01-038

        Petitioner appeals from an impartial hearing officer’s decision which denied petitioner’s request for a specialized reading teacher to provide instruction to her daughter, who was to have received reading instruction in a 1:1 resource room during the 2000-01 school year pursuant to an agreement between the parties. The appeal must be sustained in part.

        Before reaching the substantive issues of the appeal, I must first address the procedural issue of respondent’s untimely answer to the petition. The Regulations of the Commissioner of Education require that an answer to the petition in an appeal from the decision of an impartial hearing officer be served upon the petitioner within ten days after the petition has been served (8 NYCRR §279.5). Petitioner asserts that she served a notice of intent to seek review upon respondent on May 4, 2001 and her notice with petition, petition and memorandum in support of petition upon respondent on May 14, 2001. Respondent does not dispute the dates of service, but contends that it did not receive the petition. On June 28, 2001 after being made aware of a potential problem as to the service of the petition, the Office of State Review forwarded copies of petitioner’s documents to respondent, with the instruction that the time to file its answer would be extended to July 12, 2001. However, respondent did not serve and file its answer with the Office of State Review until November 15, 2001, more than four months after the expiration of the extended date for filing. Respondent asks that I excuse its untimeliness because the delay in filing was "further exacerbated" by the World Trade Center events of September 11, 2001, and because petitioner has not been prejudiced by the delay.

        I may accept a late answer where there is a reasonable explanation for the delay and the petitioner would not be prejudiced by the acceptance of the answer (Application of a Child with a Disability, Appeal No. 00-006). I accept respondent’s explanation that it did not receive a copy of the petition until July 1, 2001, and I recognize the hardship worked upon respondent’s legal representatives by the unfortunate events of September 11, 2001. However, respondent has not offered any explanation for its delayed response to the very limited 5-page pro se petition during the 72 days between July 1, 2001 and September 11, 2001. Accordingly, I have not accepted or considered its answer in rendering my decision.

        8 NYCRR §279.3 provides 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." A decision of the State Review Officer was recently annulled by the New York State Supreme Court because the decision was based on an independent review of the record, rather than the allegations in an unanswered petition (Matter of Arlington Central School District v. State Review Officer of the New York State Education Department, 185 Misc.2d 560 [2000]). However, that decision has been appealed, and I must respectfully decline to follow it in the instant appeal because it would not allow me to fulfill my obligation to examine the entire record (34 CFR §300.510[b][2][i]) and to make an independent decision (20 USC §1415[g]). The facts in the petition will be deemed to be true unless found to be inconsistent with the evidence in the record.

        The record in this appeal is very limited. There is no information about the student’s education prior to the 2000-01 school year. Petitioner’s daughter, who is 17 years old, has been classified by respondent’s Committee on Special Education (CSE) as learning disabled because of deficits in her ability to read and write. On or about July 28, 2000, respondent received petitioner’s request for an impartial hearing. The requested hearing was held on September 15, 2000, at which time the parties reached agreement about the educational services to be provided to the student in the tenth grade during the 2000-01 school year.

        During the 2000-01 school year, petitioner’s daughter was enrolled in a tenth-grade general education program at the Bridges to Brooklyn High School (Bridges), which provides instruction for students up to the tenth grade. Bridges students then move on to Brooklyn College Academy on the campus of Brooklyn College for the eleventh and twelfth grades. At the beginning of the 2000-01 school year, the student was receiving one period per day of resource room services in a group of no more than eight. At the hearing on September 15, 2000, the parties agreed:

1. That in addition to the one period of resource room services in a class of 8:1, [petitioner’s daughter] will receive an additional session of resource room services with a tutor who will work with her one on one for five sessions per week for 45 minutes a session.

2. That [the child] will receive this additional period of resource room services in lieu of the hour she was receiving at the Sylvan Learning Center.

3. That [the child]’s Individualized Education Program (IEP) will be amended to reflect the additional period of one-to-one resource room services throughout the 2000-2001 academic year and throughout the 2001 summer if necessary.

4. That in order for [the child] to move into the eleventh grade curriculum at Brooklyn Academy, she will take an English II course as an independent study.

