Application of a CHlLD WITH A HANDICAPPING CONDITION, by her parents, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the Pavilion Central School District
Advocacy for the Developmentally Disabled, Inc., attorney for petitioners, Roger G. Nellist, Esq., of counsel
Harris, Beach and Wilcox, Esqs., attorneys for respondent, Alfred L. Streppa, Esq., of counsel
Petitioners appeal from the determination of a hearing officer which upheld the recommendation of respondent's Committee on Special Education (CSE) that petitioners' child be placed for the 1990-91 school year in a special education class operated by the Board of Cooperative Educational Services of Genesee and Wyoming Counties (BOCES), and which failed to rule upon petitioners' request that they be allowed to select the person who would perform an independent evaluation of the pupil. The appeal must be sustained.
Petitioners' six year old child has been diagnosed as having Down Syndrome. Although the parties disagree as to the extent of her disability for purposes of placement in an appropriate educational program, there is no dispute as to the pupil's classification as mentally retarded.
The pupil attended a special education preschool at the BOCES during the 1988- 89 school year and for the first three months of the 1989-90 school year. In November, 1989, petitioners placed the pupil in a private nursery school. The pupil's mother initially discussed the pupil's placement for the 1990-91 school year with members of respondent's staff in January, 1990.
On April 10, 1990, the Developmental Test of Visual-Motor Integration was administered to the pupil by respondent's school psychologist, who found that the pupil had a short attention span and demonstrated a lower developmental level than would be expected for a pupil of her chronological age. At a pre-kindergarten screening which was conducted on May 1, 1990, the pupil was assessed for her auditory and visual discrimination levels, as well as for her possible need for speech/language therapy and occupational therapy. On May 15, 1990, respondent's psychologist assessed the pupil's level of adaptive behavior by interviewing the pupil's mother and her nursery school teacher. The psychologist noted a disparity between the level of adaptive behavior reported by the mother and that reported by the child's teacher. The school psychologist did not complete his evaluation of the pupil until August 27, 1990, which delay was caused in part by petitioners' withdrawal of consent to the initial evaluation of their child.
On May 29, 1990, petitioners met with the CSE, at which time they requested that an independent evaluation of the pupil be performed. On June 29, 1990, the chairperson of the CSE advised petitioner that an independent evaluation would be performed by a physician affiliated with the Genesee Hospital in Rochester. However, petitioners advised the CSE in early July, 1990 that they did not wish to have an independent evaluation performed by the individual selected by the CSE.
On August 28, 1990, the CSE recommended that the pupil be classified as mentally retarded, and that she be placed on a 10 month basis in a BOCES special education class located in Batavia, New York. The recommended class of not more than 12 pupils would be taught by a teacher with the assistance of one aide. The CSE recommended that the pupil receive the related services of daily speech/language therapy and physical and occupational therapies twice each week. The CSE also recommended that the pupil be independently evaluated by an evaluator to be selected by the school district. Attached to the notice of the CSE's recommendation which was sent to petitioners was a list of parental rights, including a list of five institutions at which independent evaluations could be obtained.
On September 4, 1990, petitioners requested that an impartial hearing be held to review the CSE's recommendation. They also asked the CSE whether it would agree to having an independent evaluation performed by an individual to be selected by petitioners. The chairperson of the CSE responded to the latter request by offering petitioners an opportunity to have an independent evaluation performed at the Strong Memorial Hospital in Rochester or the Children's Hospital of Buffalo. Petitioners were offered no other choices of evaluators.
