92-038

Petitioner appeals from the determination of an impartial hearing officer upholding the recommendation of respondent's committee on special education that, for the 1991-92 school year, petitioner's child be classified as learning disabled and be enrolled in a self-contained special education class at respondent's Alden Terrace School. The appeal must be sustained.

Petitioner does not live with the child, but has joint custody of the child. During the 1990-91 school year, the child lived with his father and was enrolled in the fifth grade at P.S. 279 in Community School District 18 in New York City. The child was referred to the CSE of the Community School District. Upon evaluation, the child was found to be of average ability, but the evaluation revealed that the child had significant weaknesses in vocabulary, reading and expressive language skills. The child was reported to be very anxious and experiencing a great deal of emotional turmoil.

On February 19, 1991, the CSE of Community School District 18 recommended that the child be classified with a primary handicapping condition of learning disabled and a secondary handicapping condition of emotionally disturbed. The CSE further recommended that the child be enrolled in a modified instructional services I (MIS-I) program, in a class of no more than 12 children taught by a special education teacher. The child entered the MIS-I program in May, 1991.

On September 19, 1991, the child was enrolled by his father and stepmother in respondent's Alden Terrace School. At the hearing in this matter, the principal of the Alden Terrace School testified that the child's parents did not reveal to him that the child had been classified and enrolled in a special education class. The child was placed in a regular education sixth grade class by the principal. Within a few days, the child's teacher asked the school psychologist to observe the child in class, and the teacher advised the principal that the child was having difficulty focusing upon his work, complying with classroom rules and reading. On September 23, 1991, the child's teacher requested that the child be evaluated by a school based support team. The school psychologist testified that the support team recommended that the child receive instruction in remedial reading and mathematics.

In early October, 1991, the principal of the Alden Terrace School contacted the principal of P.S. 279, who advised him of the child's previous classification and placement. On October 15, 1991, the principal and the school psychologist met with the child's father and stepmother, who agreed to have respondent's CSE evaluate the child and to have the child temporarily placed in a special education class in the Alden Terrace School, pending the evaluation. It should be noted that had respondent's staff known of the child's previous classification and placement at the time the child was admitted to respondent's schools, respondent would have been obligated to implement the child's previous IEP, unless respondent and the child's parents agreed to an interim placement (EHLR 213:265).

Approximately one week after the meeting with the child's father and stepmother, the principal received the child's records from P.S. 279. On November 4, 1991, respondent's educational evaluation of the child revealed that the child's decoding skills were at a 1.9 grade equivalent and his reading skills generally were at a 2.7 grade equivalent. The child's mathematics skills were slightly less than a year below grade level. No psychological evaluation was performed, but the CSE had the results of psychological tests performed for Community School District 18, which were listed on the child's individualized education program (IEP) from that district.

On November 26, 1991, respondent's CSE met with petitioner, the child's father and stepmother, and prepared an IEP for the child. The CSE recommended that the child be classified as learning disabled and that he continue in the special education class in which he had been temporarily placed. That class consisted of no more than 12 children, who were taught by a special education teacher with the assistance of an aide. Petitioner did not agree with the CSE's recommendation.

On January 18, 1992, the child's father signed the child's IEP. On January 21 and 24, 1992, respondent's school psychologist completed an evaluation of the child, in which the child's verbal IQ was reported to be 113, and his performance IQ was reported to be 98. The school psychologist found that the child had a significant deficit in his visual-perceptual motor abilities. The school psychologist opined that the child was struggling with a learning disability, and displayed signs of an attention deficit disorder with hyperactivity. The school psychologist further opined that the child should be in a highly structured and supportive environment.

On May 20, 1992, a hearing was held at petitioner's request. Petitioner asserted that her child should not be classified as a child with a handicapping condition, while respondent defended the recommendation of its CSE. In a decision dated August 21, 1992, the hearing officer held that the evaluation reports and the testimony of respondent's staff, including the child's special education teacher, provided ample support for the CSE's recommendation as to classification and placement. In doing so, the hearing officer referred to the child's classification as both learning disabled and emotionally disturbed, when in fact respondent's CSE recommended that the child be classified solely as learning disabled. The hearing officer offered no explanation for his three-month delay in rendering a decision (cf. 34 CFR 300.512 [a]).

At the outset, I find that petitioner, as a parent with joint custody of the child, has standing to maintain this appeal, notwithstanding the fact that the child's father, with whom the child lives, agreed with the CSE's recommendation. The U.S. Department of Education has opined that either custodial parent may invoke the due process procedures under Federal regulations (1983 EHLR 211:297). Although petitioner may bring this appeal, the child's father is entitled to receive notice of the appeal. Petitioner did not initially offer any evidence that the child's father was on notice of the appeal. On October 17, 1992, at my direction, petitioner served a copy of her petition upon the child's father, who has not responded. For purposes of the requirement that a decision be rendered within 30 days after the commencement of a review (34 CFR 300.512 [a]), this review is deemed to have been commenced on the date petitioner served the child's father with a copy of her petition.

Petitioner challenges the appropriateness of any classification for the child, and asserts that the child should be in a program of regular education. Respondent bears the burden of proving the appropriateness of the classification and placement recommended by its CSE (Matter of a Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 91-24). The deplorable state of the record in this appeal precludes meaningful review of the hearing officer's decision (Higgins v. Kelley, 574 F 2d 789 [3rd Cir., 1978]).

