The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, 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, Esq., attorney for respondent, Robert A. Onofry, Esq., of counsel
Petitioner appeals from the determination of an impartial hearing officer which held that a private residential school in which petitioner's child had been placed, upon the recommendation of respondent's committee on special education (CSE) and with petitioner's initial agreement, continued to be an appropriate placement for the child during the 1992-93 school year. The appeal must be sustained.
Respondent has raised two procedural objections to this appeal. Respondent asserts that the notice of intention to seek review, the notice of petition, and the petition were not properly served upon respondent, because they were left with the secretary of respondent's superintendent. Respondent further asserts that the superintendent's secretary is not authorized to accept service of documents upon respondent, but took petitioner's papers after having been threatened by petitioner.
State regulation requires that appeal documents be served upon a school district in the manner prescribed for service of a petition in an appeal to the Commissioner of Education (8 NYCRR 279.2). A petition may be served upon a school district in an appeal to the Commissioner by personally serving the district clerk, a member of the board of education, the superintendent of schools or a person in the superintendent's office who has been designated by the board of education to accept service (8 NYCRR 275.8 [a]).
With his reply to the answer, petitioner has submitted an affidavit from the individual who served petitioner's papers upon respondent. The affiant asserts that when she attempted to serve the district clerk, she was directed to serve the papers in the superintendent's office, and that the superintendent's secretary represented that she was authorized to accept petitioner's papers. The affiant denies that the secretary was coerced or threatened by petitioner, who accompanied the affiant. Respondent has not offered an affidavit by anyone with personal knowledge of the event. I will not dismiss the appeal on the ground of allegedly improper service. In any event, appeals from hearing officers' decisions are generally not dismissed for service irregularities, absent a showing of prejudice to the respondent (Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 519; Application of a Child with a Handicapping Condition, 30 id. 137).
Respondent further asserts that the appeal is untimely. However, the record reveals that a copy of the hearing officer's decision was either given or mailed to petitioner on January 5, 1993. The notice of intention to seek review was served on January 28, 1993, and the notice of petition and petition were served on February 3, 1993. I find that the appeal is timely (8 NYCRR 279.2 [b]).
Petitioner's child, who is now 15 years old, entered respondent's schools in the 1990-91 school year. The child had previously attended school in New York City, where he received assistance in a day treatment program which he entered in May, 1985. The child was reportedly referred to the day treatment program because of emotional problems.
In a psychological assessment performed in October, 1990, the child's verbal IQ was found to be 77, while his performance IQ was assessed to be 86. The psychologist reported that the child displayed a significant scatter in the results of various IQ subtests, which is a characteristic of a learning disability. Although the child was repeating sixth grade at the time of the assessment, his reading skills were found to be at least three years below grade level and his mathematic skills were approximately one year below grade level. The child's handwriting was described as immature. The child was found to have a significant deficit in his visual-motor skills, and to have limited processing abilities. Projective tests revealed that the child had poor self esteem, and was insecure and impulsive. In a November, 1990 speech/language evaluation, the child was found to have a four year delay in his expressive language skills.
In December, 1990, the child entered a 12:1+1 special class of the Board of Cooperative Educational Services of Orange and Ulster Counties (BOCES), which had been recommended by respondent's CSE. The child was classified by the CSE as learning disabled. The CSE also recommended that the child receive speech/language therapy twice per week and counseling twice per week. In February, 1991, the child was suspended from school for disciplinary reasons. Petitioner requested that the child receive instruction at home, rather than return to the BOCES.
The CSE prepared an amended individualized education program (IEP) for the child which provided for 10 hours of instruction at home, as a temporary program, noting that the child was to be psychiatrically evaluated. On March 8, 1991, a psychiatric evaluation was completed. The psychiatrist diagnosed the child as having a conduct disorder, and recommended medical treatment to control the child's behavior. The child continued to receive instruction at home for the remainder of the 1990-91 school year. In an educational evaluation completed in May, 1991, the child was described as highly distractible, lacking inner control, and perseverative at times. The evaluator recommended that the child be instructed in an environment having predictable limits, and in which the child could see visible proof of his progress. The evaluator noted that the child was responsive to positive reinforcement.
