94-043

The hearing officer also held that petitioner's CSE had adequately evaluated the child, and denied respondents' request that they be permitted to obtain an independent evaluation at petitioner's expense (see 34 CFR 300.503 (b); 8 NYCRR 200.5 [a][1][vi][a]). In addition, the hearing officer upheld the CSE's recommendation that the child's classification for purposes of educational programming be changed from autistic to multiply disabled. She also rejected respondents' claims that petitioner had not appointed the hearing officer in a timely manner and that her appointment had been tainted by the participation of the school administrator assigned to be the child's case manager in the hearing officer's selection.

Respondents, who were represented by an attorney at the hearing but are appearing pro se in this appeal, have not appealed from the hearing officer's decision. In their answer, respondents ask that the hearing officer's decision with respect to their child's placement be upheld. However, they also ask that the hearing officer's determination that they were not entitled to obtain an independent evaluation at respondent's expense be annulled. Respondents also seek a determination that the manner in which the hearing officer was appointed violated the impartiality standards imposed by the Individuals with Disabilities Education Act (20 USC 1400 et seq). They also ask that I determine the adequacy of the child's educational program during the 1992-93 school year, notwithstanding their attorney's repeated representations at the hearing that the adequacy of the child's 1992-93 program was not an issue to be considered by the hearing officer. Respondents' requests for relief require that I first determine the scope of this appeal.

Federal and State statutes provide that a hearing officer's decision is final and binding upon both parties at the hearing, unless appealed to the State Review Officer (20 USC 1415 [c]; Section 4404 [1] of the Education Law). A party seeking review of a hearing officer's decision in New York must initiate an appeal by serving and filing a petition for review (8 NYCRR 279.4), which respondents have not done in this proceeding. Although petitioner has challenged one portion of the hearing officer's decision, it does not follow that other parts of the hearing officer's decision may also be reviewed, without violating the "finality requirement" of Federal and State law (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]).

Nevertheless, respondents have attempted to challenge portions of the hearing officer's decision concerning two issues which were extensively litigated at the hearing, and which petitioner has addressed in its memorandum of law in this appeal. I find that there is an adequate basis in the record to make a determination about the hearing officer's appointment and the adequacy of the child's evaluation, and that petitioner has not been unfairly deprived of an opportunity to address those issues in this appeal (cf. Hiller v. Bd. of Ed., supra). Therefore, I will deem the relevant portions of respondent's answer to be a cross-appeal from the hearing officer's decision. However, I will not consider respondents' assertion that petitioner did not offer an adequate educational program during the 1992-93 school year. That issue was not before the hearing officer. I also note from one of the exhibits annexed to the petition that the services which the board of education offered during the 1992-93 school year are the subject matter of a pending appeal to the Commissioner.

Respondents' child, who is 15 years old, has been medically diagnosed as having Purine Autism, which is a metabolic disorder requiring that she maintain a restricted diet. The child also has seizures which can not be completely controlled by medication, and has extensive motor deficits. She was initially classified as autistic by petitioner's CSE in 1984, and that classification continued until the CSE recommended in April, 1993, that the child be classified as multiply disabled. Although respondents assert that the child's IEP should "acknowledge" the child's autism, they have not asked that the hearing officer's decision upholding the CSE's April, 1993 recommendation with respect to the child's classification be annulled. Despite the fact that the issue of the child's classification is therefore not before me (Hiller v. Bd. of Ed. Brunswick CSD et al., supra), I must note that the classification of multiply disabled merely recognizes that the child has a variety of special education needs (8 NYCRR 200.1 [mm][8]).