Federal and state regulations require each school district to maintain an accurate record of the proceedings before a hearing officer (34 CFR 300.508 [a][4]; 8 NYCRR 200.5 [c][2]). The decision of a hearing officer must be based solely upon the record of the proceedings before the hearing officer (8 NYCRR 200.5 [c][10]). It is the responsibility of a hearing officer to ensure that a complete and accurate transcript of the hearing is prepared. All exhibits, documents or other evidence considered by the hearing officer should be clearly identified in the transcript by at least a brief description. In this instance, the hearing officer accepted in evidence an exhibit which was not adequately described and which was crucial to the resolution of the issues which were before him.

During the presentation of its case, respondent introduced four exhibits, consisting of the child's anecdotal discipline record, the results of the child's evaluation by respondent's school psychologist, a report by a private psychologist and a copy of the child's IEP from Community District 18. Shortly before the hearing in this matter concluded, respondent's attorney stated that:

"I would like at this time to offer a document. District's 5 consists of eight documents." (Transcript, page 110)

The hearing officer accepted the exhibit, without further identifying it. Upon being reminded by the Office of State Review of respondent's obligation to furnish the State Review Officer with a copy of the record (8 NYCRR 279.7), respondent's attorney sent to the Office of State Review a set of documents which were not individually marked as exhibits. Although documents corresponding to the descriptions of exhibits 1-4 in the transcripts were identified by the Office of State Review, it was not possible to conclude which, if any, of the remaining documents were copies of the eight documents introduced as exhibit 5. Respondent's attorney, respondent's special education director and the hearing officer were contacted by the Office of State Review, in an effort to obtain a true copy of exhibit 5. Respondent's special education director provided an additional set of documents purporting to be exhibit 5. However, the second set of documents did not include a social history which was discussed at the hearing almost immediately after exhibit 5 was introduced, and was likely to have been one of the documents introduced as exhibit 5.

In addition to the social history, the documents submitted by respondent but not identified as exhibits include reports of various evaluations and observations of the child by respondent's staff and a sample of the child's writing. Respondent has also submitted a copy of a notice which it sent to the child's father and stepmother on February 21, 1992, advising them that on February 14, 1992 the CSE had recommended that the child remain classified as learning disabled and that he be educated in a self-contained class at the Elmont Memorial High School for the 1992-93 school year. Neither the record nor the petition in this appeal reveals whether petitioner was notified of the CSE's recommendation and sought review of such recommendation.

In addition to the deplorable state of the record, I find that fairness requires that the hearing officer's decision must be annulled because the record reveals that petitioner may have been deprived of the opportunity to fully present her case (Cameron v. Bowen, 683 F. Supp. 73 [S.D.N.Y., 1987]). According to the transcript, the hearing began at 4:15 p.m. on May 20, 1992. Respondent presented its case through the testimony of the principal of the Alden Terrace School, the school psychologist and the child's special education teacher. At the conclusion of respondent's case, petitioner attempted to raise the issue of the lack of authority by the child's stepmother to consent to the child's evaluation. The hearing officer suggested that the matter was moot because the consent form had been signed. Petitioner then stated that she wished to have the child testify. Although the hearing officer permitted the child to give unsworn testimony, he stated that:

"I have a time constraint. That's why I'm moving you along because I would like to conclude very shortly." (Transcript, page 113)

The record reveals that petitioner concluded her brief examination of the child, in approximately three pages of transcript, and offered no other evidence. The hearing ended at 6:45 p.m. It is the responsibility of a hearing officer to accord all parties a full opportunity to present relevant and material testimony and evidence. When a party is not represented by counsel, a hearing officer has a greater responsibility to assist the party presenting his or her case fully (Padilla v. Heckler, 643 F. Supp. 481 [S.D.N.Y., 1986]). The hearing officer's remark about wishing to conclude very shortly, made at the outset of petitioner's case, was inappropriate and may well have inhibited petitioner, who was not represented by counsel or assisted by an advocate.

Although the matter would normally be remanded to respondent's CSE, no purpose would be served in doing so in this instance, because the 1991-92 school year has ended and the child is no longer the responsibility of respondent's CSE. Respondent provides instruction for children in grades kindergarten through six. Children living in respondent's district attend school for grades seven through twelve in the Sewanhaka Central High School District. The February 14, 1992 recommendation of respondent's CSE for the 1992-93 school year was for a program in the Sewanhaka Central High School District, which has its own CSE.

Finally, I note that petitioner raises the issue of the accuracy of the child's anecdotal disciplinary records. Although the regulations implementing the Individuals with Disabilities Education Act provide for an opportunity to challenge information in education records, 34 CFR 300.570 provides that a hearing for such purpose is to be conducted in accordance with the regulations applicable to the Family Educational Rights and Privacy Act, 20 USC 1232g. If petitioner wishes to challenge the accuracy of her child's records, she must use the procedure available under the Family Educational Rights and Privacy Act (Application of Bd. of Ed. City School District of New York, 25 Ed. Dept. Rep. 214; Application of a Child with a Handicapping Condition, 27 id. 19).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled.