97-006

      Petitioner appeals from the decision by a hearing officer which denied her request that respondent be ordered to reimburse her for the cost of her son's tuition in the private school which he attended during the summer of 1996. He also denied her request for reimbursement for other expenditures which she reportedly incurred in having the child evaluated and tutored in prior years. The appeal must be sustained in part.

        At the outset, I note that petitioner asserts that respondent's answer to her petition is untimely. She asks that I not consider the answer. The affidavit of service which accompanied the petition which was filed with the State Education Department indicates that the petition was served upon the District Clerk of the William Floyd Union Free School District on January 24, 1997. The affidavit of service for respondent's answer indicates that service was effected by mailing the answer to petitioner on February 10, 1997. Pursuant to the provisions of 8 NYCRR 279.5, respondent was required to serve its answer within ten days after it received the petition, i.e., by no later than February 3, 1997. Respondent requests that its delay of five business days in serving its answer be excused. Its attorney asserts that she was obliged to attend to an ill family member, and she points out that petitioner annexed thirty-seven new documents to her petition, which required the attorney to devote additional time to preparing respondent's answer. In view of the fact that the child's program or placement has not been affected by respondent's brief delay, as well as reasons noted above, I will excuse the delay, and accept the answer.

        Petitioner's son, who is ten years old, was initially classified as learning disabled in February, 1994, when he was in the second grade. He is of average intelligence, but he reportedly has an auditory and/or language processing deficit which has impaired his academic achievement. The child's classification is not in dispute in this proceeding. During the 1995-96 school year, petitioner's son was enrolled in the third grade of the William Floyd Elementary School. His primary instruction was provided in a regular education class, but he received supplementary instruction in a resource room. The boy received the related service of speech/language therapy, and he reportedly had the use of an auditory trainer to assist him in overcoming his language processing deficit. For at least a portion of the school year, petitioner's son reportedly received counseling.

        On May 21, 1996, respondent's committee on special education (CSE) conducted its annual review of the child's educational program. It reportedly considered the child's scores on the Metropolitan Achievement Test (MAT) which were given to him on March 1, 1996. He achieved grade equivalent scores of 1.5 in reading, 1.2 in mathematics, and 2.0 in language arts on that test. At the hearing in this proceeding, the CSE chairperson testified that the child's resource room teacher had reported to the CSE that the child's achievement test scores were a "gross underestimate" of the boy's ability. The child's third grade teacher also doubted the validity of the child's MAT result for reading. Nevertheless, the CSE chairperson testified that the boy had made little progress in improving his reading skills during the 1994-95 and 1995-96 school years. The boy's teacher testified that the boy's degree of reading power (DRP) score of 27 on the May, 1996 New York State Pupil Evaluation Program third grade reading test was slightly below the statewide reference point, i.e. the point below which remediation must be provided to a student (8 NYCRR 100.3 [a][3]). The child's speech/language therapist, who tested him shortly before the CSE's annual review, reported that the child's standard scores on various standardized tests such as the Tests of Language Development, and the Test of Auditory Reading and Processing Skills, were in the average range. She recommended that the child's speech/language therapy be discontinued. The CSE accepted her recommendation, with which petitioner reportedly concurred.

        Near the end of the CSE meeting, petitioner reportedly displayed either a brochure or a bill for a six-week summer instructional program of the Gow School, a private school which has not been approved by the State Education Department to provide instruction to children with disabilities. At the hearing in this proceeding, the CSE chairperson, the child's speech/language therapist, and a school psychologist member of the CSE testified that petitioner requested that respondent pay for the child's instruction at the Gow School's summer program in the summer of 1996. The CSE chairperson further testified that he had explained to petitioner at the annual review that her son was ineligible to be recommended by the CSE for a twelve-month instructional program.

        For the 1996-97 school year, the CSE recommended that the child receive his primary instruction in a self-contained special education class with a 15:1 child to adult ratio, on a ten-month basis. The record reveals that at a subsequent CSE meeting on July 10, 1996 the CSE amended the boy's IEP to provide that he be instructed in a regular education fourth grade class, with consultant teacher services. The IEP was amended again on October 9, 1996 to delete consultant teacher services, and to provide that the boy receive one period per day of reading instruction in a 15:1 special education class. At the hearing in this proceeding, petitioner indicated that she did not challenge the boy's IEP, except as noted below.

