94-037

Petitioner's child, who is 11 years old, has not previously been identified as a child with an educational disability. The child has reportedly exhibited below average reading and language arts skills since he was in respondent's kindergarten in the 1988-89 school year. However, he has not been retained in any grade, and is presently enrolled in a regular education sixth grade class in respondent's Iroquois Middle School. The child was initially referred by his fourth grade teacher to the CSE, in June, 1993. Although the child's achievement in spelling, mathematics, social studies and science was reported to be satisfactory, his reading and English skills remained significantly below grade level, despite his having received remedial reading instruction and private tutoring in reading for two years. In May, 1993, when he was nearing the completion of the fourth grade, the child achieved a grade equivalent score of 1.7 on a standardized test of his total reading skills, or 3.2 years below his expected grade level.

Petitioner withheld his consent for the CSE to evaluate the child. Respondent initiated an impartial hearing to obtain authorization by a hearing officer to evaluate the child without petitioner's consent, in accordance with 8 NYCRR 200.5 (b)(3). A hearing was held on December 8, 1993. In a decision dated January 5, 1994, the hearing officer found that the child's reading skills were at least two years below his appropriate age and grade levels, and that his reading skills had been delayed throughout his attendance in elementary school. The hearing officer also found that the child had significant difficulty with writing. The hearing officer held that respondent had met its burden of proof with regard to the threshold issue of whether there was adequate evidence to suspect that the child might have an educational disability, and authorized the CSE to evaluate the child, without petitioner's consent.

Petitioner appealed from the hearing officer's decision. His appeal was dismissed, upon a finding that there was an adequate basis in the record to suspect the existence of a disability which impaired the child's educational performance (Application of a Child Suspected of Having a Disability, Appeal No. 94-3). In that appeal, petitioner requested that the hearing officer's decision be modified to require respondent to have the child evaluated by a private psychologist, rather than by respondent's school psychologist. Petitioner's request was denied, because there was no basis in the record for believing that an evaluation by the school psychologist would not be conducted appropriately. However, petitioner was advised of his right to obtain an independent evaluation of the child, at respondent's expense, if he was dissatisfied with the results of respondent's evaluation, as provided by Federal and State regulations (34 CFR 300.503 [b]; 8 NYCRR 200.5 [a][1][vi][a]).

On April 26, 1994, the child was observed in his regular education fifth grade classroom by respondent's school psychologist, who reported that the child occasionally looked at the ceiling during the class and was assisted by his teacher in finding the correct page during a reading activity. The school psychologist evaluated the child on May 13, 1994. He reported that the child achieved a verbal IQ score of 88, a performance IQ score of 103, and full scale IQ score of 94. The child's performance on the vocabulary subtest was significantly lower than that of any other IQ subtest. In general, the child's IQ subtest scores revealed that he was better at tasks involving perceptual organization than at tasks requiring verbal comprehension. His auditory recall skills were in the average range. On a test of his eye-hand coordination and visual motor ability, the child's age equivalent score of 7.6 to 7.11 was almost three years below his chronological age. The child's mathematical skills were found to be at the fifth grade level. However, his oral reading skills were found by the school psychologist to range from a grade equivalent of 1.9 in reading rate to a grade equivalent of 3.2 in reading comprehension. The child's reading skills were also assessed in May, 1994, by a special education teacher who reported that the child received grade equivalent scores of 2.6 in word identification, 1.5 in word attack, 3.4 in word comprehension, 2.9 in passage comprehension, and 2.6 in total reading.

Shortly after the child's psychological evaluation was completed in May, 1994, he took the statewide Pupil Evaluation Program (PEP) Fifth Grade Writing Test. The child's score of 4 out of a possible 16 on the PEP test was 4 points below the Statewide reference point for the test, i.e., the score at which remedial instruction must be provided (8 NYCRR 100.4 [b][3]). On group administered standardized tests in May, 1994, the child achieved grade equivalent scores of 2.1 in reading vocabulary, 2.7 in reading comprehension, 5.3 in mathematical computation and 5.0 in mathematical applications. When those tests were administered in May, 1993, the child's grade equivalent scores were 1.7 in reading vocabulary, 1.7 reading comprehension, 5.4 in mathematical computation, and 5.5 in mathematical applications. The child's report card for the 1993-94 school year reveals that he received letter grades of C or better in spelling and mathematics, except for a D in spelling during the last quarter of the school year. In social studies and science, he received satisfactory grades. The child's performance in reading and English (written expression) was described as satisfactory but below grade level.