The child's educational program has been in dispute between the parties since the 1984-85 school year. The dispute has led to numerous hearings, three appeals to the Commissioner of Education (Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 323; Application of a Child with a Handicapping Condition, 31 id. 337; Application of a Child with a Handicapping Condition, 32 id. 104) and three appeals to the State Review Officer (Application of a Child with a Handicapping Condition, Appeal No. 91-19; Application of a Child with a Handicapping Condition, Appeal No. 92-22; Application of a Child with a Handicapping Condition, Appeal No. 92-36). In 1985, the parties stipulated that the child would receive instruction from petitioner's staff in her home, pending the preparation of a special classroom for her in petitioner's schools. Following further administrative proceedings, respondents commenced an action against petitioner in the United States District Court for the Northern District of New York. In 1989, the Court held that the child's pendency placement was the instructional program in the child's home to which the parties had agreed to in 1985. The Federal Court action was ultimately settled by the parties in September, 1991.

In June 1990, the CSE sought to have the child's triennial evaluation performed by the Yale University Child Study Center, which had a requirement that parents sign a consent to evaluate form. Petitioner initiated a hearing in January, 1991 to obtain a hearing officer's order directing respondent to sign the Yale consent form. In April, 1991, the hearing officer issued such an order, but thereafter the parties disagreed over the respondents' travel arrangements for the child's evaluation at Yale. Petitioner attempted to obtain a declaratory judgment about its rights and responsibilities from the United States District Court, which denied the requested relief in August, 1992. In the interim, an impartial hearing was held at respondents' request with respect to the child's triennial evaluation. In August, 1992, the hearing officer directed the parties to make immediate arrangements for the child's evaluation at Yale. Respondents' subsequent appeal from the hearing officer's decision was dismissed (Application of a Child with a Handicapping Condition, Appeal No. 92-36).

In addition to appealing from the hearing officer's order directing that the child be evaluated at Yale, respondents sent a letter, dated September 4, 1992, to the CSE purporting to be a new referral of the child to the CSE and requesting that the child be re-evaluated in a manner which would " ... not involve uprooting our family." Respondents and the CSE chairperson exchanged letters to no avail, until early November, 1992, when the chairperson offered to have the child evaluated at the Child Development Center of the Newington Children's Hospital (CDC) in Newington, Connecticut, rather than at Yale. In a letter dated November 7, 1992, respondents agreed to have the child evaluated at the CDC.

The child was evaluated at the CDC over a period of one week in late January, 1993. A CDC audiologist reported that the child had adequate hearing, and a CDC ophthalmologist reported that the child had adequate vision. A CDC physician, who reviewed the child's medical records and discussed the child with respondents, stated that the child appeared to have a progressive encephalopathy beginning early in life, with autistic features, long track findings, and basal ganglia abnormalities. The physician noted that the child had been diagnosed as having cerebral palsy when she was two years old. A CDC physical therapist reported that the child had difficulty with balance, coordination, awareness of self in space and grading of movements, and that she had low muscle tone. She recommended that the child receive extensive physical therapy. A CDC occupational therapist reported that the child could independently ambulate, but had poor balance skills. She further reported that the child lacked refined hand skills, which impacted upon her ability to use her hands in activities for daily living. The child was reported to be responsive to a computer program in which she could change the video display by touching a switch. The occupational therapist opined that the child exhibited marked deficits in her gross and fine motor skills and her organizational skills, and recommended that she receive occupational therapy. The child's speech/language skills were also assessed at the CDC. She reportedly did not demonstrate object or picture discrimination skills with consistency, and her receptive language skills were estimated to be between nine and eleven months. The CDC evaluator opined that the child had a severe receptive and expressive language impairment, as well as a severe speech articulation impairment. She recommended that the child use augmentative communication techniques, including sign language, in a total communication program.

The CDC psychologist who evaluated the child reported that although the child tended to look away from the examiner, she did not rigidly avert eye gaze. The child's affect was described as bland, and the psychologist noted that the child drooled throughout most of the evaluation. She also reported that the child was "almost pervasively disinterested in materials and toys presented," but did permit the psychologist to assist her to focus on materials and to use a hand-over-hand technique to interact with materials. The psychologist reported that she was unable to elicit any response from the child which could be scored when she attempted to assess the child's cognitive skills in an IQ test. In an assessment of her adaptive behavior which was based upon information furnished by respondents, the child achieved age equivalent scores of eight months in communication, one year and seven months in daily living skills, and seven months in socialization. The psychologist opined that the child was functioning in the severe to profound range of mental retardation.