A hearing was held on October 7, 12 and 23, as well as on November 8, 1990. By decision dated December 27, 1990, the hearing officer found that the pupil was properly classified as mentally retarded, and that the related services of occupational therapy, physical therapy and speech/language therapy as set forth in the pupil's individualized education program (IEP) were appropriate. The hearing officer further found that the pupil could not be appropriately placed in a regular kindergarten as had been sought by petitioners, and should be placed in the BOCES class as recommended by the CSE. Although the hearing officer found that there were deficiencies in the evaluation performed by respondent and directed that the pupil be further tested and evaluated by the CSE, he did not resolve the disagreement between petitioners and respondent as to the selection of the individual or individuals who would perform an independent evaluation of the pupil. The hearing officer also found that the pupil's academic, social, physical and management needs as described in the pupil's IEP needed to be clarified.
Petitioners ask that I annul the decision of the hearing officer upon the grounds that the hearing officer had an impermissible conflict of interest, in view of his relationship with respondent's attorney, and that the hearing officer made procedural errors during the course of the hearing. They urge that I find that the evaluation performed by the CSE was inadequate, and that I direct respondent to pay for an independent evaluation to be performed by an individual selected by petitioners. Petitioners also ask that I find that the BOCES class recommended by the CSE is not the least restrictive environment for their child, and that I direct respondent to place the pupil in a regular kindergarten.
Prior to the commencement of the hearing and at the beginning of the hearing, petitioners' attorney challenged the impartiality of the hearing officer, who is director of pupil personnel and chairperson of the CSE of the Fairport Central School District. Respondent and the Fairport Central School District are represented by the same law firm. At the outset of the hearing, the hearing officer disclosed his relationship to the attorney representing respondent (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 343), by stating:
"I just want to also add at this particular point in terms of my relationship with Mr. Streppa, that in the past he has conducted a couple of hearings for Fairport Central School District for whom I am employed as well as appeared at a Committee on Special Education meeting to provide an opportunity for Committee on Special Education members to ask questions of him of a legal matter."
In Application of a Child with a Handicapping Condition, supra, which involved the same hearing officer and the same attorney as in this appeal, the Commissioner of Education held that the hearing officer should have disclosed his relationship with the school district's attorney, but that the hearing officer's failure to disclose did not afford a basis for annulling the hearing officer's decision. The Commissioner of Education reached that conclusion upon a finding that the party challenging the hearing officer's impartiality had failed to establish that the hearing officer's objectivity was affected by the relationship with the school district attorney.
In this instance, I am constrained to reach a different conclusion. Federal and State regulations provide that an impartial hearing officer must not have a personal or professional interest which would conflict with his or her objectivity in the hearing (34 CFR 300.507 [a); 8 NYCRR 200.1 [p]). In addition, administrative officers who exercise judicial or quasi-judicial powers must avoid even the appearance of impropriety (Grant v. Senkowski, 146 AD 2d 948; DeCamp v. Good Samaritan Hospital, 66 AD 2d 766). Although Section 74 of the Public Officers Law is explicitly applicable only to State Officers and employees, I find that the following statements from the Manual for Hearing Officers in Administrative Adjudication published by the New York State Department of Civil Service accurately reflect New York's public policy in all administrative hearings:
"Adherence to Section 74 of the Public Officers' Law (State Code of Ethics) supra, should make a hearing officer realize that the essence of a fair hearing is in his absolute impartiality. He should have no personal interest in the outcome of the case. He should not be related by blood or marriage to any party, witness or representative. He should have no association presently or have had association previously, in business affairs or in his personal or social life with any party, witness or representative. He should have no prejudice or bias against certain peoples or against the type of issue he is called on to hear.
Not only must he be free of any personal interest, prejudice or bias, but he must also be free of any reasonable suspicion thereof."
The Fairport Central School District- the hearing officer's employer, is also the client of respondent's attorney. There is a clear, continuing professional relationship between the hearing officer and respondent's attorney, in that as a school administrator and CSE chairperson, the hearing officer relies upon respondent's attorney for legal advice. Moreover, in the event the hearing officer is sued in his official capacity as chairperson of the Fairport CSE, respondent's attorney would represent the hearing officer in accordance with the provisions of Section 18 of the Public Officers Law and Section 3028 of the Education Law.