        In a letter to the CSE chairperson, which he received on June 7, 1996, petitioner asked that an impartial hearing be held to review the appropriateness of her son's individualized education program (IEP) for the 1996-97 school year, in light of the CSE's failure to recommend that the boy receive a twelve-month educational program. She also asked that she be reimbursed for the cost of money she had spent to have the child evaluated and tutored.

        A hearing began before Mr. Stanley Abrams on July 12, 1996. Petitioner asked Mr. Abrams to recuse himself from conducting the hearing. On August 29, 1996, Mr. Abrams recused himself. I note that in an appeal to the Commissioner of Education, which was ultimately dismissed as moot, petitioner apparently claimed that Mr. Abrams had been invalidly appointed to serve as the hearing officer (Appeal of a Student with a Disability, 36 Ed. Dept. Rep. 229).

        On September 9, 1996, respondent appointed Mr. Harry Kershen, to serve as the hearing officer in this proceeding. In a letter to Mr. Kershen, petitioner asked him to recuse himself on the ground that respondent's rotational list of hearing officers was tainted because its CSE chairperson had allegedly been involved in the selection of the individuals on the list. She also advised Mr. Kershen that she had previously filed an appeal with the Commissioner of Education regarding the rotational list of hearing officers. In a letter dated September 25, 1996, the hearing officer advised petitioner that he would not recuse himself, and that the hearing in this proceeding would resume on October 2, 1996, unless he was directed by the Commissioner of Education to do otherwise. Petitioner renewed her request that the hearing officer recuse himself, when the hearing resumed on October 2, 1996. Mr. Kershen denied petitioner's recusal motion. Petitioner asked the hearing officer not to continue the hearing because she was about to commence a new appeal to the Commissioner of Education, and she would ask the Commissioner to issue a stay order prohibiting the hearing from being held until her appeal was decided. The parties and the hearing officer agreed to adjourn the hearing until October 21, 1996, to afford the Commissioner the opportunity to rule upon petitioner's request for a stay order.

        On or about October 9, 1996, the Office of State Review received an appeal by petitioner from the State Education Department's Office of Counsel. The appeal was referred to the State Review Officer because petitioner had begun the appeal with a notice of intention to seek review of a hearing officer's decision (see 8 NYCRR 279.2). However, the petition only briefly alluded to Mr. Kershen's refusal to recuse himself. Instead, the gist of the petition addressed petitioner's claim that respondent's rotational list of hearing officers should be annulled, and that respondent should be required to adopt new practices in creating a new rotational list of hearing officers.

        In Application of a Child with a Disability, Appeal No. 96-70, I found that the petition was not properly before me (see Section 4404 [2] of the Education Law), and that it was in fact an appeal to the Commissioner of Education pursuant to Section 310 of the Education Law. I dismissed petitioner's appeal, and returned her papers to the Office of Counsel, on November 8, 1996. In a letter to the Commissioner of Education, which was dated November 25, 1996, petitioner renewed her request for a stay order.

        The hearing in this proceeding resumed on November 26, 1996. At petitioner's request, a copy of her November 25, 1996 letter requesting a stay order was entered into evidence. Petitioner objected to having the hearing continue prior to a decision by the Commissioner with regard to her request for a stay order. The hearing officer overruled petitioner's objection. Petitioner then announced that she would exercise her right to leave the hearing, under the mistaken belief that the hearing could not continue in her absence (cf. Application of a Child with a Disability, Appeal No. 93-47). Despite the urging of the hearing officer and respondent's attorney that she remain, petitioner walked out of the hearing.

        The hearing continued without petitioner. The child's third grade and resource room teachers testified about the child's progress during the 1995-96 school year, as did his speech/language therapist. The CSE chairperson also testified about the single occasion in which petitioner had sought and obtained an independent evaluation at respondent's expense, prior to the end of the 1995-96 school year. Respondent's Director of Special Education testified that at a meeting held on July 10, 1996, petitioner requested three independent evaluations of her son, at respondent's expense. He further testified that respondent had agreed to pay for the requested evaluations.

        In his decision which was rendered on December 26, 1996, the hearing officer indicated that he believed that the voluntary "temporary stay" which had been agreed to at the hearing on October 2, 1996 had run its course after neither the Commissioner of Education nor the State Review Officer had granted a stay order to petitioner. He noted that petitioner had indicated at the hearing on November 26, 1996 that she had no specific challenge to his impartiality, but that she wished to pursue her claim that respondent's rotational list of hearing officers should be invalidated. He found that petitioner's reliance upon the decision by the Commissioner of Education in Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 138, for the proposition that the hearing officer was required to discontinue the hearing was misplaced, because in that decision the parent had withdrawn his request for a hearing. When she was asked at the hearing on November 26, 1996 whether she was withdrawing her request for a hearing, petitioner indicated that she had not withdrawn her request. The hearing officer denied petitioner's claim for tuition reimbursement for the summer instructional program at the Gow School on the grounds that the CSE had not recommended a twelve-month program for the boy, and that the Gow School was not approved by the State Education Department. He further found that petitioner's claim for reimbursement for the child's evaluation and tutoring was too vague to be substantiated.

