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No.  91-42

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:

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, R. Townsend Davis, Jr., Esq., of counsel

DECISION

Petitioner appeals from the decision of an impartial hearing officer which disagreed with the recommendation of respondent's committee on special education (CSE) that petitioner's child be classified as emotionally disturbed and directed that the child be classified as learning disabled, but upheld the CSE's recommendation that the child be placed in a modified instructional services II (MIS-II) class. The appeal must be sustained.

Petitioner's child, who is eight years old, entered kindergarten at P.S. 159 in September, 1988. The child experienced academic and behavioral problems, which the school attempted to address by placing him on a half-day schedule and placing him in another class. However, the child continued to have difficulty in school, and was returned to his original class.

The child was referred to the CSE, which sought petitioner's consent to an evaluation. When petitioner declined to consent to an evaluation, respondent initiated a hearing in June, 1988, to obtain authorization to evaluate the child without petitioner's consent. The hearing officer determined that the child should be evaluated, but afforded petitioner an opportunity of having the child privately evaluated. The hearing officer directed that if petitioner failed to obtain an evaluation by August 1, 1989, the CSE was to evaluate the child. Petitioner did not obtain an evaluation, and the CSE proceeded with its evaluation. The child repeated kindergarten during the 1989-90 school year, but finished that year on home instruction.

The CSE recommended that the child be classified as learning disabled and receive resource room services for one period each day, as well as counseling once each week. Petitioner did not consent to the CSE's recommendation. In November, 1989, the child's building principal referred the child to the CSE, because of the child's continuing problems in school. The CSE recommended that the child be classified as learning disabled and emotionally disturbed, and that he be placed in a modified instructional service IV class, with counseling once each week.

Petitioner did not consent to the CSE's recommendation. Respondent initiated a hearing to obtain authorization to place the child in accordance with the CSE's recommendation. On March 26, 1990, a hearing officer upheld the CSE's recommendation, but did order respondent to have the child receive a neurological examination. Petitioner appealed from the hearing officer's decision to the Commissioner of Education. In Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 41, the Commissioner found that the child demonstrated some signs of a learning disability, such as severe perceptual motor deficits and a high level of distractibility which depressed his intellectual potential, but that the CSE had failed to include a required physical examination in its evaluation of the child (8 NYCRR 200.1 [cc][3]. Because children whose learning problems are primarily the result of visual, hearing or motor handicaps are not considered to have a learning disability (8 NYCRR 200.1 [ff][3]), the Commissioner found that without the physical examination it was premature to classify the child as learning disabled. He further found that it was improper to classify the child as emotionally disturbed, because health factors had not been ruled out as a cause of the child's educational difficulties and because there was no need to designate a second handicapping condition for the child. The Commissioner annulled the hearing officer's decision, and directed the CSE to conduct such physical examinations as might be appropriate.

In September, 1990, the child was enrolled, at petitioner's request in P.S. 261, and placed in the second grade. On October 9, 1990, the child was examined by a physician, who found no basis to suspect that the child had any neurological deficit which would afford a basis to warrant a neurological evaluation. The child received an audiological evaluation on November 6, 1990, an educational evaluation on November 20, 1990, a psychological evaluation on December 4, 1990, a second observation of the child with his class in the school library was made on January 3, 1991, and a social history was prepared on January 11, 1991. On January 30, 1991, the CSE recommended that the child be classified as emotionally disturbed, and that he be placed in an MIS-II class, with counseling once a week in a group not to exceed three children. A placement was offered at P.S. 32.

Petitioner did not consent to the CSE's recommendation. On April 25, 1991, the principal of P.S. 261 requested that a hearing be held. The hearing was held on June 17, 1991. On June 28, 1991, the hearing officer issued an interim order directing that an independent evaluation of the child be completed within six weeks, in view of petitioner's reservations about the evaluation performed by the CSE. The hearing officer directed the CSE to meet by no later than August 15, 1991, to consider the results of the independent evaluation.

Petitioner contacted a psychologist to perform the evaluation. However, the child was subsequently referred to another psychologist by respondent's Impartial Hearing Office. The latter psychologist completed an evaluation of the child on August 8, 1991. The psychologist found that the child was functioning in the low average range of ability, and that he was learning disabled with difficulties in visual-motor functions. The psychologist recommended that the child be placed in a specialized instructional program to remediate his educational difficulties. He further suggested that the child receive a speech/language assessment and a visual examination. The psychologist opined that the child was likely to respond with aggression as he became frustrated with school work, and suggested that the child might benefit from counseling.

On August 15, 1991, the CSE reconsidered its recommendation in light of the August 8th evaluation. Nevertheless, the CSE reaffirmed its recommendation that the child be classified as emotionally disturbed. The CSE also recommended that the child be placed in a MIS-II class, and that he receive counseling in a group not to exceed three children once a week and individual counseling once a week.

