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No. 91-37

Application of a CHILD WITH A HANDICAPPING CONDITION, by his parent, for review of a determination by a hearing officer relating to reimbursement by the Board of Education of the Shoreham-Wading River Central School District for the cost of an independent evaluation

Appearances:

Frank X. Kilgannon, Esq., attorney for petitioner

Jerem O'Sullivan, Esq., attorney for respondent

DECISION

Petitioner appeals from the determination of an impartial hearing officer finding that the triennial evaluation of petitioner's child which respondent's committee on special education (CSE) performed in November, 1991 was appropriate, and denying petitioner's request for an order directing respondent to reimburse petitioner for the cost of an independent evaluation of the child performed by the Long Island Jewish Hospital (LIJH). The appeal must be sustained.

Petitioner's child, who is twelve years old, has cerebral palsy. He has been classified as multiply handicapped, i.e. that he has a physical disability and a mental disability (8 NYCRR 200.1 [ff][11]) but, the record does not reveal the basis for the classification. Nonetheless, the classification is not in dispute. The child attended various preschool programs before enrolling in a special education kindergarten class operated by the Board of Cooperative Educational Services of Nassau County. The child attended school in the Farmingdale Union Free School District, where he was in a special class for first and second grades and he received occupational therapy, physical therapy and speech/language therapy. In 1987, the child's parents moved into the Shoreham-Wading River Central School District. The child has been enrolled in a special education program, known as the Learning Center, at respondent's Miller Avenue Elementary School, since September, 1987. For the 1990-91 school year, the child received some primary instruction in the Learning Center, but was also mainstreamed for approximately 90 minutes each day during which he received instruction in social studies, science and special subjects. The child received daily speech/language therapy, occupational therapy and counseling once each week, and adaptive physical education.

In the Fall of 1990, respondent performed a triennial evaluation of the child, consisting of a psychological evaluation, an educational evaluation, a speech/language evaluation and a social history update. On January 2, 1991, the child's parents met with a building level child study team to review the results of the triennial evaluation and to begin planning the child's program for the 1991-92 school year. A report of the January 2 meeting reveals that the child's teacher reported that the child needed much help from a teaching assistant in order to be successful, and that the child did not interact with any other child in the class. The teacher further reported that the child subvocalized to himself and clapped his hands while in class. The child study team concluded that the child's needs could be better met in another placement and recommended to the CSE that an out-of-district special education placement be selected for the child.

In a letter dated April 19, 1991 to respondent's director of special education, petitioner questioned the validity of the psychological evaluation which had been performed in November, 1990 as part of the triennial evaluation and to be used as a basis for recommending that the child's placement be changed. Petitioner advised the director of special education that the child would be evaluated at LIJH, and that petitioner understood that he had a right to obtain an independent evaluation at public expense. In a letter dated April 30, 1991, the director of special education advised petitioner that the CSE would initiate an impartial hearing to establish that the triennial evaluation was appropriate, thereby relieving respondent of responsibility to pay for the child's independent evaluation. Although the child's parents also challenged the recommendation by the CSE for a change of the child's placement, that matter was the subject of another hearing and is not before me.

A hearing was held on June 24, 1991. At the hearing, the director of special education introduced into evidence the triennial evaluation results and some related documents. The district did not present any witness who had participated in the triennial evaluation, or who had personal knowledge of the child. By interim order dated July 13, 1991, the hearing officer ordered the CSE to provide the hearing officer with a copy of the results of a current physical examination of the child, completed in accordance with the provisions of Section 904 of the Education Law. On July 25, 1991, the hearing officer rendered his final decision, in which he found that respondent had conducted an appropriate evaluation of the child and that petitioner was not entitled to be reimbursed for the cost of the independent evaluation which he had obtained at LIJH.

Petitioner asserts that the November, 1990 psychological evaluation performed by respondent's school psychologist was inadequate and incomplete. Petitioner further asserts that respondent failed to perform a medical re-evaluation of the child.