A CDC psychiatrist who interviewed the child's mother and interacted with the child reported that the child did not easily engage in activities or make any spontaneous overtures for interaction. Although the child exhibited interest in some toys, the psychiatrist opined that the child did not appear to understand the use of the toys. The psychiatrist further opined that the child exhibited signs of an autistic disorder and mental retardation.

The child also received an educational evaluation at the CDC. The evaluator reported that it was difficult to gain and maintain eye contact with the child, whose verbalizations included some intelligible words which were usually of an echolalic quality. She observed many of the child's fine motor deficits which the occupational therapist had reported. The educational evaluator reported that the child did not appear to comprehend most auditorily presented information and had displayed great difficulty in following one-step directions. Consequently, the evaluator used visual cueing, modeling and repetition when testing the child. On a preschool screening test intended for three-year old children, the child demonstrated mastery of seven percent of the test objectives. She demonstrated relative strength in manipulative and matching tasks, but was perseverative while engaged in some tasks. The evaluator reported that the child's overall academic readiness level was equivalent to that of a child between the ages of twelve and twenty-four months. The educational evaluator recommended that the child be educated in an educational program designed to meet her multi-faceted needs, with a combination of individual and small group instruction. The curriculum of the child's program should, in the evaluator's opinion, emphasize the development of her functional daily living skills and meaningful communication. She concurred with the speech therapist's recommendation that a total communication approach be used with the child.

On March 3, 1993, respondents and members of petitioner's staff met with the CDC evaluation team to discuss the results of the child's evaluation, which had been summarized in a written report. The summary report indicated that the CDC had reviewed the child's medical records, but had not reviewed any school information about the child, in order to arrive at an independent decision about her needs. While acknowledging that the child exhibited many features of autism, the CDC team reported that the child was best understood as a youngster functioning in the severe to profound range of mental retardation. The team noted that the child's reported cognitive skills were at a level which was comparable to her composite adaptive behavior which had been determined upon information provided by her parent. In its evaluation summary, the CDC evaluation team recommended that the child receive instruction within a highly specialized, intensive special education program, with extended day services, on an extended year basis. The team opined that there was no basis for the child to remain at home to receive instruction. The team also recommended that the child receive speech/language therapy twice per week and occupational therapy once per week. In addition, the team recommended that the child receive weekly physical therapy, as well as adaptive physical education. The CDC team also recommended that the child be orthopedically evaluated because she exhibited kyphosis and scoliosis.

On April 13, 1993, respondents met with petitioner's CSE. A private education consultant who specialized in children with autism and developmental disabilities and who had assessed the child's educational program in 1991 at the request of petitioner also attended the CSE meeting. The CSE recommended that the child be classified as multiply disabled and that she be placed in a self-contained class with a 12:1+4 student/staff ratio in the Brookside School. The Brookside School is a private school for children with developmental disabilities, and is located in Cottekill, New York. The CSE further recommended that the child receive speech/language therapy twice per week, occupational therapy once per week, and physical therapy once per week. It also recommended that the child be evaluated to ascertain her need for music therapy, a service provided by the Brookside School.

On or about April 28, 1993, respondents requested that an impartial hearing be held to review the CSE's recommendation for the child's classification and placement and to obtain an independent evaluation at petitioner's expense. The hearing began on July 12, 1993, and was completed on June 9, 1994. In her decision, which was rendered on November 23, 1994, the hearing officer noted that the hearing dates and times had been changed to accommodate the respondents.

