04-085

            Petitioner, the Board of Education of the Springville-Griffith Institute Central School District, appeals from the July 2004 decision of an impartial hearing officer which denied its motion that he recuse himself and denied its motion to dismiss respondent's due process hearing.  Petitioner also appeals from the September 2004 decision of the impartial hearing officer which found that it did not provide a free appropriate public education (FAPE) to the student for the 2003-04 school year, and awarded the student individual tutoring services in mathematics.  Further, petitioner appeals from the impartial hearing officer's decision to retain jurisdiction over disputes with respect to his order that petitioner obtain an independent evaluation of the student.  The appeal must be sustained in part.

            Preliminarily, I will address the procedural issues raised in this appeal.  In her answer, respondent asserts that the petition was not personally served upon her before the time to appeal had expired and, therefore, should not be considered.  The Regulations of the Commissioner of Education provide that a copy of the petition shall be served upon the parent within 35 days from the date of the impartial hearing officer's decision (8 NYCRR 279.2[c]).  It further provides that if the decision has been served by mail upon the board, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35-day period (id.).

            The impartial hearing officer's decision is dated September 13, 2004.  The impartial hearing officer mailed his decision to the parties (Pet. ¶ 9; Answer ¶ 9), though there is no indication in the record of the date of mailing.  Respondent, however, asserts that on September 15, 2004, the impartial hearing officer transmitted his decision by electronic mail to her and to the attorney who was representing petitioner in another matter before the impartial hearing officer (Answer ¶ 9).  Respondent does not allege that petitioner's attorney in this matter received the impartial hearing officer's decision by electronic mail, nor does petitioner acknowledge receipt of the decision by electronic mail.  The record shows that petitioner attempted to personally serve the petition upon respondent on October 19, 2004, which was within the required time period.  I find that the appeal is timely.

            Respondent also asserts that the petition was not personally served.  State regulation requires that the petition be personally served upon the parent (see 8 NYCRR 275.8, 279.2[c]).  Petitioner attempted to personally serve respondent on October 19, 2004 at her residence.  However, copies of the notice of petition, petition and memorandum of law were placed in the doorway of respondent's residence because she did not answer the door (see Affidavit of Personal Service ¶ 2B).  The notice of petition, petition and memorandum of law also were mailed to respondent and received by her on October 21, 2004 (see Affidavit of Personal Service ¶ 3; Answer ¶ 9).  While petitioner should have personally served respondent, an appeal from a decision of an impartial hearing officer is generally not dismissed for service irregularities (Application the Bd. of Educ., Appeal No. 02-070; Application of a Child with a Disability, Appeal No. 93-7; Application of a Child with a Disability, Appeal No. 93-2).  Dismissal is particularly inappropriate when it appears, as it does here, that respondent was at home at the time personal service was attempted but refused to answer the door (see Affidavit of Personal Service ¶ 2B). I note that respondent filed a timely response to the petition despite her claim that she had not been personally served in a timely manner.  Based upon the above, I will not dismiss the petition for service irregularities.

            The student was ten years old and had just completed the fourth grade when the hearing began in July 2004.  His eligibility for special education and his classification as a student with autism are not in dispute in this proceeding (see 8 NYCRR 200.1[zz][1]).

            During the 2002-03 school year, the student was in the third grade where he received small group instruction for reading and mathematics and participated in general education, with special education support, for science and social studies (Parent Ex. T).  The student also received counseling, occupational and speech-language therapy and specialized reading instruction.

            The student's specialized reading instruction included use of a phonetically-based reading program (Parent Ex. T).  Comprehension of reading material at his level of decoding ability was described as excellent, and he was reportedly able to comprehend material read aloud to him in a group setting (Parent Ex. O).  Mathematics was reported to be an area of strength for the student (id.).  By the end of his third grade year, the student was able to perform addition, subtraction and single digit multiplication, and interpret numerical portions of graphs (id.).

            The student achieved scores in the average range on all subtests of the Bruininks-Osteretsky Test of Motor Proficiency (Parent Ex. T), indicating that he had no visual-motor deficits which would affect his school performance.  The certified occupational therapy assistant (COTA) who provided occupational therapy services to the student while he was in the third grade noted that the student's performance in therapy sessions was consistent with these test results, and that the student was able to perform all visual tracking tasks required for academic activities. 

            The student's conversational speech was described as age appropriate (Parent Exs. O, T).  His speech-language therapist reported that the student had met all of his speech-language goals for 2002-03 and was functioning in the average range for speech and language skills according to standardized testing (id.).  Speech-language evaluations indicated average abilities in the areas of listening, speaking, semantics, phonology and syntax (id.).  However, the speech-language therapist recommended continuation of speech-language therapy because, in her opinion, the student's language in everyday settings continued to evidence pragmatic deficits which were not reflected in standardized test results (id.).  The student's counselor reported that the student was able to use humor appropriately (Parent Ex. O).  Socially, the student was reported to have positive interactions with peers and classmates and was described as well liked by his classmates and as enjoying playing with others (id.).