Respondent asserts that its triennial evaluation was appropriate, and that it complied with the requirements of State regulation. Respondent further asserts that it is not obligated to pay for the results of the independent evaluation, because the findings and recommendations of the LIJH evaluation essentially concur with those of respondent's staff.

Before reaching the merits of the parties' respective positions, I must first address a substantial error by the hearing officer during the hearing. Respondent chose not to present as witnesses its employees who performed the child's triennial evaluation. At the hearing, petitioner expressed his desire to question respondent's staff about their qualifications and statements which they had made in their respective evaluations or in other documentary evidence submitted by respondent. The district's director of special education stated that the employees would not be available, because the schools had just closed for the summer. The hearing officer did not advise the petitioner of the hearing officer's subpoena authority. Instead he advised petitioner that he could attempt to obtain the information he sought by asking questions of the director of special education. However, at least twice, the director of special education testified that he could not speak for the other employees. With respect to questions concerning the child's principal, who was a member of the child study team, the hearing officer said:

"I know that we are at a disadvantage that Mr. Schwartz is not here, but the school year is over and he is not available."

There is no evidence in the record that petitioner, who was not represented by an attorney, was advised of his right to subpoena witnesses, prior to the hearing. The hearing transcript reveals that the hearing officer did not advise petitioner of his right to obtain subpoenas from the hearing officer (8 NYCRR 200.5 [c][1]). Indeed, the hearing officer's statement with respect to the child's principal would lead any reasonable person to conclude that it was not be possible to obtain the testimony of the principal. I find that the hearing officer erred in not advising petitioner of his right to obtain subpoenas to require the individuals who performed the triennial evaluation to testify at the hearing.

I now turn to the central issue in this appeal which is whether the triennial evaluation performed by respondent's staff was appropriate. State regulation provides that upon receipt of a referral of a child for an initial evaluation or re-evaluation, a CSE must notify the child's parent that:

"... if the parent disagrees with the evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. However, the school district may initiate an impartial hearing to show that its evaluation is appropriate and, if the hearing officer determines that the evaluation is appropriate, the parent has a right to an independent evaluation, but not at public expense ..." (8 NYCRR 200.5 [a][1][vi][a])

State regulation provides that a triennial evaluation shall consist of, at least re-examinations by a physician, a school psychologist and, to the extent required by the CSE, by other qualified appropriate professionals (8 NYCRR 200.4 [f][4]). The purpose of triennial evaluation is to provide sufficient information to determine a child's individual needs and continuing eligibility for special education (ibid). At the outset, I must note that the record does not include the results of a medical examination. The hearing officer stated in his decision that respondent had provided a copy of the child's cumulative health record in compliance with Section 200.4 (f)(4) of the Regulations of the Commissioner of Education. However, the child's cumulative health record, which provides no evidence of a recent medical examination of the child, is clearly deficient because it is not the medical re-examination required by State regulation. An updated medical evaluation is essential to provide information about this child, because the child's medical condition, cerebral palsy, impairs his motor and sensory functions. However, there is little or no evidence of the extent to which the child's motor and sensory functions are impaired. Such an evaluation would reveal whether the child's medical condition is stable, whether his seizure pattern has continued, and whether some of the behavior noted by his teacher, such as staring at his hands, is attributable to his cerebral palsy. A medical evaluation should also establish whether the child's needs for physical and/or occupational therapy should also be evaluated.

