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 New York
Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Daniel S. Feder, Esq., of counsel
Petitioner appeals from the determination of an impartial hearing officer which rejected the recommendation of respondent's committee on special education (CSE) that the classification of petitioner's child be changed from speech impaired to learning disabled, and held that the child should be classified as emotionally disturbed and placed in respondent's modified instructional services-IV (MIS-IV) program which the CSE had recommended. The appeal must be sustained.
Petitioner's child is six years old, and will be in the second grade during the 1993-94 school year. Approximately six months before the child entered kindergarten in 1991, he had an adenoidectomy and bilateral myringotomy performed to correct a hearing problem. In August, 1991, the CSE recommended that the child be classified as learning disabled and placed in the MIS-IV program with the related service of speech/language therapy. At petitioner's request a hearing was held to review the CSE's recommendation. The hearing officer initially remanded the matter back to the CSE to reconsider the child's classification and program. In January, 1992, the CSE recommended that the child be classified as speech-impaired, that he remain in a regular education kindergarten and that he receive speech/language therapy twice per week. Petitioner accepted the recommendation, and the hearing was terminated.
In September, 1992, the child entered a regular education class. He received speech/language therapy three times per week. Shortly after school began, the child's father referred the child to the CSE to consider if the child required resource room services. The CSE's evaluations of the child were updated. An educational evaluator reported that the child exhibited delays in language skills and maintaining concentration, but he had made academic progress since his previous evaluation in July, 1991. The child was reported to be reading on a first grade level, while his mathematics skills were reported to be at kindergarten level. His visual motor skills were age appropriate. The child's speech/language therapist reported that the child exhibited deficits in receptive language and auditory processing skills, and that the child had difficulty following directions and maintaining his attention. The child's articulation was reported to be moderately impaired. The child's ear specialist reported that the child did not have a physical hearing problem, but opined that the child would be unable to respond to a conditional hearing test. On December 12, 1991, an audiologist employed by respondent reported that the child had normal hearing for reception of speech in both ears, but could not be tested using pure tones.
At petitioner's request, the CSE accepted the report of a private psychological evaluation performed in October, 1991, in lieu of performing its own evaluation. The private evaluator reported that the child's cognitive skills were in the low average range, but cautioned that the test results should be considered to be a minimal estimate of the child's ability because of the child's distractibility during the tests. The evaluator further reported that there was a significant difference between the child's verbal and nonverbal skills, and that the child's sometimes tangential responses to questions might be indicative of language processing problems. Overall, the evaluator reported that there was no significant difference between the child's auditory and visual skills. The evaluator recommended that the child receive counseling, but the evaluator's findings about the child's emotional dynamics were set forth in a separate report which is not part of the record in this appeal.
On November 4, 1992, the CSE met with the child's father, who is separated from petitioner. Petitioner asserts that she is the child's custodial parent. The CSE recommended that the child be classified as learning disabled and that he be enrolled in the MIS-IV program with speech/language therapy twice per week. At the request of the child's father, a hearing was convened on January 12, 1993, but adjourned when the father failed to appear. Thereafter, petitioner requested that a hearing be held to review the CSE's recommendation. The hearing commenced on March 31, 1993, at which time petitioner asserted that she had not received notice of the November 4, 1992 CSE meeting. The hearing officer adjourned the hearing and by interim order of April 8, 1993, he directed the CSE to hold another meeting on notice to both of the child's parents.
On April 14, 1993, the CSE met with petitioner. The CSE again recommended that the child be classified as learning disabled and be placed in the MIS-IV program in P.S. 226 for all instruction, with twice weekly speech/language therapy. Petitioner did not accept the CSE's recommendation, and the hearing resumed on May 5, 1993. At the hearing, petitioner asked the hearing officer to find that the child should remain classified as speech-impaired and to direct the CSE to provide more intensive speech services. While not objecting per se to the child's placement in the MIS-IV program, petitioner sought to have the child's individualized education program (IEP) modified to provide that the child be mainstreamed for reading.
In a decision dated June 4, 1993, the hearing officer found that the child should be classified as emotionally disturbed. While noting that there were no results of projective psychological tests in the record and that there was evidence of a learning disability in the record, the hearing officer nevertheless premised his finding of an emotional disability upon evidence of the child's alleged disruptiveness in class and inability to maintain satisfactory peer relationships. The hearing officer also referred to certain instances of the child's behavior which the hearing officer characterized as abnormal behavior. With regard to a program for the child, the hearing officer found that the child's needs were too severe to be addressed by resource room services, but that his needs could be met in the MIS-IV program. The hearing officer directed the CSE to add counseling as a related service to the child's IEP, and rejected petitioner's request that the child have the use of FM amplification equipment in school.