A physical examination of the child on June 15, 1994, by respondent's school physician revealed that the child's vision and hearing were within normal limits. He reportedly has had no history of seizures, and was not taking medications. The CSE attempted to elicit a social history by asking petitioner and his wife, who is the child's mother, to complete a questionnaire. Respondent's Director of Special Education testified at the hearing in this proceeding that the child's parents did not return the questionnaire, and that she had therefore reviewed the child's records and those of two of his siblings, who are in respondent's special education program, to complete portions of the social history form. The Director of Special Education further testified that the child's mother orally verified the information on the social history form, but declined to assist by providing any additional information.

On June 22, 1994, the CSE met with the child's mother. Petitioner did not attend the CSE meeting. The CSE recommended that the child be classified as learning disabled, and that he receive instruction in sixth grade reading and language arts, in a self-contained special education class with a 15:1 child to adult ratio. The CSE also recommended that the child receive one period of resource room services per day to assist the child in developing his reading decoding and comprehension skills, his written expression, organizational and study skills. The child was to remain in regular education for all other subjects. The CSE also recommended that testing modifications be used with the child, including having tests read to the child, alternate test sites and extended time limits.

By letter dated June 22, 1994, the child's parents were given written notice of the CSE's recommendation of June 22, 1994, and were asked to consent to the child's placement in the recommended program. A second notice and request for consent was sent to the parents on July 25, 1994. However, they declined to consent to the child's placement in respondent's special education program. Since the child had not previously been in a special education program, respondent could not place the child in the program without the parents' consent (34 CFR 300.504 [b][ii]; 8 NYCRR 200.5 [b][1]). Under the circumstances, respondent was required to initiate an impartial hearing to determine if the child's placement in the proposed program was warranted without parental consent (8 NYCRR 200.5 [b][3]). Respondent appointed a hearing officer in August, 1994.

The hearing in this proceeding was held on September 8, 1994. In a decision dated September 25, 1994, the hearing officer held that respondent had met its burden of proof with respect to the child's proposed classification and placement. The hearing officer found that the results of the child's evaluation established that the child had a learning disability in the areas of reading, writing and language, and that the child's proposed IEP was appropriate to address the child's educational needs in those areas. He directed respondent to implement the child's IEP.

Petitioner challenges the hearing officer's decision on procedural and substantive grounds. He asserts that he was not afforded an opportunity to examine the hearing officer's resume prior to the start of the hearing, which deprived him of an opportunity to challenge the hearing officer's impartiality. He further asserts that upon review of the hearing officer's resume after the hearing, he now believes that the hearing officer may be "pro-school" because of past employment and an involvement with "the school system". He does not explain whether he is referring to respondent's school district or the public schools in general. The hearing officer's resume is not included in the record of this appeal. Respondent admits that petitioner did not receive a copy of the hearing officer's resume prior to the hearing, but denies petitioner's other assertions.

State regulation requires each board of education to maintain a list of the names and resumes of the individuals whom the board of education may appoint as hearing officers (8 NYCRR 200.2 [e]). Although anyone can examine a board of education's list of hearing officers and their resumes, neither Federal nor State regulation expressly requires a board of education to send a copy of a hearing officer's resume to a parent prior to the beginning of a hearing. Respondent's attorney has submitted an affidavit in which she asserts that petitioner initially sought a copy of the hearing officer's resume in an off-the-record discussion which occurred before the hearing officer opened the hearing record. She further asserts that when asked by the CSE chairperson whether he wanted a copy of the resume before the hearing began, petitioner stated that he would wait to receive a copy after the hearing had taken place. The hearing transcript discloses that there was an off-the-record discussion about the hearing officer's resume at the outset of the hearing. After respondent's attorney summarized that discussion for the record, petitioner asserted that he nevertheless had a right to review the resume prior to the hearing. The hearing officer offered to postpone the hearing in order to afford petitioner the opportunity to see his resume. Petitioner declined the hearing officer's offer. While it would be good practice to provide parents with the hearing officer's resume prior to the hearing, I must find upon the record before me that respondent's failure to do so does not afford a basis for invalidating the hearing officer's decision.

