92-005 & 92-006

        Petitioner, the Board of Education of the Ramapo Central School District, appeals from the decision of an impartial hearing officer which upheld the recommendation of the school district's committee on special education (CSE) that respondents' child not be classified as a child with a handicapping condition, but which ordered petitioner to revise its procedure for providing instruction to children in their homes to accommodate children whose physical impairments substantially limit their access to school and to consider a child's cumulative, not just consecutive, absences in determining eligibility for such instruction. Respondents, the parents of the child who was found not to have an educational handicapping condition by the CSE, have also appealed from the hearing officer's decision. They ask that I find that the child should be classified as other health impaired, and provided with appropriate instruction. Because both appeals arise from one hearing officer's decision, respondents' appeal is deemed a cross-appeal and has been consolidated with petitioner's appeal for purposes of a single decision. The appeal must be dismissed, and the cross-appeal must be sustained in part.

        Respondents' 14 year old child is presently enrolled in the ninth grade of the Ramapo Senior High School. Prior to entering fourth grade in one of petitioner's elementary schools for the 1986-87 school year, the child attended a private school and public schools in two other school districts. In April 1987, the child was referred to the CSE by his private tutor, who reported that the child was unable to follow directions, complete assignments and had difficulty making friends. Respondents declined to consent to the evaluation of the child by petitioner's staff, and had the child evaluated by a private psychologist. The psychologist found that the child's cognitive abilities were in the low-average range, but was impulsive, anxious about his performance and had a limited frustration tolerance. The psychologist suggested that the child receive remedial assistance in mathematics and be re-evaluated in June 1988. In June 1987, respondents agreed to withdraw the child's referral to the CSE, upon condition that the child would be provided with remedial assistance in mathematics and counseling.

        In January 1990, while the child was in the seventh grade at the Suffern Junior High School, respondents referred the child to the CSE, because of their concern about his low test scores and the effect his absences from school had upon his academic performance. The child was diagnosed as having Crohn's disease in May, 1989, and was frequently absent because of the recurrence of the symptoms of Crohn's disease. The child's gastroenterologist testified at the hearing that Crohn's disease is a recurrent inflammation of the intestine, which presents symptoms of abdominal pain, diarrhea, weight loss, infection, eye and joint pain, and headaches. The record reveals that the child was absent from school on 41 days in the 1988-89 school year. Nonetheless, he passed each of his courses except Spanish.

        On March 6, 1990, following an evaluation of the child by petitioner's staff, the CSE recommended that the child not be classified as a child with a handicapping condition. The minutes of the CSE's March 6, 1990 meeting reveal that the CSE considered the child's test grades and comments by his teachers about the child's failure to complete homework assignments, his anxiety and unhappiness. In accordance with the requirement of 8 NYCRR 200.4 (c)(1)(i), the CSE prepared a recommendation for the school building administrator in which the CSE suggested that the child participate in a school homework club, that he be placed in a lower level mathematics class, and join a non-mandatory counseling group, and that he be enrolled in the CORE program, a combination of English and social studies, for the 1990-91 school year.

        The child was absent from school because of the recurrences of the Crohn's disease symptoms or other illness for 22 days in the 1989-90 school year. However, on the days when he was in school the child did not attend each class because he spent some time in the nurse's office. His report card for the 1989-90 school year reveals that he missed from 24 to 30 classes in the various subjects in his program. He received an F in Spanish, a D in English, C's in remedial mathematics and science, and a B in social studies.

        The child was hospitalized for Crohn's disease in July, 1990 and again in December, 1990. He was referred by his parents to the CSE. On January 31, 1991, a school psychologist interviewed the child and performed one projective test. The school psychologist relied upon two prior psychological evaluations by private psychologists for an assessment of the child's cognitive functioning. The school psychologist recommended that remedial instruction and counseling be continued for the child. On February 5, 1991, the child was observed in his science class by an educational evaluator, who also prepared an educational evaluation on February 20, 1991. The evaluator concluded that the child performed in the average range for his age and grade, with the exception of his performance on tests of contextual spelling and contextual style in writing. On March 20, 1991, a school guidance counselor prepared an updated social history.