5. That the assistant principal of Brooklyn Academy, Alan Gross, guaranteed that [the child] could attend Brooklyn Academy for the 2001 spring semester without the required courses of Global III and IV on the condition that she passes English II as an independent study.

6. That Mr. Goss (sic) also guaranteed that [the child] will continue to receive a resource room tutor who will work with her one on one for five sessions per week for 45 minutes a session at Brooklyn Academy." (Exhibit 1)

        This agreement was further incorporated into the student’s IEP for the 2000-01 school year that was prepared on September 21, 2000. The IEP provided that the student should continue to be schooled in a general education program with supplemental aids and receive resource room services at a separate location five periods each week on an individualized basis and five periods each week on a group basis of 8:1. On the IEP, the CSE noted that: "The Reading Specialist outside of school will be terminated".

        The CSE also indicated that the student’s score on the Woodcock-Johnson Tests of Achievement (WJ-R), administered on March 25, 1999 had been at the 2nd percentile (fourth grade) for reading decoding, the 39th percentile (eighth grade) for reading comprehension, the 22nd percentile (seventh grade) for computation, and 8th percentile (fourth grade) for problem solving. On the Wechsler Intelligence Scale for Children-III (WISC-III), the student’s verbal IQ score had been in the borderline range, and her performance IQ score had been in the low average range. The IEP established annual goals and short-term objectives to address the student’s academic deficiencies. The annual reading goal provided that the student would participate in the resource room to improve her reading skills. State and local assessments would be administered by having questions and directions read aloud to the student.

        At Bridges, petitioner’s daughter received resource room services from a licensed special education teacher. However, for reasons not specified in the record, that teacher was absent from school from November 30, 2000 through January 16, 2001. During this period, the student received resource room services from eight different individuals, only one of whom was certified to provide special education services. This individual instructed petitioner’s daughter from January 4, 2001 to January 12, 2001. Additionally, the student did not receive any resource room services for three days in February 2001 when, it appears, the resource room was occupied by another class.

        In February 2001, after passing all her subjects at Bridges (Exhibit 9), the student transferred to the Brooklyn College Academy where she continued to receive two periods of resource room services per day from a certified special education teacher (Transcript p. 20). At the time of the hearing, she had earned approximately 23 credits towards her high school diploma, and had passed the RCTs in science and math (Transcript p.18, Exhibit 8). However, she had not yet taken the RCT in English (Transcript p. 24).

        At petitioner’s request, an impartial hearing convened on March 7, 2001 to address petitioner’s request for a specialized reading tutor who would use a multisensory approach with the student. Petitioner also asserted that the board of education had failed to implement her daughter’s IEP when it failed to staff the resource room with certified special education teachers during the two-month absence of the resource room teacher. Petitioner contended that her child should have a tutor who specializes in reading instruction, rather than a special education teacher for reading instruction, because her child is a diagnosed dyslexic who has a mild auditory processing deficiency. She asserted that the reading instruction her daughter had received at the Sylvan Learning Center (Sylvan) had been discontinued because Sylvan was not specialized in instructing learning disabled students, and such instruction was to be provided by the 1:1 tutor the parties had agreed to on September 15, 2000. Petitioner contended that such specialized reading instruction would enable the student to function independently and not rely on the assistance of others in taking her examinations and completing her assignments.

        In an undated decision, the hearing officer noted evidence that the student had made progress since the beginning of the school term, but noted also that "the bulk of the work" that should have been completed during the one-to-one resource room periods, pursuant to the student’s IEP, was not accomplished because of the absence of the resource room teacher and the lack of special education certification of her replacements. The hearing officer therefore ordered that the student be given classes to make up for each day that her resource room was not staffed by a special education teacher, and ordered further that the student be given one additional hour of the independent study class for each hour that that class did not meet as scheduled. However, the hearing officer denied petitioner’s request for a specialized reading tutor because petitioner had not presented any evidence that her daughter’s grades had suffered during the certified special education teacher’s absence or that a specialized reading teacher would have immediately resolved the student’s reading problems. The hearing officer also found that, at the time of the hearing, the board and petitioner had not had time sufficient to evaluate the program recommended in the IEP.

