Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Averill Park Central School District
Sonya del Peral, Esq., attorney for respondent
Petitioners appeal from the decision of an impartial hearing officer that rejected their numerous claims that respondent failed to prepare a proper individualized education program (IEP) for their son for the 1999-2000 school year, failed to conduct Committee on Special Education (CSE) meetings in accord with federal and state regulations, and committed other procedural violations. Petitioners also challenge various evidentiary rulings made by the impartial hearing officer, and allege that he was biased against them. The appeal must be sustained in part.
At the outset, I note that petitioners are residents of the Wyantskill Union Free School District, which has not been named as a party to this proceeding. The Wyantskill district apparently does not operate its own high school, and has contracted with respondent to provide secondary school instruction to its residents. Petitioners’ son was in his senior year of high school during the 1999-2000 school year. He was classified as multiply handicapped. There does not appear to be any dispute about his classification.
The record contains limited information about the student’s educational history. He was reportedly initially identified as multiply disabled while residing in the Stillwater Central School District. While in that district, he reportedly received resource room services, physical therapy, and occupational therapy (Exhibit D-5). He moved with his parents into the Wynantskill Union Free School District in the fall of 1995. He was enrolled in the eighth grade at the Algonquin Middle School. His IEP for the 1995-96 school year called for him to receive 80 minutes of resource room services five times a week. The student entered the ninth grade in respondent’s high school in the fall of 1996. He received resource room services for 40 minutes five times a week. In tenth grade, he received resource room services at the same duration and frequency. Counseling services were made available that year to help the student with social problems. These services were continued during the 1998-99 school year (Exhibit D-5).
A private psychologist reported on August 4, 1997 that the student had previously been diagnosed as having an attention deficit disorder (ADD), for which he had been taking Ritalin. The psychologist noted that petitioners’ son was no longer taking Ritalin, and reported that the student manifested mixed evidence of ADD. Although responses by the student’s mother to a questionnaire were suggestive of the condition, other objective measures did not support that diagnosis. The student achieved a verbal IQ score of 92, a performance IQ score of 89, and a full-scale IQ score of 90, with relative strength in short-term memory and visual perception, and weaknesses in visual motor coordination and speed. His reading and spelling skills tested above average on the WRAT-3, but his arithmetic scores were significantly lower. The psychologist further reported that testing revealed personality patterns suggesting a flattening of emotions to protect himself from a fearful distrust of others. Although the psychologist concluded that a psychiatric diagnosis was not warranted, he noted that there were signs of "Avoidant Personality Traits". He opined that the student appeared to meet the criteria for classification as multiply disabled, and that the resource room services and various accommodations the student had received in school appeared to be appropriate. He suggested that some in-school counseling could provide support to the student for social skills development and improved peer relationships (Exhibit D-25). In September 1997, the student’s pediatrician concurred with the psychologist’s findings, and recommended that the student take Ritalin in the morning (Exhibit D-26).
On May 27, 1999, respondent’s CSE prepared the student’s IEP for the 1999-2000 school year (Exhibit D-5). The CSE noted on the IEP that the student "continues to demonstrate a learning disability, social/emotional problems and mild ADHD [attention deficit hyperactivity disorder]." It recommended that the student attend regular education courses, and receive 40 minutes of resource room services five times a week. The CSE also recommended a number of program/test modifications, including the use of a calculator, tape recorder, and spell checker, as well as "access to word processing-with adult support". Other modifications included extended time limits for tests and written tasks, having tests and directions read to the student, and adult assistance with organization. The student’s IEP also indicated that weekly progress reports concerning academics and behavior would be sent home, and that a school counselor would be available to the student, "if his anxiety level causes him to need a counselor." The IEP further indicated that routine discipline procedures would be followed. The transition services component of the IEP noted the student’s intention to attend college on his own, and to seek employment related to computers or chemistry.
