01-022

        Petitioner, the Board of Education of the Auburn Enlarged City School District, appeals from an impartial hearing officer’s determination annulling the recommendation of its Committee on Special Education (CSE) that respondent’s child not be classified as a student with a disability and directing the CSE to classify the child as a student with an emotional disturbance. The appeal must be sustained in part, albeit for reasons other than those asserted by petitioner.

        At the outset, I must address two procedural issues. Respondent objects to petitioner’s submission of certain documents with its petition that were not part of the record below. Four documents (Exhibits 1, 2, 3, and 4) are correspondence between counsel to the parties and to the hearing officer relating to access by petitioner’s counsel to the student’s records at the Cayuga County Community Mental Health Center (CCCMHC). Exhibits 5 and 6 are the student’s Treatment Plan from CCCMHC and progress notes relating to the student’s treatment at CCCMHC. Exhibit 11 is a request by respondent’s attorney to the Director of CCCMHC to make available records to petitioner and allow the student’s psychologist to testify at the hearing in this matter.

        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 if the record would be incomplete without the evidence (Application of a Child With a Disability, Appeal No. 01-008; Application of the Board of Education of the North Salem Central School District,Appeal No. 00-042). Exhibits 1, 2, 3, 4 and 11 were all available at the time of the hearing. They relate to the school district attorney’s attempts to gain access to the student’s records maintained at CCCMHC, and are at best tangentially related to the issue of whether the hearing officer properly excluded Exhibits 5 and 6 (the boy’s records at CCCMHC) from the record at the hearing. The latter two exhibits were excluded because they were not disclosed to the respondent five business days prior to that request. I will accept each of the exhibits in question for the purpose of having a complete record upon which to decide petitioner’s objection to the hearing officer’s ruling.

        Petitioner asserts that the hearing officer engaged in misconduct by declining to return the hearing record to petitioner before receiving payment for her services as hearing officer. The Board of Education contends that the hearing officer’s name should be removed from the list of state certified hearing officers. I find that the hearing officer’s post-decision conduct and the relief requested by petitioner are not matters that are within my jurisdiction to review and order. Petitioner does, however, have a forum to address its concerns about the hearing officer’s action. It may file a complaint with the Commissioner of Education pursuant to 8 NYCRR 200.21 to take action against the hearing officer’s certification as a hearing officer.

        Respondent’s son was eight years old and had completed a second grade regular education program in petitioner’s Owasco Elementary School at the time of the commencement of the hearing in the summer of 2000. The child attended private pre-school and kindergarten programs. In the fall of 1997, he was referred by his mother and private school kindergarten teacher to one of petitioner’s school psychologists because of concerns about his behavior. The school psychologist reported that the child’s cognitive skills were in the average range, but she did not administer projective tests to the child. She noted that he had reportedly been sexually abused by his father. The school psychologist opined that the child would benefit from a supportive environment with a structured and consistent behavior management plan, but did not recommend that he be referred to the CSE. Instead, she suggested that he be seen by a private mental health practitioner for counseling (Joint Exhibit 96).

        In November 1997, the child was asked to leave the private kindergarten because of behavioral concerns. The child thereafter transferred to petitioner’s Genesee Elementary School for the balance of the 1997-98 school year and for first grade during the 1998-99 school year. He began second grade in the Genesee Elementary School, but transferred to petitioner’s Owasco Elementary School (his home school) in November 1999 subsequent to three disciplinary referrals, one of which resulted in a five-day suspension.