In September, 1991, the child entered a 6:1+1 BOCES special class which also provided the child with a day treatment component at a local mental health facility. The child received a neurological evaluation in September, 1991, in which the neurologist concluded that the child exhibited a learning disability in reading and writing, and displayed signs of an attention deficit disorder. The neurologist recommended that the child receive long-term psychiatric and psychological counseling to deal with his low self-esteem and emotional problems. The neurologist recommended that the child be placed in a school for learning disabled children.
In early January, 1992, the child received a head injury in an altercation at BOCES. Petitioner requested that the child be instructed at home. On January 15, 1992, the CSE recommended home instruction for 10 hours per week as a temporary measure. The CSE also recommended that the child's counseling continue, while it made arrangements with the Orange County Mental Health Clinic to provide counseling. The CSE attempted to locate a private day school for the child, but was unsuccessful.
On May 20, 1992, the CSE recommended that the child's classification be changed from learning disabled to multiply handicapped (emotionally disturbed and learning disabled), and that the child be placed on a twelve-month basis in the Anderson School, a State approved private school for children with disabilities. The CSE further recommended that the child receive individual counseling once per week and group counseling once per week.
Upon entering the Anderson School in July, 1992, the child received a psychiatric evaluation. The psychiatrist found that the child did not display any thought disorder, but described the child's affect as passive. The child was diagnosed as having an undifferentiated conduct disorder, an attention deficit with hyperactivity disorder, and a developmental disorder. The psychiatrist recommended that the child be treated in a therapeutic milieu and receive special education. In July, 1992, the child was involved in an altercation with staff of the Anderson School, during which he broke his toe. On July 29, 1992, he was hospitalized after allegedly demonstrating suicidal ideation. The child was hospitalized from September 21 to October 6, 1992, after an incident in which he allegedly tried to assault a school staff member. On October 14, 1992 he was hospitalized again after another alleged assault upon a school staff member.
On October 15, 1992, petitioner removed his child from the Anderson School. Following a meeting with school staff and the CSE, petitioner returned the child to the Anderson School. More meetings were held in late October and early November. Thereafter, petitioner requested that an impartial hearing be held. A hearing was held on November 17, 1992, and was completed on December 8, 1992. In a decision dated December 30, 1992, the hearing officer found that the child required a residential placement, and that the Anderson School could meet the child's needs as set forth on his IEP.
Petitioner asserts that he was deprived of his right to procedural due process of law because of the manner in which the hearing was scheduled and conducted. In this appeal, he challenges the impartiality of the hearing officer, by asserting that respondent has not presented any evidence of the hearing officer's appointment by respondent. However, I find that petitioner is precluded from belatedly raising this issue in this appeal because he did not raise the issue at the hearing, which would have allowed the relevant facts to be presented (Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 240; Application of a Child with a Handicapping Condition, 30 id. 6). Indeed, when petitioner stated that there might be an issue about the impartiality of the hearing officer at the second day of the hearing, he quickly conceded that he was not aware of any basis for challenging the hearing officer's impartiality.
Petitioner also asserts that he was not provided with copies of respondent's hearing exhibits at least five days in advance of the hearing, because he did not receive copies of respondent's evidence until November 14, 1992. State regulation accords each party the right to preclude the introduction of any evidence the substance of which has not been disclosed to the party at least five days in advance (8 NYCRR 200.5 [c]). If an objection to the introduction of such evidence is not made at the hearing, the right to exclude the evidence may be waived (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 137). At the hearing, petitioner expressed uncertainty about having previously seen the first exhibit offered by respondent, he did not object when respondent's attorney stated the exhibit was part of the material in petitioner's packet of hearing evidence, nor did he raise the objection against the introduction of any other exhibit offered by respondent.