Respondent's evaluative information in the record before me is deficient, in that it does not clearly identify the nature of the child's handicapping condition and how his handicapping condition impacts upon his ability to learn. The child has been classified as multiply handicapped. State regulation defines a multiply handicapped child as:

" A pupil with two or more handicapping conditions that result in multisensory or motor deficiencies and developmental lags in the cognitive, affective or psychomotor areas, the combination of which cause educational problems that cannot be accommodated in a special education program solely for one of the impairments." (8 NYCRR 200.1 [ff][11])

There is very little information about the child's sensory or motor skills and deficiencies in the school district's triennial evaluation, which concentrates on his cognitive deficits, as measured in IQ testing. Although the CSE has apparently concluded that one portion of the child's multiply handicapping condition is mental retardation, the psychological evaluation performed by respondent's school psychologist in November, 1990 is not adequate to establish that the child is mentally retarded, because it does not measure the child's adaptive behavior. Both Federal and State regulations provide that a child may not be classified as mentally retarded, unless there is a concurrent deficit in the child's adaptive behavior, as well as below-average intellectual functioning (34 CFR 300.5 [a][4]; 8 NYCRR 200.1 [ff][4]). Adaptive behavior includes communications, self-help skills, social skills and physical/motor skills which allow a child to function in his environment. While there are several ways to assess adaptive behavior, the November, 1990 psychological evaluation failed to make such assessment. Without an assessment of the child's adaptive behavior, it is not

possible to conclude that the child is mentally retarded, or to accurately assess the child's cognitive skills.

Respondent's psychological evaluation is also deficient, because it fails to recognize that the child's responses in his intelligence testing may have been hindered by his motor deficits. In performing an evaluation, school districts must ensure that:

"tests are selected and administered to ensure that, when a test is administered to a child with impaired sensory, manual or speaking skills, the test results accurately reflect the child's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child's impaired sensory, manual or speaking skills, except where those skills are factors which the test purports to measure." (8 NYCRR 200.4 [b][2])

In her evaluation performed in November, 1990, respondent's school psychologist reported that she has administered a Wechsler Intelligence Scale for Children-Revised (WISC-R) to ascertain the child's intellectual functioning. The school psychologist further reported that the child's scores of 47, 48 and 43, for verbal, performance and full scale IQ scores place the child in the mentally deficient range of intellectual functioning, and that the child's IQ scores had decreased at each triennial evaluation while his level of functioning had remained at about the level of a five or six year old child. When the WISC-R was administered to the child at LIJH in April, 1991, the child achieved scores of 59, 54 and 52 for verbal, performance and full scale IQ. More importantly, the LIJH psychologist recognized that the child's performance on coding was impaired by his significant graphomotor difficulties and slow speed. The psychologist reported higher performance and full scale IQ scores for the child on untimed portions of the WISC-R. The child's IQ scores, which are higher than those reported by the district's school psychologist, were confirmed by the results of the adaptive behavior assessment done at LIJH. In addition, the psychologist administered portions of the Stanford-Binet Intelligence Scale, the results of which confirmed the validity of the child's scores on the WISC-R administered at LIJH. With respect to the child's graphomotor difficulties, the LIJH psychologist recommended that the child be trained in word processing, the LIJH psychologist also recommended that the child be assessed to determine his need for occupational and physical therapies, in view of his deficits in gross and fine motor skills.

In view of the failure of respondent's school psychologist to assess the child's adaptive behavior and to consider the impact of the child's sensory and/or motor deficits in attempting to measure the child's cognitive skills, I find that respondent's psychological evaluation was inadequate, and will direct respondent to reimburse petitioner for the cost of the psychological evaluation of the child at LIJH in April, 1991.

At the LIJH, the child was evaluated psychologically and educationally. The record includes both the psychological and educational evaluations. In his letter of April 19, 1991, petitioner expressed his dissatisfaction only with regard to respondent's psychological evaluation, and no mention was made of the educational evaluation by respondent at the hearing. Although the educational evaluation by the LIJH provides more detail than that of the educational evaluation by respondent, I find no basis to conclude that the latter evaluation is inadequate.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that within 30 days after the date of this decision, respondent shall reimburse petitioner for the cost of the neuropsychological evaluation performed at the LIJH in April, 1991, upon submission of proof by petitioner to respondent that he has paid the LIJH for such evaluation.

Dated: Albany, New York __________________________
November 21 , 1991 HENRY A. FERNANDEZ