    Respondent’s son manifested many behavioral difficulties during kindergarten through second grade, including insubordination to his teachers and verbally and physically aggressive behavior toward other children. During kindergarten, he was the subject of a total of nine disciplinary reports (Joint Exhibit 19, 49, 81-94, 102; Transcript pp. 387-90). In the first grade, the child was the subject of five more disciplinary reports, including one that resulted in a suspension (Joint Exhibit 49, 74-75, 77-80; Transcript pp. 395-97). After transferring to the Owasco Elementary School in November 1999, the child was the subject of 13 disciplinary reports during the remainder of the school year (Joint Exhibit 19, 49). Two weeks after his arrival at Owasco, the child was referred by his teacher to the school’s Building Evaluation Team (BET) because of his behavior (Joint Exhibit 64, 68; Transcript p. 341). Thereafter, the child’s conduct was the subject of a superintendent’s conference in late December 1999 (Joint Exhibit 54, 55, 57).

        The child received counseling at Family Counseling Service for two years prior to kindergarten (Transcript pp. 381-83). He has continued to receive weekly counseling sessions from a certified social worker since kindergarten because of behavior problems, and to address the reported sexual and physical abuse by his now-absent father (Joint Exhibits 49, 50; Transcript pp. 390-91, 426). The child’s pediatrician referred him to CCCMHC for psychiatric and psychological assessment and treatment of behavioral symptoms at home and school. A CCCMHC staff psychologist, has provided the student with psychological counseling on a regular and continuing basis since January 2000. The child began taking medication to moderate his behavior in 1998, and was taking Risperdal for that purpose at the time of the hearing.

        The Owasco Elementary School’s BET recommended a psychological evaluation of the child (Joint Exhibit 68; Transcript p. 309). However, before that recommendation was effectuated, respondent arranged to have her son evaluated by a school psychologist at CCCMHC in early February 2000 (Transcript pp. 403-04, 581). The CCCMHC school psychologist reported that the child’s cognitive abilities were in the average range, and that his academic achievement was commensurate with his intellectual ability, with some weaknesses in time and money concepts and in drawing conclusions from passages he read. She also reported that there was evidence of a possible serious attention deficit disorder (ADD) that should be reviewed by a physician, and that the child’s oppositional/defiant tendencies appeared to be significantly interfering with his ability to be successful in school. Her recommendations included continued therapy focusing on the family unit, careful consideration of class placement, and pairing the child with an appropriate teacher (Joint Exhibit 50).

        In a report dated March 13, 2000, the psychologist who was counseling the child at CCCMHC reported that respondent’s son was experiencing "duress" in his second grade classroom because his teacher reportedly loudly verbally reprimanded the child in front of his classmates. The psychologist opined that should that practice continue, it would impair the child’s ability to maintain adequate academic and social standing in his class. He indicated that there was insufficient evidence to support a diagnosis of an ADD at that time (Joint Exhibit 48).

        On March 20, 2000, the school principal suspended respondent’s son from school for five days for insubordination and kicking a teacher (Joint Exhibit 46). After a hearing, petitioner’s superintendent of schools extended the suspension until May 17, 2000, on charges including that incident as well as others dating back from November 18, 1999 (Joint Exhibit 42). The child was out of school from March 21 through May 23, 2000, during which time he received alternative 1:1 educational services for an hour a day at the Booker T. Washington Center (BTW) (Transcript pp. 146-47, 182-84, 222-26, 326; Joint Exhibits 33, 42, 43, 46). Respondent’s son returned to his second grade class on May 24, 2000. He reportedly misbehaved during that afternoon (Joint Exhibit 22). The next day, he was suspended from school for allegedly kicking his teacher (Joint Exhibit 113). After a hearing, the suspension was extended and the child received alternate educational services at the BTW Center for the rest of the school year (Transcript p. 327-28, 222-23). I do not review the propriety of the boy’s suspension from school because it is not an issue in this proceeding.

        The child’s year-end letter grades were "Ds" in reading, mathematics, and language and a "C+" in spelling (Joint Exhibit 3). The report card also indicated the child was performing below grade level in mathematics and reading. The report card’s fourth quarter narrative stated the teacher’s opinion that the child’s behavioral outbursts negatively affected his schoolwork and grades and that the child should repeat second grade (Joint Exhibit 3; Transcript pp. 352-53). By the end of the child’s second grade year, the classroom teacher had filed police reports regarding the March and May incidents for which the child had been suspended (Transcript p. 364).

