92-032

Petitioner appeals from the decision of a hearing officer upholding the recommendation of respondent's committee on special education (CSE) that petitioner's child no longer be classified as a child with a handicapping condition and be returned to a full-time academic day program in one of respondent's high schools for the 1992-93 school year. The appeal must be sustained.

Petitioner's child, who is 16 years old, has received instruction at home almost exclusively since the 1988-89 school year. Such instruction was provided by respondent at the request of the child's physician, because of the child's gastrointestinal difficulties especially when he attended school. In January, 1989, the child underwent evaluation at the New York Hospital-Cornell Medical Center (Cornell) to ascertain whether the child had Cushing's Syndrome. Cushing's Syndrome is a disorder commonly associated with hyperfunctioning of the adrenal gland. The Cornell evaluation, which included neurological and psychiatric evaluations of the child, found that there was insufficient evidence to conclude that the child had Cushing's Syndrome. The neurological evaluation found no abnormality. A psychiatrist who interviewed both the child and petitioner opined that the child might have a disorder characterized by somatic preoccupation and psychogenic pain. The psychiatrist reported that the child displayed depression and school phobia. The child continued to receive instruction at home for the remainder of the 1988-89 school year.

In September, 1989, the child returned to school for eighth grade. In November, 1989, the child resumed instruction at home again, at the request of his physician. The child received instruction at home for the remainder of the 1989-90 school year. On June 27, 1990, petitioner referred the child to the CSE with a request that the child be classified as other health impaired.

In July, 1990, the child was evaluated by respondent's school psychologist who reported that the child achieved a verbal IQ score of 113, a performance IQ score of 117 and a full-scale IQ score of 117. The school psychologist concluded that the child was functioning within the high average range of intellectual development, but had visual and auditory attention processing difficulties. On academic tests, the child exhibited reading comprehension skills at the eighth grade level, mathematical skills at the twelfth grade level and spelling skills at the fifth grade level. The school psychologist recommended that the child be classified as learning disabled and that he receive resource room services. The school psychologist further recommended that the child receive counseling.

In September, 1990, the CSE did not recommend that the child be classified, and petitioner requested an impartial hearing. At an impartial hearing held on October 10, 1990, petitioner was advised of respondent's intention to discontinue the child's home instruction. The parties agreed that the child would return to school on the next day. On October 11, 1990, the child did return to school, where he collapsed during the morning. The child was sent to a local hospital, upon the recommendation of the school physician. The child's physician recommended that the child be re-evaluated by Cornell and that respondent provide the child with instruction at home. From October 13 through October 26, 1990, the child was evaluated at Cornell.

On October 15, 1990, the CSE met with petitioner and classified the child as other health impaired. An individualized education program (IEP) prepared for the child at the October 15 meeting reveals that the child was to receive three hours per day of homebound instruction, with daily "reading improvement" listed as a related service. The child's IEP also provided for extended time limits on tests, if needed.

Petitioner consented to the implementation of the child's IEP, but also requested that an impartial hearing be held to determine whether the IEP should be amended to include the use of a word processor by the child to assist him in his written assignments. The hearing officer found that the child's IEP should be amended to include the use of a word processor. Respondent appealed. In Application of the Board of Education of the Wappingers Central School District, Appeal No. 91-35, the Board of Education's appeal was dismissed on the ground that the hearing officer's finding that the child needed a word processor for written expression was supported by the testimony of the child's teachers.

On February 5, 1991, the CSE met with petitioner to consider her request for independent neurological and neuropsychological evaluations of the child. The CSE agreed to the request for a neurological evaluation, but deferred making a recommendation concerning the neuropsychological evaluation until it had obtained the results of the Cornell evaluation. Petitioner requested an impartial hearing to review the recommendation of the CSE at its February, 1991 meeting. At the first day of the hearing on March 26, 1991 the parties resolved some of their differences, but continued to disagree about the CSE's insistence upon receiving the results of the second Cornell evaluation. The hearing officer adjourned the hearing, but agreed to sign a subpoena ducestecum to obtain the Cornell evaluation. In May, 1991, respondent obtained the results of the Cornell evaluation. The child's discharge summary revealed that there was no biochemical evidence to support a diagnosis of Cushing's Syndrome. The child was found to have problems with obesity and hypertension, and the report included the recommendation that the child be placed in a residential facility for control of his blood pressure, weight loss and school phobia. The Cornell report was silent on any educational basis for such placement.

