Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Arlington Central School District
Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel
Raymond G. Kuntz, P.C., attorney for respondent, Jeffrey J. Schiro, Esq., of counsel
Petitioners appeal from the determination of an impartial hearing officer denying their request for an award of tuition reimbursement. The hearing officer found that the individualized education program (IEP) developed for their son by the Committee on Special Education (CSE) of the Arlington Central School District (district) for the 2001-02 school year appropriately addressed his educational needs. Petitioners assert that their son's disability was not properly identified, that the IEP was not appropriate, that the private school in which they placed their son was appropriate, and that the private school was their child's pendency placement. The appeal must be dismissed.
Petitioners submitted a neuropsychological evaluation with their petition that was not submitted into evidence at the impartial hearing (Exhibit A to the Petition). 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 of the hearing or when such evidence is necessary to enable the State Review Officer to render a decision (Application of a Child with a Disability, Appeal No. 98-55; Application of a Handicapped Child, 23 Ed Dept Rep 390). Although there is no evidence that the evaluation was unavailable at the time of the hearing, respondent did not object to its submission and I will exercise my discretion and accept the document (Application of the Bd. of Educ., Appeal No. 02-024; Application of a Child with a Disability, Appeal No. 91-25).
At the time of the hearing, the student was 19 years old. He had been identified by the district's CSE as a student with a learning disability. During the school year at issue, he attended the Old Forge Center of Lynn University (Old Forge), a private school which has not been approved by the Commissioner of Education to contract with boards of education for the education of students with disabilities.
Petitioners previously challenged the appropriateness of the IEPs developed for their son for the 1999-2000 and 2000-01 school years. The student's IEP for the 1999-2000 school year was found to be inappropriate because it was completed after the school year had commenced, and petitioners were awarded tuition reimbursement for that school year (Application of a Child with a Disability, Appeal No. 00-084). However, respondent demonstrated that the student's IEP for the 2000-01 school year was appropriate, and petitioners' request for tuition reimbursement was denied (Application of a Child with a Disability, Appeal No. 01-062). That decision is presently under review in the U.S. District Court for the Southern District of New York.
Petitioners' child was born with an occipital encephalocele which was removed shortly after birth. Subsequent to surgery, he developed hydrocephalus, for which a shunt was inserted to relieve pressure on his brain (Exhibit 37). After shunt placement, he developed a low-grade venticulitis, which was treated with an antibiotic. He has received special education services throughout his educational career (Exhibit A). The student's educational history is described in the two decisions previously cited.
In a December 1999 neurological evaluation, petitioners' son related that he experienced a loss of self-esteem while attending school in the district because he felt that he had been improperly placed with lower functioning students. The student also reported sleep dysfunction, feelings of intense depression, suicidal ideation, and occasional auditory hallucinations. The neurologist opined that the student might be suffering from a significant mood disorder and possibly a thought disorder, and reported that the student's full academic potential could not be assessed because of his psychiatric concerns. He recommended psychiatric evaluation and care for the student (Exhibit 38).
Neuropsychological evaluations were conducted in December 1999 and April 2001 (Exhibits 37, 22). Administration of the Wechsler Intelligence Scale for Children – III (WISC-III) administered in December 1999 yielded a verbal IQ score of 89, a performance IQ score of 66, and a full scale IQ score of 78 (Exhibit 37).
On a Wechsler Individual Achievement Test (WIAT) administered in April 2001, the student achieved a total reading standard (and percentile) score of 90 (25). He achieved a total math score of 69 (2), and a total writing score of 84 (14). On the Vineland Adaptive Behavior Scales, the student obtained a standard score of 40 (<0.1) for communication, and a score of 67 (2) for daily living skills. For socialization, the student achieved a standard score of 73 (4). His composite standard score was 55, which was in the 0.1 percentile (Exhibit 22).
The student displayed deficits in perceptual motor functions, perceptual organization functions, motor planning, processing speed, math calculation, writing, cognitive abilities and recall of information. One evaluator recommended continuation of psychotherapy, as well as psychiatric and neurological assessments. He also recommended placement in a specialized school with small classes, where an emphasis would be placed on learning strategies, organizational skills, study skills, social skills, and behavior management (Exhibit 37). Another evaluator described the student as presenting as a child with a brain injury, and indicated that the injury may have been congenital. She opined that it would not be appropriate to place the student with emotionally disturbed or cognitively retarded students (Exhibit 22).