The record reveals that the hearing officer, who is not an attorney, was required to rule upon the school district attorney's frequent objections to the scope of the cross-examination of witnesses by petitioners' attorney and upon the admissibility of evidence. Many of those objections, such as objections to the admission of hearsay evidence, were repeatedly and inappropriately raised in an administrative hearing. During the course of the hearing, respondent's attorney made questionable legal assertions as to the scope of the hearing and the powers of the hearing officer, such as the assertion that the hearing officer lacked authority to determine if petitioners have the right to select the person who would perform an independent evaluation. I note that in the course of ruling upon various objections raised by respondent's attorney, the hearing officer misstated the burden of proof, by suggesting that petitioners were required to show the inappropriateness of the placement recommended by the CSE. Remarkably, during the presentation of petitioners' case, the hearing officer made the following comments:
" And for the record I want it to show that I think you are spending time on finding what is wrong with the process. The District has done their job, but you also have an opportunity to produce some other strategies, and I have yet to see them".
" Two days of this and you don't think there is any reason to get upset with this process. I think that there is. We are spending a lot of time on trying to find a lot of little things wrong with the process, and I have my concerns about the process. And I would make damn sure that the process, in terms of evaluating this child, is done proper. But I want to see some other things upon your suggestion that should be done. I want them concrete, specific and standardized, not based upon beliefs and philosophies that I can't use in terms of rendering a decision."
The appropriateness of these remarks by the hearing officer is questionable. I have carefully reviewed the numerous rulings which the hearing officer made at the hearing. Although I do not concur with each of his rulings, it is not necessary for me to reach a conclusion as to whether there was actual bias by the hearing officer in favor of the school district. Given the relationship to the respondent's attorney, his past reliance on the attorney's opinion in his capacity as a school administrator and the rulings in the record, I find that at a minimum, the appearance of bias was clearly presented. Under the circumstances, I further find that the hearing officer, upon petitioners' formal objection to his serving as a hearing officer, should have disqualified himself (In Re Intemann, 73 NY 2d 580 at 582; Matter of Conti, 70 NY 2d 416, at 419).
The hearing officer's decision must also be annulled for the following reasons. State regulation requires that a pupil who has been referred to a CSE must receive an individual evaluation consisting of, at least, a physical examination, an individual psychological examination, a social history and other suitable examinations and evaluations (8 NYCRR 200.4 [b](l]). The record includes a brief, one paragraph letter from the pupil's physician, stating that the pupil would have an eye examination and would be seen by another physician for the removal of tubes from the pupils' ears. It also includes a brief notation by the school nurse on the child's record of the May 1 kindergarten screening that pupil could not do the vision test and performed poorly on the hearing test, perhaps because of a lack of comprehension. I find that respondent has failed to obtain an adequate physical examination, which should establish whether the pupil has physical impairments which impact upon her ability to learn and which would enable the CSE to use evaluation materials which will accurately measure a pupil's aptitude or achievement (8 NYCRR 200.4 [b](2J[c][iii]).
The CSE did not obtain a social history of the pupil. Instead, the CSE merely relied upon a brief questionnaire completed by the pupil's mother and obtained for all pupils at the kindergarten screening. 8 NYCRR 200.l(ii) provides that a social history is report of information gathered and prepared by qualified school personnel on a variety of subjects, including the pupil's educational history. I find that the brief responses of the pupil's mother on the screening questionnaire do not meet the criteria set forth in the State regulation.
8 NYCRR 200.1 (t), which defines an individual psychological evaluation, provides that such an evaluation is intended to "describe a pupil's developmental, learning, behavioral and other personality characteristics for the purpose of educational planning". In this instance, respondent's school psychologist administered a test to measure the pupil's performance of fine motor tasks prior to referral to the CSE. An intelligence screening test and a test to measure the pupil's adaptive behavior were also administered by the school psychologist. However, these tests are inappropriate to provide information about the pupil's learning characteristics which would be useful in planning the pupil's educational program. In this instance, the pupil was unable to demonstrate her skills in specific areas of educational need because there were not enough correct responses on the intellectual screening to reach any conclusion about such skills. I also note that the the intelligence screening test. Other tests could have been used, or tasks could have> been selected from other tests to provide the educational information needed.