While upholding the CSE's recommendation that the child be classified as multiply disabled, the hearing officer urged the parties not to dwell upon their disagreement about the child's classification while planning the child's educational program. She found that the child required a 12-month educational program which should be provided as an inclusion program in petitioner's schools, rather than in the private school recommended by the CSE. The hearing officer suggested that the CSE develop the child's new program in phases to include instruction at her home, experiences in her community, and instruction in school. She upheld the CSE's recommendation for related services, but directed the CSE to consider adding transitional services (34 CFR 300.18) to the child's individualized education program (IEP). The hearing officer urged the parties to work together, and offered to retain jurisdiction for the limited purpose of resolving any dispute which might arise between the parties with regard to the child's IEP goals and objectives.

Before reaching petitioner's contention that the hearing officer erred by not upholding the CSE's recommendation that the child be enrolled in the Brookside School, I will first consider respondent's claim that the manner in which the hearing officer was appointed violated the Individuals with Disabilities Education Act. At the hearing, the Assistant to the Superintendent of Schools, who described herself as the child's case manager, testified that she had contacted various individuals on petitioner's list of approved, prospective hearing officers to ascertain whether one of these individuals would conduct the hearing in this proceeding. She further testified that she contacted a total of 16 hearing officers, in the order in which their names appeared on petitioner's list, before finding a hearing officer who was willing to serve. Petitioner then appointed the hearing officer on June 8, 1993.

The Assistant to the Superintendent's testimony was elicited to explain why there had been a delay in commencing the hearing, which the hearing officer found to be reasonable under the circumstances presented. At the outset of the hearing, respondents' attorney stated on the record that respondents had no objection to the hearing officer's impartiality, and the attorney did not raise the issue of the Assistant to the Superintendent's participation in the selection of the hearing officer until the third day of the hearing. In her decision, the hearing officer found that the administrator's telephone calls to the prospective hearing officers had not tainted the hearing officer's selection.

Boards of education have long been cautioned to avoid even the appearance of impropriety in the selection of hearing officers by not permitting school employees who will testify as witnesses or who may have otherwise been involved in the decision to be reviewed by a hearing officer to participate in the selection of the hearing officer (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 195; Application of a Child with a Handicapping Condition, Appeal No. 92-25, Application of a Child with a Handicapping Condition, Appeal No. 92-46; Application of a Child with a Disability, Appeal No. 93-47; Application of a Child with a Disability, Appeal No. 94-37). The appearance of impropriety would not be eliminated by petitioner's practice at the time and the now statutory requirement that prospective hearing officers be selected on a rotational basis from lists maintained by each board of education. There is at least the possibility in such ex parte conversations between a hearing officer and a school employee/witness that substantive issues could be discussed. Although, ex parte discussions of scheduling matters are not necessarily precluded between a school district representative and a hearing officer (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 138), it is better practice to avoid any discussion between a hearing officer and a witness in advance of a hearing. In this instance, the Assistant to the Superintendent who had spoken to the hearing officer prior to the hearing testified that she was not a member of the CSE, although she had attended the April 13, 1993 CSE meeting at which the CSE recommended that the child's classification be changed and that she be placed in the Brookside School. She further testified that when queried by prospective hearing officers about the subject matter of the hearing, she had responded by describing respondents' request for a hearing and had not discussed the case with them. The administrator also testified about petitioner's prior attempts to have the child evaluated at Yale, and the arrangements which were made for the child's evaluation at the CDC, but she did not testify about the results of the CDC evaluation or the CSE's recommendations. I also note petitioner's school psychologist testified that she had become the child's case manager on March 1, 1993. Upon the record before me, I find that the ex parte conversation of the Assistant to the Superintendent with the hearing officer at the time of the latter's selection, while inappropriate, does not afford a basis for invalidating the hearing officer's decision.