        In late April 2000, respondent asked petitioner’s CSE evaluate her son (Joint Exhibits 38, 34, 35, 24). She completed a social history form, on which she indicated that her child had seizures or convulsions, had received three different pairs of eyeglasses in the past 8 months, and had symptoms of allergies.

        A school psychologist observed the child on May 2, 2000, for a period of 35 minutes at BTW. She reported that the child worked quietly and without incident with his teacher, but turned around in his seat several times, and left his seat to ask the teacher questions. The school psychologist noted that the behavior that she had observed might have been atypical because the child’s teacher described the child as one who might refuse to do assigned work, argue with corrections, and engage in dramatic actions such as dancing or showing off (Joint Exhibit 49).

        In her subsequent evaluation report, the school psychologist reported that the child had achieved a verbal IQ score of 101, and a performance IQ score of 100, with no significant subtest scatter. The resulting full scale IQ score of 101 (53rd percentile) showed the child to be in the average range of cognitive functioning. The child’s performance on the Bender Visual Motor Gestalt Test indicated that he had tendencies toward impulsivity and poor planning and organization. Projective testing revealed that he had oppositional tendencies, as well as marked negativity and a potential for acting out. He also manifested a need for acceptance and attention, particularly from peers, possible exhibitionist tendencies, and difficulty in controlling impulses. The psychologist concluded that the child demonstrated negativistic, hostile, and defiant behaviors at school and that as a result of his tendency to disregard rules, argue, and engage in power struggles, he had difficulty with peer and adult relationships in school. The report also concluded, however, that the child did not meet the criteria for a child with an emotional disturbance or a learning disability (Joint Exhibit 49).

        Petitioner’s CSE did not refer the child for a physical examination as part of its CSE evaluation. Petitioner’s psychologist noted in her report that the child had been found to be within normal limits in a December 1999 physical examination and had passed a December 1999 vision and hearing screening. The record includes a letter from the child’s previous pediatrician dated November 4, 1999 stating that the child’s November 1, 1999 physical examination was normal. However, the letter was apparently not reviewed by the CSE at its June 1, 2000 meeting. There is no indication in the record that petitioner prepared a functional behavioral assessment as part of its evaluation process.

        At its meeting on June 1, 2000, petitioner’s CSE reviewed the results of the child’s evaluations and a letter by his counseling provider at CCCMHC. It also discussed the steps that had been taken to modify his behavior in school. It recommended that he not be classified as a student with a disability (Joint Exhibit 18). The minutes of the meeting (Joint Exhibit 19) do not set out the CSE’s rationale for its determination. Respondent and her son requested an impartial hearing with respect to the CSE’s decision by letter from counsel dated June 5, 2000 (Joint Exhibit 16). The Board of Education adopted the CSE’s recommendation not to classify the child on June 13, 2000 (Joint Exhibit 9).

        The impartial hearing commenced on August 16, 2000. It continued on August 17, 2000, and concluded on November 15, 2000. A number of persons testified including the CSE Chair, the school psychologist, the child’s second and third grade teachers, and the CCCMHC psychologist who was counseling the child. At the time of the latter’s testimony, respondent submitted an updated psychological report by the witness opining that the child had an Attention Deficit/Hyperactivity Disorder, an Oppositional Defiant Disorder, a Depressive Disorder, a Personality Disorder characterized by symptoms of a Histrionic Personality Disorder and a Narcissistic Personality Disorder (Joint Exhibit 114). The hearing officer denied petitioner’s request that the psychologist’s treatment plan and progress notes be admitted into evidence, but allowed them to be used in the cross-examination of the psychologist.

