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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


Legal Services for Children, attorney for petitioner, Jojo Liu, Esq., of counsel


         Petitioner appeals from impartial hearing officer’s decision which found that respondent had appropriately evaluated petitioner’s child, and that the petitioner was not entitled to an independent psychiatric and neuroeducational (psychological) evaluation at public expense. The appeal must be dismissed.

        I will first address a procedural issue. Respondent has not answered the petition. Section 279.3 of the Regulations of the Commissioner of Education provides that the notice with petition shall advise the respondent that "[I]f an answer is not served and filed in accordance with the provisions of such regulations, the statements contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by a State review officer of the State Education Department". A decision of the State Review Officer was annulled by the New York State Supreme Court because the decision was based upon an independent review of the record, rather than the unanswered allegations in the petition (Matter of Arlington Central School District v. State Review Officer of the New York State Education Department, 185 Misc.2d 560 [2000]). However, the Court’s decision has been appealed, and I must respectfully decline to follow it in the instant appeal because it would not allow me to fulfill my obligation to examine the entire record (34 CFR 300.5[b][2][i]), and to make an independent decision (20 USC § 1415[g]. Therefore, the facts alleged in the petition will be deemed to be true unless found to be inconsistent with the evidence in the record.

        The student in question was referred to respondent’s Committee on Special Education (CSE) for an initial evaluation during the 2000-01 school year, while he was eleven years old. The referral to the CSE followed an abrupt change in the student’s behavior after his grandfather’s death. The record does not indicate exactly when the grandfather died. However, the parent and district do agree, and the social history and psychological evaluation point out, that the student started having extreme behavioral problems shortly after the grandfather’s death. The behavioral patterns which brought the student to the attention of the CSE included episodes of crawling on the floor, barking like a dog, hiding in closets, and abruptly walking out of class (Transcript, pp. 31-32, Exhibit P-A).

        When a child suspected of having a disability is referred to a CSE, the CSE must ensure that an individual evaluation of the referred student is performed. An individual evaluation mustinclude: a physical examination in accordance with the provisions of Sections 903, 904, and 905 of the Education Law; an individual psychological evaluation; a social history; and other appropriate assessments or evaluations to ascertain the physical, mental and emotional factors which contribute to the suspected disability (8 NYCRR 200.4 [b][1]). An example of an "other appropriate assessment or evaluation" could include, but is not limited to a psychiatric evaluation or a functional behavioral assessment.

        A parent who disagrees with the CSE’s evaluation has the right to obtain an independent evaluation at public expense, unless the school district institutes an impartial hearing and convinces the hearing officer that its evaluation of the child was appropriate ( 34 CFR § 300.502; 8 NYCRR 200.5[g][1]). If the hearing officer finds that the school district’s evaluation was appropriate, the parent may obtain an independent evaluation, but not at public expense.

        Upon his referral to the CSE, petitioner’s son received a psychological evaluation (Exhibit 9), and an educational evaluation (Exhibit 11). In addition, a social history (Exhibit 13) was obtained, and a physical examination (Exhibit 16) and a functional behavioral assessment (Exhibit 12) were performed. The student was also observed in the classroom (Exhibit 10), as is required by 8 NYCRR 200.4 (b)(1)(iv).

        On or about March 7, 2001, the CSE reviewed the results of the student’s evaluations. It reportedly recommended that he be classified as emotionally disturbed and be placed in a Modified Instructional Services-II class and receive counseling. It should be noted that the appropriateness of the student’s classification and proposed placement is not at issue in the instant proceeding, and I express no opinion about the CSE’s recommendations for classification and placement.

        On or about May 10, 2001, petitioner notified the CSE that she wanted to have additional testing performed. She was invited to discuss her request with CSE staff, and did so on May 25, 2001. At that meeting, petitioner was asked to give her consent for a psychiatric evaluation of her son, which she declined to do. Respondent did not agree with petitioner’s request for independent evaluations. Thereafter, respondent initiated a hearing to establish whether it had appropriately evaluated the student (Transcript pp. 14-15).