        Petitioner appeals from the hearing officer’s denial of her request for a "specialized reading teacher". I note, initially, that, although petitioner does not specifically challenge her daughter’s classification as learning disabled on this appeal, she suggests that the term learning disabled may not be sufficiently precise, and that the CSE should have given a "name" to the student’s disability. However, the term dyslexia is specifically included within the regulatory definition of the term learning disabled (8 NYCRR §200.1[zz][6]), and is not a separate classification of disability under the regulations. A CSE must use the regulatory definitions in classifying a child with a disability (Application of a Child with a Handicapping Condition, Appeal No. 92-8; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-6).

        Petitioner contends that, in light of her daughter’s severe reading deficit, the hearing officer should have ordered that a specialized reading tutor be assigned to her child, in conjunction with the two daily periods of resource room to be provided in accordance with the student’s IEP. Since the parties terminated the prior proceeding with an agreement about the special education service to be provided to petitioner’s daughter during the 2000-01 school year, the initial question is whether petitioner may challenge the appropriateness of those services in this proceeding. As noted above, the September 15, 2000 agreement provided that the student would receive daily 1:1 resource room service, in addition to the daily 8:1 resource room service that the student had been receiving. The additional resource room service was intended to replace the reading instruction the student was receiving at Sylvan. Under the circumstances, I find that petitioner is not seeking to undo the agreement, but is seeking a determination as to the nature of the service to be provided pursuant to the agreement.

        Petitioner’s daughter has a significant deficit in her reading decoding skills, while her reading comprehension is only slightly delayed. Her IEP annual goal for reading indicated that she would participate in resource room to improve her reading skills. The goal was supported by three objectives: to use structural analysis skills to identify new compound words, to increase basic vocabulary by defining five new words using a dictionary, and to apply basic skills in locating details related to the main idea. Since the goal and objectives were agreed upon by the parties, I do not review them for appropriateness. However, they are significant in ascertaining the nature of the instruction to be provided in the resource room. The first objective relates to the student’s decoding skills, while the other two objectives relate to her comprehension skills.

        The student’s resource room teacher at Bridges testified that she addressed the child’s reading needs through her coursework in other subjects. The resource room teacher explained that at the high school level reading is not taught as a separate subject. Instead, reading skills are developed in the context of the general curriculum (Transcript pp. 16, 20-21). Although the IEP objectives relating to the student’s comprehension skills could be appropriately addressed in the program described by her resource room teacher at the hearing, I am not persuaded that such program was appropriate to provide the kind of instruction necessary to improve her decoding skills. Although there is evidence that petitioner’s daughter was receiving passing grades during the 2000-01 school year, that fact is not dispositive of the question of whether the instructional program was addressing the primary manifestation of the student’s educational disability in her decoding skills. I note that there is no evidence of any improvement in her skills (Transcript pp. 20-21), and that the CSE had requested petitioner’s permission to conduct a new educational evaluation.

        In determining what would be the appropriate relief in this case, I note that the 2000-01 school year has ended, and that there is no current information about the student’s reading skills. In addition, I do not know what services the student is presently receiving. I shall therefore direct the CSE to reconvene immediately and reassess the student’s reading and writing needs and recommend a program that adequately addresses those needs. The CSE should consider the need for part-time primary special education instruction to address the deficits in the student’s decoding skills.

        I have considered petitioner’s contention that her daughter should be taught to read by a reading specialist. However, I cannot assume that a licensed or certified reading teacher would be more appropriate for this task than a licensed or certified special education teacher. The limited record that is before me does not afford a basis for me to conclude that only a multisensory instructional approach to reading would be appropriate, so I must decline petitioner’s request for an order requiring respondent to use a specific methodology to instruct her daughter.

        Finally, I note that petitioner asserts that the board of education failed to assist her in securing occupational therapy that the CSE recommended for her child. This issue was not raised at the hearing, and is therefore not properly raised in this appeal. Accordingly, there is no record upon which I could decide the issue (Application of a Child with a Disability, Appeal No. 00-019).

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 that respondent had demonstrated that it was providing an appropriate educational program to petitioner’s daughter; and

IT IS FURTHER ORDERED that, within 30 days of the date of this decision, the CSE shall reassess the student’s academic needs and develop an appropriate program to address those needs, in accordance with the provisions of this decision.