        On March 26, 1991, the CSE recommended that the child not be classified as having a handicapping condition. The CSE chairperson testified at the hearing that the child's parents had sought to have the child classified as other health impaired. That classification is defined in State regulation as:

"A pupil who is physically handicapped and who has limited strength, vitality or alertness due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes or tourette syndrome, which adversely affects a pupil's educational performance." (8 NYCRR 200.1 [ff][10])

        The CSE found that, notwithstanding the child's absences from school as the result of his chronic health condition, the child was functioning as he had before the onset of his disease and at a level commensurate with his ability, and had concluded that the condition of the child's health had not adversely impacted upon his educational progress. Although the minutes of the CSE's March 26, 1991 meeting noted that the educational evaluator was informed by the child that the child had nerve damage in his left arm, there is no evidence of a physical examination of the child. The CSE chairperson testified that the school district physician had not been consulted about the child.

        On April 17, 1991, the child's parents received notice of the CSE's recommendation. On April 23, 1991, the Board of Education approved the CSE's recommendation. On May 17, 1991, the parents requested an impartial hearing. Although a hearing was initially scheduled to be held on May 23, 1991, the hearing was postponed at the request of both parties. The hearing commenced on September 16, 1991, and was completed two sessions thereafter on October 7, 1991.

        In a decision dated November 27, 1991, the hearing officer found that the child had continued to made academic progress with the private tutoring paid for by his parents and the remedial assistance provided by the school district. The hearing officer concluded that the child's health impairment had not adversely affected his educational performance. With regard to the parents' assertion that the CSE had failed to conduct an adequate physical examination of the child, the hearing officer found that the CSE appropriately relied upon the results of a physical examination by the school physician on October 4, 1989, as well as two letters from the child's gastroenterologist to the child's mother, describing the child's disease, both of which were considered by the CSE. Although the hearing officer found that the child did not meet the definitional criteria of an other health impaired child set forth in State regulation, he directed the Board of Education to revise its procedure for providing instruction to children in their homes to accommodate disabled children whose physical impairment substantially limits their access to school, and to consider a child's cumulative absences in determining eligibility for instruction at home.

        In its appeal, the Board of Education asserts that the hearing officer acted beyond the scope of his authority in directing the Board of Education to modify its procedures for providing home instruction. The Board of Education asserts that the hearing officer's role ended, once he had concluded that the child did not have an educationally handicapping condition.

        Although the hearing officer did not make any factual finding to serve as a basis for his order, the record reveals that a copy of the school district's administrative manual relating to instruction at home was introduced into evidence, and the district's practice of making homework assignments available to children who were absent from school was briefly discussed at the hearing. To receive instruction at home, a child's parents must fill out a form requesting such instruction for the child and submit a written verification from a physician that the child is expected to be absent from school for three weeks, exclusive of school vacations. In this case, the child's parents asserted that the district's practice was unduly restrictive because the child would not qualify for instruction at home, despite his extensive absences which were generally less than three weeks in duration. The district's practice on making homework assignments available was described as requiring a child to obtain assignments from a peer or his teachers for the first three days of absence from class, and thereafter requiring the teachers to provide homework information to the district's telephone switchboard operator, who would inform the parents or child, upon request.

        Before reaching the question of the appropriateness of the CSE's recommendation, which is the subject of the parents' cross-appeal, I find that the hearing officer was not divested of jurisdiction upon concluding that the child did not have an educationally handicapping condition. Pursuant to the provisions of Section 504 of the Rehabilitation Act of 1973 (29 USC 794) and the regulation promulgated under that statute (34 CFR 104), each school district must provide a free appropriate public education to each qualified handicapped child who is a resident of the district. The statute and regulations require school districts to afford such children both procedural and substantive rights in evaluating the nature of their disabilities and providing appropriate programs. For purposes of the Rehabilitation Act, a handicapped child is defined as a child:

"...who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." (34 CFR 104.3 [j][1])

        A qualified child is a child who is of an age at which educational services are provided to non-handicapped children under State law, or are required to be provided to handicapped persons (34 CFR 100.4[k]). In view of that definition, a child may be deemed to have a handicapping condition under Section 504, yet not be a child with a handicapping condition for purposes of the Individuals with Disabilities Education Act (20 USC 1400 et seq.) and Article 89 of the New York State Education Law. The Office for Civil Rights of the U.S. Department of Education has opined that Section 504 issues may be determined in a hearing held under the Individuals with Disabilities Education Act, unless State law precludes that result, as an alternative to conducting a separate hearing solely with regard to Section 504 issues (18 IDELR 230). There is no such prohibition in New York law (Appeal of a Child Suspected of Having a Handicapping Condition, 30 Ed. Dept. Rep. 433). I find that the hearing officer did not abuse his discretion in considering the parents' assertions with respect to the district's practice of providing instruction at home, under Section 504 of the Rehabilitation Act. A separate hearing for the Section 504 issues would have needlessly prolonged the resolution of the dispute between the parents and the Board of Education, and would not have been in the best interests of the child.

