01-099

       Petitioner appeals from an impartial hearing officer's decision which held that the recommendation by respondent's Committee on Special Education (CSE) for home instruction with counseling and speech therapy was an appropriate interim alternative educational setting (IAES) for her son. Petitioner also appeals from the hearing officer's determination to appoint a guardian ad litem (GAL) and his denial of her request for mediation. Additionally, petitioner challenges the hearing officer's finding that she received appropriate notice of the hearing. The appeal must be dismissed.

        There is one preliminary procedural issue to be addressed. The Board of Education has not answered the petition. State regulation provides that the notice with petition shall advise the respondent that if an answer is not served and filed in accordance with the provisions of such regulations, the statements contained in the petition will be deemed to be true, and a decision will be rendered thereon (8 NYCRR 279.3). A decision of a State Review Officer was recently annulled by the New York State Supreme Court because the decision was based upon an independent review of the record, rather than the recitations in an unanswered petition for review (Arlington Central School Dist. v. State Review Officer, 185 Misc. 2d 560 [2000]). That decision is being appealed, and I must respectfully decline to follow it in this appeal because it would not allow me to fulfill my obligation to examine the entire record (34 C.F.R. § 300.510[b][2][i]), and to make an independent decision (20 U.S.C. § 1415[g]). The facts alleged in the petition will be deemed to be true unless found to be inconsistent with the evidence in the record.

        Petitioner's son was 18 years old at the time of the hearing in October 2001. He is classified as autistic and his classification is not in dispute. He has attended the Eden II School For Autistic Children (Eden II) since he was five years old (Transcript p. 95). Eden II is approved by the New York State Education Department (NYSED) to provide education to student's with disabilities.

        At the end of September 2000, when the student was 17 years old and attending Eden II's Forest Avenue location, school staff reported that he was making inappropriate sexual statements (Transcript pp. 160-67). They advised the director of psychological services, who also served as the student's primary psychologist. After observing the student, the psychologist notified petitioner in early October of the student’s behavior and discussed treatment options with her. On October 17, 2000, the psychologist prepared a memorandum summarizing his conversation with petitioner, indicating the action being taken to address the student's behavior and outlining possible treatment plans, including providing the opportunity to appropriately engage in an alternate form of sexual expression (Exhibit 70). He sent the memorandum to petitioner, who then contacted him to express serious concerns about his recommendations (Transcript p. 165).

        On November 16, 2000, the student was reportedly involved in an incident of a sexual nature with another student at Eden II (Exhibit 65). Following the incident, Eden II provided services to the student at its Granite Avenue location (Transcript p. 115). By letter dated November 21, 2000, the director of educational programs at Eden II asked the student's mother to attend a meeting scheduled for the following day to review potential behavioral intervention plans (Exhibit 67). Eden II requires parental consent when a behavior plan requires physical contact (Transcript p. 128). The parent responded that she could not attend the meeting due to short notice and because she had not received the documentation regarding the November 16 incident which she had previously requested (Exhibit 66). She indicated that a meeting could be scheduled once she had received the requested documentation.

        The Eden II Incident Review Committee (IRC) met on November 22, 2000 to review the November 16 incident (Exhibit 65). On the same day, the director of quality assurance at Eden II advised the student's mother of the results of the IRC investigation and stressed the need for a behavioral intervention plan for her son (Exhibit 65). On November 28, 2000, Eden II requested that respondent's CSE convene to develop a behavior plan and new individualized education program (IEP) goals for the student (Exhibit 64).

        In response to a notice advising her that a meeting had been scheduled to develop a behavior plan for her son, petitioner advised Eden II on November 29, 2000 that she could not attend any meetings until she received the information she had previously requested about the November 16 incident (Exhibit 63). The director of quality assurance advised petitioner that federal and state regulations regarding confidentiality prohibited the release of the documents she requested because they contained information about another student (Exhibit 62). Administrators at Eden II also advised petitioner that she had the right to review her son's records, and on several occasions they suggested that she contact the school to make an appointment to review the records (Exhibits 57 and 59). Ultimately, Eden II mailed a copy of the student's educational records to petitioner (Exhibit 54).

        The student returned to Eden II's Forest Avenue location after the Thanksgiving holiday (Transcript p. 118). On December 5, 2000, Eden II began implementing an interim management plan until a behavioral intervention plan was approved by the CSE (Exhibit 61). Also on December 5, the CSE notified petitioner of a meeting scheduled for December 14, 2000 (Exhibit 32). Petitioner again indicated that she would not attend the meeting because she had not received the documentation regarding the November 16 incident which she had previously requested (Exhibit 58). She advised the CSE that she did not want any evaluations or observations of her son conducted without her express, advance consent, or without her representative being present. She further indicated that she would call to schedule a meeting upon her receipt of the requested records. The CSE, with the agreement of Eden II, honored petitioner's request for an adjournment (Transcript p. 85).

        After completion of a functional assessment of the student, in early January 2001 the director of educational programs at Eden II requested a CSE meeting to review the assessment (Exhibit 56). She indicated that Eden II was unable to implement a behavior plan without parental input, and noted that the interim management plan that was currently in place was insufficient. She indicated that if a meeting could not be scheduled, it would be necessary to consider an alternative placement for the student.

        On February 6, 2001, the CSE advised petitioner that it had scheduled an annual review for March 26, 2001 (Exhibit 30). Petitioner requested that the meeting be rescheduled after April 8, 2001 because she had recently filed a complaint with NYSED (see 8 NYCRR 200.5[k]) regarding her request for documentation and expected to receive a determination of her complaint by that date. The CSE agreed to petitioner's request for a postponement. On April 26, 2001, NYSED advised petitioner's attorney of its determination that Eden II's policy with respect to disclosure of records was consistent with the regulations promulgated pursuant to the Individuals with Disabilities Education Act (IDEA) (Exhibit 52).

        On May 2, 2001, the CSE notified petitioner that its annual review had been rescheduled for May 17, 2001 (Exhibit 29). On May 9, 2001, petitioner's attorney had apparently attempted to administratively appeal from NYSED's determination of petitioner's complaint about Eden II's records policy. On the next day, the attorney requested that the CSE's annual review be adjourned until the Commissioner of Education determined the appeal (Exhibit 29).

        On May 22, 2001, the CSE rescheduled its annual review for June 12, 2001 (Exhibit 28). Petitioner's attorney requested that the meeting be adjourned until 14 days after the receipt of the Commissioner's decision. I note that there is no review by the Commissioner pursuant to 8 NYCRR 200.5[k], and that petitioner's attorney was so advised on June 13, 2001 (Exhibit 50). The CSE responded that the student's last IEP was dated March 3, 2000, and that the student needed to have an updated IEP in order to attend Eden II for the coming school year. On June 12, 2001, the CSE met and developed an IEP for the student (Exhibit 35). Petitioner did not attend the meeting.

        On June 18, 2001, petitioner's son reportedly attempted to force himself on an Eden II staff person and had to be physically separated from her (Exhibit 42). As a result of the incident, the student was suspended from Eden II for nine days (Exhibit 47). In a letter dated June 19, 2001, Eden II's director of educational programs advised petitioner of her son's suspension, and urged her to participate in the development of a behavioral intervention plan (Exhibit 47). On June 22, 2001, Eden II's director of educational programs advised the CSE that Eden II could no longer serve the student and requested an interim alternative placement (Exhibit 26). Following the student's suspension, he received services at Eden II's Granite Avenue location.

        The CSE met again on July 25, 2001 to develop a behavioral intervention plan (Transcript p. 90). Petitioner did not attend the meeting. In response to the final notice of recommendation prepared as a result of the meeting, petitioner's attorney alleged various procedural violations and requested mediation (Exhibit 24). The mediation was scheduled for August 15, 2001, but on August 9, petitioner's attorney advised the mediator that his client was unable to attend and that she would be unavailable from August 16-27 (Exhibit 23). He requested that mediation be scheduled during the week following Labor Day.

        By letter dated August 10, 2001, the executive director of Eden II advised the CSE that Eden II could not provide an appropriate program for the student without the services recommended at the July 25 CSE meeting, or a behavior plan to which petitioner would consent (Exhibit 22). She requested that the CSE find an immediate interim alternative placement, and indicated that if an alternative placement for the student was not found, Eden II would pursue legal action to prevent the student's access to its program. The student did not return to Eden II in September 2001. Petitioner arranged for alternate assessments and other programs pending resolution of her son's educational issues (IHO Exhibit P).