In July, 1991, the hearing was briefly resumed, but again adjourned. On March 18, 1992, petitioner appealed from the hearing officer's failure to reach a decision with regard to her request for independent evaluations. In Application of a Child with a Handicapping Condition, Appeal No. 92-19, petitioner's appeal was sustained in part, and respondent was ordered to reimburse petitioner for the cost of an independent neurological evaluation of the child, upon submission by petitioner to the CSE of the result of such evaluation and proof of payment by petitioner for the evaluation. Respondent was also directed to pay for an independent neuropsychological evaluation of the child, the results of which were to be provided to the CSE.

During the 1990-91 school year, the child received instruction at home in ninth grade English, Latin, global studies, biology and mathematics. The record suggests that the child successfully completed each of his courses, although at least some courses were not completed until the Summer of 1991. During the Summer of 1991, the child also received remedial reading instruction.

On September 25, 1991, the CSE met to consider whether the child should remain classified as a child with a handicapping condition. Petitioner requested that the CSE not take action until the results of an independent neurological evaluation could be obtained. Petitioner reported that the child's neurologist, whom she declined to name, could not complete his evaluation until a neuropsychological evaluation was performed. Petitioner testified at the hearing that she had offered the CSE a brief note from the unnamed neurologist, who diagnosed the child as having encephalitis. The CSE considered a summary of the Cornell evaluation prepared by the school physician, who concluded that the child did not have any medical condition which would prevent him from attending school. The CSE chairperson testified at the subsequent hearing that she had conferred with the child's teachers, and that the assessments given by the child's teachers had afforded a basis for concluding that the child did not have a handicapping condition. The CSE recommended that the child be declassified and provided with eight sessions of individual counseling to assist him in adjusting to the routine of a school schedule.

Petitioner requested that an impartial hearing be held to review the CSE's recommendation. The hearing commenced on November 18, 1991 and was completed on January 31, 1992. By decision dated June 26, 1992, the hearing officer upheld the CSE's determination that the classification of other health impaired should be discontinued. The hearing officer also directed that the classification of learning disabled should be overturned subject to the respondent's ability to demonstrate through appropriate tests a basis for such classification. There is, however, nothing in the record to establish that the child was ever classified as learning disabled. While agreeing with the CSE that the child should return to school, the hearing officer opined that the eight counseling sessions recommended by the CSE would be inadequate. The hearing officer recommended that the child receive counseling once per week for an entire school year, as well as the services of a resource room teacher once per day to assist the child's regular education teachers with understanding the child's difficulties.

Before reaching the merits of petitioner's appeal, I must first address respondent's objection to the 19 exhibits annexed to the petition on the ground that the exhibits were not part of the record before the hearing officer. Evidence which was not in the record before the hearing officer will generally not be considered in a review of the hearing officer's decision, unless such evidence was not available at the time of the hearing, or unless the record is incomplete (Application of a Child with a Handicapping Condition, Appeal No. 91-34; Application of a Child with a Handicapping Condition, Appeal No. 92-23; Application of a Child with a Handicapping Condition, Appeal No. 92-27). Petitioner has not offered any explanation why Exhibits 4 through 9 and 16 through 19 were not offered for submission into evidence at the hearing. I find that the record is complete without those exhibits, and have not considered them in this review. Exhibit 1, the hearing officer's decision, and Exhibit 3, the decision in petitioner's prior appeal, are appropriately part of the record. Exhibits 2 and 5 are copies of envelopes of unidentified documents sent by the hearing officer to petitioner, and are not necessary to compete the record. Exhibits 10 through 15 are documents prepared subsequent to the close of the hearing and relate to a claim on behalf of the child for S.S.I. disability benefits from the Social Security Administration. Only Exhibit 13, a questionnaire of the child's educational performance completed by a teacher who did not testify at the hearing, adds new information which is relevant to the issues of this appeal.

Petitioner challenges the procedure by which the hearing officer was appointed. Respondent delegated to its acting superintendent of schools the selection of hearing officers for specific hearings during the 1991-92 school year. In petitioner's prior appeal (Application of a Child with a Handicapping Condition, Appeal No. 92-19), which was decided after the hearing officer was selected in this appeal, but before he issued his decision, respondent's selection procedure was found to be erroneous. The record is devoid of any evidence that respondent's attorney who represented respondent in both proceedings advised the hearing officer of the jurisdictional defect (cf. Ethical Consideration 7-23, Code of Professional Responsibility, Appendix to the Judiciary Law). There are nonetheless additional grounds for annulling the decision.