Although there is no evidence before me that the hearing officer did not meet the criteria set forth in 8 NYCRR 200.1 (s) for being an impartial hearing officer, I nevertheless find that the CSE chairperson's testimony and certain exhibits introduced at the hearing do raise a substantial question about the appearance of impropriety in the selection of the hearing officer. It is well established that school employees whose actions will be reviewed, or who will be witnesses, in a hearing should not participate in the selection of a hearing officer (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 138; Application of a Child with a Handicapping Condition, 30 id. 195; Application of a Child with a Handicapping Condition, Appeal No. 92-19; Application of a Child with a Handicapping Condition, Appeal No. 92-46; Application of a Child with a Disability, Appeal 93-47). Although boards of education must now select hearing officers on a rotational basis pursuant to Section 4404 (1) of the Education Law, it is nevertheless imperative that school employees whose actions will be reviewed or who will testify at hearings not communicate with hearing officers, in order to avoid the perception that they have discussed the merits of the case on an ex parte (one-sided) basis.

In a letter dated August 10, 1994, the CSE chairperson advised petitioner and his wife that " ... this due process hearing has been requested. Roy O. Kuck is being appointed as the hearing officer. Mr. Kuck has indicated that he has set aside September 7th, September 8th and September 9th as tentative hearing dates. Please contact me within five days to select two of these dates that are convenient for you ... ". In a letter dated August 11, 1994 the CSE chairperson informed Mr. Kuck that he had been appointed as the hearing officer. On August 15, 1994, Mr. Kuck responded to the chairperson's letter by advising her that he accepted the assignment, and he described his fees for serving as a hearing officer to the chairperson. By letter August 18, 1994, the CSE chairperson advised petitioner and his wife that "I have arranged for the impartial hearing to obtain a determination of whether placement of your son [child's name] in a special education program is warranted without your consent". In response to a question by respondent's attorney, the CSE chairperson described the appointment of Mr. Kuck as the hearing officer from respondent's rotational list of hearing officers, after two other individuals were unavailable to serve as the hearing officer. She also testified that she had contacted Mr. Kuck about possible dates for the hearing to be held. The CSE chairperson was one of four witnesses presented by respondent.

There is no indication in the record that the CSE chairperson did discuss the case with the hearing officer prior to the hearing. However, I must nevertheless find that the hearing was tainted by an appearance of impropriety because of the CSE chairperson's apparent involvement in the appointment of the hearing officer and her extensive testimony about the child's evaluation and the CSE's recommendation.

I have considered petitioner's other procedural issues, including respondent's alleged failure to attempt to informally resolve the matter after the CSE meeting, respondent's alleged refusal to allow petitioner to obtain an independent evaluation of the child, and respondent's alleged noncompliance with the regulatory requirement that it provide petitioner with all of the evidence which it wished to introduce at the hearing at least five days before the hearing. I find that there is no evidence to support any of petitioner's assertions. State regulation requires a board of education to offer the parent the opportunity for an informal conference before a hearing is held to obtain authorization to conduct an evaluation without the parent's consent (8 NYCRR 200.5 [b][2]). There is no requirement that an informal conference be offered after an evaluation has been completed, because a parent has the right to attend the CSE meeting to discuss the evaluation results and the proposed recommendation by the CSE. Respondent asserts that petitioner has never requested an independent evaluation, even after the issue was raised in the prior appeal involving this child. I must find that there is nothing in the present record which could lead me to infer that petitioner had asked respondent for an independent evaluation, or that respondent had refused such a request. Petitioner has not identified any evidence which was introduced in violation of the regulatory requirement of prior disclosure.