The student was seen by a second neurologist in January 2001. This neurologist described him as having an obvious thought disorder and tangential thinking. The student reported paranoid delusions, for which a trial of Risperidal was prescribed (Exhibit 29). In June 2001, the neurologist offered a clinical diagnosis of mood disorder and paranoid delusions, and suggested a trial of Wellbutrin to address impulsivity, inattentivity, distractibility and mild depression (Exhibit K). When he examined the student again in July 2001, the neurologist described the student as expressing tangential thoughts and confabulations. He suggested that because of the student's history of ventriculitis, which can cause brain injury, the student's distractibility, difficulty performing sequential activities and reduction in general intelligence may have an acquired cause. The neurologist revised the student's clinical diagnosis to frontal lobe syndrome, probably acquired secondary to ventriculitis, and maintained his diagnosis of paranoid delusions (Exhibit L). In an August 2001 evaluation after the student's IEP had been prepared, the neurologist reported that the student's mental status appeared to have improved, and that he did not seem to have as many tangential thoughts. The neurologist maintained his previous diagnosis of frontal lobe syndrome and discontinued the diagnosis of paranoid delusions (Exhibit M).
The CSE did have the results of an educational evaluation conducted in August 2001. On the Woodcock-Johnson Psychoeducational Battery – Revised (WJ-R), the student achieved a standard (and percentile) score of 98 (46) for basic reading skills, a standard score of 88 (21) for reading comprehension, a standard score of 92 (29) in broad reading, a standard score of 80 (10) for math skills, a standard score of 89 (23) for math reasoning, and a standard score of 80 (9) in broad math (Exhibit 8). On the written expression subtest of the WIAT, the student achieved a standard score of 80 (9) (Exhibit 7). The student had previously passed Regents Competency Tests for reading and writing, but had failed the Regents Competency Test for mathematics (Exhibit 24).
A physical therapy evaluation in June 2000 indicated that the student did not need physical therapy (Exhibit 34). An occupational therapist that evaluated the student in June 2000 recommended that he receive consultant occupational therapy on an as needed basis to address specific motor planning tasks (Exhibit 33). An assistive technology evaluation performed in April 2001 identified the student's note taking and writing skills and general organization deficits as areas of concern (Exhibit 19).
The CSE met on May 21, 2001 for the student's annual review and to discuss transition planning (Exhibit E). The CSE reconvened on August 10, 2001, at which time it recommended that the student continue to be classified as learning disabled. The committee recommended a program that included special education classes for English, social studies and math every day, and a special education class focusing on life skills that was to meet two periods daily. Community based vocational training was to be provided for two periods per day in an integrated setting. The special classes and the vocational training were to have no more than 12 students with one teacher and one paraprofessional. The student's recommended program further included a community-based work-study component, with job coaching and an occupational therapy consultation. The CSE also recommended that the student receive 40 minutes of group counseling twice per month to strengthen his social skills (Exhibit 6).
On September 5, 2001, the parents informed the district that they were rejecting the IEP and seeking reimbursement of tuition for their son's placement at Old Forge (Exhibit 5). The hearing began on January 16, 2002. It continued for six sessions, concluding on July 10, 2002. At the hearing, petitioners argued that the district did not understand their child's multiple disabilities, and as a result had continually recommended inappropriate programs. Prior to addressing the issue of tuition reimbursement, petitioners requested that the hearing officer determine that Old Forge was their child's pendency placement.
In an interim decision dated February 8, 2002, the hearing officer concluded that Old Forge was a change in placement from the private school the student had attended previously and therefore was not the student's pendency placement. Petitioners' appeal from that decision was dismissed (Application of a Child with a Disability, Appeal No. 02-031). On September 8, 2002, the hearing officer issued his decision regarding petitioners' request for tuition reimbursement for the 2001-02 school year. He determined that the district had prepared a substantively appropriate IEP for the student in accordance with the applicable procedural requirements, and he denied petitioners' request for tuition reimbursement.
