99-079

Petitioners appeal from the decision of an impartial hearing officer holding that the Board of Education may reevaluate petitioners' child despite petitioners' withholding of consent to such reevaluation. She further found that petitioners received appropriate notice of the reevaluations, the IEP team did not need convene to decide whether to conduct reevaluations, and circumstances warranted a reevaluation. The appeal must be sustained in part.

        Before reaching the merits of the case, I must address two procedural issues. The first issue pertains to late service of the answer. Respondent asks me to excuse its delay, and accept its answer. Petitioners assert that respondent has not demonstrated good cause for its delay, and that they have been prejudiced by the delay in serving the answer. They assert that I should not accept the answer.

        The petition was dated and served on September 13, 1999. Respondent's answer should have been served within ten days thereafter, i.e., by no later than September 23, 1999 (8 NYCRR § 279.5). However, respondent’s answer was not served until October 22, 1999. Respondent is represented by the New York City Corporation Counsel. The attorney assigned to defend respondent did not receive the petition until shortly before the answer was due. He asserts that he promptly attempted to contact petitioners after the case was assigned to him, and that he ultimately did ask them to consent to an extension of time which petitioners declined to do. Although I find that assignment of the case to an attorney a mere three days prior to the deadline for the answer is not per se good cause for a delay in serving the answer, I will excuse respondent’s delay in this instance. In doing so, I find that petitioners have not been harmed by respondent’s delay. Although they allege that the CSE has not met to create a new IEP for their child, I must point out a CSE is not prevented from meeting to create a new IEP simply because an appeal is pending. I note that I have also accepted petitioner’s reply to the answer, notwithstanding their failure to adhere to the limitations with respect to the contents of a reply (8 NYCRR 279.6).

        The next procedural issue concerns the submission of additional evidence by petitioners. Respondent asserts that the additional evidence should be disregarded. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer’s decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete (Application of a Child with a Disability, Appeal No. 95-41). Upon review of the documents in question, I find that some of them were available at the time of the hearing, e.g. the occupational therapy evaluations, the speech/language evaluation and the assistive technology evaluation. I will accept them in the interest of having a complete record. The remaining documents were not available when the hearing was held, and they will be accepted in this appeal.

        Petitioners' child was seven years old and attending the Bank Street School for Children (Bank Street) at the time of the hearing. When evaluated in 1996, the child was found to have a verbal IQ of 80, a performance IQ of 100, and a full scale IQ of 87. She has cerebral palsy, and has been classified as orthopedically impaired by respondent’s committee on special education (CSE). Her classification is not at issue in this proceeding. The child was reportedly attending Bank Street at respondent’s expense pursuant to hearing officer’s decision in another proceeding.

        For the 1998-99 school year, the CSE had recommended that petitioners’ daughter be enrolled in a general education program, with consultant teacher services. The child's Individualized Education Plan (IEP) provided that she be assisted by full-time management and transportation aides, and that she receive individual occupational therapy four times per week for thirty minutes, individual physical therapy three times per week for sixty minutes, individual speech/language therapy four times per week for thirty minutes, and individual counseling once a week for sixty minutes. Testing modifications included assistance from the child's full time management paraprofessional, time limits extended or waived, exams administered in special locations, questions read aloud, answers recorded in any manner, directions read and reread aloud, exams adapted/modified for motor and articulation disabilities, and seating and desk modified for low muscle tone and postural difficulties. In accordance with an impartial hearing officer’s order dated April 16, 1998, an Apple computer was provided to the child along with three hours of computer training per week for the child, her teacher and her paraprofessional (Exhibit SD-1).

        In the Spring of 1999, Board of Education personnel contacted petitioners regarding new evaluations for their child in preparation for the CSE’s annual review of the child. In a letter to petitioners dated April 21, 1999, the Supervisor of Education Evaluators indicated that progress reports had already been requested from Bank Street. The Supervisor also indicated that the CSE intended to hold its review prior to the end of the school year at Bank Street on June 16, 1999, so that the child’s teachers at the private school could participate. The letter further indicated that the Board of Education intended to schedule evaluations within two weeks of the date of the letter, even if progress reports had not been received (Exhibit SD-2).

        In a memo dated April 29, 1999, one of the child's parents responded to that letter by indicating that she felt the CSE would be able to make an appropriate recommendation for the child based solely upon the progress reports from Bank Street. She stated that she did not feel that the Board of Education's evaluations had been properly conducted in the past. However, the parent indicated that petitioners would be willing to work with the Board of Education if it insisted upon performing its own evaluations (Exhibit SD-5).

        On May 6, 1999, the Supervisor of Education Evaluators responded to the April 29 memo. She stated that she understood that progress reports would not be available prior to May 5, but they would be sent as quickly as possible. She also stated that the Board of Education would conduct its own psychological, educational, speech/language, occupational therapy, physical therapy and technology assessments. The letter also served as notice that a CSE meeting was being scheduled for June 8, 1999 (Exhibit SD-4).

        On May 12, 1999, one of the child's parents responded that petitioners did not consent to evaluations of the child as they were being proposed, except for a psychological evaluation. She stated that she was willing to meet with the person who had the "ultimate decision making authority" with respect to the scope of the evaluations in order to arrive at an arrangement that would be agreeable to both petitioners and the Board of Education (Exhibit SD-3).

        In a letter to one of the petitioners on May 14, 1999, a Board of Education attorney opined that the Board of Education had the right to conduct its own evaluations, rather than be forced to rely upon the parents' evaluations. The letter included a schedule of evaluations, and advised petitioners that the Board of Education would resort to requesting an impartial hearing if petitioners did not consent to the evaluations (Exhibit SD-6).

        A hearing was held on May 21, 1999. The Board of Education’s attorney argued that the Board needed to conduct new evaluations in order to assess the child's current levels of functioning, and that it had the right to do its own evaluations. The Board of Education sought to conduct educational, speech/language, occupational therapy, physical therapy, feeding, and assistive technology assessments. Respondent’s Supervisor of Education Evaluators explained that the progress reports from Bank Street upon which petitioners wanted the CSE to rely would not be made available until July, and the CSE could not meet in July. She testified that the CSE’s most recent information concerning the child was more than a year old, and that the CSE might still need to evaluate the child, even if it received the progress reports (R. 25). One of the petitioners attended the hearing, and explained her opposition to the proposed evaluations. She asserted that petitioners did not receive proper notice of the evaluations. The parent argued that the Individuals with Disabilities in Education Act (IDEA), as amended in 1997, required that an IEP team meet to review existing data and determine whether additional evaluations are necessary. She contended that the IEP team is an entity separate and distinct from the CSE, and that respondent had violated the IDEA by not having an IEP team determine that the evaluations were necessary. Finally, the parent argued that the child was sensitive to her limitations, and might be psychologically harmed by the evaluations. She represented that staff from Bank Street would be available to meet with the CSE in July.

        The hearing officer rendered her decision on July 30, 1999. The hearing officer held that petitioners received appropriate notice of the evaluations. She found that on at least two different occasions the Board of Education sent written notice of evaluations which listed the categories of evaluations desired. After reviewing the amended IDEA, the hearing officer rejected petitioners’ purported distinction between the CSE and an IEP team. She found no evidence that Congress intended to create a new entity called an IEP team. She interpreted the term "IEP team" in the IDEA as meaning the CSE in New York. The hearing officer further found that the IEP team need not meet to decide whether to conduct evaluations because the statute did not require such a full scale review prior to conducting evaluations. She addressed petitioners' argument that the child's sensitivity to her disabilities should preclude evaluations by noting that the evaluations would be conducted by trained, qualified personnel, who would be sensitive to the child's needs. She ordered respondent to conduct appropriate evaluations to determine the child's current educational needs.

        Petitioners challenge the hearing officer’s decision on both procedural and substantive grounds. They assert that the hearing officer erred by not allowing them to enter a written summary of their position into the record because they had not disclosed the document to respondent’s attorney five days before the hearing (see 34 CFR 300.509 [a][3]; 8 NYCRR 200.5 [c][9]). Petitioners contend that since the summary was not evidence, the above-cited regulations did not apply to it. I agree, but I find that the hearing officer did not abuse her discretion by refusing to admit the document into evidence because it was not in fact evidence. The record reveals that she afforded petitioners, one of whom is an attorney, the opportunity to orally explain their position.

        Petitioners assert that the hearing officer should not have allowed respondent’s Supervisor of Education Evaluators to refer in her testimony to a report by a social worker regarding a meeting which the social worker had with one of the petitioners because petitioners had not been given advance notice that the report would be used at the hearing. I note that the report was not admitted into evidence. While I caution respondent about circumventing the 5-day disclosure rule, I find that it was not a crucial defect in the hearing.

        Petitioners assert that the hearing officer did not render her decision until approximately 75 days after respondent had requested the hearing (cf. 34 CFR 300.511 [a]; 8 NYCRR 200.5 [c][11]). They contend that I should consider that fact in determining the relief to which they are entitled in this appeal. I must point out that the appropriate remedy for a delay in the rendering of a hearing officer’s decision is an appeal to the Commissioner of Education pursuant to Section 310 of the Education Law.

        Petitioners contend that the hearing officer erred on both the law and the facts in finding that respondent had afforded them the requisite notice of the proposed evaluations. They assert that respondent did not comply with the provisions of 20 USC 1415 (c), which require that when a school district proposes to evaluate a child, it must give written notice to the child’s parents. The notice must describe the proposed evaluation, and why it is being proposed, and advise the parents of the means by which a description of the procedural safeguards may be obtained. I note that in their petition, petitioners acknowledge that they did receive written notice of their due process rights in March, 1999, with the notice for the CSE’s annual review. However, petitioners assert that the written notice which they received did not describe the evaluations which the CSE proposed to do, or explain why the CSE wanted to do the evaluations. A copy of the notice is not in the record which is before me. Although that is a significant omission in terms of respondent’s burden of proof, I must note that in her letter dated April 21, 1999 to petitioners (Exhibit 2), the Supervisor of Education Evaluators referred to a previous conversation one of the petitioners had with the school social worker about the proposed evaluations. One of the petitioners testified at the hearing that the social worker had told her that the evaluations might be performed. In her May 6, 1999 letter to petitioners (Exhibit 4), the Supervisor indicated what evaluations would be done, and why they would be done. She explained that they were to be performed so that the CSE could determine an appropriate educational setting for the child, as well as the appropriate levels of related services to be provided to her. I find that the letters of April 21 and May 6, together with the previously received due process information, satisfied the notice requirement.

        Petitioners also rely upon the provisions of the IDEA, as amended in 1997, to challenge respondent's insistence that their child be reevaluated. They contend that there is no basis in fact to reevaluate their child, and that the CSE did not follow the prescribed procedure for determining that there was a need to reevaluate her. As amended, 20 USC 1414 (a)(2)(A) provides that:

"A local educational agency shall ensure that a reevaluation of each child with a disability is conducted –

(A) if conditions warrant a reevaluation or if the child's parent or teacher requests a reevaluation, but at least once every 3 years; and"

        The amended 20 USC 1414 (c)(1) provides that:

"As part of an initial evaluation (if appropriate) and as part of any reevaluation under this section, the IEP Team described in subsection (d)(1)(B) and other qualified professionals, as appropriate, shall –

1. review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom-based assessments and observations, and teachers and related service providers observation; and
2. on the basis of that review, and input from the child's parents, identify what additional data, if any, are needed to determine –
   
   1. whether the child has a particular category of disability, as described in Sec. 1401 (3), or, in case of a reevaluation of a child, whether the child continues to have such a disability;
   2. the present levels of performance and educational need of the child;
   3. whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and
   4. whether any additions or modifications to the special education and related services are need to enable the child to meet the measurable annual goals set out in the individualized education program of the child and to participate, as appropriate, in the general curriculum.

        Petitioners contend that a decision to reevaluate a child must be made by the IEP Team, rather than respondent’s staff. They further contend that the hearing officer erred by finding that the child should be reevaluated simply because she is severely impaired and receives a wide variety of services under the IDEA. Respondent argues that it is authorized to obtain new information about the child so that it may carry out its responsibility to prepare an appropriate IEP for her.

        I find that the IDEA’s references to an IEP Team must be construed as meaning the CSE in New York State. The CSE is the entity responsible for preparing IEPs ( 8 NYCRR 200.4 [c]). Each child’s IEP must include a description of the child’s present levels of performance, and indicate the child’s individual needs with respect to his or her academic achievement, social development, physical development, and management needs (8 NYCRR 200.4 [c] [2] [i]). I agree with respondent that the provisions of 20 USC 1414 (a) (2) (A) do not preclude a CSE from evaluating a child more frequently than once every three years, if the child’s parents or teacher has not requested an evaluation. However, the amended IDEA provides that existing data about a child must first be reviewed by the CSE and other qualified professionals, as appropriate, to determine whether the child should be reevaluated, and what additional evaluation data should be obtained. The relevant Federal regulation indicates that the "group", i.e., the CSE and other qualified professionals, "may conduct its review without a meeting" (34 CFR 300.533 [b]). State regulations were amended as of January 6, 2000 to reach a similar conclusion (8 NYCRR 200.4 [b] [5] [i]). Nevertheless, I am constrained to find that respondent has not demonstrated how the review was performed, and the conclusion reached to reevaluate the child, or what specific additional evaluation data should be obtained. Therefore, I must sustain petitioners' appeal.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that respondent's CSE shall conduct its review of the child's existing evaluation data, and determine whether additional evaluations are warranted, and if so, the CSE shall specify what evaluative data are to be sought.