Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York
Ben M. Arai, Esq., attorney for petitioner
Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Robert J. Cicero, Esq., of counsel
Petitioner appeals from an impartial hearing officer's determination to proceed with a hearing, in petitioner's absence. The hearing officer found that petitioner was aware that the hearing would be held, and that petitioner had failed to offer a legally sufficient excuse for her failure to attend the hearing. Petitioner contends that she was physically incapacitated at the time of the hearing because of injuries which she had received in an automobile accident. She asks that the hearing officer's decision that petitioner was not entitled to receive an independent evaluation of her child, at respondent's expense, be annulled. Based upon evidence not available as of the date of the hearing but which was submitted with the petition in this matter, the appeal is sustained.
Petitioner's son is 14 years old. In April, 1994, respondent's committee on special education (CSE) recommended that the child be classified as learning disabled, and that the child receive resource room services while enrolled in the seventh grade of Intermediate School 74. In a prior proceeding, petitioner challenged the validity of a purported CSE annual review of the child in November, 1994. The annual review was found to be a nullity by an impartial hearing officer. Petitioner's appeal from the hearing officer's decision was dismissed on the ground that she was not aggrieved by the hearing officer's decision (Application of a Child with a Disability, Appeal No. 95-45).
This proceeding arises from petitioner's request for an independent evaluation of her son, at respondent's expense. In a letter to the CSE, dated February 10, 1995, petitioner asked for a CSE meeting to discuss whether she could obtain independent neurological and psychiatric evaluations of the child. She also asked the CSE to pay for an independent review of the CSE's April, 1994 evaluation of the boy. The record does not reveal whether the requested CSE meeting was held. During the period between March 22, 1995 and April 13, 1995, the child was independently evaluated at the School Problems Center of the Mount Sinai Medical Center, in New York City.
Federal and State regulations provide that the parents of a child with a disability are entitled to obtain an independent educational evaluation at public expense, if they disagree with the school district's evaluation. However, their right to an independent evaluation at public expense is subject to the right of the school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If a hearing officer finds that the school district's evaluation of the child was appropriate, the parent may nevertheless obtain an independent evaluation, but not at the school district's expense (34 CFR 300.503; 8 NYCRR 200.5 [a][vi][a]).
Respondent initiated a hearing to demonstrate the appropriateness of its CSE's evaluation of the child. In a decision dated May 22, 1995, and amended on June 23, 1995, an impartial hearing officer dismissed respondent's request for a hearing, without prejudice, because the Board of Education was reportedly not prepared to go forward with the presentation of its case. On June 24, 1995, respondent renewed its request for a hearing. A hearing was scheduled to begin on July 13, 1995.
In a letter to respondent's Impartial Hearing office, dated July 3, 1995, petitioner indicated that she had been injured in a recent automobile accident, and requested a postponement of the hearing until her doctor believed that she could "sit through such an ordeal." She attached a copy of a form signed by her chiropractor to her letter. On the form, which was also dated July 3, 1995, the chiropractor indicated that petitioner had been diagnosed as having Cervico Brachial Syndrome with Radioculopathy, Sciatic Neuritis, instability of lumbosa or sacraliliac joint, and Facet Syndrome. He also indicated that petitioner was unable to sit for prolonged periods of time, "until further notice." In a subsequent letter which was dated July 6, 1995, petitioner reiterated her request for a postponement of the hearing, and indicated that she would telephone the Impartial Hearing Office, when her doctor indicated that she could sit through "hours of hearings".
On July 6, 1995, a hearing was held by telephone with regard to petitioner's request for a postponement of the hearing which had been scheduled to be held on July 13, 1995. Petitioner, who was reportedly notified of the telephonic hearing on her adjournment request, did not participate. The CSE representative testified that the CSE did not oppose petitioner's request for an adjournment of the hearing. In an interim order which was dated July 13, 1995 and amended on July 17, 1995, the hearing officer adjourned the hearing until August 8, 1995. Thereafter, the hearing was adjourned until August 18, 1995. Petitioner was notified of the date for the adjourned hearing, in a letter which was dated August 2, 1995.
In a letter to the Chief Administrator of the Impartial Hearing Office, which was dated August 4, 1995, petitioner acknowledged that the hearing was scheduled to take place on August 18, 1995. Petitioner also indicated that:
"It is clear that the Impartial Hearing Office has ignored my last two letters, wherein I point out that my son's educational process is suffering from a denial of Due Process of Law.
When the Impartial Hearing Office ignores my son's right to Due Process of Law, it is clear that it has become futile to try and exhaust my administrative remedy through the Impartial Hearing Office."
Petitioner's last two prior letters were apparently written on July 12, 1995 and July 30, 1995. The July 12, 1995 letter is not part of the record in this proceeding. The July 30, 1995 letter is in the record. In her July 30, 1995 letter to the Chief Administrator, petitioner referred to her prior letters of June 30, 1995, July 3, 1995, and July 12, 1995 with regard to her physical condition as a result of the automobile accident. She also referred to her letters of June 23, 1995 and July 12, 1995 with regard to an alleged denial of due process of law, and stated that:
" ... therefore, I will not go into ANY hearing until that condition has been corrected." [emphasis in the original]
On August 18, 1995, the hearing officer opened the hearing. Petitioner was not present at the hearing. The hearing officer entered into evidence the August 2, 1995 notice of the hearing, and petitioner's letters of July 3, 1995, July 6, 1995, July 30, 1995, and August 4, 1995. She also took testimony from an employee of respondent's Impartial Hearing Office. The employee testified that the Impartial Hearing Office had not received any correspondence from petitioner with regard to an adjournment of the August 18, 1995 hearing, other than petitioner's letter dated August 4, 1995. The hearing officer orally ruled that petitioner had been given adequate notice of the date for the hearing, and that petitioner failed to provide an excuse for her absence from the hearing. The hearing officer allowed the CSE chairperson to present testimonial and documentary evidence about the adequacy of the evaluations which the CSE had obtained in 1994, and the similarity of the results of those evaluations with those which the independent evaluator had reported.