In a decision dated September 6, 1991, the hearing officer found that the child should be classified as learning disabled, and that the child's management needs were such that the MIS-II class with the related service of counseling recommended by the CSE was appropriate. The hearing officer directed the CSE to reconvene to change the child's classification to learning disabled and to place the child in an appropriate class with children having similar academic, management and social needs.

Petitioner asserts that she was not properly advised of her rights as a parent in October 4, 1988, when she agreed to a school request that the child be removed from full-day kindergarten and placed in a half-day kindergarten. Petitioner further asserts that the child was deprived of the independent evaluation which the hearing officer had ordered in her June 28 interim decision, as a result of the Impartial Hearing Office's action to engage the services of another psychologist in lieu of the psychologist selected by petitioner.

Although petitioner briefly alluded to the transfer of the child from full-day to half-day kindergarten, at the hearing, there is no evidence in the record of what were the circumstances of such transfer. At the time the child was transferred, he had not been identified as a child with a handicapping or even as a child suspected of having a handicapping condition. Petitioner's assertion does not directly relate to any aspect of the hearing officer's decision which is the subject of this appeal.

With regard to the independent evaluation of the child ordered by the hearing officer in her interim decision, the record reveals that at the hearing petitioner and a supporter expressed misgivings about the ability of respondent's school psychologists to accurately assess the child. Petitioner asked the hearing officer if she could obtain an independent evaluation, i.e. one conducted by a person who is selected by the parent and not employed by the school district. The hearing officer in her decision stated that:

" Because of the reservations of the parent concerning the CSE testing, and wanting full cooperation of the parent in deciding the issue of her son's placement, I order that an independent evaluation be done immediately and completed within six weeks. That evaluation will be paid for by the Board of Education." (Decision of hearing officer dated June 28, 1991, at page 1)

The record further reveals that petitioner arranged to have Jeffrey R. Gardere, Ph.D. perform the independent psychological evaluation. In an unrebutted letter dated August 5, 1991 and addressed to the chief administrator of respondent's Impartial Hearing Office, Dr. Gardere stated that he had been granted an extension of time to submit the results of his evaluation by August 14, 1991 (Exhibit 7 annexed to the petition). Respondent submitted no evidence to rebut the extension of time alluded to by Dr. Gardere in his letter. Instead, respondent's counsel, without evidentiary support in the record or annexed to its responsive pleading, asserts that:

" Dr. Gardere and the impartial Hearing Office referred [child] to Dr. Cesar for examination after it became clear that Dr. Gardere would not be able to meet the deadline imposed by the interim order."

Nothing in the record before me supports respondent's assertion. Nor does the record demonstrate that the hearing officer in any way amended her interim order and authorized Dr. Gardere to substitute his judgement for that of the parent in selecting Dr. Cesar. The record also fails to demonstrate that petitioner was consulted about the change of the independent evaluator.

Federal regulation provides that if a hearing officer requests an independent evaluation as part of a hearing, it shall be done at public expense (34 CFR 300.503 [d]). While the asserted concerns by the respondent in meeting the time limits of the hearing officer's order are commendable, the decision to substitute Dr. Gardere without the approval of the petitioner missed an equally important purpose for the order - - to garner the support, confidence and the cooperation of the parent. Instead, respondent's action in unilaterally deciding to have another psychologist not selected by the mother perform the independent evaluation was a serious error. Implicit in the concept of an independent evaluation is the right of a parent to select the individual to perform such evaluation. The United States Department of Education has opined that parents must be allowed to choose from among qualified individuals in their areas to perform an independent evaluation (213 EHLR 261). Because petitioner's right as a parent to select the person to perform the independent evaluation may not be ignored, I find that the decision of the hearing officer must be annulled. I will remand the matter to the CSE, with a direction to afford petitioner an opportunity to obtain an independent psychological evaluation.

It is regrettable that the extended period of time of more than two years during which the issues of the appropriate classification and program, if any, for the child have remained unresolved has resulted from respondent's errors in failing to obtain a physical examination of the child in 1989 and in unilaterally substituting the independent evaluator in 1991. It is imperative that respondent move with all deliberate speed and with sensitivity, so that this matter be promptly and fairly resolved in the best interest of the child.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that the CSE shall immediately notify petitioner of her right to obtain an independent psychological evaluation of the child, provided that such evaluation shall be completed and the results forwarded to the CSE within 40 calendar days after the date of the decision, and

IT IS FURTHER ORDERED that within 50 days after the date of this decision the CSE shall review the results of the independent evaluation to be obtained by petitioner and shall make a recommendation to respondent concerning the appropriate classification and program, if any, for petitioner's child.

Dated: Albany, New York __________________________
December 20, 1991 HENRY A. FERNANDEZ