and federal education laws to ensure that the child receives the educational program due her under law without delay.


IT IS ORDERED that the decision of the hearing officer as it relates to the classification, program, and placement of the child is hereby annulled, and

IT IS FURTHER ORDERED that the case be remanded to respondent CSE to provide for the further evaluation of the child as directed by the hearing officer if such evaluation has not yet been accomplished

Topical Index

CSE ProcessCSE Composition
Parent Appeal
Preliminary MattersConduct of Impartial Hearing
Preliminary MattersPleadingsTimeliness of Petition