01-075

        Petitioners appeal from an impartial hearing officer’s decision which upheld the recommendation by respondent’s Committee on Special Education (CSE) that their son be placed in a special education class for English during the 2000-01 school year. Petitioners had requested that their son be provided with an extra period of resource room services. The appeal must be dismissed.

        I must first address a procedural issue. Respondent asserts that the appeal is untimely because petitioners did not serve their petition upon respondent within 40 days from their receipt of the hearing officer’s decision, as required by 8 NYCRR 279.2(c). Respondent asserts that it received the decision on July 5, 2001, and that petitioners served their notice of intention to seek review on July 17, 2001, but they did not serve the petition until August 31, 2001, approximately 57 days after they received the decision. Since respondent received notice of intention to seek review in a timely manner, and has not been prejudiced by the brief delay, I will exercise my discretion and excuse petitioners’ delay (Application of a Child with a Disability, Appeal No. 01-001).

        Petitioners’ son has been classified as learning disabled since the third grade. There is no dispute about his classification. At the time of the hearing, the student was 11 years old and in the sixth grade in respondent’s middle school. He was taking regular education classes, including a mainstream English class, with one period of resource room a day, pursuant to a pendency individualized education program (IEP) (Exhibit SD-5).

        The student began to receive remedial reading services while in the first grade. Those services were continued, and he also participated in a developmental reading program in the second grade. While in third grade, the student continued in the developmental reading program four times a week, and remedial reading another three sessions per week in a small group (Transcript p. 24). Despite the extra help the student received in reading, his third grade teacher believed that he was not making significant progress and referred him to the CSE (Transcript p. 32). At a CSE meeting held in or about January 1998, the student was classified by the CSE as learning disabled, and provided with 45 minutes of resource room services five times a week for the rest of the school year. He continued in the remedial reading and developmental reading programs (Transcript pp. 34; 41).

        The student continued to receive resource room and remedial reading services in the fourth and fifth grades (Transcript pp. 34; 41). By the end of fifth grade, his resource room teacher was concerned that the student was not progressing as he should in reading and writing. In a report to the CSE, the resource room teacher indicated that the student had achieved a grade equivalent of 3.2 for total reading on the Woodcock Reading Mastery Test, and that writing was laborious and frustrating for him. She also noted that his attendance had been consistently poor during the school year (Exhibit SD-4).

        The CSE met on June 8, 2000 to develop the student’s IEP for sixth grade during the 2000-01 school year. The student’s resource room teacher for the last three years recommended that he be placed in a 12:1+1 special education class for reading, English, and social studies (Transcript p. 45). The other CSE members agreed with the recommendation, but the student’s mother objected (Transcript pp. 45-46). The CSE prepared an IEP that provided that the student would continue to participate in mainstream classes, with one period of resource room services per day (Exhibit SD-5).

        In the fall of 2000, petitioners’ son was also placed in respondent’s Integrated Reading Team (IRT) reading program, involving a group of 23 regular and special education students who were taught by a team of three teachers and two teaching assistants (Transcript pp. 122-25). He was assigned to the lowest of the program’s three reading groups that was taught by the special education teacher he would have had in the proposed special education English class.

        The CSE reconvened on September 18, 2000 to discuss the option of placing the student in the 12:1+1 special education class for English. The student’s mother continued to oppose that option because she believed there was a stigma attached to being in that class (Exhibit SD-8; Transcript p. 51). However, she reportedly agreed to observe the special education English class and reading class, and the meeting was adjourned to enable her to do so. She testified at the hearing that she had chosen not to observe the class (Transcript p. 198). On or about October 15, 2000, petitioners’ son achieved percentile scores of nine and six for reading and language (writing), respectively on the Terra Nova Multiple Asessments (Exhibit SD-6). The student’s English teacher noted on his report card in October that the student was having difficulty mastering concepts (Exhibits SD-4).

        The option of a special class placement for English was discussed again when the CSE reconvened on October 24, 2000. The student’s father was not familiar with respondent’s departmentalized special education program. It was agreed to adjourn the meeting to enable him to observe the proposed class (Exhibit SD-9; Transcript pp. 54-55). The father reportedly observed the proposed class (Transcript p. 142). In any event, the parents declined to consent to their child’s proposed placement in a special education English class, and instead requested that their son receive an additional period of resource room each day (Transcript p. 56). Notwithstanding the parents’ objection, the CSE formally recommended that the student be placed in the 12:1+1 class for English at its meeting on November 16, 2000 (Transcript p. 57; Exhibits SD-10; 14).