On September 12, 1995, the hearing officer rendered her written decision. She found that petitioner's August 4, 1995 letter had not referred to any medical problem which would have prevented her from attending the hearing. The hearing officer noted that the CSE chairperson testified that petitioner had spent about 90 minutes in the CSE's office on August 9,1995, and about 60 minutes in that office on August 14, 1995, for the purpose of reviewing and copying portions of her son's records. The CSE chairperson also testified that petitioner had indicated to her that she would not attend the August 18, 1995 hearing, and that her reason for not attending involved the alleged due process violations, rather than her medical condition. With regard to petitioner's request for reimbursement for the independent evaluation which she had obtained in March and April, 1995 at the Mount Sinai Medical Center, the hearing officer found that respondent had met its burden of proving that the CSE's evaluations were appropriate. Therefore, she denied petitioner's request for reimbursement for the cost of the independent evaluation.
In this appeal, petitioner has not addressed the hearing officer's finding that the CSE's evaluations were appropriate. Petitioner contends that the hearing officer's decision should be annulled because the hearing officer disregarded evidence of petitioner's physical inability to participate in the hearing, and violated her procedural due process rights by proceeding with the hearing on August 18, 1995.
Respondent asserts that petitioner never specifically sought an adjournment of the August 18, 1995 hearing, and argues that it was reasonable for the hearing officer to proceed with the hearing on that date, in light of petitioner's prior indication that she would not attend any hearing.
Federal and State regulations afford each party to a hearing the right to present evidence, and to confront and cross-examine witnesses (34 CFR 300.508 [a]; 8 NYCRR 200.5 [c]). A hearing must be conducted at a time and place which is reasonably convenient to the parent and the student involved (8 NYCRR 200.5 [c]). Although a parent of a child with a disability clearly has the right to attend a hearing, the parent may not prevent a hearing from being held by the simple expedient of not appearing at the hearing, or failing to make a bona fide request for an adjournment of the hearing (Matter of a Child Suspected of Having a Handicapping Condition, 22 Ed. Dept. Rep. 412; Matter of a Handicapped Child, 23 id. 423; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-5). The initial question is whether petitioner in fact requested that the August 18, 1995 hearing be adjourned. In her August 4, 1995 letter with reference to the rescheduling of the hearing from August 8, 1995 to August 18, 1995, petitioner explicitly referred only to her claim of an alleged denial of due process, and expressed her belief about the futility of the administrative process. Absent any other information, I would uphold the hearing officer's determination that petitioner had not requested an adjournment, and had chosen not to attend the August 18, 1995 hearing. However, the record demonstrates that the hearing officer was aware of the petitioner's injury in June, 1995, from the hearing officer's prior involvement in this case and her two prior interim orders. The record before the hearing officer included petitioner's letter of July 3, 1995 requesting an indefinite postponement of the hearing and the supporting document signed by petitioner's chiropractor. Petitioner's July 30, 1995 letter, which was also part of the record, also indicated that petitioner was continuing to claim that she was incapacitated by her injury.
Petitioner has annexed to her petition in this appeal a copy of a letter to her chiropractor, dated July 27, 1992, from a physician who reported the results of magnetic resonance imaging performed on petitioner. Petitioner has also attached to the petition a brief form letter from her physician, dated October 16, 1995, describing her medical condition. Neither document was in the record which was before the hearing officer. Petitioner asserts that she did not learn of the results of the MRI test disclosed in the July 27, 1995 letter until October. Since the two documents were not available at the time of the hearing in this proceeding, I will consider them in this appeal (Application of a Child with a Disability, Appeal No. 95-41).
I am greatly troubled by petitioner's letter of July 30, 1995, and the testimony of Ms. Witt (Transcript, page 10) regarding the parent's alleged statement on August 14, 1995, which raise serious questions regarding the true reason for petitioner's absence from the August 18, 1995 hearing. However, the October 16, 1995 letter from petitioner's physician indicated that petitioner had been incapacitated since June 23, 1995 because of herniated discs in her neck which caused moderate to severe neck pain and which limited petitioner's movement. Although the form letter from petitioner's physician did not specifically state that petitioner was unable to attend a hearing, it did describe symptoms which could interfere with petitioner's ability to do so. Under the circumstances, which include the fact that a delay in the resolution of the payment for the independent evaluation issue should not in any way deter the CSE from discharging its responsibility to recommend an appropriate educational program for the child, and that respondent has not demonstrated that it would be prejudiced by a delay in resolving the payment issue, I find that petitioner should be afforded the benefit of the doubt, and allowed another opportunity to participate in the hearing which respondent had requested. Therefore, I will annul the hearing officer's determination solely on the procedural issue of allowing petitioner another opportunity to attend the hearing. Petitioner must promptly notify respondent's Impartial Hearing Office when she is medically able to participate in a hearing. That Office must then schedule a hearing on this matter.
Finally, I must note that respondent has asserted that the present matter is another indication of that lack of cooperation between the parties which was noted in my prior decision. It has expressed the concern that the CSE may be thwarted from developing the child's individualized education program (IEP). The CSE must proceed to prepare the child's IEP, if it has not already done so. If the child's parent is unable to attend a CSE meeting, the CSE must attempt to arrange for alternate means of allowing the parent to participate, such as individual or conference telephone calls (Application of a Child with a Handicapping Condition, Appeal No. 91-36). Similarly, the parent must make every good faith effort to cooperate fully with the CSE for the benefit of the child.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing officer is annulled.