Application of a CHILD SUSPECTED OF HAVING A HANDICAPPING CONDITION, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of Port Jervis
Cuddeback, Onofry and Schadt, Esqs., attorneys for respondent, Robert A. Onofry, Esq., of counsel
Petitioner appeals from the determination of an impartial hearing officer upholding the recommendation by respondent's committee on special education (CSE) that petitioner's child should not be classified as a child with a handicapping condition. The appeal must be dismissed.
Petitioner's child, who is eleven years old, is enrolled in a regular education fifth grade class in respondent's Hamilton Bicentennial Elementary School. Petitioner testified at the hearing that the child was deaf at birth, and did not hear until surgery was performed when the child was three years old. As a young child, he had otitis media frequently, and he is reported to be sensitive to sounds. The child had a bilateral hernia repair at eleven months of age. He was also diagnosed as having rubicara pigmentosa. In 1987, a glucose tolerance test revealed that the child had borderline hypoglycemia. He has a long history of constipation and an anal fissure.
In September, 1986, the child entered kindergarten at the Hamilton Bicentennial School, where his teachers noted that the child frequently hummed or talked during school. The child continued to hum in class in first grade. In the Fall of 1987, petitioner had the child examined by the child's physician and by a psychiatrist. The psychiatrist suggested that the child be removed from class for short periods of time, if his humming distracted other children. The child was also examined by another private physician, who found that the child's physical health was excellent. On December 1, 1987, the child was examined, at his parents' request, by a private psychologist, who observed his humming and foot-banging. She also noted that the child's mother stated that the child would make facial grimaces, humming noises and throat-clearing sounds when stressed. The psychologist opined that such behavior reflected the child's lack of awareness of the world around him, but was not typical of the tics exhibited by children with Tourette Syndrome. A tic is an involuntary, repetitive movement of one or more muscle groups. The psychologist found that the child met the criteria for individuals with an attention deficit disorder with hyperactivity, including distractibility, impulsivity, mood lability and temper outbursts. The psychologist recommended that the child be evaluated by a neurologist, and suggested that the parents consider the use of cognitive behavior modifications with the child. On December 21, 1987, the child's first grade teacher referred the child to the CSE, because of the child's inappropriate behavior in class. The school psychologist, who evaluated the child in February, 1988, reported that the child's verbal IQ score was in the average range, while his perceptual-motor skills were in the high-average range. The child exhibited strength in abstract verbal reasoning, and a relative weakness in his fund of general information. The school psychologist reported that the child displayed some evidence of visual-motor deficits and sensory integration difficulties, but was compensating for the difficulties he might be experiencing academically. Noting that the child's behavior had recently improved, the school psychologist stated that the child's behavior was typical of a child with attention deficit disorder, and opined that the child's poor self-concept, anxiety and frustration interfered with his optimal performance. Academic achievement test results demonstrated that the child was performing at an appropriate educational level. On February 28, 1988, the CSE recommended that the child not be classified as having a handicapping condition. At petitioner's request, an impartial hearing was held to review the CSE's request. On July 22, 1988, an impartial hearing officer upheld the CSE's recommendation against classifying the child as learning disabled, as petitioner had requested.