Petitioners seek reimbursement for the education cost of their son's placement at Old Forge. Petitioners also request a determination that Old Forge is the student's pendency placement. As noted above, that issue was resolved in Application of a Child with a Disability, Appeal No. 02-031, and will not be considered in this appeal (34 C.F.R. § 300.510[d]).
A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 ). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist Four v. Carter, 510 U.S. 7 ). A board of education has the burden of demonstrating the appropriateness of the educational program that it offered to provide to a student (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 ).
To meet its burden of showing that it had offered to a provide a free appropriate public education (FAPE) to a student, the board of education must show that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and that the IEP developed by the CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v Rowley, 458 U.S. 176, 206,207 ). The student's recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
Petitioners assert that their son was improperly classified as learning disabled, resulting in a failure to properly address all of his needs. A board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child Suspected of Having a Disability, Appeal No. 94-8). In order to be identified as having a specific learning disability, a student must have a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematics calculation or mathematics reasoning (34 C.F.R. § 300.541[a]). The state definition of a student with a learning disability refers to a 50 percent or more discrepancy between the student's expected achievement and actual achievement (8 NYCRR 200.1[zz]), but such standard should be viewed as a qualitative, rather than strictly quantitative standard (Riley v. Ambach, 668 F.2d 635 [2d Cir. 1981]; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-15).
The student's 1999 cognitive testing yielded a verbal IQ score of 98, a nonverbal IQ score of 66, and a full scale IQ score of 78. The disparity between his verbal and nonverbal IQ scores is evidence of a possible learning disability. The student's performance deficits are primarily manifested in difficulty with executive functioning, particularly as it affects his motor planning and execution. He appears to have difficulty initiating an activity, perceiving the nature of a problem and considering solutions, and inhibiting his emotions (Exhibit 22). The educational evaluation that was conducted on August 7, 2001 yielded standardized achievement test scores indicating that his reading, math, and writing skills were in the average range to low average range (Exhibits 7 and 8). Those results were generally consistent with the standardized test results reported by the private psychologist in April 2001 (Exhibit 22).
It should be noted that the federal and state definitions of a specific learning disability encompass disorders in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which may manifest itself in an imperfect ability to listen, think, speak, read, write, spell or to do mathematical calculations. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia (34 C.F.R. § 300.7[c]; 8 NYCRR 200.1[zz]). The evidence shows that the student has a congenital brain injury and had difficulty understanding and using language, which was particularly evident in his difficulties with mathematics and written language. Although there is a question about the degree of discrepancy between his expected and actual achievement, I conclude that it was not inappropriate for the CSE to classify the student as learning disabled at its August 10, 2001 meeting, given the information that it had at that time.
The student's treating neurologist in 2001 emphasized the psychiatric and congenital aspects of the student's disability in his January and June reports (Exhibits 29 and K). In his later reports, the neurologist acknowledged the possible impact of an acquired brain injury. His July and August 2001 reports indicated that some of the student's difficulties were related to frontal lobe syndrome, most likely secondary to the ventriculitis that he had suffered as an infant (Exhibit M). I note that the CSE did not have copies of the neurologist's June, July and August reports when it prepared the student's IEP for the 2001-02 school year in August 2001 (Exhibit 6; Transcript pp. 78-79). The results of the June 2002 neuropsychological evaluation (Exhibit A to the petition), which the CSE clearly did not have when it classified the student as learning disabled in August 2001, also suggest that the student may not have a learning disability. On a Wechsler Adult Intelligence Scale – III (WAIS-III), the student obtained a verbal IQ score of 91, a performance IQ score of 78, and a full scale score of 85. The evaluator noted that the student's cognitive deficits reflected "damage in the frontal and occipital lobes" and that the data did not support "any specific developmental learning disability, as basic academic skills are commensurate with intellectual/cognitive ability" (Exhibit A to the Petition).
Whether the student should now be classified as other health impaired (8 NYCRR 200.1[zz]) or as traumatically brain injured (8 NYCRR 200.1[zz]) is a matter which requires further investigation and should be undertaken by respondent's CSE. I note, however, that this does not necessarily mean that the educational program recommended for the student was inappropriate. Rather, it is necessary to ascertain whether the recommended program and services appropriately addressed the student's individual needs.
