01-024

        Petitioners appeal from the decision of an impartial hearing officer holding that a Committee on Special Education (CSE) meeting of October 4, 2000 was properly constituted, and that the individualized education program (IEP) for their son that was prepared at that meeting for the 2000-01 school year was appropriate. The hearing officer denied petitioners’ request for additional services for their son. The appeal must be sustained in part.

        As a preliminary matter, petitioners have asked me to reject respondent’s answer because it was served late. A respondent must serve an answer within ten days after the date of service of a copy of the petition (8 NYCRR § 279.5). The petition in this appeal was served upon respondent on April 2, 2001. The answer was personally served on May 1, 2001. Respondent asks that I excuse its delay in serving the answer because it required additional time to complete the record, which was incomplete when its attorney received it. In the absence of evidence of prejudice to petitioners, I will excuse the delay and accept the answer. However, I urge respondent to improve its procedures for procuring the record so that it may serve its answer in a more timely manner.

        Respondent also asks that I ignore the documents petitioners submitted with their petition, which include evaluations and progress reports. It is well established that documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer’s decision if such evidence was unavailable at the time, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 99-86; Application of a Child with a Disability, Appeal No. 98-55; Application of a Child with a Disability, Appeal No. 95-41). In light of petitioners’ assertion that the documents were unavailable at the time of the hearing and are necessary to complete the record, I will consider them to the extent they are relevant.

        Respondent requests that I reject petitioners’ reply because it exceeds the permissible scope of a reply, and because petitioners have submitted additional documentation with it (8 NYCRR § 279.6). Given the unique circumstance of petitioners’ absence from the last hearing, which will be explained more fully below, I will accept the reply and the documents, and consider them to the extent they are relevant and within the scope of the issues petitioners raised before the hearing officer.

        Petitioners’ son was a 13-year-old student about to enter the eighth grade at the Yeshiva Rabbi Chaim Berlin (the Yeshiva), when the hearing began on August 7, 2000. The student was initially referred to the CSE of Community School District 21 (CSD 21), in which he resides, while in the fourth grade of the Yeshiva. He was found to be of average intelligence, with relative weaknesses in abstract verbal reasoning, and performing tasks requiring eye-hand coordination and visual sequencing. He was also found to manifest speech/language difficulties (Exhibit SD-21). On June 27, 1997, the CSE classified the child as speech impaired. He was reclassified as other health impaired (OHI), as well as speech impaired on March 23, 2000. At a CSE meeting held on October 4, 2000 pursuant to the hearing officer’s directive, the student was reclassified as learning disabled. His classification is not in dispute in this appeal.

        The CSE recommended that the student receive the related service of speech/language therapy while enrolled in a regular education class during the 1997-98 and 1998-99 school years (Exhibit SD-64). On July 30, 1998, the student’s parents requested an impartial hearing, but withdrew the request on October 27, 1998 (Exhibit SD-61). Notations on the original IEP, dated November 17, 1998, and December 9, 1998, indicate that the CSE reached an agreement with the parents’ then attorney to increase the student’s speech/language therapy to 30 minutes 3 times a week on an individualized basis (Exhibit SD-64).

        In the summer of 1999 the CSE reportedly found the student to be no longer eligible for classification as a child with a disability (Exhibit SD-31). On August 31, 1999, the parents again requested an impartial hearing (Exhibit SD-49). On the first hearing date, the parties reached an agreement that was documented in an October 14, 1999 Statement of Agreement drafted by the hearing officer. The agreement provided that speech therapy would be continued per the November 17, 1998 IEP (three times/week for 30 minutes on a 1:1 basis) until a new IEP could be developed, or until the "conclusion of all subsequent due process hearings." It was agreed that the Board of Education would issue a Related Services Agreement (RSA) for that purpose. The Statement of Agreement further provided that the parents would procure speech/language and educational evaluations from licensed providers in compliance with board of education procedures. The parents were given assessment authorization forms for those evaluations (Exhibit SD-49). The agreement also provided that the parents would supply a social history update, a prescription for occupational therapy (OT), and an updated medical report within 60 days. Upon receipt of those documents, the CSE would reconvene within 15 days.

