Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Moriah Central School District
Andrew K. Cuddy, Esq., attorney for petitioners
Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorney for respondent, Edward J. Sarzynski, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which determined that respondent was not required to pay for the cost of an independent educational evaluation. The appeal must be dismissed.
I will first address a procedural matter. Respondent objects to the introduction of Attachment A to the petition, which is correspondence containing a determination by the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (VESID), that was not made part of the hearing record and is now offered by petitioners for submission. Respondent contends that petitioners did not attempt to enter this document as part of the record although petitioners received it prior to the decision of the impartial hearing officer. Respondent asks that if Attachment A to the petition is considered, that Exhibits 1 and 2 attached to the answer, which are letters from respondent to VESID in response to its determination, also be considered.
Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (Application of the Bd. of Educ., Appeal No. 04-068; see generally Application of a Child with a Disability, Appeal No. 04-030; Application of a Child with a Disability, Appeal No. 04-020). The documents offered on appeal were not made available to the impartial hearing officer prior to his decision and they are not necessary for my review, therefore, I will not accept them (Application of the Bd. of Educ., Appeal No. 04-068; Application of a Child with a Disability, Appeal No. 04-031). Moreover, the Regulations of the Commissioner of Education expressly state that the State Review Officer cannot review the actions of any officer or employee of the State Education Department (8 NYCRR 279.1[c]; see Application of a Child with a Disability, Appeal No. 99-10).
At the time of the hearing in October 2004, the child was eight years old and placed in a self-contained 12:1+1 third grade special education class, where he received related services of speech-language therapy, occupational therapy (OT), physical therapy (PT) and counseling, and was mainstreamed for specials (Dist. Exs. 44, 70, Parent Ex. C). The child was initially classified as speech impaired in May 2001, prior to entering kindergarten (Parent Ex. D-8). On September 1, 2004, the child's classification was changed to other health impaired (OHI) (Dist. Ex. 44) and was not disputed at this impartial hearing.
By letter dated June 21, 2004, petitioners requested that respondent pay for an independent educational evaluation (IEE) of their son at the Stern Center for Language and Learning (Stern Center) in White River Junction, Vermont, alleging that respondent had failed to test the child in every area of suspected disability (Dist. Ex. 10; see 8 NYCRR 200.5[g]). Respondent did not offer to pay for the Stern Center evaluation nor did it initiate a hearing.
Respondent convened a meeting of the committee on special education (CSE) on July 8, 2004 and reviewed the report of an independent psychologist who had evaluated the child on April 5, 2004 (Dist. Ex. 73). Upon reviewing this report, the CSE determined that the results of the independent evaluation on April 5, 2004 were sufficient and determined that an additional evaluation at the Stern Center as requested by petitioners was not necessary (id.).
The April 5, 2004 report was conducted, in part, as a result of a recommendation by the school psychologist. On February 10, 2004, the school psychologist conducted a psychological evaluation of the child (Dist. Ex. 6, Parent Ex. E-7; Tr. p. 104). Administration of the Wechsler Intelligence Scale for Children – III (WISC-III) yielded a verbal IQ score of 80, a performance IQ score of 82, and a full scale IQ score of 79 (Dist. Ex. 6 at p. 3). Administration of the Wechsler Individual Achievement Test yielded a standard (and percentile) reading composite score of 76 (fifth) and a math composite score of 74 (fourth) (id.). On the Modified Version of the Bender-Gestalt Test for Primary and Preschool Children, the child's score of 70 was in the third percentile and his designs were reported to be "significant for perseveration." (Dist. Ex. 6 at p. 4). As part of the evaluation, the child's general education and special education teachers completed the Achenbach Child Behavior Scale (CBC) (id.). Ratings by the general education teacher placed the child in the clinical range for internalizing and for attention problems and in the borderline clinical range for total behavior (id.). Ratings of the child by his special education teacher were in the clinical range for total behavior as well as for withdrawn behavior and for attention problems (id.). Both teachers rated the child in the borderline clinical range for subscales measuring anxiety and depression (id.). On the CBC completed by the child's parents, his scores were in the average range for all scales (Parents Ex. F).
In his evaluation report, the school psychologist stated that "before making specific recommendations for next year" the child should be evaluated by "a specialist in childhood disorders" (Dist. Ex. 6 at p. 5). The school psychologist suggested a particular psychologist with whom he was familiar, who was one of the same evaluators he had recommended to petitioners at the January 12, 2004 team meeting (Tr. pp. 48, 109). The school psychologist later stated that the child exhibited "a lot of conflicting aspects" including attentional difficulties and "unavailability for instruction" and indicated that, in order to provide an appropriate program for the child "we want someone who really does have the ability to look at all of these factors and give us a diagnosis" (Recording of 7/8/04 CSE meeting, track 49).
