The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Homer Central School District
Legal Services of Central New York, Inc., attorneys for petitioners,Ronald Van Norstrand, Esq., of counsel
Hogan and Sarzynski, Esqs., attorneys for respondent, Edward J. Sarzynski, Esq., of counsel
Petitioners appeal from the interim order of an impartial hearing officer which granted respondent's request for an evaluation of the ability of petitioners' child to benefit from facilitated communication. Respondent's committee on special education (CSE) had recommended that this technique be used in the child's educational program for the 1992-93 school year. The appeal must be sustained.
Petitioners' fifteen year old child is classified as autistic. The child's classification is not in dispute. The child has been educated at home for the past several years. However, for the 1989-90 and the 1990-91 school years, the child received instructional services on a 12-month basis at the Children's Unit of the State University of New York at Binghamton. The focus of the Children's Unit program was to reduce the child's aggressive and self-injurious behavior, and improve her ability to attend to tasks. After two years of instruction, the child's behavior had reportedly improved, although she continued to display perseverative and self-stimulatory behavior. The child's ability to sit still and to maintain some eye contact with her teacher improved. When the child entered the Children's Unit program in July, 1989, her communication was described as a series of random vocalizations with no observable intent. By June, 1991, the Children's Unit reported that the child was unable to achieve progress on goals to imitate vowel and consonant sounds, or to point to an object or picture upon request. The report noted that petitioners had reported that the child had demonstrated an ability to communicate using facilitated communication. However, the Children's Unit was unable to replicate petitioners' reported success with facilitated communication.
For purposes of this decision, facilitated communication is defined as:
"... a means by which many people with major speech difficulties type or point at letters on an alphabet board or typing device to convey their thoughts. It involves a facilitator who provides physical support to help stabilize the arm, to isolate the index finger if necessary, to pull back the arm after each selection, to remind the individual to maintain focus, and to offer emotional support and encouragement ..." (Douglas Biklen, "Autism Orthodoxy versus Free Speech: A Reply to Cummins and Prior," Harvard Educational Review, Vol. 62, No. 2, p. 242, copy attached to petitioners' brief).
At the hearing in this proceeding, the Director of the Children's Unit testified that it had been impossible to accurately assess the child's grade level of performance, because of her attentional and communication deficits. The Children's Unit recommended that for the 1991-92 school year, the child be instructed in respondent's self-contained special education class. The record does not reveal what, if any, formal instruction the child received during the 1991-92 school year.
On October 8 and 13, 1992, the CSE met with petitioners to develop an individualized education program (IEP) for the child for the 1992-93 school year. The CSE recommended that the child be educated in a special education class with a child to adult ratio of 12:1+1:3 of the Board of Cooperative Educational Services of Onondaga, Cortland and Madison Counties in the high school of the Onondaga Central School District, and that the child receive speech/language therapy in a small group twice per week and individually three times per week. The CSE also recommended that the child receive occupational therapy and physical therapy on a consultant basis once each month. Because it had received distinctly conflicting reports about the child's ability to benefit from instruction through the use of facilitated communication, the CSE provided in the child's IEP that a teacher assistant would provide facilitated communication in all areas of the child's instructional program, with an ongoing evaluation to determine the appropriateness of the technique for the child. The IEP goals involve the child's use of a lap-top word processor with the assistance of facilitated communication. The child's IEP also provided that the child would be mainstreamed for one period per day in respondent's high school in an academic subject to be selected by petitioners and the CSE chairperson, and that the CSE would reconvene in 30 days to assess whether the child's management needs could be met in a mainstream setting.
On October 28, 1992, respondent approved the CSE's recommendation. Petitioners did not accept the CSE's recommendation. On October 29, 1992, they requested that an impartial hearing be held to review the CSE's recommendation. By letter to petitioners' attorney, dated December 23, 1992, respondent's attorney expressed respondent's intention to have the child evaluated on January 25, 1993 by the Director of the Communications Enhancement Center, Department of Otolaryngology and Communications Disorders, Children's Hospital of Boston. When the hearing commenced on February 5, 1993, respondent's attorney advised the hearing officer that the purpose of the proposed evaluation was to ascertain whether facilitated communication was an appropriate technique for the child. Respondent's attorney requested that the hearing officer issue an interim order authorizing respondent to obtain an evaluation by the Children's Hospital representative. Petitioners opposed respondent's request, on the ground that the use of facilitated communication was not at issue because they agreed with the portion of the CSE's recommendation which provided that the child receive assistance with facilitated communication.
The hearing officer reserved decision on respondent's request. In an interim decision and order dated February 11, 1993, the hearing officer held that respondent had made a sufficient showing of a need for the child's additional evaluation, and directed petitioners to permit the child's evaluation by the Children's Hospital representative, at a mutually convenient time and place.