        By letter dated September 10, 2001, respondent Board of Education's attorney advised Eden II's attorney that the Board of Education considered Eden II's expulsion of the student to be improper under the contract between respondent and Eden II, and asked that he be reinstated (Exhibit 20). On September 17, 2001 petitioner filed a formal complaint with NYSED against Eden II for allegedly violating her son's rights (IHO Exhibit L). The following day, petitioner's attorney advised NYSED that his client would not agree to an alternative placement for her son while NYSED's investigation was pending (IHO Exhibit J). He asserted that the student was entitled to status quo placement and immediate reinstatement at Eden II.

        On September 25, 2001, NYSED advised petitioner's attorney that its investigation into the complaint was continuing and that it would issue a letter of findings no later than October 17, 2001 (IHO Exhibit H). Additionally, NYSED indicated that it had directed the Board of Education to immediately appoint an impartial hearing officer to conduct an expedited hearing to determine whether an IAES was necessary and appropriate (see 20 USC § 1415[k][2]). Further, NYSED requested the parent's cooperation in participating in the expedited due process hearing.

        The CSE requested an expedited due process hearing on September 25, 2001 (IHO Exhibit C). The following day, the CSE met to develop an interim service plan (ISP) recommending that the student receive home instruction until he could be placed in a school based program serving autistic students (Exhibits 15-17). The CSE chairperson advised petitioner's attorney that she had requested an expedited hearing and that the CSE had developed an interim service plan for the student pending the expedited due process hearing (Exhibit 14).

        By letter dated September 28, 2001, the executive director of Eden II notified petitioner that a student discipline hearing pursuant to N. Y. Educ. Law § 3214 had been scheduled for October 2, 2001, relating to the student's suspension as a result of the June 18 incident (Exhibit 13). Petitioner was also given notice of a CSE meeting scheduled for October 5, 2001 (Exhibit 8). Neither the parent nor her attorney attended the suspension hearing. Eden II advised the parent's attorney by letter dated October 3, 2001 that at the hearing held the previous day, the student's suspension was found to be appropriate and warranted (Exhibit 10).

        Petitioner and her attorney were invited to attend a manifestation determination review by the CSE (see 20 USC § 1415[k][4]) scheduled for October 5, 2001. On that date, the CSE determined that the student's misconduct was a manifestation of his disability (Exhibit 9). The CSE also issued a final notice of recommendation informing petitioner that it had recommended a nonpublic school program at Eden II for her son, with group speech therapy, individual counseling and a 1:1 crisis paraprofessional (Exhibit 7).

        On October 2, 2001, petitioner was notified that the expedited due process hearing had been scheduled for October 16, 2001 (IHO Exhibit E). That notice erroneously indicated that petitioner had requested the hearing. When advised by petitioner's attorney of the error, the Impartial Hearing Office issued a new notice on October 10, 2001 indicating that the CSE had requested the hearing and advising petitioner of the October 16 hearing date (IHO Exhibit C). On October 10, 2001 petitioner's attorney requested that the impartial hearing be postponed pending a determination of his appeal to the Chancellor of the New York City Board of Education (Chancellor) regarding the superintendent's suspension hearing and the student's expulsion which he requested on October 8, 2001 (IHO Exhibits A and D).

        The impartial hearing began on October 16, 2001. Neither the parent nor her attorney appeared at the hearing. However, the hearing officer admitted into the record certain documents that the parent's attorney had submitted to the Office of Hearings in response to the notice of hearing. Additionally, the hearing officer indicated that he had received correspondence from petitioner's attorney contending that the Board of Education lacked the authority to request the hearing, and requesting that the matter be dismissed. Petitioner's attorney also asked that the hearing be adjourned, pending a determination of petitioner's appeal to the Chancellor, and requested an opportunity for mediation.

        The hearing officer denied petitioner's request to dismiss the proceeding. He granted petitioner's request for an adjournment to provide her an opportunity to appear at a hearing the following week. He indicated that he granted the adjournment because the record reflected that the parent was not fully apprised of the nature of the proceeding and the burden of proof in such proceeding. Additionally, the hearing officer found that mediation was not an appropriate avenue to resolve the matter. Finally, he determined that the parent's interests were inconsistent with her son's interests based upon her apparent efforts to delay and avoid participating in the proceeding, and he appointed a GAL to represent the student's interests.