            Although the student's parents reported that the student had been experiencing anxiety at home, evidence of anxiety was not observed in the school setting (id.).  The student was described as very attentive in class and eager to participate.  The student's third grade special education teacher reported that the student had increased his ability to work independently during the 2002-03 school year and enjoyed working with peers in group activities.

            In June 2003, petitioner's Committee on Special Education (CSE) met to develop the student's program for the 2003-04 school year (Parent Exs. O, T).  The CSE recommended that the student participate in a "1:12+1 integrated program" (Parent Ex. O).  The individualized education program (IEP) developed as a result of the meeting provides that the student will participate in a fourth grade general education class in the areas of science, social studies, mathematics and all special area classes.  The IEP also provides that modifications to instructional curriculum and assessments may be required for the student to be successful.  It further provides that in the areas of reading, writing and spelling, the student will receive instruction in a small group, self-contained setting.  Additionally, the IEP provides for 30 minutes per day of individual specialized reading, speech-language therapy and counseling.

            The student began fourth grade in September 2003.  On December 12, 2003, the student's father, with the assistance of Western New York Family Advocacy for Children's Educational Services, Inc. (FACES), requested an impartial hearing (Hearing 1), claiming, among other things, that the school district failed to implement his son's 2003-04 IEP, and that he disagreed with the program, placement, and evaluations (IHO Ex. 2).

            On January 15, 2004, before Hearing 1 began, the impartial hearing officer in that matter heard oral argument on the school district's motion to identify, specify and limit issues (IHO Ex. 5).  He rendered a decision on February 16, 2004 limiting the hearing to the 11 issues listed therein and also allowing for the student's father to move for the introduction of other issues at any time prior to the conclusion of the hearing, upon a showing that the issues could not have been identified earlier (IHO Ex. 6).  Hearing 1 began on February 26, 2004 (IHO Ex. 7).  The student's special education teacher for the 2003-04 school year testified on behalf of the school district.  Her testimony was not completed, and after discussing scheduling matters with the parties, the impartial hearing officer scheduled two additional hearing dates in March 2004 (id. at pp. 317-23).

            Hearing 1 did not proceed on the scheduled hearing dates in March 2004.  In correspondence dated March 30, 2004 regarding scheduling matters, the impartial hearing officer in Hearing 1 advised the parties that in the event that hearing dates were not scheduled or the matter otherwise concluded by May 7, 2004, he would "dismiss the impartial hearing request without prejudice" (IHO Ex. 8).  On April 26, 2004, the school district moved to dismiss the father's impartial hearing request, which was granted by the impartial hearing officer on May 26, 2004 (IHO Ex. 9).  On June 15, 2004, the student's father appealed from the dismissal of Hearing 1 (IHO Ex. 10).  This appeal was subsequently withdrawn on August 3, 2004.

            The following day, on June 16, 2004, also with the assistance of FACES, the student's mother requested an impartial hearing, which is the subject of this appeal (IHO Ex. 1).    In her request, she claimed, among other things, that the school district failed to implement her son's 2003-04 IEP, and that she disagreed with the program, placement, and evaluations (id.).  Toward the end of June 2004, petitioner requested that the impartial hearing officer recuse himself, asserting that his actions in a matter in Erie County Supreme Court in which he and FACES were named defendants gave the appearance of partiality (IHO Ex. 11).¹  Petitioner also moved to dismiss respondent's hearing request, asserting that it presented virtually the same issues as those presented in the student's father's December 12, 2003 hearing request in Hearing 1 which had been dismissed (id.).  On June 24, 2004, the impartial hearing officer heard arguments on petitioner's motion to recuse and motion to dismiss, and requested that petitioner provide additional documents, some of which were objected to by petitioner (IHO Ex. 12).  After receiving the additional documents, the impartial hearing officer rendered a decision on July 2, 2004 denying both motions (id.).

            The impartial hearing was held on July 8, 22, and 23, 2004.  The district entered two documents into evidence and rested without calling any witnesses, but did not concede any issues (Tr. pp. 26, 38).  The impartial hearing officer rendered his decision on September 13, 2004.  He found that petitioner's failure to comply with a number of regulatory requirements regarding the substantive aspects of the student's IEP required that the IEP be “annulled.”  He further found that petitioner failed to fully implement the student's IEP, including the program established by the CSE as it related to mathematics.  Consequently, the impartial hearing officer found that petitioner failed to offer or provide a FAPE to the student for the 2003-04 school year.  However, because the 2003-04 school year had ended, the impartial hearing officer's order only addressed petitioner's failure to provide appropriate special education services in mathematics.  Finding that “immeasurable damage” was created by petitioner's failure to have the student's special education teacher and teaching assistant/aide present for the entire math period, the impartial hearing officer ordered petitioner to provide to the student during the 2004-05 school year 100 hours of individual tutoring services in mathematics.  The impartial hearing officer also ordered petitioner to obtain at its expense a vision therapy evaluation of the student by a behavioral optometrist.²  Additionally, he retained jurisdiction over disputes with respect to his order that petitioner obtain a vision therapy evaluation of the student.

