04-004

            Petitioners, the mother and grandmother¹ of an 18-year-old student who was declassified by respondent's Committee on Special Education (CSE) on May 8, 2003, appeal from an impartial hearing officer's decision directing the CSE to reclassify the student as learning disabled (LD) and ordering the CSE to conduct a comprehensive independent psychological evaluation and several additional evaluations in order to develop an appropriate individualized education program (IEP) for the student.  The appeal must be dismissed.

            The student was first referred to the CSE in April 1999 toward the end of his seventh grade year due to failing grades, poor organizational skills and difficulty staying on task (Exhibits 6, 8, B, C).  A social history indicates that the student had excessive absences from school in sixth and seventh grade due to headaches, that he had been receiving remedial assistance and tutoring, and that he did not like school (Exhibit B).  His mother indicated that at home, her son did not listen to her, needed to be given directions over and over, and tended to be bossy with other children (Exhibit D).  His guidance counselor, who made the referral, noted that the student "talked out inappropriately" in class (Exhibit A). 

            Administration of the Wechsler Intelligence Scales for Children – Third Edition (WISC-III) on June 4, 1999 yielded a performance IQ score of 94, a verbal IQ score of 74, and a full scale IQ score of 82, placing the student in the low average range of intellectual ability (Exhibit 8).  He had poor word knowledge and verbal expression and weaknesses in auditory short term memory processing and attention.  His written expression was at the fourth grade level.  His teachers reported poor motivation and attention, and failure to complete assignments (Exhibit 8).  The school psychologist recommended classification as LD and suggested that the parents discuss with the student's physician the possibility of attention deficit disorder (ADD) (Exhibit 8).  Based on the discrepancy between his verbal IQ and performance IQ scores on the WISC-III, and his low scores on the Woodcock Johnson Test of Achievement (WJ-R).  There is no dispute that the CSE determined that the student should be classified as LD and developed an IEP for the student for the 1999-2000 school year which recommended resource room services once a day and test accommodations for the student's eighth grade year. 

            In eighth grade, during the 1999-2000 school year, the student failed science, math, and technology, and achieved a 65 in English and social studies (Exhibit 6).  He also scored in the lowest category on the eighth grade statewide assessments (Exhibits E, F).  When he was in ninth grade during the 2000-01 school year, he was tardy 75 days, and failed every subject but art and physical education (Exhibit G1).  Although he passed two of his academic subjects in summer school, he had to repeat the majority of his ninth grade subjects during the 2001-02 school year (Exhibit 6).  The record reveals that he failed every class when he repeated ninth grade, but later passed one course during summer school (Exhibits 6, G2).  His resource room teacher wrote on a quarterly report that excessive absences, tardiness and immature behavior had hindered the student's ability to perform up to expectations (Exhibit K).  The teacher opined that the student was "more than capable of succeeding in school" and "easily completes most assignments," but needed to come to school on a regular basis (Exhibit K).

            His IEP for tenth grade, the 2002-03 academic year, provided for continued classification as LD, resource room once a day, a 15:1 blended English 10 class and a 15:1 blended pre-regents science class (Exhibit 4).  He would also have access to a word processor and a calculator.  His IEP notes that he was in danger of failing most of his academic classes and that he should be allowed to attend summer school (Exhibit 4).  On a social-emotional level, he was noted to have a good sense of humor and good peer relationships, but often behaved in an immature manner and disrupted classroom instruction.  It further noted that he required a very structured environment with minimal distractions and more practice with written expression.  He was expected to graduate in June 2005 (Exhibit 4). 

            In tenth grade, the student received a nine-day suspension for excessive tardiness.  At a manifestation determination meeting held on January 24, 2003, the student stated that his tardiness was not the result of his disability but of his many doctor and dental appointments due to having braces (Exhibits 5, L).  Hence, the CSE did not recommend a change in classification, program or placement at that time.  A March 5, 2003, administration of the WISC-III yielded a verbal IQ score of 83, a performance IQ score of 95 and a full scale IQ score of 88 (Exhibit 7).  On the Woodcock Johnson Tests of Achievement III (WJ-III), his score in writing fluency was in the solid average range, but his broad reading score was in the low average range (Exhibit 7).  The school psychologist who administered the tests concluded that the student's low average achievement was commensurate with his intellectual potential, and that the discrepancy between his verbal IQ and performance IQ scores was not statistically significant (Exhibit 7).  He recommended that the student be placed in regular education classes with assistance or remediation, and no longer be classified LD.  He added that the student needed to improve attendance, report to school on time, and "take school more seriously." 

