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91-7

Application of a CHILD WITH A HANDICAPPING CONDITION, by his parent, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the City School District of the City of New York

Appearances:

Michael G. Flanagan, Esq., attorney for petitioner

Hon. Victor A. Kovner, Corporation Counsel, attorney for respondent, Carole A. Paynter, Esq., of counsel

DECISION

Petitioner appeals from the determination of an impartial hearing officer which found that respondent's committee on special education (CSE) could perform a re-evaluation of petitioner's son without petitioner's consent, and that the CSE had made a good faith effort to comply with my decision in Appeal No. 90-18. The appeal must be dismissed.

Petitioner's seven year old son has been classified by the CSE as an autistic pupil. The pupil's classification was not in dispute in the prior appeal, nor is it in this appeal.

The pupil began attending school at the Early Learning Center, a non-public preschool program, in September, 1987. In July, 1988, he entered the Eden II School for Autistic Children, an approved non-public school for children with handicapping conditions. The pupil has remained in the Eden II School on a 12 month basis since 1987.

The pupil attended the Eden II School at respondent's expense during the 1989-90 school year, pursuant to a February, 1990 stipulation between the parties (hereinafter the "stipulation"). The stipulation provided that the CSE would re-evaluate the pupil prior to April 15, 1990, for the purpose of recommending an appropriate placement for the pupil during the 1990-91 school year. However, the re-evaluation was not completed on a timely basis. Petitioner refused to participate in an interview to update the pupil's social history, or to authorize the pupil's physician to release a copy of the pupil's most recent physical examination records to the CSE.

At a meeting held on May 14, 1990, the CSE recommended that the pupil be placed on a 12 month basis in a Specialized Instructional Environment III (SIE III) class at P.S. 37 in Staten Island. Petitioner sought review of that recommendation by an impartial hearing officer. In a decision dated September 18, 1990, the hearing officer found that the proposed placement was appropriate to meet the needs of the pupil. The hearing officer further found that the CSE had committed certain procedural violations, but that such violations did not afford a basis for invalidating the CSE's recommendation.

Petitioner sought review of the hearing officer's decision in her appeal to the State Review Officer, Appeal 90-18. In my decision, dated December 6, 1990, I found that respondent had violated the provisions of Section 4402 (1)(b)(1) of the Education Law, by compensating the parent member of the CSE at a flat rate, without regard to the member's actual and necessary expenses for attending the May 14, 1990 meeting of the CSE. As a consequence of that violation, I further found that the CSE had not been properly constituted with a parent member, as prescribed by the Education Law, and annulled the recommendation of the CSE. I remanded the matter to the CSE, with the direction that within 30 days after the date of my decision, the CSE was to meet and recommend an appropriate placement for petitioner's child for the remainder of the 1990-91 school year.

On December 12, 1990, petitioner was contacted on the telephone by a representative of the CSE, who informed petitioner of his desire to perform a social history interview as part of a triennial evaluation of the pupil. Petitioner's attorney advised the CSE that, while petitioner had no objection to a triennial evaluation for use in placing the pupil in the 1991-92 school year, the CSE was obliged to make its recommendation for the 1990-91 school year in accordance with the evaluation which was to have been performed pursuant to the stipulation. Thereafter, petitioner advised the CSE that she was withdrawing her consent to any psychological evaluation of the pupil. Although a meeting of the CSE was scheduled for December 27, 1990, petitioner's attorney advised the CSE that petitioner would not participate in that meeting.

At petitioner's request, a hearing was held on January 15, 1991. The hearing officer identified the issues to be determined as: whether the CSE had the right to evaluate the pupil for the purpose of recommending a placement for the remainder of the 1990-91 school year; whether the CSE had complied with my decision directing the CSE to recommend a placement within 30 days after the date of my decision; and what, if any, relevance did the stipulation have in determining the pupil's placement for the 1990-91 school year.

By decision dated January 30, 1991, the hearing officer held that under Federal and State regulations petitioner's consent was not required for further evaluation of the pupil, and found that the CSE had acted within its discretion in seeking new evaluations. With regard to the decretal provision of my decision in which I directed the CSE to recommend a placement within 30 days after the date of my decision, the hearing officer concluded that the term "days" meant school days, based upon the definition of the term "day" in 8 NYCRR 200.1 (k). The hearing officer also found that the CSE's delay, if any, in complying with my decision was caused by petitioner's failure to cooperate with the CSE. The hearing officer also declined to give the stipulation any effect, i.e. to limit the CSE to the partial evaluations which had been completed prior to April 15, 1990.