        The CSE chairperson testified at the hearing in this matter that the child received the agreed upon speech/language therapy services pursuant to the RSA. She further testified that the parents failed to obtain the proper educational evaluations within 60 days (Transcript pp. 13, 208). The social history update was not done until March 23, 2000, the day scheduled for the CSE to develop the next year’s IEP (Transcript p. 189; Exhibit SD-20).

        The CSE convened on March 23, 2000 to review the independent evaluations and prepare the student’s IEP. As noted above, the CSE recommended that petitioners’ son be classified OHI (Exhibit SD-32). Based on the independent OT evaluation, the CSE recommended that the student receive 45 minutes of OT twice a week on a 1:1 basis, and the chairperson agreed to research the issue of flexible scheduling (Exhibit SD-31). The CSE could not make a decision on speech/language services, however, because the independent evaluator was not certified in New York (Transcript p. 21; Exhibit SD-31). The CSE agreed to continue "interim speech services" for the student (Transcript pp. 13, 24). In addition, the CSE postponed a decision on the need for resource room, because the educational evaluator had reportedly used one test that was unknown to the CSE and another test that was not normed for the student’s age (Transcript p. 20-21; Exhibit SD-31). The CSE offered to conduct the evaluations at the school, but the parents wanted to proceed on their own (Transcript p. 20). The CSE acknowledged that it would have to meet again (Transcript p. 25). The mother signed a consent form, but added that she wanted the CSE to hold another meeting.

        The CSE received more independent evaluations in May and June, 2000 (Transcript p. 21). A private speech/language pathologist reported that the student had an extreme weakness in auditory processing. She recommended 500 minutes a week of speech/language therapy and the use of a computerized program known as Fast ForWord, and an FM auditory training unit for which a student wears headphones and the teacher speaks into a microphone to reduce distracting ambient noise (Transcript p. 69, 209; Exhibit SD-15). An educational consultant reported that on April 9, 2000, the student had achieved standard (and percentile) scores of 92 (30) for reading decoding, 80 (9) for reading comprehension, 104 (61) for math computation, and 104 (61) for math applications on the Kaufman Test of Educational Achievement. She recommended that the student receive 15 hours a week of resource room, a 12-month program, and intensive speech/language therapy (Exhibits SD-18, 22).

        The student’s auditory processing skills were reassessed by another speech/language pathologist on May 3, 2000. The evaluator reported that the student’s auditory processing skills were at a beginning sixth grade level. She recommended the use of the Fast ForWord program for 500 minutes a week for 12 weeks, 45 minutes of speech/language therapy four times a week with use of the Lindamood Bell Phoneme Sequencing program, and an FM unit (Exhibit SD-14A). In a report dated June 16, 2000, the student’s OT provider recommended a 90 minute flexible schedule in OT, due to the child’s vestibular intolerance (Exhibit SD- 2).

        The CSE reconvened on June 14, 2000 to review the evaluation reports (Exhibit SD- 19). An IEP was not developed at the meeting, however, because the meeting was adjourned after the mother and her advocate objected to the participation of the child’s regular education teacher in the meeting (Transcript pp. 22, 27-29). Another meeting scheduled for June 21st was cancelled because the mother did not attend (Transcript p. 37).

        In a letter dated June 14, 2000, the mother requested an impartial hearing, claiming that her advocate had been barred from attending the June 14th meeting (Transcript pp. 37-38). An initial hearing took place on August 7, 2000, at which the school district had witnesses testify about the June 14th meeting, before the hearing was adjourned. The hearing reconvened on September 27, 2000. The parents’ lay advocate requested that the student be provided with "interim services," including extra hours of speech/language to cover instruction in Fast ForWord at Brooklyn College, an FM unit, and 15 additional hours of resource room services (Transcript pp. 52-53, 55).