The recommended independent psychologist evaluated the child on April 5, 2004 at respondent’s expense (Dist. Ex. 8, Parent Ex. E-5). In a report received by respondent on June 14, 2004, the independent psychologist indicated that the child met the diagnostic criteria for an attention deficit hyperactivity disorder (ADHD), separation anxiety disorder, overanxious disorder and dysthymia (Dist. Ex. 8 at p. 2). She offered a diagnostic impression of Asperger's disorder based on the child's delays in communication with peers, understanding of social messages and conforming to customary roles, and noted that Apserger's disorder included attention deficits (Dist. Ex. 8 at p. 5). She also noted that the child had sensory and motor deficits that are common to Asperger's and he exhibited an insistence on sameness, emotional vulnerability, stereotyped and ritualistic behavior, social and behavioral immaturity and self-stimulation, all of which were characteristic of the disorder (id.). The evaluator recommended that the child be taught using behavior management emphasizing positive reinforcement and offered additional recommendations for educational planning, including participation in a social skills building group and communication between school and home via a communication notebook (Dist. Ex. 8 at p. 6). The evaluator further recommended that the child be evaluated by a medical professional with expertise in pervasive developmental disorders, as well as the use of medication to alleviate the child's anxiety, psychotherapy for the child and family therapy to assist petitioners in understanding the child’s diagnosis (Dist. Ex. 8, p. 6).
By letter dated July 8, 2004, petitioners requested a due process hearing regarding respondent’s denial of petitioners’ request that respondent pay for an evaluation at the Stern Center (Dist. Ex. 16). Respondent’s board of education appointed the impartial hearing officer on July 13, 2004 (Dist. Ex 20).
On July 26, 2004, petitioners’ advocate e-mailed the impartial hearing officer, withdrawing petitioners’ request for a hearing (Dist. Ex. 26). This was followed by petitioners’ letter dated July 27, 2004 to respondent and by petitioners’ letter dated July 29, 2004 to the impartial hearing officer, reiterating petitioners’ intention to withdraw the hearing request (Dist. Ex. 28). The record does not indicate that the impartial hearing officer made any immediate determination or order in response to the withdrawal of the hearing request.
In a letter dated July 29, 2004 respondent advised petitioners that if petitioners still requested “additional testing” of the child at the Stern Center at public expense, it would initiate an impartial hearing (Dist. Ex. 31). By a letter dated August 2, 2004, counsel for respondent requested that the impartial hearing officer “not close [her] file” on the matter (Dist. Ex. 34). The impartial hearing officer agreed with this request (Dist. Ex. 35). Respondent wrote two additional letters to petitioners on August 11, 2004 and August 12, 2004 containing the same inquiry as the July 29, 2004 letter in an attempt to ascertain petitioners’ continued interest in an evaluation at public expense (Dist. Exs. 31, 39, 40). The record reflects that petitioners did not respond to respondent’s inquiries (Tr. p. 158).
On August 18, 2004, petitioners proceeded with a neurological evaluation of the child at the Stern Center (Dist. Ex. 42, Parent Ex. E-1).
On September 8, 2004, respondent became aware that petitioners, rather than responding to its inquiries pertaining to the need for a hearing, had filed a complaint with the State Education Department alleging that respondent did not timely initiate a hearing with regard to petitioners’ June 21, 2004 request for the Stern Center evaluation at public expense (Dist. Exs. 45, 47). By letter dated September 10, 2004, respondent’s counsel requested that the impartial hearing officer proceed with the previously initiated hearing (Dist. Ex. 46). By letters dated September 15, 2004 and September 18, 2004, petitioners objected to the impartial hearing officer presiding at the hearing, alleging that respondent was required to select a new hearing officer from a rotational list because respondent’s hearing request contained additional issues (Dist. Exs. 48, 50, 51). On September 20, 2004, the impartial hearing officer advised all parties of her intent to retain jurisdiction (Dist. Exs. 58, 59).
The impartial hearing was held on October 27, 2004. In a decision dated November 24, 2004, the impartial hearing officer found that respondent was not obliged to pay for the Stern Center evaluation because the evaluation did not add to the information already available to the CSE (IHO Decision, p. 3). The impartial hearing officer also found that respondent timely proceeded with a hearing upon being made aware of petitioners’ intentions regarding payment for the evaluation and that respondent properly requested that the impartial hearing officer proceed with the hearing because the issue was the same as petitioners’ initial hearing request (id.).
On appeal, petitioners request that the impartial hearing officer’s decision be annulled and request reimbursement for the cost of the Stern Center evaluation of August 18, 2004. Petitioners allege that the impartial hearing officer erred in finding that: 1) respondent timely initiated a hearing request, 2) that she properly heard the matter on the merits, and 3) that the Stern Center evaluation need not be at public expense. I find petitioners’ arguments to be unpersuasive.
