91-044

Petitioners' child, who is now eight years old, was initially referred to respondent's committee on special education (CSE) in 1988. After an evaluation, the CSE recommended that the child not be classified as a child with a handicapping condition. Petitioners requested that a hearing be held to review the CSE's recommendation, but subsequently entered into a stipulation with the CSE to discontinue the hearing. Thereafter, petitioners commenced an appeal to the Commissioner of Education, in which they challenged the validity of the stipulation, the impartiality of the hearing officer at the discontinued hearing and the alleged failure of respondent to timely evaluate the child. The appeal was dismissed because the Commissioner of Education found that petitioners had failed to exhaust their administrative remedies (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 6). Four subsequent appeals to the Commissioner, in which petitioners sought advisory opinions relating to the evaluation of the child by the CSE were dismissed, in a single decision of the Commissioner, and the claims were referred to the Education Department's Office for the Education of Children with Handicapping Conditions (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 211).

On June 19, 1990, the CSE again recommended that the child not be classified. Petitioners requested a hearing. However, on August 22, 1990, petitioners entered into a stipulation with the CSE, withdrew their request for a hearing and agreed not to institute any appeals or litigation with respect to events which had occurred prior to the date of the stipulation.

On August 22, 1990, petitioners referred the child to the CSE. They requested that the child receive a neuropsychological evaluation, an auditory evaluation, an evaluation for dysgraphia and grapho-fine motor function, a psychological evaluation and academic testing, including a test for specific language disability. Petitioners asked that they be allowed to independently obtain the requested evaluations and that respondent pay for the evaluations. In a letter dated September 5, 1990, the CSE advised petitioners that it would perform its own evaluation of the child, and scheduled the evaluation. Petitioners renewed their request for an independent evaluation, which was denied by the CSE on October 11, 1990.

On December 21, 1990, petitioners sent to the CSE the results of audiological, neuropsychological and neurological evaluations which they had obtained between October and December, 1990, and requested that they be reimbursed for the cost of the evaluations. On January 2, 1991, the CSE rejected petitioners' request for payment, upon the ground that the CSE was entitled to proceed with its evaluation and had been precluded from doing so by petitioners' refusal to allow the child to participate in such evaluation. On January 3, 1991, petitioners requested another hearing, which was subsequently adjourned, twice at petitioners' and respondent's request to March 14, 1991, and then to March 25, 1991.

Petitioners appealed to the Commissioner of Education from the CSE's refusal to consider the results of the independent evaluations which petitioners had obtained. In an Interim Order dated February 12, 1991, the Commissioner noted that although respondent had offered some practical reasons for the delay of its CSE in considering the results of the independent evaluation, it nevertheless had a legal obligation to proceed with a review of its own prior evaluations of the child, as well as the results of the independent evaluation, to determine if it had sufficient information upon which to make a recommendation to respondent. The Commissioner ordered the CSE to convene immediately for this purpose.

At a meeting held on March 21, 1991, the CSE determined that it needed additional evaluation information about the child. Petitioners submitted a request for a hearing. However, they withdrew their request for a hearing on March 25, 1991, while simultaneously requesting another meeting of the CSE. At an April 18, 1991 meeting, the CSE determined that it needed more information about the child's academic performance and the results of a psychological evaluation by its psychologist, and rejected petitioners' request for a determination recommending that the child be classified.

On June 5, 1991, the Commissioner of Education rendered his decision in the appeal in which he had previously issued an Interim Order (Appeal of a Child Suspected of Having a Handicapping Condition, 30 Ed. Dept. Rep. 433). The Commissioner noted that petitioners' request for reimbursement for the independent evaluations which they had obtained should have been determined in the first instance by an impartial hearing officer in accordance with 8 NYCRR 200.5 (a)(1)(vi)(a), but that respondent had failed to promptly schedule a hearing after receiving petitioners' request for an independent evaluation in August, 1990, and would not have scheduled a hearing except for petitioners' request for a hearing in January, 1991. The Commissioner ordered respondent to reimburse petitioners for the cost of an auditory and auditory processing evaluation obtained in October, 1990 and a neuropsychological evaluation performed in December, 1990. The Commissioner also held that the issues of whether the additional evaluations of the child sought by the CSE were warranted without parental consent and whether respondent should be compelled to provide services to the child pursuant to the provisions of Section 504 of the Rehabilitation Act of 1973 (29 USC 794) must be determined by an impartial hearing officer. The Commissioner ordered respondent to provide petitioners with appropriate notice of its proposed evaluation and to inform petitioners of the uses to be made of the information obtained through such evaluation, within seven days after the date of the Commissioner's decision. The decision further directed respondent to proceed with the scheduled impartial hearing to determine if the child should be evaluated without petitioners' consent, in the event petitioners withheld their consent, and to determine any complaint raised by petitioners concerning respondent's compliance with Section 504.