It should be noted that petitioner requested that I issue an interim order precluding the CSE from evaluating the pupil during the pendency of this appeal. Petitioner's request was denied, upon the representation by respondent that a re-evaluation of the pupil would not be attempted by the CSE until I reach my decision.

Petitioner objects to the manner in which the hearing was conducted on January 15, 1991, as well as to the results reached by hearing officer. She asserts that the hearing was conducted on an informal basis, with significant discussions not included in the formal record of the hearing, and that the hearing officer failed to assign the burden of proof of the issues which were before him. Petitioner also asserts that the hearing officer made an oral decision on the matter, before petitioner had been afforded an opportunity to cross-examine witnesses and before the hearing officer had an opportunity to become familiar with the documentary evidence which was adduced at the hearing.

The record reveals that petitioner's attorney, respondent's attorney and the hearing officer met prior to the formal opening of the hearing, for the purpose of identifying the issues to be discussed and the evidence to be admitted at the hearing. During the recorded proceedings, the hearing officer identified the issues to be discussed, and solicited an expression of their respective positions on the issues from the attorneys for the parties. Neither party revealed an intention to have witnesses testify. The hearing officer stated that he had concluded with the questions he had intended to explore, and asked if either party had any requests to make to him. Petitioner's attorney requested that a document be accepted into the record, which request was granted. At that point, the hearing officer orally advised the attorneys of his conclusions on each of the issues raised, and stated that a written decision would be prepared. An off-the-record discussion was then held, which was described thereafter on the record by the hearing officer as relating to an immediate appeal by petitioner of the hearing officer's decision. Only at that point, did petitioner's attorney assert that the hearing officer had rendered his decision before the attorney had had an opportunity to question people or call witnesses.

When petitioner's attorney was asked by the hearing officer to explain how the hearing officer's oral decision had precluded petitioner from presenting her case, the attorney referred to the possible testimony of various staff from the CSE who were present at the hearing. The hearing officer then offered petitioner's attorney the opportunity to call the witnesses, which the attorney declined to do. I note that during the course of the hearing and prior to the announcement by the hearing officer of his decision, petitioner's attorney stated that he suspected that the hearing officer was about to render a decision, and that he wanted to complete the record by adding the document discussed previously.

I find that petitioner has not supported her conclusory assertations about the conduct of the hearing with facts which would demonstrate any infringement upon her right to present evidence. Although each party to an impartial hearing has a right to present evidence and to confront and question witnesses (8 NYCRR 200.5 [c][8]), almost all of the discussion at the hearing was by the attorneys, who were not witnesses. The hearing officer did specifically ask the chairperson of the CSE about the currency of the evaluations of the pupil which the CSE possessed, and whether new evaluations were needed. The hearing officer, while not specifically asking petitioner's attorney if he wished to question the CSE chairperson, did allow the attorney to speak on the issue of the pupil's re-evaluation. The attorney stated his position, and did not attempt to question the CSE chairperson about the need for a re-evaluation.

With regard to petitioner's assertion about the hearing officer's failure to assign a burden of proof on each of the issues, I note that the burden of proof is an evidentiary term, relating to the duty of affirmatively proving facts in dispute (Black's Law Dictionary, Fourth Edition). The issues raised at the hearing were legal, rather than factual.

Except for the discussions between the attorneys and the hearing officer immediately preceding the hearing and again after the hearing officer had orally rendered his decision, the record does not reveal that there were any other off-the-record discussions. Petitioner has not identified the times when the alleged off-the-record discussions of which she complains occurred, or the subjects which were discussed. While State regulation requires that the decision of a hearing officer be based solely upon the record before him (8 NYCRR 200.5 [c][10]), I am unable to conclude that petitioner's interests were harmed by the conduct of the hearing.

As noted above, the issues before the hearing officer were legal in nature. The hearing officer sought and obtained the positions of the parties on the issues. The written decision of the hearing officer reflects an awareness of the facts set forth in the documents entered into evidence. In his decision, the hearing officer states that certain exhibits which were to be received as the hearing officer's exhibits were not in fact given to him, or considered by him in reaching his decision. Those exhibits relate to the record in the previous hearing. However, the record before the hearing officer did include copies of two decisions of the hearing officer in the prior hearing, a copy of my decision, and other relevant documents relating to events which occurred subsequent to my decision. The record also included a copy of the stipulation. I find that the hearing officer had an adequate basis on which to reach a decision in this matter.