        The hearing in this proceeding was held on June 13, and 26, 2001. In a decision that was rendered on July 25, 2001, the hearing officer noted that petitioner was seeking what she believed would be a more in depth evaluation of her son. The hearing officer found that the CSE had extensively tested the student, and concluded that petitioner had failed to substantiate her belief that an independent evaluation would provide more in depth information about her son. The hearing officer indicated that she had not been asked to authorize respondent to obtain a psychiatric evaluation without petitioner’s consent, and she did not rule upon that issue.

        Petitioner contends that the hearing officer misperceived petitioner’s position, in that petitioner does not seek an independent psychiatric evaluation at public expense. She asserts that she would prefer that such an evaluation be done privately at the agency where her son is being counseled at petitioner’s expense. I must note that when questioned by the hearing officer about what independent evaluations at public expense she sought, petitioner appeared to indicate a psychiatric as well as a psychological evaluation (Transcript pp. 6-7). In any event, I find that she is not aggrieved by the hearing officer’s apparent error, since she does not seek an independent psychiatric evaluation at public expense.

        Petitioner asserts that the hearing officer erred by shifting the burden of proof about the appropriateness of the CSE’s evaluations from the CSE to her. I agree that the hearing officer’s comment that the parent had failed to substantiate her feeling that a private evaluation would be more in depth could be construed as placing the burden of proof upon petitioner. However, I must note that the hearing officer made that comment in her decision after she had found that the school district had done extensive testing and that there was no indication that it had not taken the necessary time or resources to evaluate the student. It is clear from her decision that the hearing officer concluded that the school district had established that it had appropriately evaluated the student.

        Petitioner contends that respondent’s CSE failed to assess her child in all areas of his suspected disability as required by the former 8 NYCRR 200.4 (b)(4)(vi), which is now 8 NYCRR 200.4 (b)(3), and that the CSE’s evaluation failed to report the results of projective testing. I will address the latter contention first. Petitioner’s son was evaluated by a school psychologist on January 31, 2001. The school psychologist reported that the student had achieved a verbal IQ score of 101, a performance IQ score of 99, and a full scale IQ score of 100. She also described the results of a test that had been administered to assess the student’s visual motor integration skills. The school psychologist also assessed the student’s personality by administering at least three projective tests: the House-Tree-Person Drawings, the Draw-A-Person, and the Rorschach. She reported the results of those tests by relating her impressions, a not uncommon form of reporting such results. Specifically, she described him as being sad, enraged, and having difficulty integrating his impulses. I note that the school psychologist discussed the projective test results in more detail at the hearing (Transcript pp. 37-41). While petitioner may dispute the conclusions reached by the school psychologist in a proceeding to challenge her son’s proposed classification or placement, I find that her claim about not reporting the results of projective testing is without merit.

        Petitioner argues that her son was not evaluated in all areas of his suspected disability because the school psychologist did not refer in her report to the student’s alleged difficulty sustaining appropriate peer relationships. At the hearing, the school psychologist conceded that she had not specifically addressed the issue of peer relationships, but noted that she had relied upon information provided by the student’s teacher about his peer difficulties. I note that anecdotal reports describing the student’s relationship with others are included in the record (Exhibit 17). In addition, the structured classroom observation report indicated that the student’s teacher had placed him in the rear of the room away from his classmates because he teased them (Exhibit 10).

        An inability to build or maintain satisfactory interpersonal relationships with peers and adults may be one indication of an emotional disturbance (8 NYCRR 200.1 [zz][4]). However, the issue is not whether respondent has met its burden of proving that the student was appropriately classified as emotionally disturbed by the CSE, but whether the evaluations performed by the CSE were adequate. The CSE’s psychologist did administer projective tests, which would have a direct bearing upon the issue of building and maintaining interpersonal relationships. Upon the record before me, I concur with the hearing officer’s determination that respondent has demonstrated that its evaluations were adequate. Therefore, petitioner is entitled to obtain an independent psychological evaluation of her son, but not at public expense.

        Finally, I note that both parties agree that a psychiatric evaluation should be performed. I urge them to agree upon obtaining such evaluation and sharing the results with each other, so that they may collaborate on an appropriate educational program for the petitioner’s son.


Topical Index

CSE ProcessSufficiency of Evaluative Info
Parent Appeal
Preliminary MattersBurden of Proof
Preliminary MattersPleadingsTimeliness of Petition