On June 10, 1991, the chairperson of the CSE invited petitioners to attend an informal conference to discuss the proposed evaluation of the child. By letter dated June 11, 1991, the chairperson confirmed petitioners' decision not to participate in an informal conference and listed the tests to be administered to assess the child's cognitive functioning, visual-motor/perceptual skills, academic performance, social/emotional strengths and weaknesses, speech/language skills, medical status and social history. The chairperson's letter also provided a brief description of the uses of the tests. On June 12, 1991, petitioners wrote to the Commissioner, asserting that the June 11, 1991 letter of the CSE chairperson did not comply with the Commissioner's decision, because the letter did not adequately describe the proposed tests. Petitioners also challenged the need for certain of the tests sought by the CSE. On June 24, 1991, petitioners were advised by staff from the Office of Counsel of the State Education Department that the CSE chairperson's June 11 letter appeared to comply with the Commissioner's decision and applicable regulations, and reminded petitioners that their complaints about the CSE's alleged failure to consider the results of the independent evaluation, insistence upon further evaluation of the child and alleged violation of Section 504 were to be addressed at an impartial hearing.

On July 30, 1991, the CSE chairperson advised petitioners that the CSE had agreed to delete three specific tests: the Degrees of Reading Power, Grade 2 Year-end Whole Language Assessment and the Stanford Achievement Test (Mathematics Application Subtest), from the list of tests or assessments which the CSE wished to have petitioners' consent to perform. In a letter dated August 9, respondent's assistant superintendent advised petitioners that unless they consented by no later than August 12, 1991 to the further evaluation of the child, respondent would ask the hearing officer to commence a hearing. On August 19, petitioners requested a hearing on the ground that respondent had failed to initiate a hearing within 45 days after its failure to obtain their consent to the evaluation, had failed to conduct occupational therapy and physical therapy evaluations despite having obtained petitioners' consent to those evaluations on June 12, 1991, had not having considered the results of their independent evaluations, and that the CSE had failed to make a recommendation to respondent within 30 days after the April 18, 1991 meeting of the CSE, and had discriminated against the child by insisting upon a school based observation of the child and by denying the child a free appropriate education.

A hearing was held on September 13, 1991. Petitioners agreed on the record to allow respondent to perform the occupational therapy and physical therapy evaluations, and to allow respondent's physician to consult with the child's pediatrician. The hearing officer advised petitioners that respondent had the right to conduct its own physical examination of the child. Petitioners subsequently professed to be agreeable to allowing the respondent to complete neuropsychological examination to assess the child's cognitive functioning, provided the examination was performed by a qualified person. The parties did agree that respondent would pay for a home tutor for the child, to be selected by petitioners. The hearing officer thereafter advised the parties that there was no issue of fact involved, and that the matter would be resolved without testimony upon his consideration of memoranda of law which the parties would submit. Following the close of the hearing, the parties submitted written argument and documentary evidence.

In his decision dated November 3, 1991, the hearing officer stated that the parties had agreed upon the record that there were no issues of fact, only issues of law. The hearing officer found that the CSE was obliged to consider the results of the independent evaluations obtained by petitioners, but that the CSE had a right to conduct its own evaluation. The hearing officer denied petitioners' request for an additional independent neuropsychological evaluation, as premature, and rejected their assertion that respondent should be barred from contesting their request for an independent evaluation because respondent had not timely requested a hearing on their request. The hearing officer also found that the evidence did not afford a basis for concluding that the child had been discriminated against or denied a free appropriate education, or for a finding by the hearing officer that the child should be classified as having a handicapping condition and provided with a 12-month educational program.

Respondent asserts that the appeal is defective because petitioners allegedly failed to serve respondent with a Notice of Intention to Seek Review, as required by 8 NYCRR 279.2. However, petitioners have provided evidence of service of such notice upon respondent.

Petitioners assert that the hearing officer erred in not taking testimony at the hearing. Implicit in their assertion is a disagreement with the hearing officer's finding that there were no issues of fact to be resolved. Although neither party challenged hearing officer's assertion that there were no issues of fact at the hearing, I find that petitioners are not precluded from raising the issue of the way in which the hearing was conducted. The basic issue before the hearing officer was whether the CSE could evaluate the child without parental consent. Although the child's referral to the CSE was not an initial referral of the child, she has never been classified. Federal and State regulations require that parental consent to an evaluation be obtained, and in the absence of such consent the matter must be resolved by an impartial hearing at which the need for such evaluation must be demonstrated (34 CFR 300.504 [c][1]; 8 NYCRR 200.5 [b][2]).