        Petitioner has asked me to invalidate respondent's rotational list of hearing officers, and to invalidate the hearing officer's decision, on the ground the Mr. Kershen was illegally appointed. However, she has chosen to appeal to the Commissioner of Education pursuant to Section 310 of the Education Law with regard to her claim about respondent's selection and appointment of hearing officers. Her appeal to the Commissioner is still pending. She can not simultaneously pursue her claim in this proceeding. As I noted in my previous decision, petitioner does have the right to challenge the hearing officer's refusal to recuse himself in this proceeding. However, she indicated at the hearing in this proceeding that she has no basis for seeking Mr. Kershen's recusal, apart from her claim that respondent's rotational list of hearing officers was illegally prepared. That issue will now have to be determined by the Commissioner of Education.

        Petitioner contends that the hearing officer's decision should be annulled because he did not terminate the hearing when she walked out of the hearing on November 26, 1996. She asserts that Federal and State regulations afford each party to a hearing the right to present evidence, and to confront and cross-examine witnesses (34 CFR 300.508 [a][2]; 8 NYCRR 205.5 [c[[9], and that a hearing must be conducted at a time and place which is reasonably convenient to the parent and the student [8 NYCRR 200.5 [c][8]). However, a parent may not prevent a hearing from being held by merely failing to appear, or failing to make a bona fide request for an adjournment of the hearing (Matter of a Child Suspected of Having a Handicapping Condition, 22 Ed. Dept. Rep. 412; Matter of a Handicapped Child, 23 id. 423; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-5; Application of a Child with a Disability, Appeal No. 95-73). I concur with the hearing officer's finding that the holding in Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 138, did not apply in this proceeding because petitioner had not withdrawn her request for a hearing. A hearing officer has an obligation to go forward with a due process hearing, unless the request for a hearing is withdrawn (Application of a Child with a Disability, Appeal No. 93-47).

        Although the fact that petitioner had filed an appeal with the Commissioner of Education did not provide a basis for the hearing officer to discontinue with the hearing, I find that he abused his discretion by not granting petitioner a brief adjournment to afford her the opportunity to ascertain whether her request for a stay order had been granted by the Commissioner. He was aware that, upon the advice of the Office of Counsel, petitioner had just renewed her request for a stay order after I had dismissed her appeal and had transferred the appeal to the Commissioner. The hearing officer was also aware that the appropriateness of the child's current educational program was not at issue, nor was any other issue which required immediate resolution. Petitioner was clearly misinformed in believing that the hearing could not proceed without her being present. However, she was not represented by an attorney. I find that fairness requires that she be afforded an opportunity to present her claims (Application of a Child with a Disability, Appeal No. 93-47). Therefore, I will annul the hearing officer's decision, and direct respondent to appoint another hearing officer to conduct a hearing.

        For the benefit of the parties, I must note that petitioner's request for reimbursement for the cost of a summer instructional program and/or private tutoring should be determined in accordance with the criteria set forth in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]), i.e., whether the instructional services offered by the board of education were inappropriate, whether the services which the parent paid for were appropriate, and whether equitable considerations support the parent's claim for reimbursement. Petitioner must indicate the specific periods of time the tutoring for which she seeks reimbursement was provided, so that respondent will have the opportunity to present evidence which is relevant to her claim. The child's entitlement, if any, to a twelve-month instructional program should be determined in accordance with the criteria set forth in 8 NYCRR 200.6 (j). With regard to petitioner's claim for reimbursement for the cost of independent evaluations which she has obtained, she must also identify the specific evaluations for which she seeks reimbursement. Respondent must either pay for the evaluations, or initiate a due process hearing to demonstrate that it had adequately evaluated petitioner's son (34 CFR 300.503 [b]; 8 NYCRR 200.5 [a][1][vi]).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled, and;

IT IS FURTHER ORDERED that within fifteen days after the date of this decision respondent shall appoint a hearing officer to conduct a new hearing in this matter.