At petitioner's request, the child attended a different elementary school within the school district for second grade during the 1988-89 school year. He progressed satisfactorily in second grade, and returned to the Hamilton Bicentennial Elementary School for third grade during the 1989-90 school year. In August, 1989, the child's mother advised the principal of the Hamilton Bicentennial Elementary School that the child had Tourette Syndrome, a neurological dysfunction of the central nervous system. It is not clear from the record when the child was in fact diagnosed by a physician as having Tourette Syndrome, although the record does reveal that as of August, 1990, the child's private neurologist had reached that conclusion. At the hearing, the principal testified that she advised the child's third grade teacher to provide time-outs to the child if he needed them because of his tics. The principal further testified that she waived time limits on tests for the child and provided him with a separate location to take tests, without any CSE intervention. The record does not reveal that the child had any significant academic problems in third grade. In September, 1990, as the child entered fourth grade, his mother provided his teacher with a short film which presented an overview of Tourette Syndrome. The teacher showed the film to the class, but did not identify petitioner's child as a child with Tourette Syndrome. The child's teacher was aware that the child could receive test modifications. On March 12, 1991, petitioner requested that a meeting of the CSE be held to re- evaluate the child's individualized education program (IEP), in light of the diagnosis by the child's neurologist that the child had Tourette Syndrome, and provided the CSE with a list of 29 accommodations to be made for the child. The accommodations included the waiver of time limits on tests, instruction of respondent's staff and the child's peers about Tourette Syndrome, extra help for the child in a resource room, the use of a tape recorder, a typewriter and student note takers, a safe place in which the child could tic, special transportation, special seating in class and assemblies, permission to do extra work for extra credit, and staff awareness of and appropriate responses to the child's coprolalia, i.e. the use of obscene language. Petitioner was advised by the CSE chairperson that the child would have to be evaluated and found by the CSE to have a handicapping condition before an IEP could be prepared. On April 9, 1991, petitioner consented to an evaluation of the child. The child was observed on two occasions in class by a school psychologist, who did not see any evidence of motor or verbal tics by the child, and who reported that the child was not off-task more than other children in the class, despite his attention deficit disorder with hyperactivity. On April 17, 1991, the school psychologist performed a psycho- educational evaluation of the child, who was ten years old at the time of the evaluation. The child achieved scores of 121 in verbal reasoning, 120 in abstract/visual reasoning, 105 in quantitative reasoning and 101 in short-term memory on the Stanford-Binet Intelligence Scale. The child's composite score of 114 on the Stanford Binet was in the above-average range of intellectual ability. The school psychologist reported that in an educational evaluation performed by a special education teacher, the child's reading skills were at 6.7 grade equivalent, and his mathematical skills were at a 6.4 grade equivalent. The child's written language skills were found to be at a 5.8 grade equivalent, while his general knowledge was at a 6.2 grade equivalent. The school psychologist also employed a social emotional scale, in which each of the child's teachers provided responses to questions about the child's behavior and interactions with his teachers and peers. Each of the child's teachers reported that the child rarely or only occasionally displayed depressive reaction or inappropriate behavior. The child's physical education and art teachers reported that the child frequently displayed aggressive reaction. However, when a composite of each teacher's responses was prepared, the child was found to be in the average range on the social emotional scale. The school psychologist opined that the child was achieving academically at a rate which was commensurate with his ability, and did not have any difficulty in any of the psychological processes involving oral or written expression, visual or auditory processing, visual perception or visual-motor integration. The school psychologist further opined that the child's Tourette Syndrome did not adversely affect his educational performance. In addition to the psycho-educational evaluation, a speech-language evaluation was performed, and social and health histories were obtained. On May 1, 1991, the CSE met with the child's mother, and recommended that the child not be classified as other health impaired. The CSE found that the child's Tourette Syndrome did not adversely affect his educational performance, and noted that the child had already been offered the opportunity to take tests with time limits waived in a separate location, and for time outs at his request. Attached to the notice of the CSE's recommendation, given to the child's parents, was an IEP form on which the child's handicapping condition was listed as "none", but which discussed the modifications of the child's program already in place under the heading of a classroom-management. At the hearing, the CSE chairperson testified that the use of an IEP form had been an error.
On August 19, 1991, petitioner requested that an impartial hearing be held to review the CSE's recommendation. The hearing commenced on September 19, 1991, and concluded on December 9, 1991, after six additional days of hearings. At the commencement of the hearing, petitioner questioned the impartiality of the hearing officer. Thereafter, petitioner elected to proceed with the hearing, while also initiating an appeal concerning the manner in which the hearing officer was selected by respondent and challenging the hearing officer's objectivity because he is the attorney for another school district. In the decision in Appeal No. 91-47, I dismissed petitioner's appeal.
By decision dated January 21, 1992, the hearing officer upheld the recommendation of the CSE that the child not be classified as other health impaired, upon a finding that the child did not meet the criteria set forth in the definition of that handicapping condition in State regulation (8 NYCRR 200.1 [ee]):
"Other health-impaired. A pupil who is physically handicapped and who has limited strength, vitality or alertness due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes or tourette syndrome, which adversely affects a pupil's educational performance."
The hearing officer found that the record was devoid of any evidence that the child had limited strength, vitality or alertness. Noting that the child had achieved high honor or honor roll status for each marking period in fourth grade and had continued to do well academically in fifth grade, the hearing officer found that the child's Tourette Syndrome had not adversely affected his educational performance. Recognizing that the child's illness presented certain difficulties for him for which respondent had already made accommodations, the hearing officer expressed his belief that respondent would continue to make appropriate accommodations.