The appropriateness of the educational placement which the CSE recommended for respondent's child depends, in part, upon the adequacy of the evaluation which the CSE obtained and which respondents challenged. Petitioner bears the burden of proving that the evaluation obtained by its CSE was appropriate (Application of a Child with a Disability, Appeal No. 94-37). Federal and State regulations require that each child with a disability be re-evaluated at least once every three years (34 CFR 300.534 [b]; 8 NYCRR 200.4 [e][4]). The Federal regulation does not prescribe the kinds of examinations which must be performed, while the State regulation provides that each child receive a physical examination, a psychological examination, and such other examinations as the CSE may require. The CDC evaluation of the child included examinations by a neurologist, a psychiatrist, an ophthalmologist, an audiologist, a psychologist, a physical therapist, an occupational therapist and an educator experienced in testing children with autistic-like characteristics.

Respondents do not challenge the qualifications of the CDC staff to perform the evaluation, nor do they challenge the validity of test instruments used by the CDC staff, which in any event appear to have been appropriate for the purposes for which they were used (see 34 CFR 300.532 [a][2]). However, they do challenge the manner in which the CDC evaluation was conducted. They assert that the CDC evaluation was flawed because the CSE did not provide the CDC with the results of the child's prior evaluations, except for certain medical examinations which the CDC neurologist reviewed. At the hearing, a psychologist testifying on behalf of respondents explained that he would be "uneasy" about conducting a psychological evaluation without having access to the results of prior evaluations. However, the psychologist agreed that the results of prior examinations were not indispensable to the completion of an evaluation. Although the CDC psychologist and educational evaluator were questioned at the hearing about not being aware of prior evaluation results, each witness asserted that her evaluation was not flawed by the absence of such information. The CDC psychologist testified that the CDC had chosen not to consider the results of prior evaluations in order to arrive at an independent decision about the child's needs. In doing so, the psychologist acknowledged at least some awareness of the deep division between petitioner and respondents, which respondents assert is evidence of the CDC's bias against them. However, I find that there is no evidence in the record of any such bias.

Respondents also challenge the results of the CDC evaluation on the ground that much of the week-long evaluation was done in the mid to late morning, when the child was sleepy or had experienced seizures. At the hearing, the child's mother testified that the child dozed during the evaluation because she had had seizures prior to the evaluation. The child's father testified that the child had gotten very little sleep during the week-long evaluation. The CDC psychologist testified that she had observed the child having a seizure prior to her evaluation, and asserted that the child had not exhibited comparable symptoms during her evaluation. The CDC educational evaluator also testified that she had not observed any sign of the child's seizure disorder during the child's educational evaluation. The psychologist opined that the child's seizure medicine had not affected her performance during the evaluation. She further opined that the child's reported loss of sleep before the evaluation was conducted was not the cause of the child's non-scoreable responses during her IQ test. Respondents dispute the CDC psychologist's findings with respect to the child's cognitive skills on the ground that the psychologist did not use the child's "highly individualized augmentative communication system" when she tested the child. However, there is little information in the record about the child's communication system or its reliability. More importantly, the record reveals that the CDC psychologist used a variety of techniques to assess the child's developmental levels, such as obtaining information about the child from respondents. In addition, I note that the observations recorded by the CDC psychologist in her report are similar to those made by her CDC colleagues during their respective evaluations, and are similar to the observations made by the private education consultant who had observed the child in her home in 1991. Respondents' assertion that the CDC evaluation was deficient because no one from the CDC observed the child in her home is without merit. There is no legal requirement that a triennial re-evaluation include an observation of that nature. Moreover, the CSE had the private consultant's report of her extensive observation of the child in her home in 1991.

Upon the record before me, I find that the evaluation which the CSE obtained from the CDC was adequate to determine the child's individual needs and to establish her continuing eligibility to receive special education and related services, which is the purpose of a triennial re-evaluation. I further find that there is no merit to respondents' contention that they are entitled to receive an independent evaluation at petitioner's expense because of petitioner's alleged delay in responding to their request for such an evaluation. There is no evidence in the record that they requested an independent evaluation until after the CSE had made its recommendation for the child's classification and placement. After respondents had requested an impartial hearing to review the CSE's recommendation, petitioner advised respondent that it would defend the adequacy of its evaluation at the hearing, as it was legally entitled to do (34 CFR 300.503 [b]; 8 NYCRR 200.5 [a][1][vi]).