            The CSE invited the student, who was 18, to his annual review on May 8, 2003, but apparently neglected to invite his mother or grandmother (Exhibits 1C, 1D).  Based on the school psychologist's finding that the student no longer exhibited significant weaknesses in written language, the CSE decided to declassify the student for 11th grade in 2003-04 (Exhibit 3).  The CSE recommended declassification support services of resource room one time per day and testing accommodations (Exhibits 3, Q).  At the end of the school year, the student had been absent 29 days and tardy 104 days (Exhibit 6).  A behavior log indicates 16 incidents related to skipping classes, disorderly conduct, insubordination or being unprepared (Exhibit O).  His Terra Nova test scores were below average in reading and language and he had failed pre-science, math, and creative crafts (Exhibits N, 6).  His resource room teacher noted in a progress report that the student's failing grades were attributable in part to excessive absences and tardiness (Exhibit P). 

            In a letter dated July 23, 2003, the district informed the student's mother that the student was being removed from its attendance roll because he had turned 18 and had been declassified and, therefore, no longer fell within the scope of the compulsory education law (Exhibit R).  The district also noted that the student did not attend school on a regular basis during the last year, and that his mother no longer resided in the district (Exhibit R). 

            By letter dated September 13, 2003, petitioners requested an impartial hearing, stating that they disagreed with the CSE's declassification of the student at the May 8, 2003 meeting (Exhibit 1A).  They also noted disagreements with his evaluations and placement, and with respondent's "procedural and substantive compliance" (Exhibit 1A).  They requested that the CSE's May 8, 2003 recommendation be annulled, that the student be classified as LD, and that the CSE provide an appropriate IEP.  They asked that the district conduct several independent evaluations at public expense, including an independent psychological evaluation, a reading evaluation, speech-language (SL), occupational therapy (OT) and assistive technology (AT) evaluations, and a vocational assessment (Exhibit 1A).  In addition, the parents requested daily resource room, consultant teacher services, specialized supplemental instruction in math and reading, transitional and vocational placement services and compensatory education services after the age of 21.  They asked that the 2002-03 IEP serve as the "stay put" or pendency placement and noted that the student would return to school on September 17, 2003.  In a response dated September 22, 2003, the district agreed to implement the 2002-03 IEP as the "stay put" placement, and indicated that the student would be taking English 11, which was not offered as a blended class, a 15:1 blended science class, a daily resource room and a second resource room in place of a blended English 11 class (Exhibit 1B). 

            When the hearing began on October 30, 2003, the student was 18 years old and taking some 10th and 11th grade courses at respondent's high school.  His grandmother attended the hearing on his behalf (Transcript p. 15).  At the hearing, the district conceded that its May 8, 2003 meeting was improperly composed (Transcript pp. 21-24), and it made a motion requesting that the hearing officer remand the matter to the CSE (Exhibit 1).  The district maintained that with a remand the CSE could consider the parent's demands for the program and IEP goals (Transcript pp. 18-21).  The hearing officer denied the district's motion, reasoning that the parent had a right to a hearing, and that the CSE was not entitled to a "second bite at the apple" (Transcript p. 45).  Later, the district conceded that the CSE's May 8, 2003 decision to declassify the student should be annulled, and that he should be classified LD (Transcript pp. 81, 83-84).  Finally, petitioners' educational advocate asked the hearing officer to recuse herself, claiming that she was behaving in a prejudicial manner.  The hearing officer refused to do so (Transcript p. 86). 

            On the second day of the hearing, petitioners made their opening statement, and admitted exhibits into evidence.  In addition to the six evaluations referenced in their hearing request, they asked the hearing officer to order a functional behavioral assessment (FBA) (Transcript pp. 124-28).  They asked the hearing officer to establish developmental levels of performance in the areas of social, physical, management and academic needs and goals.  In addition, they sought a foreign language exemption, transitional services, counseling for the student's management needs, a behavioral intervention plan (BIP), progress reports every 5 weeks, and Regent's Competency Tests (RCTs) reported on the student's IEP (Transcript pp. 124-28).  Finally, they asked for a declaration that FAPE had been denied, and that the student receive compensatory education as a remedy for procedural irregularities, which they claimed resulted in loss of educational opportunities and lack of parental involvement.  Petitioners did not present any testimony. 

