93-022

Petitioner appeals from the decision of an impartial hearing officer which held that petitioner was not entitled to obtain independent psychological and educational evaluations of his child at respondent's expense. The appeal must be sustained in part.

Petitioner's child, who is nine years old, was initially classified as emotionally disturbed upon entering respondent's preschool program in January, 1989. In May, 1989, the child was evaluated psychologically to ascertain what, if any, special education services he would need in kindergarten during the 1989-90 school year. The school psychologist who evaluated the child reported that the child had strong verbal skills and appeared to relate appropriately to his peers, but that the child exhibited deficits in abstract visual reasoning and short-term memory. The school psychologist recommended that the child not be classified as a child with a disability upon entry into elementary school, and the record reveals that the child was not classified while attending kindergarten.

The child experienced social difficulties and problems with his visual memory while in kindergarten. In first grade, during the 1990-91 school year, the child had behavioral and academic difficulties, and received informal counseling by respondent's staff to improve his social skills and reduce incidents of his aggressive behavior. The child was referred to respondent's committee on special education (CSE) for an evaluation, because of his difficulties with fine muscle motor control, symbol-sound association, and his poor organizational skills and work habits. In a psychological evaluation completed in December, 1990, the child achieved a verbal IQ score of 105, a performance IQ score of 102, and a full scale IQ score of 103. The child exhibited relative weakness in his general fund of information, visual concept formation, visual recall and graphomotor (handwriting) speed, and significant weakness in his short-term memory. The child was described by the evaluator as impulsive, with a short attention span, and easily frustrated. The evaluator further described the child as anxious and insecure, and having poor self-esteem, and opined that the child engaged in aggressive fantasies. The evaluator recommended that the child be psychiatrically evaluated. However, there is no evidence in the record of the results of a psychiatric evaluation. Referring to the results of academic tests which are not part of the record, the evaluator recommended that the child be classified as learning disabled.

On February 12, 1991, the CSE recommended that the child be classified as learning disabled and receive three hours of resource room services per week. The CSE further recommended that the child receive individual counseling 12 times per year.

The child remained classified as learning disabled and continued to receive the same services for the 1991-92 school year. In February, 1992, when the child was in second grade, he was evaluated by his resource room teacher, who reported that the child's reading decoding and comprehension skills were at a grade equivalent of 1.9. The resource room teacher further reported that the child's mathematical computation skills were at a 1.9 grade equivalent and his mathematical application skills were at a 2.5 grade equivalent. The child's spelling skills were reported to be at a 2.1 grade equivalent. In March, 1992, the resource room teacher recommended to the CSE that a special class placement be considered for the child, because of his continuing academic deficits despite receiving resource room services and because of his behavioral and emotional difficulties.

In March, 1992, the child's performance in reading, written language, and mathematics were found to be below average, in an additional assessment formed by the child's resource room teacher. The child's performance in listening and spoken language were found to be within the average range. Deficits in the child's reading comprehension skills were reported to be offset by his relative strengths in word knowledge. The child exhibited deficits in punctuation, spelling and written composition. He achieved comparable results on group achievement tests administered in the Spring of 1992.

In a written report of a meeting which the child's second grade teacher had with the child's father in April, 1992, the teacher reported that the child was making satisfactory progress, but was being held back in all academic areas as a result of his difficulty in reading. The teacher further reported that the child had great difficulty in focusing and paying attention, and required individual help for all independent work because of his low frustration tolerance and short attention span. The teacher noted that the child's social development had improved, but predicted that the child would have great difficulty with the third grade curriculum.

On April 30, 1992, the CSE recommended that the child's classification be changed to other health impaired. At the hearing in this proceeding, the child's resource room teacher and a school psychologist testified that the child's classification was changed because he had an attention deficit disorder for which he received medication (See U.S. Dept. of Education memo of September 16, 1991 re: Needs of Children with Attention Deficit Disorders). The CSE recommended that resource room services for the child be increased to five hours per week and that he continue to receive individual counseling 12 times per year.

