02-050

        Petitioners appeal from an impartial hearing officer's decision finding that respondent had offered their son an appropriate educational placement for the 2001-02 school year, and denying their request for a residential placement for their son during that school year. They allege that the hearing officer was biased, and that his decision was not supported by the facts and was untimely. The appeal must be dismissed.

        Petitioners' son was 13 years old at the time of the impartial hearing. He was classified as multiply disabled, having been diagnosed with athetoid cerebral palsy and microcephaly (Transcript p. 178). He cognitive abilities are below average, as measured by a test of nonverbal intelligence. The student is nonverbal, but can make many of his needs known by grunting and pointing, and he uses an augmentative communication device (Exhibit 4; Transcript p. 27). He uses a wheelchair and a walker, and can transfer between them with minimal assistance. He has significant delays in his activities of daily living skills. Petitioners do not dispute the appropriateness of their son's classification.

        For the past few years, the student has attended the Carmen Road School (Carmen Road) operated by the Nassau County Board of Cooperative Educational Services (BOCES), where he was in an ungraded 9:1+2 special education class at the time of the hearing. When he first started at the school, the student's sole means of communication was to grunt and point. In 1997, the student was fitted with an augmentive communication device known as a Dynavox (Transcript p. 43). Dynavox is a special computer designed to meet the needs of nonverbal individuals, who touch icons on the device's screen to produce spoken words that enable learners to express their needs and desires.

        On June 6, 2001, respondent's Committee on Special Education (CSE) met at petitioners' request because they were seeking a residential placement for their son. According to the minutes of that meeting, school personnel reported to the CSE that petitioners' son had made a great deal of progress, demonstrating improved cognitive skills and an ability to maintain his skills. He was described as a social child who was usually eager to participate in all activities, but who could be stubborn from time to time. Despite limited communication skills, the student could communicate about events at home and at school. School staff advised the CSE that petitioners' son could recognize numbers, letters and simple words, and do simple addition. The student was described as having significant delays in activities of daily living, and he was in the process of developing transition skills such as food shopping, telling time and recognizing coins. The student's physical therapist reported that he had demonstrated progress towards achieving all of his annual goals. His occupational therapist reported that the student was making progress in the use of a flexion glove to isolate finger movement so that he could more effectively use the Dynavox. The student's speech/language therapist indicated that the student was eager to participate, but had a limited verbal output. She reported the student could answer "wh" questions with one-word answers and appeared to understand the plurality of verbs. The student had demonstrated his word recognition by pointing to the appropriate icon on a computer.

        The CSE recommended that petitioners' son attend the 9:1+2 BOCES class on a 12-month basis during the 2001-02 school year, and that he receive 30 minutes of pull-out individual speech/language therapy twice per week, 30 minutes of push-in individual speech/language therapy per week, 30 minutes of individual physical therapy twice per week, and 30 minutes of individual occupational therapy twice per week. The CSE noted on the student's individualized education program (IEP) that he required applied behavioral analysis (ABA) instruction throughout the day to learn new skills and concepts (Exhibit 4).

        In a letter dated October 4, 2001, the parents requested an impartial hearing to review the CSE's recommendation and to address the need for a residential placement (Hearing Officer's Exhibit 5). The hearing commenced on November 20, and continued on November 27 and December 21, 2001. In a decision dated April 12, 2002, the impartial hearing officer found that respondent had demonstrated that the student's IEP for the 2001-02 school year was appropriate and had provided the student with meaningful access to education. He noted that although the student had made satisfactory progress in school using the Dynavox, he did not use the device at home because it was thought to be too cumbersome. The hearing officer also noted that the student's mother had acknowledged in her testimony that the staff at the Carmen Road school were doing a good job with her son, but she wanted a residential placement to maximize his educational opportunities (Transcript p. 266). Having determined that respondent had offered to provide an appropriate educational program to the student, the hearing officer denied petitioners' request for a residential placement for their son.

        Petitioners challenge the hearing officer's decision on procedural and substantive grounds. I will consider the former first. Petitioners allege that the impartial hearing officer and respondent's counsel engaged in inappropriate ex parte communication and that such conduct is evidence of bias on the part of the hearing officer. They believe that said ex parte communication created the appearance of impropriety and resulted in denial of their right to a decision within the 45-day period contemplated by regulation (8 NYCRR 200.5[i][4]).

        Administrative officers who exercise judicial or quasi-judicial powers must avoid even the appearance of impropriety (Grant v. Senkowski, 146 AD 2d 948 [3d Dept. 1989]; DeCamp v. Good Samaritan Hospital, 66 AD 2d 766 [2d Dept. 1978]). A hearing officer should refrain from communicating with any party or party's representative about any issue of law or fact, except upon notice and opportunity for all parties to participate (Application of a Child With a Disability, Appeal No. 96-89). On or about January 31, 2002, respondent's counsel telephoned the hearing officer to request an extension of time for the submission of his post-hearing memorandum of law. In an affirmation annexed to respondent's answer, respondent's counsel asserts that he had previously spoken to petitioners' counsel about an extension, but the latter had not agreed to his request. The hearing officer extended respondent's time to file a memorandum of law until February 20, 2002. Although it is clear that an ex parte communication took place between the impartial hearing officer and respondent's counsel, it did not concern issues of law or fact. The hearing officer, however, should have been mindful of even the appearance of impropriety and should have advised the respondent to put his request for an extension of time in writing on notice to the other side. Nonetheless, I find that the conversation in question does not afford a basis for invalidating the hearing officer's decision (Application of the Board of Education of the Red Hook C.S.D., Appeal No. 00-053)