        The hearing officer scheduled the hearing to continue on October 24, 2001 and indicated that the parent and her attorney could appear by telephone conference upon request to the Impartial Hearing Office. He ordered that his decision and order serve as an amended notice of the hearing and directed the Impartial Hearing Office to fax his decision and order to the parent's attorney and to mail it by overnight and regular mail to the parent and her attorney immediately. By letter dated October 23, 2001, the parent's attorney advised the hearing officer that he did not receive timely notice of the rescheduled hearing and that he was unavailable to attend (IHO Exhibit P). He suggested that the hearing should not proceed, noting the lack of urgency as services had been terminated by Eden II. He also raised an objection to the appointment of a GAL.

        The hearing proceeded as scheduled on October 24, 2001. Again, neither the parent nor her attorney appeared. The student's GAL advised the hearing officer that the student was in urgent need of an IAES, but that Eden II did not have the necessary staffing to address the student's sexually oriented behavior (Exhibit R). The hearing officer rendered his decision on November 16, 2001. He dismissed the parent's objections to the proceeding, finding that proper notice was provided. He further found that respondent had failed to meet its burden of demonstrating that the student's placement at Eden II pursuant to the October 5, 2001 IEP was an appropriate IAES or permanent placement for the student. The hearing officer also found that the student was inappropriately placed at Eden II after the November 2000 incident because of the failure to provide necessary interventions to address his inappropriate behavior, and that the program remained inappropriate because there was no assurance that Eden II would implement the October 5, 2001 IEP. Accordingly, he found that respondent could not demonstrate that it had made reasonable efforts to minimize the risk of harm in the student's current placement as required by 34 C.F.R. § 300.521(d).

        Additionally, the hearing officer determined that Eden II was the student's pendency placement, and that his removal from that school without a due process was a violation of the IDEA. He also found that the failure of the Board of Education and Eden II to implement a behavioral intervention plan after the student's suspension from Eden II violated the IDEA. He further found that the policies of Eden II and the Board of Education requiring parental consent for the additional assessments and services in such circumstance were inconsistent with the IDEA.

        The hearing officer did agree with respondent that placement of the student in a school setting without a behavioral intervention plan to address his inappropriate sexual behavior would likely result in injury to the student or others. He found that home instruction with counseling and speech therapy was appropriate as an IAES, until the CSE could recommend a new program that included a behavioral intervention plan that met the student's present needs in an appropriate school environment. The hearing officer denied respondent's request for an order placing the student in an IAES at Eden II. He ordered the CSE to reconvene to make new recommendations for the student that would include a functional behavioral assessment and a behavioral intervention plan to address the student's social/emotional needs. He further ordered that the student should receive home instruction as provided on the September 26, 2001 ISP until an appropriate less restrictive school placement was made.

        Petitioner makes various allegations about the conduct of employees of the Board of Education, Eden II, and NYSED. I must note that I do not have jurisdiction to review the action of any officer or employee of NYSED (8 NYCRR 279.1[c][2]). Although petitioner has named Eden II as a respondent in this appeal, I find that I do not have jurisdiction over Eden II or its employees. It is an approved private school that has contracted with the Board of Education to provide an instructional program to petitioner's son. Respondent Board of Education remains responsible for ensuring that petitioner's son receives a free appropriate public education (FAPE) in accordance with the IDEA and Article 89 of the New York State Education Law.

        An approved private school must adhere to certain policies and procedures when it disciplines a student with a disability (8 NYCRR 200.7[b][3]). Such discipline must be imposed in a manner that is consistent with the provisions of Part 201 of the Regulations of the Commissioner of Education. Part 201 reflects the provisions of 20 U.S.C. § 1415(k) and N.Y. Educ. Law § 3214(3)(g), and provides for a multi-step process including determining whether the student committed an alleged act, whether committing the act was a manifestation of the student's disability, and whether an IAES is required. Manifestation determinations are made by the CSE, and may be reviewed by an impartial hearing officer and the State Review Officer under the IDEA and N.Y. Educ. Law § 4404. Such review is also possible with regard to the appropriateness of an IAES. However, the initial determination of guilt is made by the chief school officer under N.Y. Educ. Law § 3214, and is not reviewed by either an impartial hearing officer or the State Review Officer under the IDEA and N.Y. Educ. Law § 4404. I note that petitioner seeks an order expunging her son's suspension from his school record. Such relief should be sought in a proceeding conducted under the Family Educational Rights and Privacy Act, rather than the IDEA (34 C.F.R. § 300.567-570).