Petitioners assert that the district improperly failed to conduct an evaluation of the student's functional behavioral skills. The evidence does not show that a functional behavioral assessment was warranted. Functional behavioral assessments are to be conducted when students engage in behavior that impedes learning (8 NYCRR 200.1[r]). Petitioners allege that, during the 1998-99 school year, their son engaged in disruptive conduct and exhibited extreme behavior with regard to a female friend (Paragraph 9 of Petition). However, the record does not demonstrate that the student had recently engaged in behavior that impeded his learning. The evidence does show that the CSE reviewed the independent neuropsychological evaluation that included an assessment of adaptive behavior. The neuropsychologist administered the Vineland Adaptive Behavior Scales, which revealed weaknesses in communication skills, activities of daily living, and coping skills (Exhibit 22).
Petitioners assert that the district improperly failed to conduct a psychiatric evaluation. A component of both initial evaluations and reevaluations is a review of existing evaluation data to determine what additional data, if any, are needed in order for the CSE to make appropriate recommendations (8 NYCRR 200.4[b]). Respondent's CSE did not conduct a psychiatric evaluation, although one had been recommended for educational planning purposes prior to the 1997-98 school year and two independent evaluators had recommended a psychiatric evaluation (Exhibits 37, 38, E). However, petitioners had their son privately evaluated by a psychiatrist during the 1998-99 school year, and they shared the psychiatrist's report with the school psychologist (Transcript pp. 840-841). A CSE may rely upon the results of a private evaluation in lieu of conducting its own evaluation (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-12). The CSE did review neurological and neuropsychological reports (Exhibits 29 and 22). The neurologist diagnosed the student with a mood disorder, paranoid delusions, a migration abnormality, agenesis of the corpus callosum and an occipital encephalocele, and he prescribed medication (Exhibit 29). In addition to medication, the student received regular psychotherapy treatment (Exhibit O). Although a psychiatric evaluation may have been helpful, the evaluative information before the CSE was sufficient to develop an appropriate educational program.
Petitioners assert that the IEP does not address the student's relationship with a female student, his alleged suicidal tendencies, or his adverse reaction to his previous vocational training. The IEP does include goals and objectives that address social skills and how the student's anxiety influences his behavior (Exhibit 6). The director of special education testified that the CSE extensively reviewed vocational interest surveys completed by the student and his parents and worked to develop an individualized program (Transcript pp. 70, 85, 155). In addition, the student's program includes counseling (Exhibit 6).
Petitioners assert that the IEP is flawed because it does not indicate the frequency or duration of the vocational, community-based work-study program with job coaching and occupational therapy consultation. When students with disabilities reach age 14, CSEs are required to provide a statement of transition service needs that focuses on the student's courses of study, such as participation in advanced placement courses or a vocational education program. When students with disabilities reach age 15, CSEs are required to provide a statement of transition services, including a statement of the responsibilities of the school district and, when applicable, participating agencies for the provision of services and activities that promote movement from school to postschool opportunities (8 NYCRR 200.4[d][viii] and [ix]). The IEP includes a transition plan and indicates that the transition coordinator was to meet with petitioners and the student to review work options and job coaching needs (Exhibit 6). The IEP could not have included frequency and duration of the work-study program prior to the student choosing a program. In addition, an occupational therapy consultation was included as part of the student's vocational training so that an occupational therapist could assist the student by positioning equipment appropriately, modifying the way a job was set up, or performing hand-over-hand training (Transcript p. 91).
Petitioners argue that the vocational program recommended for their son was not in existence at the time it was recommended. Although the IEP does not specifically state where the student would perform the vocational component of his program, the director of special education testified that the vocational placement would be developed at a meeting with the transition coordinator. The student and transition coordinator together were to choose a work site, which could be changed according to the student's needs and interests (Transcript p. 70). The Life Skills/Vocational instructor testified that the district was flexible in developing a program (Transcript p. 467). She explained that the district worked with several different community providers of vocational training and that she would meet with representatives of different agencies that provide vocational training to develop an individual vocational program that would include appropriate support from a job coach (Transcript pp. 465-472). The evidence shows that the CSE acted appropriately in recommending individualized vocational training for the student.