By letter dated October 1, 1999, the school district notified petitioners that it would no longer be responsible for providing a free public education to their son once he graduated from high school (Exhibit D-13). In the letter, respondent pointed out that assistance might be available from a number of state agencies, and asked petitioners to sign a consent form authorizing respondent to release information about their son to those agencies. Petitioners did not sign the consent form until March 28, 2000 (Exhibit D-21). Respondent referred the student to the State Education Department’s Office of Vocational and Educational Services for Individuals with Disabilities on April 4, 2000 (Exhibit D-22).
On December 9, 1999, petitioners’ son was charged with inappropriately using a school computer to send a message (Exhibit P-1). Respondent’s written policy governing the use of the school computer system provides that the district’s computer resources are for school related use only, in support of the district’s educational programs. All computer users must sign a form as to the terms and conditions for using respondent’s computer system. Respondent’s policy indicates that the use of its computers is a privilege that may be revoked at any time (Exhibit D-7). The student and his father had signed an agreement to abide by district policy on September 9, 1998 (Exhibit D-8). The form stated that the parent released the district from any claims arising from his child’s use of or inability to use the computer resources.
A report of the December 9 incident indicated that the student had been counseled, and was to be "off computers at school" until January 30, 2000, but provided that he could use the resource room computer when supervised by a teacher. In January, the student was permitted to use other school computers with supervision. An aide was made available for this purpose (Transcript pp. 79-81, 136-37, 321-22). On January 10, 2000 the student’s special education teacher forwarded a draft "behavior agreement" regarding computer use to the student’s parents (Exhibit D-9).
The CSE conducted its annual review of the student on January 18, 2000 (Exhibits D1-4). At that meeting, the student’s mother protested the disciplinary action, rejected the draft behavior agreement, and asked to have "access to the Internet" listed as a service on her son’s IEP. The CSE chairperson explained that access to the Internet is a regular education service that could not be listed on an IEP unless it was directly related to a student’s disability. The CSE pointed out that the student would continue to have access to word processing for essays, because that was required by his IEP. The CSE noted that the student was doing well in all his courses and was on track to graduate in June 2000. Accordingly, it recommended that no changes be made to his IEP for the remainder of the 1999-2000 school year (Exhibit D-3). Petitioners were notified of the CSE’s recommendations to the Board of Education and given a copy of their due process rights in a letter by the CSE chairperson, dated February 2, 2000 (Exhibit D-11).
On January 24, 2000, the student was disciplined for reportedly having disrupted other students’ work on the computers, using personal disks on school computers and having committed "other violations" of the school’s Acceptable Use Policy. The disciplinary report indicated that the student had been counseled and his parents contacted. It also indicated that he was "off school computers until March 1, 2000," but that he could use the word processor in the resource room with supervision, as stated in his IEP (Exhibit P-3). Between March 3, 2000 and May 16, 2000, the student was involved in ten other disciplinary incidents, only three of which involved the use of the school’s computers. His computer privileges were not affected, nor was he suspended from school until the May 17, after an incident on May 16 in which he was allegedly insubordinate and disrespectful to more than one member of respondent’s staff (Exhibits P-4-13). As a result of that incident, he was suspended from school for three days.
By letter dated March 1, 2000, the CSE chairperson notified the student, who had turned 18 years old in January, that the Board of Education had accepted the CSE’s recommendation not to change his IEP (Exhibit D-12). In the meantime, petitioners had filed a request for an impartial hearing. An impartial hearing officer was appointed, and a preliminary conference to narrow the issues was held on March 17, 2000. Petitioners contended that their son’s IEP was inadequate because it did not contain short-term objectives or a transition plan. They also disagreed with the school’s decision to restrict his computer use. At the conference the parties agreed to a number of proposed modifications to the student’s IEP, including provision for a one-to-one aide to work with the student when he used a computer, and the addition of goals and objectives to help the student deal with his behavioral problems. They scheduled a meeting of the CSE for April 14, 2000 to make the agreed-upon adjustments. The hearing officer retained jurisdiction until the IEP was modified to the parents’ satisfaction (Exhibit D-14).