In addition to the appearance of impropriety in the selection of the hearing officer, there are other reasons why the appeal must be sustained. The substantive issues of this appeal are whether the child would appropriately be classified as learning disabled, and whether the program recommended by the CSE would be appropriate to meet his needs. Respondent bears the burden of establishing the appropriateness of the classification and program recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-11; Application of a Child with a Disability, Appeal No. 93-20). With regard to the child's classification, the initial question is whether the CSE conducted an adequate evaluation. Petitioner challenges the CSE's evaluation, and expresses his preference for a "second opinion". State regulation requires that a CSE conduct an individual evaluation of a child, which is defined by regulation as:

" ... any procedures, tests or assessments used selectively with an individual student, including a physical examination in accordance with the provisions of sections 903, 904, and 905 of the Education Law, an individual psychological evaluation, except where a school psychologist has determined pursuant to Section 200.4 (b) of this Part that a psychological evaluation is unnecessary to evaluate a student of school age, a social history and other appropriate assessments or evaluations as may be necessary to determine whether a student has a disability and the extent of his/her special education needs, but does not include basic tests administered to, or procedures used with, all students in a school grade or class." (8 NYCRR 200.1 [v])

The record reveals that the CSE obtained the results of a physical examination, a psychological evaluation, and a partial social history. A classroom observation of the child was also obtained, as required by 8 NYCRR 200.4 (b)(viii). However, I find that the child's evaluation was deficient in two areas. A child who is suspected of having a disability must be assessed in all areas relating to the suspected disability (8 NYCRR 200.4 [b][vi]). The CSE's recommendation that the child be classified as learning disabled is based in part upon its belief that the child has an imperfect ability to use language, which is consistent with the definition of a learning disabled student (8 NYCRR 200.1 [m]). The child's fifth grade teacher testified at the hearing that the child had difficulty with his oral and written language. The school psychologist attempted to test the child's receptive language skills, but was deterred from doing so when the child produced a note from petitioner asserting that the child did not have to answer any more questions until his rights were explained to him. However ill-advised petitioner's note may have been, respondent did not pursue any additional tests of the child's expressive or receptive language skills. The child's recommended classification as learning disabled was also premised upon the CSE's belief that the child has an imperfect ability to express himself in writing. However, his writing skills were not assessed in any individually administered test. The PEP test results are not valid for this purpose because the PEP test is not an individually administered examination, and would not provide sufficient information to determine the child's special education needs. Therefore, I must find that respondent's evaluation was incomplete, and that respondent has not met its burden with regard to the child's classification as learning disabled.

As a result of this decision, the CSE will be required to complete additional evaluations of the child. The record reveals that petitioner and his wife have not cooperated with the CSE, by declining to provide requested information for the child's social history and by giving the child a note purporting to assert rights which he did not have as a means of precluding the CSE from further evaluating the child. The issue of whether the child should be evaluated was settled in the prior appeal to the State Review Officer. Petitioner did not seek judicial review of the decision in Appeal No. 94-3, and that decision is therefore final. The parents' failure to cooperate with the CSE in this matter has no basis in law and is inappropriate. They must cooperate with the CSE by allowing it to obtain additional information for the child's social history and to complete the evaluations which I will direct the CSE to obtain.

Although it would be premature to consider what might be an appropriate program for the child until his needs are completely ascertained, I must point out that respondent could not have met its burden of proving the appropriateness of the program recommended by the CSE because it offered insufficient evidence about the way in which the recommended special education program would implement the child's IEP and no evidence with respect to the similarity of the needs of the other children in the recommended special education class (8 NYCRR 200.6 [a][3]; Application of a Child With a Disability, Appeal No. 94-5).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled, and;

IT IS FURTHER ORDERED that within 30 days after the date of this decision respondent shall complete an evaluation of the child's speech and language skills and his writing skills, after which the CSE shall consider the results of such evaluations and shall make its recommendation with regard to the child's classification and program, if any.