This information is essential to prepare an individualized education program which accurately identifies the pupils needs and abilities, including present levels of performance (8 NYCRR 200.4 [c][i]). This pupil's IEP does not accurately report the pupil's present levels of performance, (8NYCRR 200.4(c]), nor does it adequately address her academic, social, physical and management needs, as noted by the hearing officer. I find that the pupil's IEP is inadequate to support either the placement recommended by the CSE or any other placement. Therefore, I will direct the CSE to obtain additional evaluative information, to prepare a new IEP based upon such new information, and to recommend an appropriate program for the pupil.
With regard to petitioners' request for an independent evaluation, respondent asserts that petitioners have not demonstrated that there are unique circumstances which would justify the performance of an independent evaluation by some person or group other than those who have previously been approved by respondent.
Section 200.5 (a)(l)(vi)(a) of the Regulations of the Commissioner of Education provides that upon receipt of a referral of a pupil for an initial evaluation or reevaluation, the CSE must notify the pupil's parent that:
" if the parent disagrees with the evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. However, the school district may initiate an impartial hearing to show that its evaluation is appropriate, and if the evaluation is appropriate, the parent has a right to an independent evaluation, but not at public expense".
Neither Federal nor State regulation specifically limits a parent's selection of an independent evaluator to those who have previously been approved by a board of education. The United States Education Department Office of Special Education has opined that a board of education should use the same criteria for an independent evaluation as are used in its own evaluation, on such matters as the qualifications of the examiner. In addition, that Office opined that a board of education could restrict parents to selecting from a list of qualified evaluators prepared by the board of education, if the pupil's needs can be appropriately evaluated by the persons identified on the board's list and if the list exhausts the availability of qualified persons within the geographic area (EHLR 213:259). I have no basis in the record before me for concluding whether respondent's list is exhaustive of the qualified evaluators in Western New York.
One last issue must be discussed. Petitioners assert that respondent has declined to admit their child into a regular kindergarten during the pendency of their challenge to the recommendation of the CSE. . Respondent generally denies this assertion. However, the transcript of the hearing held on November 8, 1990 reveals that the pupil was not attending school as of that date. I must remind respondent that Section 4404 (4) of the Education Law provides that, if a pupil who is suspected of having a handicapping condition applies for initial admission to a public school, the pupil must be placed in a public school program during the pendency of any proceedings to review the identification, evaluation or placement of the pupil. The Office of Civil Rights of the United States Department of Education has opined that a pupil in such circumstance must be initially placed in a regular education class, absent an agreement by the parents to an alternative placement (EHLR 352:300).
THE APPEAL IS SUSTAINED.
IT IS ORDERED THAT the decision of the hearing officer be, and the same hereby is, annulled; and
IT IS FURTHER ORDERED that respondent shall immediately admit the pupil to a regular education class, where the pupil shall remain during the pendency of this proceeding including any further review, unless petitioners and respondent agree to an alternative program; and
IT IS FURTHER ORDERED that within 30 calendar days after the date of this decision, the CSE shall perform a social history, a physical examination of the pupil including vision and hearing evaluations which must be completed before any further evaluations, as well as a complete measure of the pupil's intelligence to identify her relative strengths and weaknesses, learning style and rate, and an observation of the pupil in a classroom setting in accordance with the provisions of 8 NYCRR 200.4(b)(2)(vii); and
IT IS FURTHER ORDERED that within 40 calendar days after the date of this decision the CSE shall prepare a new IEP and recommend an appropriate placement for the pupil.