        In December 2000, the parents hired one of respondent's former resource room teachers as a private writing tutor for their son (Transcript pp. 157; 159; 171; 179). The student’s English teacher had noted on the second quarter report card that he had weak writing skills (Exhibit SD-12). On January 7, 2001, petitioners requested mediation of their disagreement with the CSE’s recommendation, but the parties could not resolve their disagreement (Transcript p. 58; Exhibit SD-19). On February 6, 2001, respondent requested an impartial hearing (Exhibit SD-20).

        In March 2001, the student’s English teacher reported that petitioners’ son could not work independently in her class (Exhibit SD-15). The resource room teacher reported that the student could not work independently on most skills. She also reported the results of the Stanford Diagnostic Reading Test, and the Test of Written Language (TOWL-3) administered on March 7, 2001. The student’s score for reading comprehension was in the first percentile, with a grade equivalent of 1.5. On the TOWL-3, his standard scores for contextual conventions, language, and story construction were significantly low (Exhibit SD- 16).

        The impartial hearing took place on April 19, 2001. Respondent’s witnesses were the CSE chairperson, the student’s sixth grade English teacher, his resource room teacher, and his reading teacher, who was also the teacher of the proposed special education English class. The student’s writing tutor and his mother testified for petitioners. The mother testified that petitioners wanted their son to have an additional period of resource room where he could work "one-on-one" as he did with his tutor, in lieu of the self-contained 12:1+1 English class (Transcript pp. 167; 173; 179). She explained that her son had already been ridiculed for being in special classes, and he did not want to be in another one (Transcript p. 166).

        On April 23, 2001, the hearing officer issued an interim decision ordering respondent to obtain an independent educational evaluation of the student at a university reading center, and to refrain from preparing a new IEP for the student until after the hearing officer rendered his final decision. He strongly suggested, but did not require, that the student be examined by an ophthalmologist. However, I have not considered the results of the independent evaluation because petitioners did not have a meaningful opportunity to challenge those results.

        The hearing officer rendered his opinion on June 24, 2001, at the end of the school year in question. He noted that the student’s academic problems had intensified during the 2000-01 school year, notwithstanding the fact that modifications had been made for him in his classes, such as not requiring him to take notes. Upon reviewing the testing data, the testimony by the witnesses and the report from the independent evaluator, the hearing officer concluded that the CSE had properly recommended a special education English class for the 2000-01 academic year.

        Petitioners challenge the hearing officer’s decision on both procedural and substantive grounds. They assert that they did not receive a copy of the Board of Education’s response to their post-hearing closing statement. Petitioners are listed as copy recipients on the response, and respondent denies their assertion. The parents also contend that the hearing officer denied them an opportunity to meet with him to discuss the results of the independent evaluation.

        In a letter to the parties after the hearing had been held, the hearing officer indicated that each party "will have to inform me as to whether they would like to have a meeting" to discuss the results. Petitioners’ son injured his left eye on the day before the independent evaluation was to be performed. The evaluation was postponed until May 25, 2001. Shortly after the evaluation was performed, the student’s mother telephoned the hearing officer. She asserts that she requested a meeting with him, and that he advised her that he could not speak with her about her request and that she should contact the CSE chairperson. In an affidavit, the hearing officer indicates that he was contacted by the mother at 4:30 a.m., and that he does not recall the substance of the conversation, but admits that he told her to contact the school district. He asserts that it was not his understanding that either party wished to reopen the hearing. Respondent admits that the student’s mother contacted its CSE chairperson about a meeting to discuss the evaluation results, and that the chairperson told the mother that her request was premature since the results had not yet been received.

        An impartial hearing officer must provide all parties an opportunity to present evidence and testimony (8 NYCRR 200.5[i][3][iv]). Although the hearing officer was clearly within his authority to order an independent evaluation, petitioners had the right to challenge the results of the independent evaluation. While I find that there is no evidence that the hearing officer intentionally sought to deprive petitioners of an opportunity to do so, I am constrained to find that they should have been given the chance to challenge the results of the evaluation, in view of the mother’s telephone calls to the hearing officer and the CSE chairperson. Having reviewed the record, I find that it is not necessary to remand the matter to the hearing officer. There is adequate evidence in the record to support the CSE’s recommendation for special education instruction in English for petitioners’ son.