Petitioner objects to respondent's answer in this appeal, on the grounds that it is not verified by a member of the board of education or a school administrator, and that the answer is untimely. The answer in the record before me was verified by respondent's superintendent of schools. The affidavit of service for the petition reveals that respondent received the petition on February 24, 1992. An affidavit of service attached to the answer reveals that it was served by mail on March 5, 1992. I find that the answer was timely served within the 10 day period prescribed by 8 NYCRR 279.5. I further find no merit to petitioner's assertions that the answer does not contain clear and concise statements, and that respondent was dilatory in filing the record in this case.
Petitioner asserts that the procedure followed by the CSE in making its recommendation was flawed, because the CSE did not conduct a physical examination of the child, or test the child in the area of his suspected disability. State regulation at the time required that, upon referral of a child, a CSE must initiate an evaluation consisting of at least a physical examination in accordance with the provisions of section 904 of the Education Law, an individual psychological examination, a social history and other suitable examinations (8 NYCRR 200.4 [b]). Although the requirement with regard to individual psychological evaluations has been modified, that change is not relevant to the issues in this appeal. A failure to perform a physical examination may afford a basis for annulling a CSE's recommendation (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 41). In this instance, the CSE considered a health history prepared by petitioner. However, a health history is not a physical examination (Application of a Child with a Handicapping Condition, Appeal No. 91-37).
The CSE chairperson testified that the CSE relied upon the results of a physical examination of the child by his neurologist, a report of which was attached to petitioner's March 12, 1991 request to the CSE to modify the child's program. The neurologist found that the child was entirely within normal limits, except for an overbite, in a physical examination performed on August 15, 1990. The neurologist also disclosed the results of his neurological examination of the child, and the medication the child was then taking. The record also includes additional examination results reported by the child's neurologist, including a physical examination performed on April 15, 1991, which was before the CSE when it made its recommendation of May 1, 1991. A CSE may rely upon evaluation data obtained by others, in lieu of performing its own evaluation, provided that the CSE has an adequate basis for discharging its responsibility to determine whether a child should be classified (Application of a Handicapped Child, 23 Ed. Dept. Rep. 177; Application of a Child with a Handicapping Condition, Appeal No. 91-44). I find that the CSE complied with the requirement that its evaluation include a physical examination.
I find no merit to petitioner's assertion that the child was not evaluated in the area of his suspected disability. Federal regulation requires that a child be assessed in all areas related to the suspected disability (34 CFR 300.532 [f]). Petitioner asserts that Tourette Syndrome is a neurological impairment, and the CSE should have had a professional person who was familiar with Tourette Syndrome explain to the CSE how the disorder affects a child's education. However, the CSE had the written report of the child's neurologist, and the oral and written report of the school psychologist, who was familiar with the Tourette Syndrome.
Petitioner asserts that respondent violated Federal regulation by not having a written report of the relevant behavior noted during the observation of the child (34 CFR 300.543 [b]). The school psychologist testified that she orally reported the results of her two observations of the child in class to the CSE, but did not prepare a written report of the observations until the issue was raised at the hearing. Petitioner asserts in her petition that the school psychologist merely claimed to have discussed the results in the CSE meeting. Having reviewed the record, I find no persuasive evidence which rebuts the school psychologist's testimony. I do not condone respondent's failure to have a written observation report prepared for the use of the CSE. Nonetheless, I will not invalidate the CSE's recommendation, in light of the school psychologist's testimony that the results were discussed at the CSE meeting.
Petitioner also asserts that the CSE violated her rights by conducting a "pre-meeting" from which petitioner was excluded on the day preceding the CSE meeting which petitioner attended. Both Federal and State regulations provide that the parents of disabled children must be given the opportunity to attend the meetings in which the IEP's of their children are developed (34 CFR 300.345; 8 NYCRR 200.4 [c]). Although the child's fourth grade teacher, who attended the April 30, 1991 meeting, characterized the meeting as a "pre- meeting," the record demonstrates that the April 30 meeting was not a CSE meeting. The school psychologist, who also attended the April 30 meeting, testified that it was a case conference at which the child's teacher and the individuals who evaluated the child disclose the results of their separate evaluations, in advance of the CSE meetings. The record includes a written summary of the case conference, which did not involve the entire CSE and which did include individuals who were not members of the CSE. I find no merit to petitioner's assertion that the April 30, 1991 case conference was a CSE meeting which she had the right to attend.