Petitioners state that the community-based work-study program does not allow time for an appropriate amount of work because of the long commute. The district's witnesses testified that the student's schedule would have been adjusted to insure that he had adequate time to participate in the work-study program (Transcript pp. 195, 441-442).
Petitioners further assert that the vocational training program does not provide their son with an appropriate social milieu because the student to teacher ratio could have been as low as 3:1 (Transcript p. 195). Petitioners argue that the IEP dictates a student to staff ratio of 12:1+1. However, the IEP specifies a maximum class size rather than an actual class size (Transcript p. 195; 8 NYCRR 200.6[g][i]). Vocational training includes both a classroom component and a work component (Transcript p. 196). The community-based component is in an integrated setting that includes students who do not have disabilities (Transcript p. 212). The program also includes counseling with the school psychologist who maintains contact with the Life Skills/Vocational teacher and vocational supervisors (Transcript p. 206). The student has the opportunity for individualized attention with regard to job training. He also has the opportunity to learn social skills in counseling and apply those skills at his work-study site and in his academic classes. The IEP appropriately addresses the student's social needs.
Petitioners assert that the CSE did not consider whether the individual needs of petitioners' son were similar to those of the other students he would be with when placing petitioners' son in the vocational training program. As part of its burden of proof, the district must show that the student would be suitably grouped for instructional purposes with children having similar individual needs (8 NYCRR 200.6[a]; 200.1[ww]). Although the student's IEP refers to a 12:1+1 community-based vocational training class for two periods daily (Exhibit 6), it appears that the class was actually a work-study program conducted at a workplace to be determined at the beginning of the school year based on a meeting with the student and his parents (Transcript pp. 432-463). Because the program is conducted in a work environment that may not even include other students and is not determined until the family meets with school and program staff, the district would not have the information about the needs of other students he might be placed with in that program prior to the identification of a specific program. I do note that the district presented evidence showing that petitioners' son was recommended for placement with others who had similar management, academic, physical and social needs, including class profiles (Exhibits 41 and 43) and the testimony of the Life Skills/Vocational instructor that she reviews the needs of each student placed in her class in order to properly group the students (Transcript p. 415).
Petitioners assert that the CSE developed a program that would fail to result in a regular education diploma. I note that petitioners enrolled their son in a private school during the 1999-2000 and 2000-01 school years. At the private school, the student did not accumulate enough credits to earn a regular education diploma (Transcript p. 99). The district, however, had no control over the program offered at the private school or the number of credits toward a diploma earned by the student while he attended that school. The IEP for the 2001-02 school year includes three academic classes for which the student would earn credits toward a regular education diploma. The remainder of the student's program includes life skills training, vocational training and counseling (Exhibit 6). While the student might not accumulate enough credits to earn a regular education diploma, the program does address the student's individual needs.
Petitioners assert that the IEP does not include goals and objectives for the student's special classes. Goals and objectives should relate to a student's areas of need identified in the evaluation process (34 C.F.R. § 300.347[a]; 8 NYCRR 200.4[d][iii]). The goals and objectives need not be organized by reference to the specific classes the student attends. The IEP includes ten goals, with corresponding objectives, that address the student's learning disabilities, psychological needs, social needs, and vocational desires. The neuropsychologist who evaluated the student in December 1999 recommended that the student's placement include an emphasis on organization, learning strategies, study skills, behavior management, and social skills building (Exhibit 37). The first goal pertains to organization, study skills and learning strategies. The seventh goal addresses the student's ability to identify how his feelings influence his behavior, and the eighth goal addresses social skills (Exhibit 6). The evaluator also recommended that the student's language instruction focus on organization and sequence of oral and written language (Exhibit 37). The third goal addresses the student's reading comprehension skills. The fourth and fifth goals address the student's weaknesses in written language. The sixth goal pertains to the student's math needs, including his understanding of language necessary to solve math problems (Exhibit 6). The neuropsychologist who evaluated the student in April 2001 recommended that the student be taught problem solving tasks that focus on daily living skills as well as academic skills (Exhibit 22). The ninth and tenth goals address the student's vocational interests, including improving life skills in the work environment. The CSE also recommended a goal addressing the student's ability to transition among educational settings and tasks (Exhibit 6). The goals and objectives set forth in the student's IEP appropriately addressed his needs.
Petitioners assert that their child was not placed in academic classes with students having similar needs. The evidence shows that the student was placed with students having similar IQ scores and academic deficits. In addition, the other students had management needs, physical needs and social needs similar to petitioners' son (Exhibits 42, 44, 45). The special education teachers testified that they had students in their classes with needs similar to those of petitioners' son (Transcript pp. 356, 617, 625-626). His global studies teacher testified that the students in his class required assistance in writing similar to that described in the goals and objectives section of petitioners' son's IEP (Exhibit 6; Transcript p. 327). The English teacher testified that she worked with her students on goals and objectives which were similar to those recommended for petitioners' son (Transcript pp. 616-617). There was only one other student in the math class recommended for petitioners' son so that his instruction would be highly individualized in that class. In light of his very weak math skills, such a program appears appropriate. Moreover, the academic classes were not inappropriately restrictive given the severity of the student's needs. Petitioners' son required a specialized school setting with small, highly structured classes in which organization, learning strategies, study skills training, behavior management, and social skills building were integral parts of the instructional environment (Exhibits 22, 37). Given the severity of the student's needs, the academic classes were not inappropriately restrictive.
Petitioners assert that the CSE ignored the recommendations of three of their experts. With regard to the recommendations of the student's psychotherapist (Exhibit O), there is no indication that the report was provided to the CSE. In any event, although a CSE must consider the results of privately obtained evaluations (8 NYCRR 200.5[g][v][a]), it is not obligated to adopt the recommendations set forth in each and every report submitted to it. Rather, it is the responsibility of the committee to make recommendations regarding the student's needs and the services to be provided (Education Law § 4402[b]). The CSE did consider the two independent neuropsychological evaluations obtained by petitioners. The neuropsychologist who evaluated the student in December 1999 reported that when the student felt overwhelmed, his emotional and attentional issues became more pronounced. The result could be bursts of irritability, fatigue and avoidance (Exhibit 37). The IEP indicates that the student experiences social anxiety when presented with multiple tasks (Exhibit 6). The evaluator recommended placement in a specialized school setting with small classes and a highly structured setting in which organizational and learning strategies, study skills training, and behavior management are integral parts of the instructional environment. The evaluator also recommended that language instruction focus on organization and sequence of spoken language, that verbal material be broken into components to improve understanding and avoid overwhelming the student, that new material be repeated to improve long term retention, that a multisensory approach be utilized and that the student be seated near the teacher (Exhibit 37). The CSE developed a program that incorporated those recommendations (Exhibit 6).
The CSE also considered the independent neuropsychological evaluation completed on April 14, 2001. The results of the evaluator's administration of the WIAT were included on the IEP. She recommended, among other things, that the student's program focus on daily living skills and academic skills, that the student have the opportunity to participate in age-appropriate social events within a small environment with a low level of stimulation, and that vocational training be considered (Exhibit 22). All of those recommendations were incorporated into the student's program (Exhibit 6). She also recommended specialized intervention appropriate for children who have sustained a traumatic brain injury, although the student had not yet received a diagnosis from his neurologist (Exhibit 22). The student's program does not specifically refer to specialized instruction for a child with a traumatic brain injury, but it does address the student's individual academic needs and his needs in organization and study skills (Exhibit 6). The evidence shows that the CSE considered the independent neuropsychological reports in developing the student's IEP.
Petitioners also assert that they did not participate in transition planning for their son. The evidence shows that the mother completed a transition questionnaire (Exhibit 18), and the director of special education testified that she specifically remembered discussing the transition questionnaire at the CSE meeting (Transcript p. 155).
Respondent has established that the CSE recommended an appropriate program for petitioners' son. Accordingly, the questions of whether the private placement was appropriate and whether equitable considerations would bar an award of tuition to the parents need not be addressed.
Petitioners allege that the hearing officer was biased, and they seek his removal from the state list of approved impartial hearing officers. The State Review Officer does not have authority to remove an impartial hearing officer from the state approved list; rather such authority rests with the Commissioner of Education (8 NYCRR 200.21[b]).
I have considered petitioners' other arguments and find them to be without merit.
THE APPEAL IS DISMISSED.