        The Terra Nova Multiple Assessments given in October 2000 indicated that the student was in the 10th percentile in reading and language, despite that fact that the test was read to him, scribed for him, and he was given extended time (Exhibit SD-6; Transcript pp. 113-115). The Woodcock Reading Mastery Test revealed that his total reading ability was at the 3.2 grade equivalent or the 8th percentile (Exhibit SD-4). On the Stanford Diagnostic Reading Test, he received scores in the 1st percentile (Transcript pp. 95; 100). On the TOWL-3 in March 2001, he showed difficulties with grammar, spelling, punctuation, and vocabulary (SD-16; Transcript pp. 101-03). The student achieved those results despite having received supplementary special education instruction for at least three years.

        Each of respondent’s witnesses and the parents’ own tutor testified that the student would be properly placed in the special education English class. His regular education English teacher, who was also certified in and taught special education, testified that she took notes for him and spent time working with him individually, even though there were 23 other students in the class (Transcript pp. 73-75). In her opinion, he needed the individualized instruction that the special education class would offer him, because he lacked "the basics" (Transcript pp. 65; 76; 79). She opined that an additional resource room would not give him the extra help he needed in skills (Transcript pp. 72; 79). She also noted that he was failing her English class (Transcript p. 77; Exhibit SD-13).

        The resource room teacher testified that the student was one of five students in her class once a day (Transcript p. 88). In her opinion, the student should be in a small special education English class, because he could not keep up with his regular English class due to deficiencies in decoding, reading writing and grammar (Transcript pp. 89-90; 108-09). As for the parents’ suggestion that he be placed in an additional period of resource room, she explained that the resource room is meant to be a support class for students who need a little extra support in their other subjects, not a classroom for teaching English (Transcript pp. 91-92). She did not think that tutoring was enough to bring him to the level he would need for a regular education English class (Transcript p. 106).

        The student’s reading teacher, who is also certified in special education, and would have been his special education teacher for English, testified that the student was in the lowest reading group, with mostly other special education students, and scored only 58 on a test at the fifth grade level (Transcript pp. 126; 139-40). She further testified to his significant weaknesses and the extra attention she gave to him in class (Transcript pp. 127-28). She thought he would benefit from the direct, systematic instruction in a small group that he would receive in the special education English class (Transcript p. 135). Finally, the student’s writing tutor, who met with him once a week, testified that she thought he would benefit from the proposed special education class, and that she informed the mother of her opinion, but the mother still disagreed (Transcript p. 163).

        I find that respondent has met its burden of proving that CSE developed an appropriate program for the student for the 2000-01 school year when it recommended the special education English class. Both his current regular education English teacher and his proposed special education teacher are in agreement that he should be provided with a smaller, self-contained special education English class in order to meet his special needs. Resource room services are not meant for primary instruction, but are by definition supplementary services, meant to support the content of regular or special education classroom (8 NYCRR 200.1[rr], 200.6[f]; Application of a Child with a Disability, Appeal. No. 99-98). I find that this student needs primary special education instruction in English.

        The parents questioned whether the special education class would be appropriate and whether the needs of their son were substantially similar to the needs of the other students in the class, claiming the proposed class was "full of children with all different disabilities" (Transcript p. 168). While respondent did not offer a class profile into evidence, the teacher of the proposed class testified that of the eleven students, all are classified learning disabled except one student who had an attention deficit, and nobody was classified as emotionally disturbed (Transcript pp. 141-42). She further testified that the group got along well, and that the student got along fine with the students that push in to his reading class (Transcript p. 148). The resource room teacher also testified that she teaches the same group of special education students for math, and that they are a good group with no behavior problems (Transcript p. 112).

        It appears the student would have been suitably grouped academically, with students who have similar social/emotional strengths. However, I do not need to reach this issue because the school year in question has ended. I would remind respondent that in the future it must establish that the student would have been suitably grouped for instructional purposes in the proposed class, as required by 8 NYCRR 200.6(g), and must either make a class profile available or offer specific testimony to that effect.

        I have considered petitioners’ remaining claims and find them to be without merit.

THE APPEAL IS DISMISSED.