            Petitioner appeals from the impartial hearing officer's decisions on numerous grounds.  First, petitioner claims that the impartial hearing officer failed to fulfill his obligations as an impartial hearing officer by not enforcing state regulatory requirements concerning the administration of hearings (8 NYCRR 200.5[i]).   I have reviewed the transcript and find that the impartial hearing officer addressed adherence to the relevant regulations, and, under the circumstances presented, conducted the hearing in a reasonable manner (see Tr. pp. 7, 39-40, 47, 53-55, 147-48, 150-51).

            With respect to the July 2004 decision, petitioner claims that the impartial hearing officer erred in not recusing himself.  It asserts that by filing a motion to dismiss the action in Erie County Supreme Court in which he and FACES were named defendants, the impartial hearing officer took a partisan position in that a favorable ruling would have benefited the client represented by FACES.  As further support for its position, petitioner quotes the following language from the decision in that matter, "this impartial hearing officer would be well-advised to recuse himself on any further issues involved between this 'Jane Doe' and this WNY School District" (Pet. Ex. A).

            State regulations provide that an impartial hearing officer "...shall not have a personal or professional interest which would conflict with his or her objectivity in the hearing..." (8 NYCRR 200.1[x][3]).  In his July 2, 2004 decision, the impartial hearing officer explained why he filed a motion to dismiss in the matter in Erie County Supreme Court.  He also explained that the matter in Erie County Supreme Court involved a different school district and a different parent, and that it had concluded except for the execution and entry of a final order.  Petitioner cites no instance in which the impartial hearing officer demonstrated bias, nor does the record reveal any such evidence.  Based upon the information before me, I am unable to find that the impartial hearing officer should have recused himself.

            Petitioner also claims that the impartial hearing officer erred in denying its motion to dismiss respondent's hearing.  First, petitioner claims that the impartial hearing officer erred in considering transcripts from Hearing 1 in making his determination.  I disagree.  It is the impartial hearing officer's responsibility to obtain an adequate record to support his or her decision (Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 02-003; Application of a Child with a Disability, Appeal No. 01-039).  The transcripts from Hearing 1 contain relevant information concerning petitioner's motion to dismiss.

            As noted above, on March 30, 2004, the impartial hearing officer in Hearing 1 advised the parties in that matter in writing that the hearing would be dismissed without prejudice if hearing dates were not scheduled or if the matter was not completed by May 7, 2004 (IHO Ex. 8).  While his May 26, 2004 order dismissing the hearing does not specify that the hearing was dismissed without prejudice, his decision includes that language from his March 30, 2004 correspondence.  Absent any evidence to the contrary, and consistent with the impartial hearing officer's prior representation to the parties, I find that the dismissal of Hearing 1 was without prejudice, thus providing an allowance to refile the appeal (see Application of a Child with a Disability, Appeal No. 04-061).  Accordingly, I am constrained to find that the impartial hearing officer was correct in not dismissing the hearing request which is the subject of this appeal. 

            Petitioner also appeals from many of the impartial hearing officer's findings with respect to the appropriateness of the program recommended by its CSE for the 2003-04 school year.  However, as noted above, despite having found that petitioner failed to comply with a number of regulatory requirements regarding the substantive aspects of the student's IEP, the impartial hearing officer only awarded relief pertaining to his finding that petitioner failed to provide appropriate “special education services” in mathematics.  As noted above, the impartial hearing officer found that the student was denied the program established by the CSE as it related to mathematics class every day of the school year.  He further found that “immeasurable damage” was created by petitioner's failure to have the student's special education teacher and teaching assistant/aide present for the entire math period and ordered petitioner to provide to the student during the 2004-05 school year 100 hours of individual tutoring services in mathematics.

            State Review Officers have awarded equitable relief in the form of additional educational services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030).  In general, the award of additional educational services, for a student who is still eligible for instruction, requires a finding that the student has been denied a FAPE.