        In her decision dated February 2, 2001, the hearing officer found that petitioner had not met its burden of proof in defending the appropriateness of the CSE’s recommendation that the child not be classified. In reaching that conclusion, she noted that respondent’s son had received counseling and tutoring, but his academic performance, socialization and work habits continued to be adversely affected by his mental health concerns. The hearing officer determined that the child should be classified as a student with an emotional disturbance.

        Petitioner challenges the hearing officer’s decision on procedural and substantive grounds. The Board of Education claims that the hearing officer erred by excluding relevant evidence and not permitting a full and fair cross-examination. Petitioner’s claim is based on the hearing officer’s rulings regarding the handling of the CCCMHC treatment plan and treatment notes. The Board of Education was precluded from introducing the documents into evidence because it had not disclosed the documents to respondent’s counsel at least five business days before the attempted introduction. The hearing officer’s decision to exclude these documents from the evidence of record was based upon the "5-day rule" set out at 8 NYCRR 200.5(i)(3)(ix). The regulation provides that each party to a hearing has the right to prohibit the introduction of any evidence the substance of which has not been disclosed to the party at least five business days before the hearing.

        Petitioner alleges that at the end of the second day of hearing on August 17, 2000, its attorney requested access to the child’s medical, psychiatric, and psychological records. Respondent reportedly agreed to provide access to her son’s records at the CCCMHC. However, the records were not made available to the attorney before the next scheduled hearing date of October 24, 2000. The record does not reveal exactly when petitioner’s attorney received the records, but there is no indication that he received them less than five days before the hearing resumed and concluded on November 15, 2000. Under the circumstances, I agree with the hearing officer’s ruling. I also find that the exclusion of these documents from evidence did not affect petitioner’s ability to fully cross-examine the CCCMHC psychologist. As indicated above, the hearing officer allowed petitioner’s counsel to use those documents in the cross-examination of that witness.

        The Board of Education also challenges the propriety of the hearing officer’s request to respondent’s attorney to do some legal research regarding a specific court decision. On January 31, 2000, prior to her decision but subsequent to the closing of the record and the submission of briefs, the hearing officer left a message on respondent’s attorney’s voice mail asking her to do some legal research with regard to a U.S. District Court decision annulling a State Review Officer’s decision cited by petitioner in defending its CSE’s recommendation (Answer at paragraphs 24, 43-44; Attorney’s Affidavit attached to Answer at paragraph 15). In response to the hearing officer’s request, respondent’s counsel provided the hearing officer with the results of her legal research via fax and regular mail by letter dated February 1, 2001, with a copy of that letter to petitioner’s counsel.

        Administrative officers who exercise judicial or quasi-judicial powers must avoid even the appearance of impropriety (Grant v. Senkowski, 146 AD 2d 948 [3d Dept., 1989]; De Camp v. Good Samaritan Hospital, 66 AD 2d 766 [2d Dept., 1978], Application of a Child Suspected of Having a Disability, Appeal No. 00-036; Application of a Child with a Disability, Appeal No. 98-54). Hearing officers should refrain from communicating with any party or a party's representative about any issue of fact or law, except upon notice and opportunity for all parties to participate (New York State Administrative Procedure Act Section 307 [2]; Application of a Child with a Disability, Appeal No. 96-89; Application of a Child with a Disability, Appeal No. 93-49).

        A hearing officer may ask both parties to submit legal memoranda even after a hearing has closed. In this instance, the hearing officer’s request was apparently addressed solely to the parent’s attorney. I am troubled by the hearing officer’s insensitivity to the appearance of bias that her request to respondent’s attorney has created. However, I find that it would not be in either party’s interest to simply annul the hearing officer’s decision on that ground and remand for a new hearing, if there is a sufficient basis in the record to determine the matter underlying this proceeding.

        The central issue in this proceeding is whether respondent’s son should be classified as a child with a disability under applicable federal and state criteria. The Board of Education bears the burden of establishing the appropriateness of a CSE's recommendation that a student not be classified as a child with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-18).

        When a student is referred to a CSE for a determination of eligibility for special education programs and services, the CSE must conduct an individual evaluation to include at a minimum (1) a physical examination, (2) an individual psychological examination (except when appropriately determined to be unnecessary), (3) a social history, (4) an observation of the student in the current educational placement, and (5) other appropriate assessments or evaluations, including a functional behavioral assessment for a student whose behavior impedes his or her learning or that of others (8 NYCRR 200.4[b][1]). As noted above, there is no evidence of a physical examination having been performed by the CSE, or its consideration of the results of such an exam performed by a private practitioner.

        The purpose of a physical examination is to afford the CSE a basis for determining the extent to which health factors and medical conditions may be responsible for a student’s academic difficulties (Application of a Child Suspected of Having a Disability, Appeal No. 00-002; Application of a Child Suspected of Having a Disability, Appeal No. 99-32; Application of a Child with a Disability, Appeal No. 99-18; Application of a Child Suspected of Having a Disability, Appeal No. 93-45; Application of a Child with a Disability, Appeal No. 93-36). Although the child’s vision and hearing were reported to be normal in the school psychologist’s report to the CSE, I note that the record indicates that the child reportedly has an astigmatism in his right eye and has had three prescriptions since October 1999 for corrective lenses because of farsightedness. In addition, it appears that the child’s seizures may have been caused by overmedication, that the child’s medication "makes him feel sick", and that the child had symptoms of allergies. Moreover, the child was taking the medication Risperdal. The CSE should have had the child examined by its own physician, or reviewed the results of an examination performed by another physician.

        There is also no evidence of a functional behavioral assessment having been performed as part of the CSE’s evaluation of respondent’s son. When a student’s behavior impedes the student’s learning, a functional behavioral assessment is a required element of the individual evaluation (8 NYCRR 200.4[b][1][v]). The record, including documents prepared by, and testimony of, staff of petitioner Board of Education shows that the child’s behavior impedes his learning (Joint Exhibit 3, 50 at pp. 9, 60, 68, 89, 96, 108, 109, 112, 114; Transcript pp. 210-11, 251-56, 321-22, 357-58. I find that a functional behavioral assessment should have been done.

        When a required component of a referred student’s evaluation has not been done prior to the CSE’s classification decision, the classification decision may not be upheld (Application of a Child Suspected of Having a Disability, Appeal No. 00-089; Application of a Child Suspected of Having a Disability, Appeal No. 00-002; Application of a Child Suspected of Having a Disability, Appeal No. 99-32; Application of a Child with a Disability, Appeal No. 99-18; Application of the Board of Education of the Taconic Hills Central School District, Appeal No. 99-12; Application of a Child with a Disability, Appeal No. 98-54; Application of a Child Suspected of Having a Disability, Appeal No. 97-55; Application of a Child Suspected of Having a Disability, Appeal No. 97-50; Application of a Child Suspected of Having a Disability, Appeal No. 93-45; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-20; Application of a Child with a Handicapping Condition, Appeal No. 91-10). Under the circumstances, I must find that petitioner has not met its burden of proof with respect to the CSE’s recommendation that respondent’s son not be classified.

        Although the CSE’s recommendation that the child not be classified cannot stand, it does not follow that the hearing officer rightly determined that respondent’s son should have been classified as a student with an emotional disturbance. A determination of eligibility for classification would be premature in the absence of each of the required elements of an individual evaluation. However, I urge petitioner’s CSE to consider more than just the child’s standardized test scores in determining whether the child’s mental health issues are affecting his educational performance (8 NYCRR 200.1[zz][4]; Corchado v. Board of Educ., 86 F. Supp. 168 [W.D. N.Y. 2000]).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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

IT IS FURTHER ORDERED that within 30 days after the date of this decision, petitioner’s CSE shall re-evaluate the child in accordance with the tenor of this decision, and shall recommend whether he is eligible for classification as a child with a disability.