Petitioner asserts that the hearing officer should have directed respondent to provide petitioner with an aide to assist petitioner in understanding the written evidence at the hearing. He alleges that he has a tenth grade education and a learning disability which hinders his ability to read. Petitioner relies upon the requirement that a board of education must provide an interpreter of the deaf or interpreter fluent in the dominant language of the child's home, when necessary, at hearings (8 NYCRR 200.5 [c]), which he asserts should be applied by analogy to his situation. This regulatory requirement is narrow in its intended purpose, and I find that this regulatory requirement does not afford a basis for requiring respondent to provide the assistance sought by petitioner.
Petitioner asserts that he was deprived of an opportunity to effectively prepare for the hearing, because the hearing was scheduled on very short notice to petitioner and his advocate was not able to be present at the hearing. The due process claim has merit. The record does not reveal when petitioner requested that an impartial hearing be held. Neither statute nor regulation prescribes a minimum period of time before a hearing may be held. In a letter dated November 11, 1992, the hearing officer informed petitioner that the hearing would be held on November 17, 1992. At the commencement of the hearing, petitioner stated that he wished to have assistance in presenting his case, but that he had been unable to contact a lay advocate who had previously assisted him. Indeed, respondent's attorney revealed that copies of respondent's proposed hearing evidence had been given to the advocate. Referring to an apparent off-the-record request by the advocate that the hearing be held in the evenings or on weekends, the attorney objected to scheduling evening or weekend hearings, but did not oppose a request for an adjournment. Nevertheless, the hearing officer denied petitioner's request for an adjournment, stating that "... it would be an absolute waste of time, money and effort ..." (Transcript, p. 8)
Upon this record, I find that the hearing officer erred (Application of a Child with a Handicapping Condition, Appeal No. 92-2). Although the hearing process is to be completed within 45 days after a hearing has been requested (34 CFR 300.512 [a]), that time period can be extended with the consent of the parent. The parties are entitled to reasonable notice of scheduled hearings. When a parent is not represented by an attorney, the hearing officer has a responsibility to assist the parent in presenting his or her case (Application of a Child with a Handicapping Condition, Appeal No. 92-38). Petitioner was not represented by an attorney, nor was an advocate present when he asked for assistance. State regulation provides that the parties at a hearing have the right to be represented by legal counsel or individuals with special knowledge or training with respect to children with disabilities, and may be accompanied by other persons of their choice (8 NYCRR 200.5 [c]). In view of the shortness of the notice which petitioner had received, his request for an adjournment was clearly reasonable.
Respondent completed the presentation of its case during the first day of the hearing. Pertinent documents were introduced into evidence, and two employees of the Anderson School and a representative of respondent's CSE testified in support of the child's program and placement. The record reveals that petitioner did not comprehend the procedures used to introduce evidence and to cross-examine witnesses. It further reveals that he was minimally assisted by the hearing officer. The hearing officer should have considered appointing a guardian ad litem to protect the interests of the child (8 NYCRR 200.5 [c]). The record shows that petitioner was not assisted by an advocate on the second day of the hearing, despite adequate advance notice. Nevertheless, I must find that the hearing officer's refusal to grant an adjournment on the first day of the hearing so seriously prejudiced petitioner that fairness requires that I annul the hearing officer's decision.
I further find that the hearing officer's decision must be annulled because it is not supported by the record. In his decision, the hearing officer held that the child's classification was not at issue, notwithstanding petitioner's assertion at the hearing that the child's classification had been changed to multiply handicapped solely for the purpose of gaining his admission into the Anderson School. Petitioner's assertion was addressed, in part, by the testimony of the assistant chairperson of the CSE, but in any event, it placed the child's classification in issue.