        I further find that the child is a qualified handicapped child under Section 504 of the Rehabilitation Act of 1973. The child's physician and parents testified at the hearing about the child's chronic health condition of Crohn's disease which, while not constant, nevertheless substantially, impaired upon his ability to attend school and while in school to participate in all classes. The record reveals that the child has made a diligent attempt to keep up with the academic demands of his courses, including the homework assigned to him. The record reveals that the child's eighth grade science teacher voluntarily provided extra assistance to the child before school began in the morning and during lunch, and that the child's junior high school guidance counselor tried, on several occasions, to facilitate the gathering of information about the child's homework assignments, in order to assist the child. The child has achieved modest grades, despite his effort and the help of private tutors until eighth grade and the voluntary assistance of his teachers. His teachers testified at the hearing that his frequent absences had an adverse effect upon his grades. I find that the hearing officer had an ample basis in the record for requiring the Board of Education to re-examine its practices with regard to the provision of instruction at home, so as to make tutors available to a child who has extensive cumulative absences from school.

        In their cross-appeal, the child's parents assert that the hearing officer erred in declining to find that the child should be classified as other health impaired. They assert that the child was absent from school on approximately one-third of the days school was in session during the 1990-91 school year, and project that, based upon his absences to date, he will miss school on one-half of the days school is in session in the 1991-92 school year.

        Although the parents have demonstrated that their child's chronic health condition has prevented him from attending school and/or particular classes for significant portions of the last two school years, my review of the record reveals that there are other reasons why this matter must be remanded to the CSE.

        State regulation requires that upon the referral of a child, a CSE must conduct an evaluation which shall include a physical examination in accordance with the provisions of Sections 903, 904, and 905 of the Education Law (8 NYCRR 200.4 [b][1][i]). A failure to perform such an examination affords a sufficient basis to annul the recommendation of a CSE (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 41). In this instance, there is no evidence of a physical examination of the child in connection with either the 1990 or 1991 recommendations of the CSE. At the hearing, the CSE chairperson testified that the CSE had not asked that the child be examined by a school physician, or that the parents submit any medical reports from the child's physician. Although the parents did provide two modest letters from the child's physician, neither of those documents constitutes a report of a physical examination for purposes of 8 NYCRR 200.4 (b)(1)(i). I also note that in 1990 and 1991, the educational evaluator reported that the child had complained of writing, and had in the 1991 evaluation referred to nerve damage in his left arm. The evaluator reported that the child used excessive pressure on his pencil and that his dislike of writing limits his written expression to the bare minimum. The physical examination which I will direct the CSE to provide should include an assessment of any physical condition which may impede the child's written expression.

        There is one other error by the CSE which must be addressed. My review of the minutes of the CSE's March 26, 1991 meeting, as well as the testimony of the CSE chairperson, establish that none of the child's teachers were present at such meeting. Both Federal and State regulations require that a child's teacher participate in meetings in which the child's IEP is prepared (34 CFR 300.344 [a][2]; 8 NYCRR 200.4 [c][3]). The absence of a child's teacher at such meetings deprives the other participants of the opportunity to obtain valuable information about the child, and requires that the CSE recommendation be annulled (Application of a Child with a Handicapping Condition, Appeal No. 90-22; Application of a Child with a Handicapping Condition, Appeal No. 91-39; Application of a Child with a Handicapping Condition, Appeal No. 92-9).

THE APPEAL IS DISMISSED.

THE CROSS APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer, to the extent that it upheld the recommendation of the CSE be, and the same hereby is, annulled; and

IT IS FURTHER ORDERED that within 30 calendar days after the date of this decision, the CSE shall provide for a suitable physical examination of the child; shall consider the results of such examination; and shall make a recommendation as to the possible classification and program, if any, for the child.