Petitioner challenges the hearing officer's decision on substantive and procedural grounds. She asserts that the hearing officer erred in allowing into evidence the results of certain evaluations which had been found to be invalid in a prior hearing and that she was not afforded an opportunity to rebut the information set forth in such evaluations. Petitioner further asserts that she was denied an opportunity to meaningfully cross-examine the witness presented at the hearing by respondent. She also asserts that the hearing officer abused his discretion by denying her request for an adjournment during the course of the hearing held on May 5, 1993.
Upon review of the record, I find that there is no basis in fact for petitioner's assertions concerning the introduction of the evaluation results and the cross-examination of respondent's witnesses. The record includes a series of interim orders and a final statement by the hearing officer in the prior hearing, none of which invalidated any evaluation. The record also reveals that a representative of the CSE testified that the documents submitted by respondent had been shared with petitioner, and that petitioner did not dispute the CSE representative's testimony, or object to the admission of the documents. At the hearing in this proceeding, respondent presented nine witnesses. I find that petitioner was afforded an opportunity to cross-examine each witness. On occasion, the hearing officer redirected the focus of petitioner's cross-examination from direct testimony by petitioner to an examination of the witnesses, which is an appropriate function of a hearing officer. With regard to petitioner's request for an adjournment of the hearing, the record reveals that the hearing which had been adjourned to allow petitioner to meet with the CSE resumed at 11:05 a.m. on May 5, 1993. Respondent presented three witnesses. Following the direct examination of the third witness, the following colloquy between petitioner and the hearing officer occurred.
HEARING OFFICER: Okay, [Petitioner], do you have any questions?
[Petitioner]: I do, but I just want to say I'm very tired, and after I question Mrs. Koeppel, I'd like to stop.
HEARING OFFICER: For lunch you mean?
HEARING OFFICER: For the day.
HEARING OFFICER: I'm afraid I cannot honor that request, I will allow a break which we can take right now.
[PETITIONER]: I do have a scheduled appointment. I'm having an EEG, I was in a car accident, I did have a concussion.
HEARING OFFICER: No, I have to say to you [Petitioner] (interposing).
[PETITIONER]: I do have a doctor's note (interposing).
HEARING OFFICER: This hearing has been scheduled for May 5th for some time now, and it's; I don't care whether you've got a doctor's note.
[PETITIONER]: I did have a car accident recently (interposing).
HEARING OFFICER: You can call that doctor and you can (interposing).
[PETITIONER]: I am suffering from a concussion, and I'm feeling fatigued. I have a scheduled appointment (interposing).
HEARING OFFICER: When did you have a car accident?
[PETITIONER]: April 1st.
HEARING OFFICER: Did they; and when did you have your last appointment with this doctor? And what time is your appointment today.
[PETITIONER]: One thirty.
HEARING OFFICER: And where is the doctor?
[PETITIONER]: In the village.
HEARING OFFICER: And how long is your appointment going to take?
[PETITIONER]: It's an EEG, as long as an EEG takes. His name is Dr. Scott Warner, Dr. Scott Warner.
HEARING OFFICER: I have to tell you that I am dismayed that you in the face of this hearing, make an appointment; you had every; you had many possible dates you could have chosen from, you didn't have to choose this. The hearing has been going on for over a month now, your child is awaiting placement (interposing).
[PETITIONER]: I did not anticipate that it would go on and on and on.
HEARING OFFICER: Well, you could very well have anticipated it, you're not new to these hearings, you have been at hearings before, you know how long the previous one took.
[PETITIONER]: I did not select the time or cater it to this, I thought (interposing).
HEARING OFFICER: You could have chosen a date for your EEG different from May 5th.
[PETITIONER]: I asked for the soonest available one.
HEARING OFFICER: I suggest you call that doctor and you change that date, and that you do so right now. (overlap) This is a month after your accident, I do not see the urgency connected with that, I do see a greater urgency connected with this matter, and I'm directing you to call that doctor and tell him that you cannot make that appointment. And I want you to do that right now. This has priority. You were in an accident over a month ago.
[PETITIONER]: Are you a physician?
HEARING OFFICER: No, I am not a physician.
[PETITIONER]: Then how can you make a determination that I'm okay.