In an affidavit submitted in response to the petition in this appeal, the proposed evaluator asserts that the evaluation, which would be completed in no more than three hours, would consist of a review of the child's pertinent medical and educational records, the administration of standardized tests, and other tests designed to establish whether the child can describe or label materials which were shown to or heard by the child via a communication facilitator. The evaluator further asserts that such an evaluation will greatly assist in determining whether facilitated communication is a valid and effective technique for the child. Although this information was not presented to the hearing officer, I have considered the affidavit, because it is necessary to have an understanding of the nature of the evaluation sought by respondent (cf. Application of a Child with a Handicapping Condition, Appeal No. 91-34).
This appeal presents two issues: did the hearing officer have authority to issue the interim order, and if so, whether he abused his discretion by issuing the order. Petitioners assert that the interim order violates their due process rights, because they do not challenge the CSE's recommendation to use facilitated communication. In essence, petitioners assert that by allowing respondent to raise the issue of the appropriateness of facilitated communication, the hearing officer has violated the finality requirement of Federal law (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]). Respondent contends that a hearing officer has inherent authority to direct that a child be further evaluated (Matter of a Handicapped Child, 20 Ed. Dept. Rep. 483). However, the decision relied upon by respondent involved a sua sponte hearing officer finding that a CSE should reconsider the results of existing evaluations. Moreover, a board of education may not use a hearing to challenge a portion of its CSE's recommendation (Matter of a Handicapped Child, 19 Ed. Dept. Rep. 387).
Petitioners do not contest or object to the CSE recommendation to provide facilitated communication. However, they express disagreement with the collateral statement in the child's IEP that suggests the use of facilitated communication may be questionable, and the IEP provision for further monitoring and evaluation of the child's use of the technique pending a final conclusion by the CSE. Upon the limited record before me, I find that the child's use of facilitated communication has not been put in issue by petitioners' challenge to the CSE's recommendation, and the hearing officer did not have authority to issue the interim order.
Facilitated communication is a relatively recent technique, about which there is significant professional disagreement. However, this decision does not require that I reach any conclusion about the general efficacy of the technique, or about its suitability as a supportive service for petitioners' child, and I do not do so.
The issue to be decided by the hearing officer is not whether the technique should or should not be provided as part of the child's program. The CSE, respondent and petitioners all agree that it should. The evaluation provided for in the interim order to determine whether to provide the technique challenges that determination. The issue best gleaned from the petition is whether or not the additional requirements and concerns in the IEP are reasonable or justified.
Upon the record before me, I find that the hearing officer erred in issuing the interim order, because there was no basis in the record for such order (Application of a Child with a Handicapping Condition, Appeal No. 91-22). Although the child's IEP referred to a number of evaluations of the child's cognitive abilities and communication deficits, none of the evaluations had been entered into evidence. In the one day of hearing, the hearing officer heard the testimony of two employees of the Children's Unit, both of whom testified that the Children's Unit had not completed any formal evaluation of the child. When asked about facilitated communication, the educational services coordinator of the Children's Unit acknowledged that she had heard of the technique, but she could not testify whether the assistance with a computer provided to the child by the Children's Unit had been facilitated communication. The director of the Children's Unit, who is a psychologist, testified that he had very little direct experience in the use of the technique, although he had heard it discussed in professional meetings and read about in professional journals. Over petitioners' objection, the director was allowed to offer an opinion about facilitated communication. However, the director was not asked for, and did not express, his opinion about the appropriateness of the technique for this child.
Although the testimony in this proceeding may well be probative as to whether the additional evaluation requirements in the IEP are necessary, it appears that no good will be served in conducting further evaluations now, which will further delay provision of any services to the child who throughout this appeal remains at home. There is no justification for an order directing the child to undergo an evaluation, absent a finding that the evaluations already performed were inadequate. The hearing officer made no such finding, and indeed could not have made that finding because the issue has not been raised by petitioners and the prior evaluations were not in the record before him (Application of Bd. of Ed. Liverpool CSD, 25 Ed. Dept. Rep. 145).
Respondent's unnecessary request for further evaluation and the interim order have unreasonably delayed resolution of the dispute between the parties about the child's educational program for the 1992-93 school year, which will conclude shortly. Meanwhile the intended beneficiary of this proceeding, the child, is receiving no instructional services. It is imperative that the hearing be promptly reconvened and the relevant issues in this proceeding be resolved expeditiously to serve the child.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the interim order of the hearing officer is annulled.
New York _________________________
May 12, 1993 HENRY A. FERNANDEZ