91-040

Petitioners' child, who is now 8 years old, was hospitalized when he was 17 months old because of a loss of weight, lack of growth and abnormally small head size. The child was found by New York University Hospital to have congenital rubella because his mother had contracted rubella (German Measles) early during her pregnancy. In an October 30, 1990 medical evaluation of the child by a physician of the Developmental Disabilities Center of St. Luke's/Roosevelt Hospital in New York City, the physician described the child as slightly small for his age, with a very small but symmetrical head. With regard to the child's neurodevelopment, the physician found that the child had at or above age level verbal abilities, but exhibited much difficulty with graphomotor skills. The physician also stated that the child had problems with visual-spatial integration and motor planning, and noted that the child required a concrete frame of reference in order to understand numbers. The physician cautioned that the child should be examined annually for glaucoma and hearing loss, which can result from CRS.

The child attended a private school for two years, before enrolling in respondent's schools for the 1990-91 school year. The child was classified as learning disabled by respondent's committee on special education (CSE), and was placed in a regular education first grade class for the 1990-91 school year. The child received the related services of speech/language therapy and occupational therapy.

On March 13, 1991, the CSE met, at petitioners' request, to consider a number of requests by petitioners for changes in the services which respondent provided to the child and for a change in the child's classification to multiply handicapped. The CSE declined to recommend that the designation of the child's handicapping condition be changed or that the child receive counseling, have access to a computer and receive the assistance of a consultant teacher, as petitioners had requested. The CSE did agree with petitioners' request to replace the child's speech/language therapy with resource room services, as of April, 1991. The CSE also prepared an individualized education plan (IEP) for the 1991-92 school year, which provided that the child would remain in the regular education program for second grade, with resource room services on a daily basis and occupational therapy twice each week. The IEP also provided for test modifications, including extended time limits and having the child's answers recorded. The IEP listed four annual goals for occupational therapy, one annual goal related to the improvement of the child's handwriting and one annual goal related to the development and improvement in the child's organizational and study skills. The petitioners have not challenged any provision in the child's IEP, or any of the decisions made by the CSE with regard to counseling, use of a computer, services of a consultant teacher, or the nature of the child's handicapping condition.

At the March 13, 1991 CSE meeting, petitioner also requested that respondent pay for the cost of an evaluation of the child by a psychiatrist who is an expert with regard to CRS. The CSE denied petitioners' request, on the ground that there was no basis in the information before the CSE to refer the child for a psychiatric evaluation.

On May 22, 1991, petitioners requested an impartial hearing be held. The hearing commenced on June 27, 1991 and concluded on July 30, 1991. At the hearing, petitioners stipulated that they did not dispute the child's educational program or any of the supportive services to be provided to the child during the 1991-92 school year pursuant to the child's IEP. The attorney who represented the petitioners during the hearing asserted that petitioners sought an evaluation by a psychiatrist of the child and of the child's present educational program. The child's mother subsequently testified that the purpose of the requested evaluation was to have a physician "... check this over and say this is because of the [child's] central nervous system damage that he is acting this way. This is something ... not going to get better or whatever" (Transcript, p. 265). In a decision dated October 4, 1991, the hearing officer held that an independent psychiatric evaluation was not necessary to meet the educational needs of the child, and that respondent's staff adequately understood the child's needs and were providing appropriate services. The hearing officer also found that the child should not be classified as learning disabled, although neither the parents nor the school district had raised the issue of the child's classification at the hearing. Instead, the hearing officer had insisted at the hearing that respondent justify the child's classification because the hearing officer believed that the child did not appear to meet the definition of a learning disabled child set forth in 8 NYCRR 200.1 (ee)(3).

At the hearing, petitioners' then attorney moved for the hearing officer to recuse himself on the ground that he was predisposed to reach the conclusion that the child should not be classified. The hearing officer denied the motion. Although petitioners have not expressly asked that I review the denial of the motion to recuse, they have directed my attention to certain portions of the hearing transcript to demonstrate what they assert were inappropriately provocative and argumentative remarks by the hearing officer. The hearing officer's repeatedly disparaging remarks to petitioners' attorney about his advocacy of petitioners' case (Transcript, pp. 55, 57, 97, 194, 207, and 214) were unwarranted and inconsistent with the standard set forth in Canon 3 of the Code of Judicial Conduct, which provides that a judge shall be patient, dignified and courteous to litigants, their attorneys and others with whom the judge deals in an official capacity. Nevertheless, I find no evidence that the outcome of the hearing was affected by the demeanor or any of the evidentiary rulings made by the hearing officer. Consequently, I will not annul the hearing officer's decision on the ground of actual or apparent bias.