            In a decision rendered on November 26, 2003, the hearing officer concluded that it would be inappropriate to make educational judgments about the student's needs since the parents had presented no witnesses.  However, she agreed with the parties that the student should be classified as LD, and ordered respondent to conduct a comprehensive independent psychological evaluation, an OT evaluation, an SL evaluation, a functional vocational assessment (FVA), and an FBA, but did not order an AT evaluation or a separate reading evaluation.  She suggested that the CSE strongly consider providing the student with a foreign language exemption, and ordered the district to thoroughly evaluate transitional services for the student.  The hearing officer did not award compensatory education.  Finally, she found that the "status quo" placement was the student's 2002-03 IEP. 

            Petitioners ask that I find the hearing officer should have recused herself and remand the case to another hearing officer.  In the alternative, they ask that I find, inter alia, that the district denied the student a FAPE, that the May 8, 2003 IEP should be annulled, and that respondent's CSE be directed to reconvene in 15 days from this decision.  In addition to all of the evaluations ordered by the hearing officer, they ask that the district pay for an AT evaluation, and a psychoeducational reading evaluation.  They assert in their petition that the CSE should place the student in general education classes with a direct and indirect consultant teacher for each academic subject, and employ "specially designed instruction."  They also request that the district develop a BIP, and provide counseling, a foreign language exemption, and a progress report on goals and objectives every five weeks.  Finally, they request "an order of corrective action" to make up for the services the student lacked in September and October 2003, and compensatory education services for two years beyond the age of 21 or for two years after graduating.

            As a preliminary matter, I have thoroughly reviewed the record and I find no evidence of the hearing officer exhibiting bias or acting in a prejudicial manner to either party.  I therefore disagree with petitioners' assertion that the hearing officer should have recused herself and deny petitioners' request that I remand this case to another hearing officer.

            As a second matter, respondent alleges in its Answer as an affirmative defense that the petition was untimely.  Part 279.2 of the Commissioner's regulations, as amended and effective January 1, 2004, provides that:

[t]he petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed.  If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the … 35-day period.

           The hearing officer's decision is dated November 26, 2003.  Pursuant to the new regulation, counting 35 days from the date of the decision with an additional four days for mailing, the petition should have been served by Monday, January 5th, 2004.  However, the district did not receive the petition until January 12, 2004.  Under the new regulation, the petition was clearly untimely.  Under the regulations that were in force prior to January 1, 2004, petitioners would have had to file their petition "within 40 days from receipt of the decision sought to be reviewed" (8 NYCRR §279.2[b]).  Petitioners aver in their petition that they received the decision on November 28, 2003, by certified mail.  Thus, pursuant to the regulations in effect in 2003, petitioners were obligated to serve their petition upon the district within 40 days of November 28th, 2003, which was January 6, 2004.  However, the district did not receive the petition until January 12, 2004, or 46 days after the hearing officer rendered her decision.  Moreover, petitioners did not allege good cause for their delay in serving their petition.  Therefore, the petition is untimely under either calculation (8 NYCRR 279.2[b]); Application of a Child with a Disability, 02-096, Application of a Child with a Disability, Appeal No. 03-086).  I therefore dismiss petitioners' appeal as untimely.

            Even if I were to reach the merits of this case, however, I would sustain the hearing officer's decision in all respects.  A board of education bears the burden of establishing the appropriateness of a CSE's recommendation that a student not be classified as a child with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-18).  However, in this case, the parties agreed at the hearing that the student should be classified LD, and the hearing officer so ruled.  Since petitioners are not aggrieved with respect to the student's classification, I would not need to rule on the issue (Application of a Child with a Disability, Appeal No. 02-086). 

            I find that the hearing officer's decision was well-reasoned and proper in all other respects, given the facts developed at the hearing (Application of a Child with a Disability, Appeal No. 02-096).  The record did not contain enough information to enable the hearing officer to determine the proper program or services for the student, e.g. whether he should receive consultant services or specially designed instruction.  I find that the additional evaluations sought by petitioners, a psychoeducational reading evaluation and AT evaluation need not be considered until the results of the initial evaluations are reviewed.  Thus, the case should be remanded to the CSE, as the hearing officer ordered, to conduct the evaluations she referenced for the purpose of developing an appropriate IEP for the 2003-04 school year. 

            I have considered petitioners' other claims and found them to be without merit.

THE APPEAL IS DISMISSED.