            The Individuals with Disabilities Education Act (IDEA) guarantees disabled students a FAPE (20 U.S.C. § 1400[d][1][A]).  A FAPE includes special education and related services provided in conformity with an IEP (20 U.S.C. § 1401[8]).  Respondent bears the burden of demonstrating the appropriateness of the IEP recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  In order to meet its burden, respondent must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025).  The educational benefit must be "meaningful" (Rowley, 458 U.S. at 192) and "more than mere trivial advancement" (Walczak, 142 F.3d at 130; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 [2d Cir. 1997]).  It must be 'likely to produce progress, not regression,' (Walczak, 142 F.3d at 130; M.S., 231 F.3d at 103).    The recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

            I find that the services provided to the student in mathematics class were appropriate.  The record shows that at the June 2003 CSE meeting to develop the student's IEP for the 2003-04 school year, the participants discussed whether the student should be placed in general education for mathematics (Parent Ex. T).  The student's special education teacher during the 2002-03 school year recommended that the student be placed in a general education class for mathematics with "special education support" (id.).  I note that the student had successfully participated in science and social studies general education classes with "special education support" during the 2002-03 school year (id.).  In addition to continuing to provide that the student participate in general education classes for science and social studies, the student's IEP for the 2003-04 school year provides that he will participate in a general education class for mathematics (Parent Ex. O).  The IEP does not specifically include a provision for support from a special education teacher.  However, it does provide that modifications to instructional curriculum and assessments may be required for the student to be successful (id.).

            I find that the student received appropriate support services consistent with his IEP in his mathematics class for the 2003-04 school year.  The record shows that the student received appropriate support for the entire math period.  The student's special education teacher testified that she did not provide direct instruction to the student in mathematics and explained that she provided accommodations and modifications, or would reteach if necessary (Tr. p. 268).  She further testified that she was in the general education mathematics class for 30 minutes each day and the teaching assistant was in the class for the remaining 20 minutes (Tr. pp. 261, 272).  She indicated that "if she was not in the classroom, the teaching assistant would definitely be there" (Tr. p. 271).  As noted above, the special education teacher was in the general education mathematics class to provide assistance (Tr. p. 272).  The fact that a certified teaching assistant provided the support for 20 minutes of each 50-minute period does not render the services inappropriate. 

            I am unable to find that the student's IEP required the services of both a special education teacher and a teaching assistant when he participated in general education classes.  The student's special education teacher testified about the recommended program.  She explained that the "1:12+1 integrated program" meant that part of the day the student was in a self-contained classroom with a ratio of 1:12+1 and part of the day he was integrated in general education classes (Tr. pp. 272-74). 

            Nor do I find that it was necessary to have both the student's special education teacher and teaching assistant present during the entire math period to provide appropriate support.  Initially, I note that while mathematics reportedly was a relative strength for the student, his scores on standardized testing were in the average range (Parent Ex. O).  Further, the general education teacher's comments from the student's 2003-04 report card indicated that the student generally was successful on classroom assignments as he received guided assistance (Parent Ex. M1).  I also note that while the student's achievement was graded as unsatisfactory (69) for the first marking period and needs improvement (72, 74) for the second and third marking periods, his numerical grades improved over the course of the year (id.).  Based upon the information before me, I find there is no deprivation of special education services pertaining to mathematics; therefore, I am unable to find that the student required individual tutoring in mathematics as a remedial measure.

            The last issue to be considered is petitioner's contention that the impartial hearing officer exceeded his authority by retaining jurisdiction over implementation of his order that a vision therapy evaluation take place.  The impartial hearing officer retained jurisdiction over obtaining the services of an evaluator and over any future disputes arising from the evaluator’s recommendations.  An impartial hearing officer is appointed in response to a specific request for a hearing, and may not assume jurisdiction over all future disputes between the parties (Application of a Child with a Disability, Appeal No. 96-45).  Here, the impartial hearing officer impermissibly exceeded his authority by broadly assuming jurisdiction over future disputes arising from an evaluation he ordered and the resulting recommendations (Application of the Bd. of Educ., Appeal No. 02-081; cf. Application of a Child with a Disability, Appeal No. 98-9 [retention of jurisdiction permissible when limited to only ensuring that ordered evaluation took place]).  I note that enforcement of an impartial hearing officer's order can be sought by filing an administrative complaint with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities pursuant to applicable federal and state regulations (see 34 C.F.R. §§ 300.660-300.662; 8 NYCRR 200.5[k]) or by commencing a proceeding pursuant to Article 78 of the Civil Practice Law and Rules or in federal court under 42 U.S.C. § 1983 (see Application of the Bd. of Educ. of the Ticonderoga Cent. Sch. Dist., Appeal No. 99-004, citing A.T. and I.T. on behalf of Z.T. v. New York State Educ. Dep't, 1998 WL 765371 [E.D.N.Y. August 4, 1998]; Blazejewski v. Bd. of Educ., 560 F. Supp. 701 [W.D.N.Y. 1983]).

            I have considered petitioner's remaining contentions and I find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the impartial hearing officer's decision, to the extent that it awarded individual tutoring services in mathematics, and retained jurisdiction over matters pertaining to the vision therapy evaluation, is hereby annulled.