During the 1992-93 school year, the child exhibited oppositional behavior. The child's third grade teacher testified at the hearing in this proceeding that the child had difficulty in reading, and was reluctant to do written work. In a behavioral assessment completed in December, 1992, the child's teacher reported that the child was distractible, hyperactive, and had a low frustration tolerance. The teacher further reported that the child had difficulty holding a pencil and copying material from the blackboard. In an educational assessment performed in December, 1992, the child achieved essentially the same scores in reading that he had achieved in February, 1992. With the exception of basic mathematic concepts, the child's mathematical skills were found to be slightly below the third grade level. In a test of the child's written language skills, including spelling, punctuation, and writing samples, the child achieved grade equivalent scores from 1.6 to 2.5. The evaluator provided an extensive description of the child's performance on the achievement test which had been administered and their correlation for the child's performance in class.

On January 28, 1993, the CSE recommended that the child remain classified as other health impaired, but that his placement be changed to a special class with a 15:1 student/staff ratio in respondent's Cherokee Street School. The CSE further recommended that the child receive counseling 12 times per year. On February 9, 1993, respondent approved the CSE's recommendation.

By letter dated February 12, 1993, petitioner expressed his disagreement with the CSE's recommendation, and requested that independent psychological and educational evaluations of the child be performed. Respondent instituted an impartial hearing for the purpose of demonstrating the appropriateness of the evaluations which its staff had performed, so that it would be relieved of its obligation to pay for the requested evaluations (see 34 CFR 300.301[b]; 8 NYCRR 200.5[a][l][vi][a]).

The hearing commenced on March 8, 1993, and concluded on March 22, 1993. In a decision dated April 19, 1993, the hearing officer held that the CSE had adequately evaluated the child to ascertain the nature of his academic difficulties, and that petitioner could obtain independent evaluations, but not at respondent's expense. Nevertheless, the hearing officer directed the CSE to obtain a complete evaluation of the child, including psychological and occupational therapy evaluations and a physical examination, before the CSE's next annual review of the child to plan for the child's program in the 1993-94 school year. Although the appropriateness of the child's classification was not an issue to be determined at the hearing, the hearing officer nonetheless found that there was inadequate evidence in the record to support the child's classification as other health impaired.

Before reaching the issues raised by the parties, I note that respondent has submitted with its answer 12 documents which were not in the record before the hearing officer. Petitioner has not objected to the inclusion of the documents in the record of this appeal. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer's decision if such evidence was unavailable at the time of the hearing or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 93-14). I find that the documents in question meet the criteria for inclusion in the record of this appeal.

Petitioner asserts that the CSE did not assess the child in all areas of suspected disability, as required by Federal and State regulations (34 CFR 300.532 [f]; 8 NYCRR 200.4 [b][4][b][vi]). The evaluations to which petitioner objects consists of the December, 1990 psychological evaluation, the educational evaluations of February, March and December, 1992 and the teacher's behavioral assessment of December, 1992. Petitioner asserts that although the CSE was aware that the child has multiple difficulties, including physical, social, emotional and academic deficits, it nonetheless failed to assess the extent of each of the deficits or to ascertain the etiology of the child's disability.

With regard to the child's physical deficits, petitioner asserts that the child's fine motor and visual memory skills were found by the school psychologist to be significantly depressed and that some weakness had been found in the child's visual motor ability, but that the CSE had not obtained a neurological evaluation of the child. However, the school psychologist testified that the child's visual motor ability was adequate and that the child's fine motor skills had been found to be slightly above the level expected for children his age. Although the child's performance on visual memory tasks was reported by the school psychologist to be significantly depressed, there is no basis in the record for concluding that a neurological evaluation would provide useful information about the child's visual memory ability. Furthermore, respondent has submitted with its answer a copy of a report of a neurological evaluation of the child conducted in 1989 at the University Hospital of the State University of New York at Stony Brook, which found no evidence of a neurological disorder except for signs of an attention deficit disorder.

Petitioner also asserts that the CSE failed to adequately assess the child's gross motor and graphomotor skills. There is no evidence in the record of any deficit in the child's gross motor skills, or of the need to evaluate such skills. There is evidence that the child grips a pencil awkwardly. However, the child's third grade teacher testified that the child is physically able to write but doesn't like to write. The hearing officer directed the CSE to obtain an occupational therapy evaluation to ascertain whether there is any physical basis for the child's difficulty in written expression. However, the CSE's failure to have previously obtained an occupational therapy evaluation does not afford a basis for concluding that the CSE's psychological and educational evaluations were inadequate.