Petitioners assert that the hearing officer exceeded his authority by raising and deciding the issue of the child's classification, despite the fact that neither petitioners nor respondent deemed that to be at issue. They also assert that, in any event, the record supports the child's classification as learning disabled.

The Individuals with Disabilities Education Act (20 USC 1400 et seq.) and Article 89 of the New York State Education Law provide a comprehensive system for ascertaining and providing for the educational needs of children with handicapping conditions. Federal and State law also provide the parents of such children with an expeditious method of challenging the actions or inactions of school districts by requiring that an impartial hearing be held, if requested by the parents. At least initially the parents who have requested the hearing determine the issues to be addressed by the hearing officer. It is also essential that the hearing officer disclose his or her intention to reach an issue which the parties have not raised as a matter of basic fairness and due process of law (17 EHLR 718). In this instance, the hearing officer did raise the issue of the child's classification on June 27, 1991, and requested the parties to be prepared to address the issue at the next day of the hearing.

Nevertheless, the record is inadequate to support the hearing officer's supposition that the child might not be learning disabled. At the outset of the second day of the hearing, the hearing officer noted that there was no evidence of a fifty percent discrepancy between the child's expected and actual achievement, and alluded to the definition of a learning disabled child set forth in 8 NYCRR 200.1 (ee). That definition provides that a child with such a discrepancy who meets other criteria in the definition "shall be deemed to have a learning disability." A child may be classified as learning disabled without a precise showing of a fifty percent discrepancy (Application of a Child with a Handicapping Condition, 26 Ed. Dept. Rep. 49). In this instance, there was no basis to infer that there was, or was not, such a discrepancy. The CSE chairperson testified that the child had been classified as learning disabled, based upon a significant disparity between the child's verbal and performance IQ scores, the child's motor perceptual deficits and the child's organizational difficulties. I find that the hearing officer erred in attempting to determine whether the child should be classified as learning disabled.

Petitioners rely upon the provisions of 8 NYCRR 200.5 (a)(1)(vi)(a), in asserting that they have a right to an independent assessment of the child. The State regulation, as well as its Federal counterpart (34 CFR 300.503 [b]) afford the parent of a handicapped child the right to an independent educational evaluation at public expense, if the parent disagrees with the evaluation obtained by the school district. However, a school district may initiate a hearing to show that its evaluation is appropriate. If a hearing officer finds that the school district's evaluation is appropriate, the parent may still obtain an independent evaluation, but not at public expense. State regulation defines an independent evaluation as:

"... an individual evaluation of a pupil thought to have a handicapping condition conducted by a person who is not employed by the public agency responsible for the education of the pupil." (8 NYCRR 200.1 [r])

Petitioners assert that, since respondent failed to initiate a hearing to establish the appropriateness of its evaluation, it must be required to pay for an independent evaluation. Although respondent did not initiate a hearing, a hearing was nevertheless held for the purpose of determining whether the child should be evaluated by a psychiatrist as requested by petitioners. I decline to find that respondents should have been precluded from establishing the appropriateness of its evaluation merely because petitioners requested the hearing.

The central issue is whether the evaluation performed by respondent was appropriate. Unfortunately, the record before me does not include copies of the evaluative reports relied upon by the CSE in concluding that the psychiatric evaluation was unnecessary, except for the October 30, 1990 medical evaluation of the child by St. Luke's/Roosevelt Hospital. That report would not afford any basis for referring the child to a psychiatrist. The record does include testimony from the child's first grade teacher and building psychologist, each of whom had frequent contact with the child last year. The teacher and the psychologist testified that they found no basis in the child's behavior for referring the child to a psychologist or a psychiatrist. The CSE chairperson, who is also a psychologist, testified that he and other members of the committee had reviewed three monographs concerning CRS submitted to the CSE by petitioners, but found that the child did not exhibit the more severe symptoms of CRS discussed in the monographs. The chairperson further testified that the physician member of the CSE, who is a psychiatrist, and was familiar with CRS opined that there was no basis for a referral of the child to a psychiatrist.

Upon the record before me, I am unable to find a rational nexus between the present educational needs of the child and petitioners' request for an independent psychiatric evaluation. While petitioners alluded at the hearing to possible future complications of CRS for their child, it is entirely speculative at this point whether the child will exhibit any symptoms of the disease which will significantly impact upon his education. Absent evidence of any immediate educational purpose for the requested psychiatric evaluation, I find that the hearing officer correctly concluded that petitioners had not demonstrated a basis for such evaluation.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED, that the portion of the hearing officer's decision finding that the child should not be classified as learning disabled be, and the same hereby is annulled.