        Additionally, I do not consider issues that were not raised at the impartial hearing (Application of a Child with a Disability, Appeal No. 99-60; Application of a Child with a Disability, Appeal No. 98-14). The hearing officer was very clear about the nature of the proceeding and the issues to be addressed. As petitioner did not appear, the record was limited to the documents she submitted and the testimony and evidence introduced by respondent to demonstrate the appropriateness of an IAES for her son. The hearing officer provided petitioner ample opportunity to participate in the hearing. However, rather than appearing at the hearing, she is attempting to use this appeal to present issues which should have been presented at the hearing. Accordingly, I find that petitioner's request for compensatory education for her son cannot be considered because it was not raised at the hearing.

        Petitioner asserts that she did not receive proper notice of the continuation of the hearing to October 24, 2001. She claims that she did not receive notice of the rescheduled hearing date until October 22, 2001. She argues that the Impartial Hearing Office failed to produce proof that it complied with the hearing officer's order, and that it did not comply with the requirements of fair notice. The record shows that respondent requested an expedited hearing to obtain an order placing the student in an IAES. Because neither petitioner nor her attorney appeared at the October 16, 2001 hearing, the hearing officer adjourned the hearing for one week to notify petitioner of the nature of the proceeding and the burden of proof in such proceeding. He ordered that his decision and order serve as an amended notice of the hearing and directed the Impartial Hearing Office to fax his decision and order to the parent's attorney and to mail it by overnight and regular mail to the parent and her attorney immediately.

        Due process does not require that petitioner be present at the hearing, rather that she have received notice reasonably calculated under all of the circumstances to apprise her that the hearing would be held and have an opportunity to present her objections (Mullane v. Central Hanover Trust Co., 339 U.S. 306 [1950]; Marcus v. Ambach, 136 A.D.2d 778 [3rd Dept. 1988]). The record shows that petitioner was advised that a hearing would be held on October 16, 2001 as early as October 3, 2001. She chose not to attend, but her attorney submitted documentation and made several requests and objections that were considered by the hearing officer. The hearing officer adjourned the proceeding for one week, providing petitioner an additional opportunity to present objections, which she did and which were acted upon by the hearing officer. Given the nature of the proceeding and the expedited time frame attendant thereto, I find that petitioner had sufficient notice of the hearing and an opportunity to present her objections.

        Petitioner objects to the appointment of a GAL to protect the interests of her son. State regulation provides that an impartial hearing officer may appoint a GAL in the event he determines that the interests of the parent are opposed to or inconsistent with those of the student, or if he determines that for any other reason the interests of the student would be best protected by the appointment of a GAL (8 NYCRR 200.5[i][3][vii]). The record supports the hearing officer's finding that petitioner's efforts to avoid participating in the process to develop appropriate services for her son and to delay the proceedings were inconsistent with her son's interests. Therefore, I find that the hearing officer did not abuse his discretion in determining that the student's interests should be protected by the appointment of a GAL.

        Petitioner also asserts that she was denied the right to mediation. Pursuant to federal and state regulation, respondent must have and implement procedures for mediation. The mediation process must be voluntary on the part of the parties (34 C.F.R. § 300.506[b][i]; 8 NYCRR 200.5[h][1][i]). At the October 16 hearing, the hearing officer indicated that he would consider petitioner's requests, including her request for mediation, and provide the Board of Education an opportunity to respond to her requests. In his findings of fact and decision issued after the hearing, he noted that the Board of Education objected to all of the parent's requests. I note that the Board of Education had previously agreed to mediation, but petitioner was unable to attend on the scheduled date and requested that the mediation be rescheduled for a date more than two weeks later. The hearing in this instance was part of an expedited due process proceeding. Under the circumstances, I find that the hearing officer was correct in proceeding as expeditiously as possible.

        In addition to the specific claims addressed above, petitioner asks that I reverse the hearing officer's decision. The Regulations of the Commissioner of Education governing appeals to the State Review Officer provide that the petition for review identify what parts of the hearing officer's decision the petitioner challenges (8 NYCRR 279.4). The hearing officer made numerous findings, and I am unable to determine from petitioner's request for reversal which additional part or parts of the hearing officer's decision, other than the specific claims addressed above, she challenges. Consequently, my decision is limited to the issues addressed above. I urge the parties to work together in identifying and implementing an appropriate educational program for the student.

THE APPEAL IS DISMISSED.