Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by New York City Department of Education
Aaron Tyk, Esq., attorney for petitioner
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Steven D. Weber, of counsel
Petitioner appeals from a decision of an impartial hearing officer which determined that the related services respondent's Committee on Special Education (CSE) had recommended for his son for the 2006-07 school year were appropriate. The appeal must be dismissed.
The parties do not dispute the student's eligibility for special education services as a student with emotional disturbance (Dist. Ex. 1 at p. 1; Tr. p. 32; see 8 NYCRR 200.1[zz]). At the time of the impartial hearing in August 2006, the student was seventeen years old and had attended a special education class with a 12:1+1 ratio in a specialized school during the 2005-2006 school year (Dist. Ex. 1 at p. 1). The student had also received related services, including two 30-minute counseling sessions per week in a 3:1 group, three 45-minute individual speech and language therapy sessions per week, and two 30-minute individual occupational therapy sessions per week (Tr. pp. 30-31; Dist. Ex. 1 at pp. 1, 4, 5-A, 5-B, 9).
Petitioner filed a due process complaint notice dated July 3, 2006.1 Petitioner purportedly sought an increase in the frequency and duration of related services for the 2006-07 school year (Tr. pp. 17-18).2 An impartial hearing was held on August 10, 2006. At the impartial hearing, petitioner did not call any witnesses (Tr. p. 22), and his case consisted of four letters or reports (collectively, therapists' reports) petitioner entered into evidence (Tr. p. 6). The therapists' reports were all addressed "To Whom It May Concern," were dated between July 18 and July 24, 2006, and were each no longer than one page (Parent Exs. A-D). The first report asserts that the student's speech and language therapy should be increased to five 60-minute sessions per week in a 1:1 setting (Parent Ex. A). The second report indicates that the student should receive physical therapy for three 30-minute sessions per week in a 1:1 setting (Parent Ex. B). The third report asserts that the student should receive five 60-minute counseling sessions per week (Parent Ex. C). The fourth report alleges that the student should receive five 60-minute occupational therapy sessions per week in a 1:1 setting (Parent Ex. D).
At the impartial hearing, respondent entered the student's May 16, 2005 individualized education program (IEP) for the 2005-06 school year into evidence (Dist. Ex. 1). Respondent also called three witnesses, all of whom testified by telephone (Tr. pp. 28-29, 53, 92).3 A psychologist employed by respondent testified that the counseling recommended by the CSE in the 2005-06 IEP was appropriate to address the student's anxieties and that the increased frequency and duration of counseling services sought by petitioner would not benefit the student who, because of his limited cognitive ability, would be better served by small group instruction in a vocational setting (Tr. pp. 41-42). Respondent's speech pathologist testified that, with respect to the 2005-06 IEP, the student's expressive and receptive delays and his pragmatic skills could be adequately addressed in three forty-five minute periods each week (Tr. pp. 55-56). She further noted her belief that 1:1 speech and language therapy with an adult would not permit the student to work on his pragmatic skills with other children his age, which she believed would better serve the student's needs (Tr. p. 56). The speech pathologist further explained that additional individualized speech and language therapy would not necessarily benefit the student (Tr. pp. 57-59). Respondent's occupational therapist opined that the student would not benefit from increased services and that the purposes of occupational therapy could be achieved on a consultation basis with petitioner and other team members (Tr. pp. 98-99).
By decision dated September 25, 2006, the impartial hearing officer concluded that petitioner did not meet his burden of proving that respondent had failed to offer a free appropriate public education (FAPE)4 (IHO Decision, pp. 4-5). The impartial hearing officer gave little weight to the therapists' reports entered into evidence by petitioner, noting that petitioner did not present any witnesses and instead relied solely upon the therapists' unsworn letter opinions, which did not provide supporting facts for the therapists' conclusions (IHO Decision, p. 4). The impartial hearing officer found that the testimony of respondent's witnesses outweighed the evidence presented by petitioner (id.). He also noted that petitioner failed to make the evaluators who authored therapists' reports available for cross-examination (id.).
Petitioner appeals and asserts that the telephonic testimony of respondent's witnesses should have been excluded because an oath could not be administered by telephone and petitioner's right to confront the witnesses in person was denied. Petitioner also contends that respondent's witnesses should not have been allowed to testify because petitioner was not apprised of their recommendations prior to the impartial hearing. Petitioner further argues that the impartial hearing officer incorrectly ruled that the therapists' reports were required to be sworn (see Parent Exs. A-D). Additionally, petitioner asserts that respondent offered no relevant evidence to dispute the therapists' reports submitted by petitioner (see Parent Exs. A-D).5
Respondent argues that the impartial hearing officer's decision should be upheld because petitioner failed to establish that the related services recommended by the CSE were inappropriate and that respondent's witnesses demonstrated that the frequency and duration of counseling, speech and language therapy, and occupational therapy were appropriate. Respondent also asserts that the impartial hearing officer administered the oaths to the witnesses according to regulations of the Commissioner of Education (see 8 NYCRR 200.5 [j][iv]). According to respondent, the regulations of the Commissioner of Education permit an impartial hearing officer to receive testimony by telephone (8 NYCRR 200.5[j][xii][c]), and petitioner was able to vigorously cross-examine respondent's witnesses over the telephone. Finally, respondent argues that the testimony of its three witnesses at the hearing should not be excluded due to the alleged failure to inform petitioner of the substance of their testimony, because petitioner did not suffer any prejudice, he was notified one day prior to the impartial hearing that witnesses would be called, he adequately cross-examined them, and the testimony was based upon the exhibits previously entered into the record.