In this instance, petitioners challenged the right of respondent to determine who would perform the evaluation, as well as the need for what petitioners asserted to be redundant testing. State regulation directs each CSE to perform an individual evaluation of a child suspected of having a handicapping condition (8 NYCRR 200.4 [b][1]), although a CSE may accept the results of testing performed by others in lieu of its own testing (Application of a Handicapped Child, 23 Ed. Dept. Rep. 177). However, it is the obligation of each CSE to ensure that unnecessary or intrusive testing is avoided (Healey v. Ambach, 103 AD 2d 565).

The record reveals that the hearing officer only briefly questioned the CSE chairperson about the need for further cognitive testing. Having only the documentary evidence of prior testing to ascertain whether further evaluation of the child is warranted, I find that not all of the tests sought by the CSE are required to be performed. The record reveals that cognitive evaluations were completed in April, 1988, August, 1989 and October, 1990. All of the evaluations indicated that the child's cognitive functioning was in the average range and two of three evaluations reported that the child had good language skills, but was impulsive. Accordingly, there is no basis for a further evaluation of the child's cognitive skills. Although petitioners may agree to an additional occupational therapy evaluation, the CSE already has in the record the results of an evaluation completed in March, 1990, which revealed that the child had adequate fine motor functioning, except for mild delays in speed and dexterity. I find there is no basis for re-evaluating the child for occupational therapy. However, if testing of the child's written language reveal that the child has a poor pencil grasp and poor writing, as has been previously reported, and there is a basis for believing that such problems cannot be addressed in a regular education program, the child's visual motor skills should be evaluated. The child's gross motor skills were evaluated in March, 1990, at which time no significant deficit was reported with regard to the child's educational needs. Therefore there is no basis for repeating a physical therapy evaluation, notwithstanding petitioners' consent to such an evaluation.

With regard to the CSE's proposed academic testing to include three reading and two mathematics tests, I note that the academic testing which was part of the independent psychoneurological evaluation performed in October and November, 1990, revealed no academic deficits. The evaluator found that the child had superior reading comprehension and reading decoding skills, average arithmetic function skills, and an average fund of information. Nevertheless, a current assessment of the child's reading and mathematical skills is essential so that the CSE can determine the extent, if any, which the child's reported neurological disfunction is having on the child's ability to learn and progress academically, and to afford a basis for the CSE to report the child's present levels of performance in the event it recommends that the child should be classified (8 NYCRR 200.4 [c][2][i]).

With regard to the CSE's intention to administer the Roberts Apperception Test for Children and to interview the child, in order to assess her emotional adjustment and social interaction, I find that the record does not reveal any basis for such testing. The independent neuropsychological evaluation revealed that the child displayed the appropriate affect, and did not present any evidence of psychopathology, unusual behavior or thought processes. The child did display symptoms of mild stress, but that would not afford a basis for further emotional or social skill testing. Unless an observation of the child to be conducted while she is receiving instruction at home reveals a basis for additional emotional or social testing, I find that the reports which the CSE presently has are adequate for this purpose.

The CSE also proposes to assess the child's receptive and expressive language skills, as well as her auditory processing skills. An independent neurological evaluator reported on December 21, 1990 that the child has auditory processing difficulties. An independent audiological evaluator, reported on October 17, 1990 that the child's auditory processing problem involved deficits in her auditory attention and auditory integration skills. However, these reports do not establish the extent to which such deficiencies affect her language. The independent neuropsychological report referred to a speech/language evaluation of the child in April, 1990, which reportedly revealed that the child had above average expressive and receptive language skills. The April, 1990 speech-language evaluation report is not in the record before me, so I am unable to determine whether that evaluation required the child to use her auditory attention and integration skills. The CSE must ascertain whether the April, 1990 speech/language evaluation required the child to use these skills. If the evaluation required the use of such skills, there would be no basis for a further speech/language evaluation. If the evaluation did not require the use of such skills, the CSE should perform an evaluation which will require the child to use these skills.

The CSE has also proposed to have its physician consult with the child's pediatrician, neurologist and other individuals who have evaluated the child. I find that it would be appropriate for respondent's physician to consult with those individuals, so that the CSE may better understand the child's physical health, including her reported neurological impairment.

State regulation requires that each child suspected of having a handicapping condition must be observed in the child's current educational setting (8 NYCRR 200.4 [b][2][vii]). The record reveals that the child has been instructed at home since Spring, 1990. At the hearing, the child's mother agreed that the requisite observation could be done in the child's home. The observation should be done by an individual who is familiar with special education programs and services. The individual performing the observation should ascertain if the child's neurological impairment as reported in the clinical evaluations has an effect upon the child's learning style, educational performance and management needs. It would also be useful for the observer to interview the child's present tutor.

Upon the record before me, I find that the child should be evaluated by the CSE, to the extent indicated in this decision, notwithstanding petitioners' refusal to consent to further evaluations.