On or about March 21, 2000, the CSE chairperson received a note from the student’s father, purporting to authorize his son to go to lunch rather than to his assigned resource room "every other day" (Exhibit D-23). Evidently the parents wanted the student to eat lunch in the cafeteria with his peers, instead of attending his scheduled resource room. By letter dated April 24, 2000, the CSE chairperson advised petitioners that their son must attend resource room every day as required by his IEP (Exhibit D-24). She noted that the student had chosen to take an elective course, which required adjusting his schedule. The change in schedule meant the student had to eat lunch in the resource room on alternate days.
The CSE met with the student and his mother on April 14, 2000, but the parties could not agree on how to implement the changes they had discussed with the hearing officer on March 17, 2000 (Exhibit D-17). After an unsuccessful attempt to resolve their differences through a conference call with the hearing officer, the parties agreed to recommence the hearing (Exhibits D17-19). The hearing officer determined that her effectiveness had been compromised during the unsuccessful negotiations, and recused herself from further participation in this proceeding (Exhibit D-19).
A new impartial hearing officer was appointed on May 5, 2000. Following telephone conferences with the parties, he conducted a preliminary conference on June 15, 2000 to assist the parties in identifying issues. By letter dated June 19, 2000 petitioners raised 51 issues to be addressed at the hearing (Exhibit IHO-4). The student graduated from high school on or about June 24, 2000. The hearing was conducted on June 28 and July 7, 10, 12 and 17, 2000. The hearing officer issued interim decisions on July 5 and August 17, 2000.
In the first interim decision, the hearing officer decided not to dismiss any of petitioners’ claims as moot or beyond his jurisdiction before the hearing. He also denied the parents’ request that he subpoena 18 witnesses, but stated they could renew the request at the conclusion of the first or second hearing date. In the second interim decision, which was issued after the hearing had concluded, the hearing officer dismissed 16 of petitioners’ claims regarding their son’s educational program as moot because the student had graduated and the issues were not likely to recur. He dismissed five claims that raised constitutional or civil rights issues that were outside his jurisdiction. The hearing officer also concluded that he could not hear the parents’ claims that respondent improperly disciplined the student by denying him access to computers because disciplinary determinations may not be collaterally attacked in due process proceedings under the IDEA.
Petitioners submitted a post-hearing memorandum of about 360 pages, but did not respond to the hearing officer’s request that they identify the parts of their submission that related to the remaining claims. In his final decision, which was issued on October 23, 2000, the hearing officer noted that the parties had agreed to extend the time for issuance of his decision to November 16, 2000. He rejected all of petitioner’s remaining claims, finding that the January 18, 2000 and April 14, 2000 CSE meetings were properly conducted, that petitioners and their son were offered appropriate opportunities to participate in those meetings, and that respondent complied with procedural regulations.
Petitioners contend that the hearing officer was biased against them because they were not represented by a lawyer. They claim he caused delays, improperly granted extensions of time so that their claims became moot, erroneously admitted some documents into evidence and excluded others, neglected to address some issues and incorrectly dismissed others and omitted the required notice of their right to appeal to the State Review Officer from his decision. Petitioners also argue that the hearing officer’s decision does not adequately set forth the facts and law upon which it was based. Petitioners ask that the decision be annulled. They also contend that respondent failed to give them timely notice of available free or low-cost legal services, and failed in several respects to offer their son an appropriate program during the 1999-2000 school year. Finally, petitioners note that their son attended school in respondent’s district because his district of residence does not offer high school. They ask that respondent, rather than their district of residence, be ordered to pay for the costs of the impartial hearing.