The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1482) is to ensure that students with disabilities have available to them a FAPE (Frank G. v. Bd. of Educ., 459 F.3d 356, 363 [2d Cir. 2006]; see Schaffer v. Weast, 546 U.S. 49, ___, 126 S. Ct. 528, 531 ; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-181, 200-201 ; 20 U.S.C. § 1400[d][A]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[D]; see 20 U.S.C. § 1414). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206, 207). "The IEP is the central mechanism by which public schools ensure that their disabled students receive a free appropriate public education" (Polera v. Bd. of Educ., 288 F.3d 478, 482 [2d Cir. 2002]). With certain exceptions, a student's IEP is required to be reviewed periodically, but not less frequently than annually (20 U.S.C. § 1414[d][A], ; 34 C.F.R. § 300.324[b];6 see also N.Y. Educ. Law §4402; 8 NYCRR 200.4[d][xi], [f]). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 114 [a]; 8 NYCRR 200.6[a]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (Schaffer, 546 U.S. at___, 126 S. Ct. at 537).
An impartial hearing officer may receive testimony by telephone, provided that such testimony shall be made under oath and shall be subject to cross-examination (8 NYCRR 200.5[j][xii][c]). An impartial hearing officer may also take direct testimony by affidavit in lieu of in-hearing testimony, provided that the witness giving such testimony is made available for cross- examination (8 NYCRR 200.5[j][xii][f]).
I concur with the impartial hearing officer that petitioner has failed to meet his burden of persuasion because the evidence in the record does not establish that respondent failed to offer the student a FAPE for the 2006-07 school year. Petitioner presented no witness testimony in support of his claim. Petitioner sought an increase in the student's related services for the 2006-07 school year (Tr. pp. 19-20). However, the May 16, 2005 IEP, entered into evidence by respondent, recommended services for the 2005-06 school year and it was scheduled for annual review by the CSE on or about May 15, 2006 (Dist. Ex. 1 at p. 2). Petitioner does not allege that respondent failed to conduct a CSE meeting in a timely manner or failed to issue an IEP, and the record does not contain an IEP for the 2006-07 school year or any other evidence regarding the CSE's recommendations for the 2006-07 school year.
I also agree with the impartial hearing officer that the four therapists' reports submitted by petitioner should be accorded little weight (see IHO Decision, p. 4; Parent Exs. A-D). Each report states the conclusion that the student has deficits and would benefit from an increase in various related services (Parent Exs. A-D). However, the therapists' reports are unpersuasive. The reports contain little or no description of the evaluators' qualifications, and, with the exception of the physical therapist's report, none of the evaluators indicated in their respective reports that they were personally familiar with the student (Parent Ex. B). Furthermore, the therapists' reports do not identify any source of factual data upon which the evaluators' recommendations are based, and thus they are of little probative value (see Romano v. Stanley, 90 N.Y.2d 444, 451 ; Persaud v. City of New York, 307 A.D.2d 346, 347 [2d Dep't 2003]; Application of a Child with a Disability, Appeal No. 97-26; Application of a Child with a Disability, Appeal No. 93-4; c.f. Application of a Child with a Disability, Appeal No. 96-29). The evidence in the record does not establish that the CSE procedures regarding the 2006-07 school year were in any way infirm or that respondent otherwise failed to offer the student a FAPE, and consequently I find that petitioner has failed to meet his burden of persuasion (Schaffer, 546 U.S. at___, 126 S. Ct. at 537).
Regarding petitioner's arguments in favor of excluding the testimony of respondent's witnesses, I note that the exclusion of the witnesses' testimony would not cure petitioner's failure to meet his burden of persuasion.
In light of the foregoing, it is unnecessary to address petitioner's remaining contentions.
THE APPEAL IS DISMISSED.
1 A copy of petitioner's July 3, 2006 due process complaint notice is not a part of the record; however, the record reflects that respondent submitted a request for an impartial hearing, an impartial hearing followed, and the resultant decision gave rise to the instant appeal (Tr. p. 20).
2 The testimonial and documentary evidence in the record does not reveal whether petitioner requested an increase in related services for the 2006-07 school year at a CSE meeting.
3 No witnesses or parties actually attended the impartial hearing in person.
4 The term "free appropriate public education" means special education and related services that -
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 U.S.C. § 1401.
5 By letter dated November 15, 2006, petitioner contends that respondent's answer was untimely and should be precluded because petitioner had not received it on that date. I note that respondent's affidavit of service accompanying the verified answer indicates that that the verified answer was properly addressed to the office of petitioner's counsel and deposited in the mail on November 15, 2006 in accordance with the Commissioner of Education's regulations (see 8 NYCRR 279.5; 275.8[b]). Petitioner's request to preclude respondent's verified answer is denied.
6 The Code of Federal Regulations (34 C.F.R. Parts 300 and 301) has been amended to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004. The amended regulations became effective October 13, 2006. In this case, none of the new provisions contained in the amended regulations are applicable because all relevant events occurred prior to the effective date of the new regulations. However, for convenience, citations herein refer to the regulations as amended because the regulations have been reorganized and renumbered.