        The hearing officer attempted to find out what related services were being provided to the student, and concluded that the CSE should conduct a complete review for the purpose of developing an IEP to meet his needs. The student’s mother indicated that she had no objection to a CSE review (Transcript p. 76). The hearing officer arranged with the principal of the Yeshiva for a classroom observation the day after the hearing, and had the parties agree that the CSE review would be conducted on October 4, 2000, and if necessary, on October 12, 2000 (Transcript pp. 74, 76-87, 99). He indicated that he would withhold his decision on the request for interim services until he received the results of the IEP from the October 4th meeting.

        At the October 4, 2000 CSE meeting, the student’s mother and a CSE physician participated by telephone, while the parents’ advocate attended in person (Transcript pp. 138-40). The CSE reclassified the student as learning disabled. It recommended that he continue to be educated in regular education classes, with related services. The CSE recommended that the student’s speech/language therapy be increased to 45 minutes three times a week on a 1:1 basis, and that he continue to receive 45 minutes of 1:1 OT twice a week. It further recommended that an FM unit be provided to him. In addition, the CSE recommended a resource room program of 45 minutes a day at an 8:1 student-to-teacher ratio at P.S. 99 in Brooklyn, within walking distance of the student’s Yeshiva, so that he would not miss instructional time (Exhibits SD-66 and 67; Transcript pp. 215-16). The IEP included annual goals and short-term objectives related to the student’s deficiencies in reading comprehension, reasoning, auditory processing skills, and speech fluency. The parents were asked to submit a copy of a recently performed medical examination of their son to the CSE. The CSE physician opined that an ear, nose and throat (ENT) examination might be useful (Transcript p. 144). The CSE did not update the student’s occupational therapy annual goals and objectives because it was waiting for information from the RSA provider of OT.

        The student’s mother acknowledged receipt of the new IEP (Exhibit SD-67), but did not necessarily agree that the services recommended by the CSE were adequate (Transcript p. 172). She was notified that she could bring her son to the resource room at P.S. 99 on November 2, 2000 (Exhibit SD-80). After visiting the resource room at P.S. 99, she informed the CSE in writing on November 26, 2000 that she was rejecting the resource room program because her son would be the only boy in the room, as well as being the only student with an FM unit and the only student who spoke Yiddish. She also asserted that there were too many distracting noises.

        The hearing resumed on November 20, 2000. After an extensive discussion of the scope of the hearing, it was agreed that evidence would be adduced with regard to the procedure used by the CSE in preparing the October 4, 2000 IEP. It was also agreed that the parents’ advocate could identify substantive objections to the IEP, which would become the subject of the next day of the hearing (Transcript pp. 134, 154). The advocate requested that the student’s speech therapy be increased to two hours a day, and his resource room services to three hours a day (Transcript pp. 170-71, 177-78). In addition, the advocate raised a new issue about an urgent need for home instruction, claiming the child was suffering from headaches and dizziness that prevented him from attending school on a regular basis (Transcript pp. 158, 160, 167).

        The district’s speech/language evaluator testified that all of the necessary participants were at the October 10, 2000 meeting, and that an appropriate program was offered (Transcript pp. 135-138). Petitioners objected to the validity of the IEP because it had been prepared without the results of a medical examination and an ENT exam, as discussed at the meeting, and because the child’s speech/language therapist, occupational therapist, and an educational evaluator were not present at the CSE meeting due to scheduling difficulties (Transcript pp. 144-46, 162-66, 171). They also objected to the fact that the CSE did not reconvene at a later time so that these individuals could participate in preparing the student’s IEP. Petitioners’ advocate objected to the attendance of a general education teacher whose presence was allegedly intimidating (Transcript pp. 168-70).