The initial question is whether the student’s graduation from high school with a regular diploma in June 2000 has rendered petitioners’ claims moot, as respondent asserts. The State Review Officer is not required to determine issues that are no longer in controversy, or to make a determination that would have no actual effect on the parties (Application of a Child with a Disability, Appeal No. 98-73; Application of a Child Suspected of Having a Disability, Appeal No. 95-60). Petitioners do not allege that their son did not meet the requirements for a regular diploma and should not have graduated. Their petition does not request compensatory education. In any event, there is no evidence that the student was excluded from school or denied appropriate services over an extended period of time. Petitioners’ objections to their son’s IEP goals and transition plan, even if correct, would not afford a basis for concluding that the student had been denied a free appropriate public education (Application of a Child with a Disability, Appeal No. 97-70). Consequently, the student would not entitled to compensatory education (Burr by Burr v. Ambach, 863 F.2d 1071[2d Cir., 1988]).
Since a determination of petitioners’ claims about the appropriateness of their son’s educational program during the 1999-2000 school year would have no practical effect, those claims have become moot, and will not be addressed here. Accordingly, I will not consider petitioners’ claims that the student’s IEP was inadequate, or that alternate services should have been provided to him. Although petitioners’ objections to the sufficiency of their son’s educational program are moot, their due process claims survive the student’s graduation (Application of a Child with a Disability, Appeal No. 98-73).
Respondent received the petitioners’ request for an impartial hearing on February 7, 2000. Respondent stipulated that it did not provide petitioners with a list of free or low-cost legal services available in the area until May 24, 2000, when it sent the information at the hearing officer’s request (Transcript pp. 467-469). Federal and state regulations require school districts to provide parents with such a list when either party initiates a hearing (34 CFR 300.507(a)(3); 8 NYCRR 200.5(i)). The hearing officer, noting that the federal regulation contains no specific time limit, concluded that 14 days from receipt of a hearing request would be a reasonable time limit for provision of the list. He found that respondent had not violated the regulation because it was not on notice that any particular time limit applied for meeting its obligation to provide such information to petitioners.
I disagree with the hearing officer’s conclusion. The apparent intent of the regulation is to require districts to advise parents about available legal resources so that they may obtain legal assistance to prepare for and participate in a hearing. Governing regulations also provide that, unless extensions are granted, the hearing officer must conduct the hearing and issue a decision within 45 days of the school district’s receipt of a request for a hearing (34 CFR 300.511[a]). Thus, a delay of more than 90 days in providing the list to the parents is clearly inconsistent with the purpose for the regulation requiring that such information be provided. The hearing officer’s decision to the contrary must be annulled.
Petitioners also contend that the list was defective because none of the listed entities were able to provide services to petitioners. However, a board of education is not the guarantor that free or low-cost legal services will be available to any parent (Application of a Child with a Disability, Appeal No. 00-014). Respondent is only responsible for making a good faith effort to verify that services are available from the sources listed in its notices (Application of a Child with a Disability, Appeal No. 93-15).
Petitioners allege that they were not afforded a meaningful opportunity to participate in developing their son’s IEP. They assert that respondent’s staff was not willing to discuss their concerns at the January 18, 2000 CSE meeting or at the April 14, 2000 meeting. The hearing officer found that the record demonstrates that petitioners were given proper advance notice of both meetings and an opportunity to express views at each meeting. I agree with his finding. Petitioners were notified by letter dated January 4, 2000 that an annual review of their son’s educational program would take place on January 18, 2000 (Exhibit D-1). The student’s mother attended the meeting (Exhibit D-3). The CSE minutes reflect that she rejected a proposed behavior plan and participated in lengthy discussion of the student’s computer use (Exhibit D-4). There is no evidence that her participation was improperly restricted.
The student’s mother attended the March 17, 2000 preliminary conference with the hearing officer (Exhibit D-14). At that time, the hearing officer stated on the record that the parties had agreed to hold a CSE meeting on April 14, 2000 to "enact" the agreement they had reached that day on modifications of the student’s IEP. The parents also received written notice (Exhibit D-20). The "CSE Notes Form" states that the student’s mother and her advocate proposed changes to the agreement on April 14, 2000 (Exhibit D-17). Those changes were not agreed to and the parties concluded it was necessary to go forward with a hearing. The fact that the CSE did not adopt the parent’s proposals does not establish that the parents were not allowed to meaningfully participate in the CSE meeting (Application of a Child with a Disability, Appeal No. 93-41).
Petitioners correctly state that the hearing officer’s final decision did not include a statement advising the parties of their right to obtain review of the decision by a State Review Officer, which is required by 8 NYCRR 200.5(i)(4)(ii). Petitioners had received notice of this right before the January 18, 2000 CSE meeting (Exhibit D-2) and brought a timely proceeding to review the decision. Because the hearing officer’s omission did not result in actual harm to the petitioners, I will not overturn his decision on that ground.
Petitioners also assert that the hearing officer caused delays and granted improper extensions which rendered their claims moot. On the first day of the hearing, the parties agreed to an extension of time until September 1, 2000 (Transcript p. 13). The hearing officer’s decision states that both parties subsequently agreed to an additional extension of time, and the decision was issued within the extended time. The governing regulations authorize a hearing officer to grant extensions upon the request of either party (34 CFR 300.511(a); 8 NYCRR 200.5[i]). Petitioners have not demonstrated that the extensions were granted in order to render certain issues moot, or for any other improper reason. I find that petitioners’ claims are without merit.
Petitioners contend that the hearing officer was biased in his treatment of them and in his evidentiary rulings. I have carefully reviewed the transcript, and I find that there is no evidence that the hearing officer acted with actual bias against petitioners. They contend that the hearing officer discriminated against them because they did not have a lawyer and attempted to force them to modify their claims and their post-hearing submission. The record reveals that the hearing officer was attempting to help petitioners state their claims clearly and target their response to issues raised by respondent (see, e.g., Transcript pp. 16-36). Because petitioners were not represented, the hearing officer had a responsibility to assist them (Application of a Child with a Disability, Appeal No. 00-021). It appears he attempted to do this in good faith.
I have also considered the evidentiary rulings about which petitioners complain. A hearing officer has the power and duty to restrict the record to evidence that is relevant to the issues that must be decided and may exclude irrelevant or unduly repetitious evidence (Application of a Child Suspected of Having a Disability, Appeal No. 00-036). The hearing officer’s decision not to admit certain evidence, including audiotapes of meetings that witnesses testified about, therefore does not establish bias.
The hearing officer also has a responsibility to ensure that there is adequate information in the record to support his or her determination (Application of a Child with a Disability, Appeal No. 96-18). Petitioners challenge, among other things, the hearing officer’s decision to admit certain exhibits that allegedly were not provided to petitioners five days in advance of the hearing. I note that while the documents were marked for identification the day the school district delivered them to petitioners, only one, which the hearing officer concluded he could take notice of even if it were not in evidence, was marked in evidence at that time (Transcript pp. 96-98, 101-104). The others were not introduced into evidence until another hearing date five days later. Moreover, petitioners stated on the record that they had no objection to introduction of the exhibits (Transcript p. 397). Similarly, petitioners stated at the hearing that they had no objection to admitting Exhibit 15, respondent’s draft of the agreement reached at the April 14 meeting, into evidence (Transcript p. 397). They cannot now claim that the document was improperly admitted. I find that the hearing officer did not abuse his power or demonstrate any bias against petitioners in his evidentiary rulings. I also find that his decision sufficiently sets forth the facts and law upon which it is based.
Finally, I note that in addition to asking me to annul the hearing officer’s decision, petitioners ask me to impose the costs of the hearing, which were born by their district of residence, upon respondent. This would be analogous to an award of money damages, which is not authorized by the IDEA (Wenger v. Canastota Central School District, 979 F. Supp. 147 [NDNY 1997], aff’d. 208 F. 3d 204 [2d Cir. 2000]).
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer’s decision is annulled to the extent that it found no violation by respondent of its duty to timely provide petitioners with a list of available free or low-cost legal services. Respondent is directed to comply with governing regulations regarding such notices in the future.