        As to the petitioners' claims that the hearing was not conducted within the time limits set forth under federal and state law and that the delay was without the consent or approval of petitioners, I find that the record shows that there were numerous extensions of time agreed to by both parties, as detailed by the hearing officer on a page annexed to his decision. Additionally, the parties themselves agreed to a six-week extension of time to submit post-hearing briefs. Each of these extensions constitutes a waiver of the right to receive a decision within 45 days of a request for a hearing. It is clear from the record that the only extension of time not agreed to by petitioners is the additional time granted to respondent's attorney to file his brief and the six weeks it took for the impartial hearing officer to render his written decision. The impartial hearing officer has the authority to grant requests for extensions of time by either party (8 NYCRR § 200.5[i][4][i]). Additionally, I find that the hearing officer's delay in rendering decision does not afford a basis for invalidating the hearing officer’s decision (Application of A Child With A Disability, Appeal No. 94-12).

        I will now address petitioners' substantive objections to the hearing officer's decision. They contend that the IEP that respondent's CSE prepared for their son for the 2001-02 school year failed to provide him with a free appropriate public education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA) and its state counterpart, Article 89 of the New York State Education Law. Petitioners assert that their son's IEP does not address each of his needs, and that it failed to provide him with a program that produced more than minimal educational progress.

        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 (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which 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).

        Having reviewed the student's IEP for the 2001-02 school year (Exhibit 4), I find that it adequately describes his present levels of performance and needs with respect to academic achievement, social development, physical development and management needs, as required by 8 NYCRR 200.4(d)(2)(i). The IEP includes annual goals for improving the student's vocabulary, sequencing, and basic math skills, as well as adult daily living and community readiness skills. His speech/language goals include the use of the augmentative communication device to make his needs and wants known. The IEP also includes goals for the student's related services. Petitioners do not appear to challenge their son's IEP goals. They do dispute the adequacy of the services recommended by the CSE to afford their son a reasonable opportunity of achieving his IEP goals. The record reveals that the student's ability to comprehend stories is expanding, his ability to recognize numbers has expanded, and he is learning to add and to count. The student is beginning to recognize coins and to tell time to the half-hour. He is learning to communicate and relate to other people and is showing some progress in ambulation.

        A central part of the student's program is his use of the Dynavox augmentive communication device to communicate complex thoughts and concepts (Transcript p. 88). The Dynavox gives him the opportunity to move towards independence and to relate to adults and peers. It allows him to ask and answer questions and communicate feelings, and has even afforded him the ability to make jokes and to tease staff (Transcript p. 207). The Dynavox is programmed to each learner's specific wants and needs, and allows the student to explore a topic in depth at his level of ability. All members of the staff at Carmen Road were trained in the use of the Dynavox, and assistance and training have offered to the parents in the use of this technology. Petitioners have reportedly not participated in the training opportunities.

        Each of the witnesses, called by respondent testified that petitioners' son has made progress while attending the school and has made significant progress since beginning to use the Dynavox. The student's mother testified that her son did not use the Dynavox at home because she found it "too contrived" and that her son could make his needs known at home through grunts and gestures (Transcript pp. 87, 283). The principal of the Carmen Road school testified that the parents' failure to use the Dynavox at home hinders the student's ability to generalize the skills he has learned at school and impedes his progress (Transcript pp. 91-92).

        The record also shows that at school, the student is also making progress in his ability to move around on his own and in particular to transfer from his wheelchair to his walker. The progress he has made at school has not been replicated at home because the student does not use either a wheelchair or a walker at home, but instead crawls around the house. Although the child’s mother testified that the wheelchair is too heavy to be used at home, there was no indication in the record that the petitioners have attempted to seek assistance in adapting their home (Transcript p. 91).

        Petitioners seek a residential placement for their son. However, respondent is required to place petitioners' son in the least restrictive setting pursuant to the provisions of 34 C.F.R. § 300.550(b) and 8 NYCRR 200.6(a)(1). Under federal and state law, a residential placement is appropriate only if it is required for the child to benefit from his or her educational program (Kerkam v. Superintendent D.C. Public Schools, 931 F.2d 84 [D.C. Cir. 1991]; Burke County Bd. of Educ. v. Denton, 895 F.2d 973 [4th Cir. 1990]; Abrahamson v. Hershman, 701 F.2d 223 [1st Cir. 1980]). The record before me indicates that petitioners' son made educational progress in the day placement recommended by the CSE. While I can understand the parents' desire to have the child reach his maximum potential, it is clear that the law only requires that "a school district must provide a disabled child with meaningful access to education, it does not mean that the school district is required to guarantee totally successful results." (Walczak v.. Florida U.F.S.D., 142 F.3d 119,133[2d Cir. 1998]). The record before me is clear. The Carmen Road school has provided the student with a meaningful access to education and has provided it in the least restrictive setting.

THE APPEAL IS DISMISSED.