Petitioner also challenges the impartiality of the hearing officer, on the grounds that the hearing officer did not provide her with a copy of his resume prior to the hearing and gave inadequate notice of the hearing. There is no requirement in either Federal or State regulation that a hearing officer provide the parent with a resume before a hearing. Information about hearing officers, including resumes, is available from each board of education, which must maintain a list of the hearing officers and their resumes (8 NYCRR 200.2 [e][2]). Petitioner complains that on October 19, 1991 she received notice of the hearing to be held two days thereafter. However, she concedes that the hearing officer rescheduled the hearing at her request. Petitioner also challenges the hearing officer's refusal to hold the hearing in abeyance pending the outcome of her appeal from another hearing officer's failure to render a decision concerning her request for independent evaluations. However, she did not commence that appeal until three months after the hearing in the present appeal was completed. I find no basis for concluding that the hearing officer lacked impartiality because of either ground asserted by petitioner. Although petitioner questioned the hearing officer about his prior employment by a BOCES and present employment by another school district, she did not ask the hearing officer to recuse himself and has not raised the issue of the hearing officer's employment in this appeal.

Petitioner contends that the hearing officer erred in declining to appoint an interpreter for petitioner's husband, whom she asserts is not fluent in English. State regulation requires that an interpreter fluent in the dominant language of the home be appointed at board of education expense, where required (8 NYCRR 200.5 [c][3]). While the parties dispute the need for an interpreter, the record discloses that petitioner's husband unexplainedly did not attend the hearing. Given that petitioner's husband did not attend and there is no showing that respondent's action precluded his attendance, I find that the issue is not ripe for consideration.

Petitioner asserts that the hearing officer "may have had" ex parte communications with respondent's employee and/or attorney. However, petitioner offers no proof of her speculative assertion. Petitioner also asserts that the hearing officer exhibited bias by refusing petitioner's request that the witnesses be sequestered. The record reveals that on the opening day of the hearing, the hearing officer agreed to sequester witnesses before they testified and to admonish them not to discuss their testimony with other witnesses after they had testified. The hearing officer denied petitioner's request that the witnesses be sequestered after their testimony. I find that the hearing officer acted well within his discretion.

Petitioner asks that I find that the hearing officer was biased because of his allegedly insulting remarks to petitioner. I have carefully reviewed the record, and find no evidence of disparaging remarks by the hearing officer (cf. Application of a Child with a Handicapping Condition, Appeal No. 91-40). The record reveals that the hearing officer expressed, several times, his concern about the length of the hearing, as compared to his experience with other hearings. While repeated observations of that nature may not be germane or appropriate, in this case I do not find that the remarks provided a basis for concluding that the hearing officer was biased or unfair.

Petitioner asserts that the hearing officer treated her unfairly by requiring her to prepare a list of her prospective witnesses and of the questions which she intended to ask her witnesses, and by not allowing her to call certain individuals as witnesses. I find that petitioner's assertion is without merit. The record discloses that the hearing officer asked petitioner for a list of the witnesses petitioner intended to call, in order to determine whether petitioner's request for subpoenas should be granted and to arrange a schedule of the witnesses' appearances to minimize the disruption of teachers being called away from their duties to testify at the hearing. The hearing officer also asked petitioner to explain the nature of the witnesses' proposed testimony. However, the hearing officer also required respondent's attorney to make a similar explanation of the proposed testimony of respondent's witnesses. I find that the hearing officer acted within his discretion, in order to preclude redundant or irrelevant testimony and to avoid the unnecessary complication of the issues in this case. Petitioner was allowed to present eight witnesses, and petitioner also testified. Four of petitioner's witnesses were the child's teachers. Petitioner was also allowed to present the testimony of one member of the CSE and two other participants at the September 25, 1991 CSE meeting. With regard to the questions petitioner intended to ask her witnesses, the record reveals that at the December 17, 1991 hearing, petitioner voluntarily offered to provide the hearing officer with a list of such questions.