The educational evaluations which the CSE has performed assess the child's skills in reading, mathematics and written language, and identify the child's strengths and weaknesses in each area to provide useful information for planning the child's program. Although at the hearing petitioner attempted to demonstrate that the educational evaluation was incomplete because certain tests used to measure a child's expressive and receptive language had not been administered, the record reveals that the child's expressive and receptive language were adequately addressed by the school psychologist and the educational evaluator and that the child had no significant deficit in either area. The findings by the school psychologist and the educational evaluator of the child's academic skills and needs were corroborated by the testimony of the child's third grade teacher regarding the child's performance in class. The child's most significant academic deficit is in his ability to read. Between February, 1992 and December, 1992, the educational evaluator administered 3 individual reading tests, one of which was readministered, as well as 1 group reading test. The results of these tests were consistent. At the hearing, the educational evaluator testified that she had administered appropriate tests to analyze the child's reading skills and that there were no other tests which would provide further analysis of his reading skills and deficits. Upon the record before me, I find that respondent has met its burden of proof in establishing the appropriateness of its educational evaluations.

Petitioner also seeks an independent psychological evaluation. Respondent's most current psychological evaluation was performed in December, 1990. At the hearing, the school psychologist testified that she had not re-evaluated the child because State regulation did not require that the child be re-evaluated within three years after his last evaluation in December, 1990 (8 NYCRR 200.4 [e][4]), and because she believed that she already had sufficient information about the child. The Federal regulations implementing Section 504 of the Rehabilitation Act of 1973 (20 USC 794) require that a child be evaluated before any significant change in the child's placement (34 CFR 104.35 [a]). In this instance, the CSE recommended that the child's placement be changed from a regular education class in the elementary school which he had attended since kindergarten to a special education class in another elementary school. I find that the CSE's recommendation, if implemented, would be a significant change in the child's placement and that respondent was obligated to conduct a suitable evaluation.

What constitutes a suitable evaluation depends upon the nature of a child's disability and the nature of the change in the child's placement. In view of the nature of the child's disability involving an attention deficit disorder, a learning disability and emotional difficulties, I find that a psychological re-evaluation should have been conducted. The school psychologist opined that no further psychological tests were required. On this record I shall not substitute my judgment regarding additional tests. However, a psychological evaluation or re-evaluation involves more than the administration of tests. The purpose of a psychological evaluation is to provide useful information to the members of the CSE and a child's parents in order to ascertain the nature of the child's disability and to identify appropriate programs and services to meet the child's special education needs in the least restrictive environment. Although the educational data in the record demonstrate that the child has experienced academic difficulty in his present educational placement, respondent's education evaluator and school psychologist testified that the CSE's recommendation for a change in placement was premised, in part, upon concerns about the child's social, emotional and management needs. The child's management needs include his short attention span, low threshold of toleration for frustration and failure to complete his school work. However, there is insufficient evidence of the child's social, emotional and management needs to afford a basis for the CSE to prepare an individualized education program (IEP) for the child in the proposed placement which is more restrictive than his present placement. The school psychologist's testimony that she had observed the child in the classroom is insufficient. The record is devoid of any written evaluation by the psychologist that integrates all of the data from prior tests and the alleged observation into a professional report for consideration by the CSE and the child's parents. Nor is there any documentation of the child's achievement or failure to achieve his IEP goals. Accordingly, I find that the CSE's psychological evaluation of the child is inadequate. Therefore, petitioner is entitled to receive an independent psychological evaluation, the results of which must be considered by the CSE in planning an appropriate placement for the child for the 1993-94 school year.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is annulled to the extent that it found that respondent's psychological evaluation was adequate and that petitioner was not entitled to an independent psychological evaluation, and;

IT IS FURTHER ORDERED that respondent shall pay for an independent psychological evaluation of the child to provide the information described in this decision, upon submission of the results of, and the bill for, such evaluation to the CSE.