        The parties agreed to meet again for a hearing on December 15th (Transcript pp. 180-81). However, the hearing officer was unable to hold a hearing until February 2001, because he was injured in an accident and needed time to recuperate from the ensuing surgery. In the interim, petitioners asked that the hearing officer recuse himself due to the long delay required by his recuperation. There were also communications regarding the scheduling of the hearing in February, in which the mother suggested that petitioners would have difficulty attending in person on February 2nd. Nonetheless, that date was chosen for the next hearing date.

        On February 2, 2001, the hearing officer characterized the hearing as both a continuation of the hearing on petitioners’ procedural challenges to their son’s IEP and the first session of the second impartial hearing requested by the mother on the substantive issues. Neither petitioners nor their advocate appeared. The hearing officer explained that he had denied petitioners’ request to adjourn the hearing, because the matter had gone on so long (Transcript p. 186-87). He also noted that the mother had asked him to recuse himself, and that he had invited her to offer evidence of any bias on his part at the February 2, 2001 hearing (Transcript p. 187). The hearing officer ruled that he would deny any relief requested in the second impartial hearing because the parents were not present, but nevertheless invited the CSE to present evidence in support of its recommendations for the service to be provided to the student (Transcript p. 188).

        Several school district witnesses testified. The CSE chairperson discussed the history of the student’s case and the development of the October 4, 2000 IEP. The social worker discussed the student’s updated social history, and the school psychologist discussed her classroom observation of the student in September 2000, and reviewed the results of the 1997 psychological evaluation. The educational evaluator testified that she performed two evaluations that revealed the student’s weakness was in decoding and reading comprehension, which she thought could be addressed with part-time remediation (Transcript pp. 206-07). The speech/language evaluator testified that the student had "some auditory processing weaknesses" which she thought would respond to the FM unit and remediation, but did not require the Fast ForWord program (Transcript p. 209). As of the date of the last hearing, the student had not attended the resource room at P.S. 99 (Transcript p. 218).

        In his decision which was rendered on February 27, 2001, the hearing officer found that there was no reason to recuse himself, as the parents had not alleged any evidence of wrongdoing. He explained that he declined to adjourn the February 2nd hearing because of the protracted manner in which the hearings were proceeding, and because the student’s mother had not provided any reason for her inability to attend the hearing on that day. He indicated that he had insisted that she be present at the hearing because he believed that a party’s presence was necessary to the proper conduct of a hearing.

        The hearing officer found that when the hearing commenced in August 2000, the operative IEP was the IEP prepared at the March 23, 2000 CSE meeting, and that no new IEP could be prepared until October 4, 2000 because of scheduling difficulties which precluded individuals from attending a CSE review. Based on the evidence adduced at the hearing, he concluded that the October 4, 2000 CSE meeting was procedurally proper. The hearing officer rejected petitioners’ contention that an IEP should not have been prepared before an ENT exam had been performed. He further found that they had not presented any other significant procedural challenge to the conduct of the CSE meeting. The hearing officer found that the CSE had prepared an appropriate IEP for the student that was adequate to meet needs, and he ruled that no additional services were required until the CSE’s next annual review.

        Petitioners contend that the hearing officer should have recused himself; that the hearing was not completed within the required time; and that the hearing site was inconvenient. They request "interim relief" in the form of an increase in their son’s individual speech therapy to 900 minutes per week with a flexible schedule, 15 hours a week of 1:1 resource room, a 12-month IEP, an FM unit, a flexible schedule for their son’s OT, and resource room at a location other than P.S. 99. They claim the student has regressed since the beginning of the school year, and point out that they had wanted the services for the summer of 2000. They ask for reimbursement for five different independent evaluations. They also request taxi and car expenses to cover the cost of the student’s transportation from his home to the Rusk Institute where he was provided with OT.

        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]). An appropriate program begins with an IEP that 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).

        Petitioners have asserted since the start of the hearing that they were challenging the amount of special education services recommended by the CSE as inadequate to meet the needs of their child, in light of the private evaluations they had obtained in the spring of 2000. It is clear that their position did not change significantly after the October 4, 2000 CSE meeting. Therefore, it disturbs me that the final hearing on February 2, 2001 for the purpose of discussing those issues occurred without the presence of either the parents or their advocate.

        Although a parent may not prevent a hearing from being held by the simple expedient of not appearing at the hearing, or failing to make a bona fide request for an adjournment (Matter of a Child with a Handicapping Condition, 22 Ed. Dept. Rep. 412; Application of a Child with a Disability, Appeal No. 95-73), it appears that petitioners did request an adjournment of the February 2nd hearing. The hearing officer denied their request, but did not include evidence of their request in the record to permit a review of his determination. I note that among the various documents annexed to the petition, there is a letter dated January 26, 2001 from the petitioners to the chief administrator of respondent’s Impartial Hearing Office indicating that they could not attend the hearing on February 2nd because of a prior commitment, and that their lay advocate would also be unavailable on that date. Petitioners have also submitted a brief statement indicating that a family member had a severe medical problem that developed shortly before the hearing on February 2nd. It is unclear whether this information was given to the hearing officer.

        I am also concerned about the hearing officer’s statement on the record that because the parents were not present on February 2nd, "any relief sought in that case [their substantive challenge to the IEP] is hereby denied" (Transcript p. 186). Having made that determination prior to hearing any evidence in support of the IEP, the hearing officer was not in a position to render an unbiased decision about the child’s IEP. Under the circumstances, I find that the hearing officer’s determination must be annulled, and petitioners should be afforded an opportunity to challenge the adequacy of the educational services that the CSE recommended for their son. However, I must deny petitioners’ request for interim relief, because it is in essence the ultimate relief that they seek. That relief cannot be given until it has been determined in a due process proceeding that the educational program recommended by the CSE was inappropriate and that the services that petitioners seek are appropriate for the student. While I have annulled the hearing officer’s decision, I have made no determination as to the appropriateness of the student’s IEP.

        I must therefore remand the case to a new hearing officer so that a full record can be developed on the issues raised by petitioners. In doing so, I note that the parties appear to agree that the student should have the use of an FM unit, and I suggest that there is no reason to delay in providing that device to him. On remand, the new hearing officer should determine whether the services recommended by the CSE on the student’s October 4, 2000 IEP were appropriate to meet his needs during the 2000-01 school year. The issues to be addressed include the number of hours of speech/language therapy, OT and resource room services necessary for the student, whether home instruction is necessary, whether the student should have a 12-month program, and whether the student would have been appropriately placed in the resource room at P.S. 99 for instructional purposes (8 NYCRR §200.6[g]).

        With respect to petitioners’ claim for reimbursement for independent evaluations and travel expenditures, I must find that those issues are not properly before me in this appeal because they were not raised below (Application of a Child with a Disability, Appeal No. 99-60; Application of a Child with a Disability, Appeal No. 98-14). I note that respondent agreed to pay for two of the evaluations, pursuant to the Statement of Agreement from the last impartial hearing (Exhibit SD-49). Moreover, federal and state law provide that a parent is entitled to obtain an independent educational evaluation at public expense if the parent disagrees with the school district’s evaluation (34 C.F.R. 300.502[b][1]; 8 NYCRR § 200.5 [g][1]). In turn, a board of education maintains the right to initiate a hearing to determine whether the independent evaluation is appropriate. (34 C.F.R. 300.502[b][2][i]; 8 NYCRR 200.5 [g][1][iv]). Thus, if respondent does not wish to reimburse petitioners for the independent evaluations they obtained, it may challenge the propriety of the evaluations in an impartial hearing.

        Since I am remanding this case to another hearing officer, there is no need for me to decide whether the hearing officer who rendered the decision should have recused himself, or whether the hearing site was appropriate. I have examined the rest of petitioners’ claims, and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled; and

IT IS FURTHER ORDERED that within 30 days from the date of this decision, respondent shall arrange for an impartial hearing to resolve the issues identified in this decision.