When a parent requests an independent educational evaluation, a school district must, without unnecessary delay, either ensure that an independent educational evaluation is provided at public expense, or initiate an impartial hearing to show that its evaluation is appropriate (34 C.F.R. § 300.502[b]; 8 NYCRR 200.5[g][iv]). A school district may not unduly delay the initiation of a hearing to demonstrate the appropriateness of its evaluation (Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Handicapping Condition, Appeal No. 92-35; Application of a Child with a Handicapping Condition, Appeal No.90-1).
In New York State, impartial hearing officers in Individuals with Disabilities Education Act (IDEA) proceedings must be appointed by the board of education in accordance with a very specific rotation selection process prescribed by the Regulations of the Commissioner of Education (see N.Y. Educ. Law § 4404; 8 NYCRR 200.5[i][i]). State regulations require that a list be maintained of eligible impartial hearing officers' names in alphabetical order, and that selection shall be made beginning with the first name appearing after the last impartial hearing officer who served (8 NYCRR 200.2[e][ii]). This process is designed to ensure that selection of impartial hearing officers for any proceeding will be random and unbiased (Application of a Child with a Disability, Appeal No. 04-061; Application of a Child with a Disability, Appeal No. 04-016). An impartial hearing officer is appointed in response to a specific request for a hearing and may not assume jurisdiction over all future disputes between the parties (Application of a Child with a Disability, Appeal No. 03-102; Application of the Bd. of Educ., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 96-45).
I will first address petitioners’ claim that respondent delayed in initiating a hearing, and because of the delay, the Stern Center evaluation should be at public expense. While I remind respondent of its affirmative obligations under the due process procedures pertaining to an IEE request (8 NYCRR 200.5 [g][iv]), I find that petitioners’ contributed to the delay in the proceedings by failing to timely answer respondent’s appropriate requests for information pertaining to the need for a hearing. I also find that there was no denial of a free appropriate public education (FAPE) caused by the delay. Respondent is cautioned in the future not to rely on parents to initiate hearing requests when an IEE is at issue.
As to petitioners second claim on appeal, the impartial hearing officer in this case was appointed as a result of petitioners’ July 8, 2004 hearing request (Dist. Ex. 20). The record reflects that the initial appointment of the impartial hearing officer was in accordance with the rotational process set forth in state regulations governing the selection of impartial hearing officers (8 NYCRR 200.2[e]; 200.5[i]; see Application of a Child with a Disability, Appeal No. 04-016; Application of a Child with a Disability, Appeal No. 04-061). Even though petitioners were requesting an independent educational evaluation at public expense, it was respondent’s obligation, not petitioners, to initiate a hearing if it disagreed with petitioners’ request (see 34 C.F.R. § 300.502[b]; 8 NYCRR 200.5[g]). However, once the impartial hearing office was appointed, she properly was prepared to hear the dispute over the IEE request, regardless of which party initiated the hearing. When petitioners withdrew their request for a hearing on July 26, 2004 (Dist. Ex. 26), respondent made repeated and timely inquiries to petitioners as to the need to proceed with a hearing before the already appointed impartial hearing officer. Petitioners did not respond to respondent’s inquiries about the need for a hearing, but did object once the impartial hearing officer began to proceed with the hearing (Dist. Exs. 46, 48, 50, 51). Once it became clear that petitioners’ were still raising the same issue, respondent appropriately pursued the hearing. Based on these facts, I do not find that the impartial hearing officer erred in proceeding with the hearing.
As to petitioners’ third claim, I concur with the impartial hearing officer that the Stern Center evaluation identified needs and programs similar to those already identified by the September 1, 2004 CSE and incorporated into the child’s 2004-05 IEP, and that the evaluation need not be at public expense (IHO Decision, p. 9; Tr. p. 58). The CSE that convened on September 1, 2004 for an annual review to develop the child's 2004-05 IEP had not yet received the Stern Center report (Dist. Ex. 44, Parent Ex. C). The CSE recommended placement in a 12:1+1 special education class with related services of speech-language therapy four times per week thirty minutes per session in a small group, OT three times per week for thirty minute sessions in a small group and counseling once per week for thirty minutes in a small group (id.). The CSE also recommended that the child's classification be changed from speech-language impaired to other health impaired (id.). The parents did not object to this change of classification, which was recommended by the parent's advocate, who was present at the meeting (Tr. p. 56). Consistent with these recommendations, the evaluator at the Stern Center put forth a number of similar recommendations, including full-time placement in a self-contained special education class, continued speech-language therapy and OT, preferential seating and minimization of environmental stimuli, social skills training and coordination between school and home to ensure consistency (Dist. Ex. 42 p. 7).
Based upon my review of the hearing record and the thorough decision below, I find that the hearing was conducted in a manner consistent with the requirements of due process, and that there is no need to modify the determination of the impartial hearing officer (34 C.F.R. § 300.510[b]; N.Y. Educ. Law § 4404). I adopt the determination of the impartial hearing officer that respondent has met its burden of demonstrating petitioners are not entitled to the Stern Center evaluation at public expense (8 NYCRR 200.5[g]). I have considered the petitioners remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.