Both parties have cited my decision in Appeal 90-18 in support of their respective positions on the question of whether the pupil should be re-evaluated. I must note that my decision neither required nor precluded the re-evaluation of the pupil. I did not reach the issue of the appropriateness of the prior evaluation, in view of my finding that the CSE's recommendation of a placement must be nullified because the CSE was not validly constituted.

A CSE must have sufficient current information about a pupil to support its recommendation for the pupil's placement (8 NYCRR 200.4 [f]). The record reveals that petitioner's son should have received a triennial evaluation, as required by 8 NYCRR 200.4(f), by no later than February, 1991. Accordingly, I find that it was reasonable for the CSE to conclude in December, 1990, that the pupil should be re-evaluated. I agree with the hearing officer that the re-evaluation which the CSE intended to perform should have been in lieu of, rather than in addition to, the pupil's triennial evaluation.

Federal and State regulations provide that a pupil who has not been previously evaluated or identified as a pupil with a handicapping condition may not be evaluated without the consent of the pupil's parent (34 CFR 300.504 [b][1][i]; 8 NYCRR 200.5 [b][1]), unless the board of education is authorized by an impartial hearing officer to perform the evaluation without parental consent (34 CFR 300.504 [c][2]; 8 NYCRR 200.5 [b][2]). Although parental consent may be withdrawn at any time (34 CFR 300.500 [c]; 8 NYCRR 200.1 [j]), the withdrawal of consent to an initial evaluation after that evaluation has been performed does not preclude a board of education from performing subsequent evaluations (Carroll v. Capalbo, 563 F. Supp. 1053; Application of a Child with a Handicapping Condition, 27 Ed. Dept. Rep. 137; Matter of Board of Education Garden City Union Free School District, 22 id. 580). Petitioner does have the right to obtain an impartial hearing to review the recommendation of the CSE as to placement based upon the pupil's re-evaluation (Carroll v. Capalbo, supra). Therefore, I find that petitioner's consent to the proposed re-evaluation was not required.

Petitioner objects to the use of any new evaluation in making a decision as to the appropriate placement of the pupil for the 1990-91 school year, because the stipulation between the parties provided that evaluations for the purpose of the pupil's placement during such school year would be completed by April 15, 1990. At the hearing, petitioner's attorney expressed the position that the CSE, having failed to comply with the stipulation, should now be compelled to allow petitioner to place her son in any approved private school for the remainder of the 1990-91 school year.

Although I do not condone the delay by the CSE in failing to complete the evaluation of the pupil in accordance with the April 15, 1990 deadline imposed by the stipulation, it does not follow that the pupil's present needs should be ignored in making a decision as to an appropriate placement for the pupil at this time. I must also note that, at the hearing, the attorneys for the CSE and petitioner stated that the stipulation was under consideration by a United States District Court. The Court will therefore determine what, if any, remedy is appropriate for the CSE's alleged breach of its stipulation with petitioner. Consequently, I find that the CSE is not precluded by the stipulation from proceeding to perform a re-evaluation.

Petitioner also appeals from the hearing officer's finding that pursuant to my directive in Appeal No. 90-18 that the CSE meet and recommend an appropriate placement within 30 days after the date of my decision, the CSE had 30 school days, rather than calendar days, in which to comply with that directive. The hearing officer relied upon the definition of the word "day" set forth in 8 NYCRR 200.1 (k), which uses school work days except during the months of July and August, for the purposes of Part 200 of the Regulations of the Commissioner of Education. However, my decision, while obviously relating to the education of a child with a handicapping condition under Part 200, is not a regulation. A directive that something be done within 30 days means within 30 calendar days (Section 20 of the General Construction Law).

Although I have discussed the meaning of the term day in my prior decision for the benefit of the parties, it is not a significant issue in this appeal. Petitioner having declined to allow the pupil to be made available for testing or to meet with the CSE on December 27, 1990, cannot now assert that the CSE should be penalized for failing to comply on a timely basis with my prior decision.

THE APPEAL IS DISMISSED.

Dated: Albany, New York

March 22, 1991                                               HENRY A. FERNANDEZ