Petitioner asserts that the hearing officer erred in rejecting the CSE's recommendation that the child be placed in the Brookside School, and in directing the CSE to prepare an inclusion program for the child in petitioner's schools. Petitioner bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, petitioner must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD vs. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]). An appropriate program begins with an IEP, which accurately reflects the results of a child's evaluation to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

I find that the child's IEP which the CSE prepared on April 13, 1993, accurately reflects the results of the CDC evaluation and adequately describes the child's special education needs. However, I further find that the child's IEP is incomplete. There are no IEP annual goals or short-term instructional objectives, except for a single communication goal and six related objectives. In its memorandum of law, petitioner acknowledges that its IEP is incomplete, but asserts that it has been deprived of the opportunity to amass the necessary information to prepare goals and objectives by respondents' alleged refusal to allow petitioner's staff access to the child in her program at home. Petitioner asks that it be allowed to place the child at the Brookside School for 45 days, after which the CSE will reconvene to develop IEP goals and objectives based upon what its representatives observe the child do while she is in the Brookside School. Petitioner's request cannot be granted.

The question of whether respondents have granted or withheld access to the child by petitioner's staff is not relevant to this proceeding. The CDC evaluation, which was completed one month before petitioner's CSE prepared the child's IEP, contained sufficient information about the child's levels of development and her current needs for the CSE to prepare appropriate annual goals and short-term objectives. The CSE's failure to do so is inexplicable. Nevertheless, I am constrained to find that the hearing officer's decision about the child's educational program is, at best, premature. In her decision, the hearing officer

found, notwithstanding the CDC recommendation that the child be educated in a special education class, that "[the child] can achieve her IEP goals within the regular education program with the assistance of supplementary aids and services ... ". That finding was the premise for the hearing officer's directive that the CSE develop an inclusion program for the child. Since there was no basis in fact for the hearing officer's premise, her decision must be annulled.

This matter must be remanded to petitioner's CSE to complete the child's IEP. The CSE should consider the appropriateness of specialized equipment for the child, such as a computer, in light of the recommendation of the CDC staff. In view of the child's age, the CSE must include a statement of needed transition services in the child's IEP (8 NYCRR 200.4 [c][2][v]). When the CSE has prepared appropriate annual goals and short-term instructional objectives for the child, it must then consider the type of program in which the child may reasonably be expected to achieve her goals and objectives. The CSE's consideration of an appropriate program must include a determination of what is the least restrictive environment for this child, who has received virtually all of her education at home.

Although not defined by Federal and State regulation, the term "inclusion" which the hearing officer used is generally recognized by educators to mean the placement of a child with a disability with the child's age-appropriate peers in a regular education class, in which the child receives appropriate special education services (Application of a Child with a Disability, Appeal No. 94-17). In her decision, the hearing officer adopted the IEP description of the child's needs in which the child was described as having a severely constricted interest in her environment and limited ability to relate meaningfully to her environment. She was also described as requiring individualized modeling, hand-over-hand direction and computer prompted instruction. The hearing officer further adopted the IEP description of the child's management needs, which indicated that the child requires a highly intensive special education program with a total communication approach with emphasis on functional daily living skills. Given the child's extensive needs, it is not apparent from the record how her needs could be addressed in a meaningful way in an inclusion program as the hearing officer directed. However, the CSE must first prepare IEP goals which address the child's needs, and then determine whether an appropriate special education program can be provided to the child in a regular education eighth or ninth grade class.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the portion of the hearing officer's decision dealing with the CSE's recommendation for the child's educational program is annulled, and;

IT IS FURTHER ORDERED that within 30 days after the date of this decision the CSE shall complete the child's IEP and make a new recommendation for the child's educational program in accordance with the tenor of this decision.