Petitioners assert that the hearing officer erred in finding that they had withdrawn their request for a hearing on March 25, 1991. I find that there is no basis for petitioners' assertion. In their letter of March 25, 1991, petitioners expressly withdrew their request for a hearing. Although they also referred to an anticipated meeting with the CSE, which subsequently occurred, it was incumbent upon petitioners to advise respondent if they de novo wished to have a hearing with regard to the issues which they had previously raised.

Petitioners assert that the hearing officer ignored proof of respondent's failure to adhere to time limits imposed by regulation or the previous decision of the Commissioner. They assert that the CSE should have promptly sought petitioners' consent to an evaluation or initiated a hearing to ascertain whether the evaluation could be conducted without their consent, after its April 18, 1991 meeting. Nonetheless, the record reveals that at that very same time petitioners' appeal to the Commissioner, in which they sought an order barring any further evaluation, was pending. The Commissioner's June 5, 1991 decision directed respondent to provide petitioners with notice of the additional testing the CSE sought within seven days. Respondent was also directed to immediately proceed with a hearing to determine whether the child should be evaluated without petitioners' consent, if petitioners' withheld their consent. Immediately after receiving the notice of intended evaluations, petitioners sought a determination from the Commissioner as to whether respondent had complied with the Commissioner's decision. Shortly after receiving a response in late July by the Office of Counsel to petitioners' letter to the Commissioner, respondent again sought petitioners' consent to the evaluation. Petitioners did not consent, and respondent then scheduled the hearing. Given the facts, I find no basis in law for concluding, as petitioners assert, that respondent should be barred from conducting any additional evaluation.

Petitioners also challenge the sufficiency of the descriptions of the proposed evaluations by the CSE set forth in the CSE chairperson's letters of June 11 and July 30, 1991. State regulation requires a CSE to include in the notice to a parent of a proposed evaluation a description of the proposed evaluation and the uses to be made of the information (8 NYCRR 200.5 [a][1]). As noted by the Commissioner in his prior decision in this matter, the U.S. Department of Education has opined that a board of education must inform parents of specific tests which it intends to use in preplacement evaluations, or where a specific test has not been selected, the board must provide a description of the general kinds of tests that will be used (211 EHLR 187). The Commissioner also directed respondent to offer petitioners the opportunity for an informal conference with someone who was knowledgeable about the proposed tests, so that they could obtain sufficient information. Having reviewed the descriptions of the tests set forth in the CSE chairperson's letters of June 11 and July 30, and in view of respondent's offer of an informal conference to explain the proposed testing, I find that respondent provided adequate notice of the proposed test to petitioners.

Petitioners further assert that the hearing officer failed to discuss the use of a single criterion to determine whether a child has a handicapping condition, failed to consider the results of the independent evaluations and failed to rule upon the issue of whether the CSE had sufficient information to recommend that the child be classified. However, the purpose of the hearing was to determine whether an additional evaluation was required, and the hearing officer concluded that the CSE should proceed with its evaluation. The CSE must consider the results of the independent evaluations which petitioners have obtained, when it considers the results of the evaluations it has obtained (8 NYCRR 200.5 [a][v]). Federal and State regulations provide that no single procedure may be used for determining an appropriate educational program for a child (34 CFR 300.532 [d]; 8 NYCRR 200.4 [b][2][iv]). Petitioners' concerns are clearly premature, since the CSE has not made a recommendation as to classification or placement.

One of the purposes of the hearing was to afford petitioners an opportunity to present their assertion that respondent had violated the provisions of Section 504 of the Rehabilitation Act of 1973. At the hearing, no facts were adduced to support petitioners' assertion. In their petition, petitioners ask that I "consider the issue of discrimination against this child due to a handicapping condition and as retribution and retaliation for invoking due process procedures". In essence, petitioners assert that respondent has failed to recognize that their child has a handicapping condition for the past four years and that respondent has attempted to blame petitioners for its delay in addressing the child's needs because of petitioners' resort to hearings and appeals. The issue of whether the child has a handicapping condition has yet to be determined. The record before me contains little useful information about the child's educational needs, despite extensive clinical reports about her other needs. There is no basis upon which I could rationally conclude at this time that respondent has not provided an appropriate program for the child.

The record clearly shows that there is a serious lack of trust and communication between petitioners and respondent's staff. Nonetheless, the record does not support petitioners' assertion that respondent has retaliated against them for exercising their due process rights.

I have considered petitioners' other assertions, and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer be, and the same hereby is, modified, to the extent that the CSE may administer, without the consent of petitioner, only such additional evaluations of the child as are authorized by this decision, and

IT IS FURTHER ORDERED that within 30 days after the date of this decision the CSE shall complete the aforesaid evaluations and shall make a recommendation to respondent whether the child should be classified as a child with a handicapping condition, and if so, shall also recommend the appropriate program and services to be provided to the child.