Petitioner further asserts that the CSE did not provide adequate notice of its recommendation, in that she was allegedly never advised that the CSE recommended that the child not be classified. At the hearing, the CSE chairperson conceded that the use of an IEP form to report the CSE's recommendation was erroneous. However, the IEP states that the child's handicapping condition is "none". A notice of the CSE's recommendation addressed to petitioner and a form for her to use to notify response whether she accepted the recommendation or wanted a hearing, both of which were sent to petitioner with the erroneous IEP form, reveal that the CSE recommended that the child not be classified. I find petitioner's assertion regarding notice of the CSE's recommendation to be unsupported by the record.
Petitioner challenges the hearing officer's conclusion that the child does not meet the criteria for the State regulatory definition of other health impaired children. She asserts that the hearing officer failed to understand that Tourette Syndrome is a neurological disorder, rather than a physical illness. Petitioner's assertion is without merit. The terms neurological impairment and physical disability are not mutually inconsistent. Indeed, the first element of the regulatory definition of other health impaired is that a child be physically handicapped. The second element of the regulatory definition is that the child have limited strength, vitality or alertness due to chronic or acute health problems. Although there was some general discussion at the hearing of the effect Tourette Syndrome could have upon a child's alertness, particularly if the child was taking medication, there was no evidence in the record that the child's alertness, strength or vitality was limited. The third element of the regulatory definition is that the child's limited strength, vitality or alertness adversely affects the child's educational performance. Even if there were evidence of limited strength, vitality or alertness, there is insufficient evidence that it has adversely affected the child's educational performance.
The child's educational achievement, as revealed by his performance on standardized tests and his report cards, has been consistent with his intellectual ability. The child's fourth grade teacher testified that at the beginning of the 1990-91 school year, she had observed the child hum or tap once or twice a day, but that she could stop such behavior by merely placing her hand on the child's arm. The teacher further testified that the child did not stutter, use perseverative speech, or exhibit compulsive behavior, and that she had never sent the child out of class for a time out. At the hearing, the teacher was asked about a publication entitled a "Teacher's Checklist on Tourette Syndrome" provided to respondent by petitioner. The checklist described various behaviors that a child with Tourette Syndrome might exhibit. The teacher testified that the child had not displayed those behaviors in her class. With regard to petitioner's request that the child be allowed to use a typewriter and have another child take notes for him, the teacher testified that the child did not need additional time in which to complete written assignments. The teacher's testimony concerning the impact of the child's Tourette Syndrome upon the child's educational performance is unrebutted.
A good portion of the teacher's testimony and, indeed the extensive transcript in this appeal, concerns the child's relationships with other children, and petitioner's assertion that respondent's staff has permitted other children to abuse her child. Having reviewed the record, I find that the various incidents to which petitioner refers do not afford a basis for concluding that the child has a handicapping condition. Petitioner also tried to demonstrate at the hearing that teachers had disciplined the child for manifesting symptoms of Tourette Syndrome. However, the record does not establish that the particular acts by the child were manifestations of Tourette Syndrome. Petitioner presented the testimony of a representative of the Tourette Syndrome of Association, Inc., who made several general statements about Tourette Syndrome. The witness, who had never met the child, was careful to point out that not all individuals who have Tourette Syndrome have the same symptoms, and declined the repeated attempts by petitioner's advocate to have the witness opine that a specific act of the child was caused by Tourette Syndrome. The record reveals that at least one incident of alleged teacher abuse, involving the physical separation of the child from some of his peers in class, was investigated by the Office of Civil Rights, of the U.S. Department of Education, which found that the child's rights had not been violated. Although the central issue of the hearing and this appeal is whether the child should be classified as having an educationally handicapping condition, I note that at the hearing and in her petition, petitioner asserts that the child must be classified, in order to afford her a means of compelling respondent to continue to make the test modifications and other accommodations which it has voluntarily provided. Clearly, respondent has an obligation to provide an appropriate educational program to a disabled child pursuant to Section 504 of the Rehabilitation Act of 1973 (29 USC 749), even if the child is not a disabled child for purposes of Federal or State laws regarding the education of children with handicapping conditions.
THE APPEAL IS DISMISSED.
Albany, New York
March 26, 1992
|HENRY A. FERNANDEZ|