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. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Blanche Greenfield, Esq., of counsel
Petitioner appeals from an impartial hearing officerís decision ordering respondentís Committee on Special Education (CSE) to re-evaluate petitionerís son, notwithstanding petitionerís refusal to consent to such re-evaluation. The appeal must be dismissed.
There is an initial procedural question regarding the timeliness of respondentís answer to the petition. Respondent asks that I excuse its delay and accept its answer, attributing the delay to the temporary displacement of its attorneyís offices following the World Trade Center incident. In view of the brevity of the delay and the absence of prejudice to petitioner, I will excuse respondentís delay and accept its answer.
Petitionerís then 12-year-old son was enrolled in the eighth grade of respondentís School of the Future in Manhattan when the hearing was held in this matter. I must note that the hearing officer made her determination after questioning some of the witnesses present at the hearing on October 26, 2001, but before any documentary evidence was entered into the record. The record before me is therefore quite abbreviated.
The student is reportedly deaf, legally blind, and developmentally disabled (Transcript p. 9). The record does not indicate when the student was first evaluated by the CSE. He has been classified by the CSE as multiply disabled, and there does not appear to be any dispute about his classification. The last complete evaluation of the student was conducted in 1995, although a psychological assessment and an audiological evaluation were conducted in 1997 (Transcript p. 6). Petitioner has reportedly withheld his consent for any further evaluations (Transcript p. 7). Respondentís CSE has apparently continued to prepare an individualized education program (IEP) for the student each year, despite not having reasonably current evaluative data for him.
This proceeding was commenced when petitioner requested an impartial hearing on or about October 9, 2001. Petitioner alleges that there were difficulties with his sonís behavior, and that a school psychologist had not done what he was required to have done pursuant to the behavior intervention plan in the studentís IEP for the 2001-02 school year. I note that the IEP is not part of the record. At the hearing, the parent indicated that he was generally satisfied with the content of his sonís IEP, although he believed that it lacked measurable annual goals and short-term objectives (Transcript p. 18). However, petitioner asserted that his son was continuing to display certain negative behavior, such as hitting himself, that interfered with his education (Transcript p. 19), and that respondent had failed to provide the sign language training that was part of his sonís IEP (Transcript p. 25).
The CSEís representative at the hearing advised the hearing officer that the CSE was unaware of the studentís current needs because of the absence of current evaluative data. The representative asserted that the student should undergo a comprehensive behavioral assessment and social update, updated psychological and educational assessments, audiological and vision testing, an evaluation by a sign language expert, and a series of classroom observations. When questioned by the hearing officer about this, petitioner indicated that he would not consent to an evaluation without knowing what was being proposed (Transcript p. 16). Respondentís representatives explained what kinds of information could be obtained from the proposed evaluations and why the information was needed (Transcript pp. 51-60).
Petitioner opposed the requested evaluations, arguing that the CSE must first review the existing data and determine whether additional evaluations were necessary before it could conduct any re-evaluation. He also asserted that re-evaluation was unnecessary because there was no significant disagreement about his sonís abilities. The hearing officer indicated to the parties that she wanted complete audiological, visual, and psychological evaluations of the student, and explained why she wanted information to be obtained from the evaluations (Transcript pp. 63-68). She offered to retain jurisdiction in the event that the parent wished to challenge what the CSE had done in response to her decision. However, petitioner declined the offer (Transcript p. 79).
In her decision dated December 3, 2001, the hearing officer remanded the matter to respondentís Hard of Hearing Visually Impaired (HHVI) CSE for a current evaluation that included, but was not limited to, a psychological evaluation, an audiological evaluation, a vision evaluation, a social history, a functional behavioral assessment and a medical examination.
Petitioner argues that the hearing officer erred by not conducting the hearing on the issues he wished to raise about his sonís IEP, and instead directing that his son be re-evaluated by the HHVIís CSE. He contends that the hearing officer lacked jurisdiction in this proceeding to order a re-evaluation by the CSE of his son. I note that 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) provide that if a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense. While a re-evaluation by the CSE is arguably not an independent evaluation as that term is defined in 8 NYCRR 200.1(z) because it would be conducted by board of education employees, that distinction is not dispositive of this appeal. Implicit in the regulation is the concept that an impartial hearing officer may order that a child be evaluated during a hearing to provide additional information so that the hearing officer may make an informed judgment about the issues that have been presented.
Additionally, I note that federal and state regulations mandate that each child with a disability be re-evaluated at least once every three years (34 C.F.R. ß300.536[b] 8 NYCRR 200.4[b]). However, before doing so, a board of education must obtain informed parental consent. The federal regulation specifically provides that, in the event that a parent refuses consent for a re-evaluation, the school district may request an impartial hearing for the purpose of determining whether such evaluations may be conducted without parental consent, unless it would be inconsistent with state law (34 C.F.R. ß 300. 505[b]). There is no such inconsistency with New York law. Although the Board of Education did not institute this proceeding for the purpose of obtaining authorization to re-evaluate petitionerís son without petitionerís consent, it does not follow that the hearing officer in the course of this hearing could not order that the student be re-evaluated, upon learning that the required triennial re-evaluation had not been performed. I find that the hearing officer had authority to order that petitionerís son be re-evaluated (Application of a Child with a Disability, Appeal No. 01-076).
Respondent contends, and petitioner does not deny, that petitionerís son has not had a full evaluation since 1995. The normal procedure for a re-evaluation involves an initial review of existing evaluation data, including information provided by the studentís parents, current classroom-based assessments and observations, and observations by teachers and related service providers (8 NYCRR 200.4[b]). Upon review of that information, the CSE and other qualified professionals, as appropriate, must identify what additional data, if any, are needed to determine if the student continues to have an educational disability, his or her present levels of performance and his or her need for special education services. A re-evaluation need not include each of the elements of an initial evaluation.
I am concerned by respondentís apparent failure to address the issue of the studentís re-evaluation until petitioner instituted this proceeding. However, I do not believe that it would be in this studentís best interest to simply remand the matter to the CSE with a direction to proceed with a re-evaluation in accordance with the procedure prescribed by 8 NYCRR 200.4(b)(5). From even the limited record before me, it is apparent that this student is significantly disabled, and that the CSE lacks adequate information to prepare an appropriate IEP. One of respondentís witnesses explained at the hearing that new psychological, visual, and audiological evaluations were necessary in order to ascertain the extent to which petitionerís son can use what vision he has, what information he has lost as a result of his hearing impairment, and how the student processes information (Transcript pp. 53-56).
At the hearing, petitioner expressed concern about respondentís alleged failure to develop an appropriate behavior management plan for his son. Respondentís witness explained that it was necessary to know how the student processes information in order to do an appropriate functional behavioral analysis, which is a prerequisite for preparing a useful behavior management plan. This is fundamental information that the CSE must have in order to prepare an appropriate IEP for the student. I find that the purpose of the proposed evaluations has been adequately explained to petitioner, and that there is no reason to delay having them done. I note that the hearing officer directed the CSE to obtain a social history, which is cumulative by nature. If the CSE has already obtained a social history in connection with its previous evaluations of the student, it should simply update that document.
Petitioner has submitted an unverified pleading entitled: "Parentís Request to Deny Board of Educationís January 3, 2002 Motion to Dismiss Case #45178." I note that the document appears to relate to a different proceeding, and has not been considered by me in this appeal. I have considered petitionerís remaining contentions, and find them to be without merit.
THE APPEAL IS DISMISSED.
Albany, New York
November 12, 2002
ROBERT G. BENTLEY