Petitioner also attacks the hearing officer's decision as being untimely, because it was rendered in excess of five months after the last day of the hearing. Federal and State regulations require that a hearing officer render a decision within 45 days after the board of education receives a request for a hearing (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c][10]). It is respondent's responsibility to ensure that the decisions of its hearing officers are rendered expeditiously. However, the failure of a hearing officer to issue a timely decision does not afford a basis for annulling the hearing officer's untimely decision (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 64).

Although there are a number of subsidiary issues, the central issue in this appeal is relatively simple. Respondent bears the burden of establishing the appropriateness of the CSE's recommendation to declassify the child (Application of a Child with a Handicapping Condition, Appeal No. 92-23). In order to meet its burden, respondent must demonstrate that its CSE appropriately evaluated the child and that the CSE's recommendation is supported by the information which the evaluation has adduced. The child was classified as other health impaired, which State regulation defines 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]).

Despite the parties' attempts at the hearing to raise the issue of the rationale for, and appropriateness of, the child's classification by the CSE in October, 1990, I find that the record is clearly inadequate for a resolution of that issue. Respondent attempts to justify the CSE's recommendation to declassify the child by suggesting that the child was not properly classified in 1990. In essence, respondent argues that the CSE originally recommended that the child be classified only because his physician had requested that the child receive home-hospital instruction while being evaluated at Cornell. Respondent argues that it is correct now because it was wrong before. Respondent's argument is inconsistent with the Federal and State requirements that decisions about a child's educational needs may not be based upon a single procedure or criterion (34 CFR 300.532 [d]; 8 NYCRR 200.4 [b][3][c][iv]). It also highlights the dearth of information in the record about the child's academic performance and needs. At the hearing, respondent relied upon the testimony of its CSE chairperson, who conceded that no tests had been administered to ascertain the child's performance and needs. Remarkably, the chairperson testified that early in 1991 the CSE sought to have the child undergo a neurological evaluation, yet nevertheless voted in September, 1991 to declassify the child without first obtaining and considering the results of such an evaluation.

The CSE chairperson testified that the CSE had relied upon the results of the Cornell evaluation, as interpreted by the school physician, and upon the chairperson's report of her conversations with the tutors assigned by respondent to provide the child with instruction at home. When asked upon cross-examination to explain what the child's tutors had told her, the chairperson could not recall whether the tutors had advised her if the child had completed his ninth grade courses in June, 1991, or whether the child could successfully function in a regular high school. The chairperson testified that the child's tutors did not question the child's ability, but had questioned his motivation. However, the testimony of the child's tutors did not support the chairperson's testimony and the chairperson refused to identify the tutor or tutors who had allegedly questioned the child's motivation.

Based upon their experience tutoring the child in his home, the child's tutors testified that the child had great difficulty with written expression. Some of the tutors testified that they took notes for the child and used oral examinations because of his writing difficulties. Two of the tutors testified that the child used stencils to write. Two of the tutors testified that the child has difficulty reading for appreciable periods of time because of visual difficulties. All of the tutors expressed doubt about the child's ability to successfully function in a regular education setting, without specialized assistance.

Upon the record before me, I find that respondent has failed to meet its burden of proving the appropriateness of the CSE's recommendation. State regulation requires assessment(s) of the child in any area of suspected educational disability (8 NYCRR 200.4 [b][4][vi]). There is no evidence that respondent has done any assessment, such as an occupational therapy evaluation and other appropriate assessments of the child's written expression, nor is there evidence that the CSE had prepared a written evaluation of the child, upon which to base its recommendation (cf. section 4402 [1][b][3][b] of the Education Law). Indeed, there is substantial disparity between the testimony of the child's tutors and the CSE chairperson about the child's need for special assistance. Accordingly, I will remand the matter to the CSE to adequately evaluate the child, and make an appropriate recommendation for the 1992-93 school year. The evaluation shall include a neurological examination and a neuropsychological examination. If appropriate, respondent may use the independent evaluations which were the subject of a prior proceeding between the parties in Application of a Child with a Handicapping Condition, Appeal No. 92-19.

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 within 30 days after the date of this decision respondent's committee on special education shall adequately assess the child in any, and all, areas of suspected disability, and recommend an appropriate handicapping condition, if any, and education program, and;

IT IS FURTHER ORDERED that petitioner shall cooperate with the CSE in having the child promptly evaluated.