Respondent bears the burden of proving the appropriateness of the classification and placement recommended by its CSE (Matter of a Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 91-24; Application of a Child with a Handicapping Condition, Appeal No. 92-30). A multiply disabled, formerly multiply handicapped, child is defined by State regulation as a child:
"... with two or more disabilities 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 [am])
A child may have more than one disability. However, the definitions of learning disability and emotionally disturbed are mutually exclusive, because a child cannot be classified as learning disabled if his learning problems are primarily caused by an emotional disturbance, nor can a child be classified as emotionally disturbed if the child's inability to learn can be explained by intellectual, sensory or health factors (8 NYCRR 200.1 [am] and ; Application of a Child with a Handicapping Condition, Appeal No. 91-34). Upon the record before me, I find that the child should be classified as learning disabled, because the record demonstrates that the child has a significant language deficiency and a significant deficiency in visual-motor skills. The neurologist's finding of soft neurological signs and the child's limited processing skills are also evidence of his learning disability. Although the child has been diagnosed by two psychiatrists as having a conduct disorder, that medical diagnosis has not been linked to his educational performance. The medical diagnosis provides useful information for dealing with the child's behavior and management needs, but is not determinative of an educational classification.
The CSE must also reconsider the child's IEP. An appropriate program begins with an IEP which accurately reflects the findings of the child's evaluations in identifying the child's needs, provides for the use of appropriate special education services to address the child's needs and establishes annual goals which are related to remediation of the child's educational deficits (Application of a Child with a Handicapping Condition, Appeal No. 92-1). A prior evaluation revealed that the child had a significant language deficit, for which the CSE recommended that the child receive speech/language therapy. The child's present IEP includes three annual goals for language, but does not reveal the extent of his language deficit and does not provide for speech/language therapy. At the hearing, respondent offered no evidence to support the discontinuance of speech/language therapy. There is no evidence that the CSE has performed a vocational assessment of the child as required by State regulation (8 NYCRR 200.4 [b][vii]), and recommended in the child's May, 1991 educational evaluation.
The child's IEP goals are general, and do not reflect his learning disability and the need to individualize instruction with techniques and strategies such as those described in the May, 1991 educational evaluation. Specifically, the IEP does not address the child's need for assignments and instruction which accommodate and improve his limited attention span and low frustration tolerance. The IEP does not provide for any specialized equipment, despite IEP goals reflecting the use of a calculator and a keyboard. The child's mathematics goals are written for a ninth grade mathematics curriculum, despite the fact that the record reveals that the child's mathematics skills were at a sixth grade level. The child's IEP goals for social and emotional development are general, and the child's short-term objectives are not realistic for the child to attain, in view of his prior experience and the limited support which the IEP provides to address his needs. The frequency of disciplinary incidents revealed in the record suggests that the IEP should have been amended to provide additional counseling and/or educational services to address his emotional needs. Upon the record before me, I find that respondent has substantially failed to meet its burden of demonstrating the appropriateness of the child's program.
Finally, I note that petitioner refers to various incidents of alleged child abuse by the staff of the private school prior and subsequent to the hearing. Allegations of abuse or maltreatment of children in residential care should be reported to the State Central Register of Child Abuse and Maltreatment of the Department of Social Services, so that they may be properly investigated and appropriate corrective action can be taken (Section 412 of the Social Services Law; Section 4403  of the Education Law; 8 NYCRR 200.15). The record is silent on what action, if any, the respondent has taken in response to petitioner's allegations. I shall direct respondent to refer petitioner's allegation to the appropriate authorities.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing officer is annulled, and;
IT IS FURTHER ORDERED that within 30 days after the date of this decision, respondent's CSE shall evaluate the child's language ability, perform a vocational assessment, and shall recommend a program for the child with an IEP which is consistent with the tenor of this decision, and respondent shall refer petitioner's allegation of child abuse to the appropriate reporting authorities identified in this decision.
New York _________________________
March 8, 1993 HENRY A. FERNANDEZ