HEARING OFFICER: I haven't made a determination that you're okay, I've made a determination that this has priority, I've seen you here today, I've seen you functioning and I've reached the conclusion that you've not going to be prejudiced by putting off your EEG. I'd like you to go out and have some lunch and call that doctor. And we'll take a recess right now for just that purpose.
[PETITIONER]: I'm feeling ill.
HEARING OFFICER: I want you to take a break, and to have lunch.
[PETITIONER]: I know what you want me to do, but I am feeling ill.
HEARING OFFICER: You take a break; we are off the record, if you are here today, I am saying to you, go out and have some lunch and recover whatever strength you have, and we will resume, and you will resume, and you will call that doctor, and you will put off that appointment. I'm not going to brook this delay, it's for the benefit of your child, and you're just unnecessarily delaying this, you came here, you knew you had a hearing, you nevertheless made an appointment for a doctor at 1:30.
[PETITIONER]: That was the only time (interposing).
HEARING OFFICER: Not only did you come here, but you came here an hour and a half late, almost, thus precipitating the likelihood that we will not finish by 1:30.
[PETITIONER]: I explained why I was an hour and a half late, this is the explanation why I was an hour and a half late.
HEARING OFFICER: Your explanation doesn't fly with me. You know, you tell me your father had given a piece of paper to the school, and you weren't aware (interposing).
[PETITIONER]: Mrs. Steinhardt gave me this paper (interposing).
HEARING OFFICER: I don't care, (interposing)
[Petitioner]: It's a report that I was supposed to have in my possession, and the teacher had the original.
HEARING OFFICER: Your father gave it to the teacher.
[PETITIONER]: You said the teacher had the original. I don't know why that happened.
HEARING OFFICER: Your father gave it to the teacher, and I'm sure Mrs. Steinhardt doesn't know, you live with your father, and you ought to know, and to have some control over these things. And furthermore, the fact that you've been looking for a report, doesn't justify your not being here at 9:30. You could have looked for that report yesterday, or the day before if it was important. We didn't just call this hearing. You delayed it; until sometime this morning looking for a report which you should have had in your possession, and what you could have started looking for well in advance.
[PETITIONER]: When I looked through my papers, and I came in here this morning, it was not there.
HEARING OFFICER: The point is, that you're doing things which seem calculated in my opinion to delay a resolution of this hearing.
(Transcript, May 5, 1993, pp. 73-79)
After a recess for lunch, the hearing continued until 4:15 p.m. Three additional witnesses testified on behalf of the CSE. The hearing officer then asked petitioner to explain how she thought the child's needs should be addressed but had not been addressed by the CSE. Petitioner briefly discussed her desire to have some of the child's IEP goals changed, and engaged in a colloquy about placement in the least restrictive environment with the hearing officer and respondent's staff. The hearing officer terminated the hearing without offering petitioner an opportunity to present her case through witnesses and/or additional documentary evidence.
Petitioner asserts that the hearing was not originally scheduled to resume on May 5, 1993, and that respondent rescheduled the hearing for that date after petitioner had made an appointment with her physician. She further asserts that she was unaware that it was time to present her case when the hearing officer abruptly closed the hearing. Respondent has submitted an answer which requests that the matter be remanded to the CSE for an additional evaluation of the child, but does not admit or deny petitioner's assertions. Consequently, petitioner's assertions are deemed to be true. There is no evidence in the record of a prior request by petitioner for an adjournment in this hearing. Upon the record before me, I find that the hearing officer's denial of petitioner's request for an adjournment was unreasonable (Application of a Child with a Disability, Appeal No. 93-2). Although assisted by a friend, petitioner was unrepresented by counsel at the hearing. Impartial hearing officers have the responsibility for assisting unrepresented parties (Application of a Child with a Handicapping Condition, Appeal No. 92-8; Application of a Child with a Handicapping Condition, Appeal No. 92-38). The hearing officer queried petitioner about her concerns, but did not advise petitioner of her right to present her case. I find that the hearing officer substantially deprived petitioner of the right to present her case (Application of a Child with a Disability, Appeal No. 93-11).
The decision of the hearing officer must be annulled, despite the extensive effort by respondent's staff at the hearing to demonstrate the appropriateness of the CSE's recommendation for the child's classification and placement. At this point, no purpose would be served by holding another hearing to determine the child's classification and program for the 1992-93 school year. The CSE must recommend an appropriate classification and program for the 1993-94 school year. In doing so, the CSE must consider the extent to which the child may be mainstreamed.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing officer is annulled.
New York _________________________
August 16, 1993 HENRY A. FERNANDEZ