92-035

Petitioner seeks review of a determination of an impartial hearing officer which found that respondent had provided appropriate instruction in reading to petitioner's child, and which held that petitioner was precluded from raising the issue of respondent's responsibility to pay for independent evaluations of the child. The appeal must be sustained in part.

Petitioner's child is 18 years old. The child's classification as learning disabled is not disputed. In an independent evaluation completed in June, 1992, when the child was in eleventh grade, the child's word recognition skills were found to be at a beginning fourth grade level, and his oral reading skills were found to be at the middle of sixth grade level. The child's spelling skills were assessed to be at the late fifth grade level. The evaluator opined that the child had profound difficulty with speech and language organization. Unlike a dyslexic child, this child's ability to code and decode words exceeds his ability to comprehend language. The evaluator further opined that the child's learning difficulty would not respond significantly to any academic intervention.

The issues in this appeal arise from what was purportedly a single hearing which commenced in December, 1990 and concluded in July, 1992. On each of the first three scheduled days of the hearing, the proceeding was concluded shortly after it began, because the parties reached various agreements. The last hearing day involved only a short colloquy between the hearing officer and the representatives of the parties. As a result, the testimony and documentary evidence in the record about the child's educational program and his academic performance during the 1990-91 and 1991-92 school years is modest.

The record reveals that for the 1990-91 school year, the child received tenth grade special education instruction in English, social studies, mathematics and science, and received regular education for four periods each day. In February, 1991, resource room services for reading and speech/language therapy were added to the child's program, all of which was provided at respondent's F. D. Roosevelt Senior High School.

On September 12, 1990, petitioner, who had not attended the CSE meeting at which the child's individualized education program (IEP) for the 1990-91 school year was prepared, requested an emergency meeting of the CSE to make changes in the child's IEP. In a letter dated September 17, 1990, petitioner informed the CSE that she withdrew her consent to any further evaluation of the child by the CSE, and requested independent neurological, neuropsychological, auditory processing, occupational therapy and physical therapy evaluations of the child.

On September 25, 1990, petitioner met with the CSE. Respondent's director of pupil personnel testified at the hearing that, after meeting with petitioner, the CSE agreed to assess the child in reading, mathematics and speech. Immediately after meeting with the CSE, petitioner requested that an impartial hearing be held. Thereafter, petitioner and the chairperson of the CSE corresponded about the further evaluation of the child. In a letter dated October 19, 1990, the CSE chairperson advised petitioner that respondent was willing to provide the evaluations which petitioner had requested, but would not authorize payment for any independent evaluation.

At a hearing held on December 17, 1990, the hearing officer announced at the outset that the parties had reached an agreement, which obviated the need to continue with the hearing. The parties agreed that respondent would perform a speech/language evaluation, which would include a test of the child's auditory processing ability, and would test the child in reading and mathematics. Respondent would also update the child's psychological evaluation. The parties further agreed that the CSE would meet in January, 1991, to determine if the changes should be made in the child's educational program.

As a result of the stipulation, speech/language, reading, and psycho-educational evaluations were prepared and a curriculum assessment involving the child's mathematical skills was completed. The CSE met in January and February, 1991, to consider the results of the evaluations, and to develop a plan of services. The child's IEP was amended to provide for compensatory, mathematics, reading and language services. On February 13, 1991, petitioner requested that the impartial hearing be reconvened, to resolve a dispute about the amount of speech therapy to be provided. After an extensive delay in reconvening the hearing, petitioner appealed to the Commissioner of Education pursuant to the provisions of Section 310 of the Education Law. Her appeal was dismissed as moot, because the hearing resumed on September 19, 1991 (Application of a Child with a Handicapping Condition, 31 Ed. Dept. Rep. 295).

At the September 19, 1991 hearing, petitioner's advocate stated that the issues to be resolved were the instructional methodology to be used with the child and whether petitioner should be reimbursed for speech therapy which she had obtained for the child. The hearing briefly continued on September 24, 1991, when the parties agreed that the child would be enrolled in skills level regular education classes for English and social studies, in which he had previously received special education. The parties also agreed the child would receive resource room services and speech/language therapy. As the terms of the agreement were placed upon the record by the hearing officer, petitioner's advocate reiterated petitioner's request for independent occupational therapy, neurological, neuropsychological and auditory processing evaluations. Respondent's attorney represented that respondent had no objection to the proposed independent occupational therapy and neurological evaluations, but objected to the neuropsychological and auditory processing evaluations. The hearing officer observed that respondent must either pay for all of the proposed independent evaluations or commence a hearing to demonstrate the appropriateness of its own evaluations (34 CFR 300.503 [b] 8 NYCRR 200.5 [a][1][vi][a]), but did not rule upon petitioner's request for independent evaluations.

On April 6, 1992, the hearing was reconvened at petitioner's request, to review the adequacy of the child's reading instruction, which was provided in respondent's resource room program. Once again, the hearing was quickly terminated by agreement of the parties, who agreed that an independent reading consultant would be engaged to review the child's reading program. The parties further agreed that either petitioner or respondent could reopen the hearing, if dissatisfied with the independent consultant's report.

On July 13, 1992, the hearing was reconvened. The record does not reveal which party requested the reopening of the hearing, and neither party raised any objection to the independent consultant's report. The hearing officer advised the parties that he would consider the consultant's report, in rendering his decision about the appropriateness of the reading instruction given to the child. Petitioner's advocate again raised the issue of petitioner's request for independent evaluations of the child. Although an occupational therapy evaluation was completed in May, 1992, petitioner's advocate complained that the evaluation had not been reviewed by an independent physiatrist, i.e. a physician who specializes in physical or rehabilitative medicine. The hearing officer stated that he would deal with the issue of the occupational therapy evaluation in his decision. The hearing officer also agreed to decide the issue of petitioner's request for an independent neuropsychological evaluation. The last issue raised at the July 13, 1992 hearing was petitioner's assertion that respondent had failed to pay for the independent neurological evaluation which it had previously agreed the child could have. The hearing officer orally opined that respondent was obligated to pay for the independent neurological evaluation. Respondent's attorney asked petitioner to provide him with a copy of the evaluator's bill. The hearing officer then closed the hearing.

In a decision dated July 21, 1992, the hearing officer held that petitioner was precluded from raising the issue of the independent evaluations, because she had agreed at the April 6, 1992 hearing that the only outstanding issue was the adequacy of the child's reading program. The hearing officer further held that, in view of the findings and suggestions set forth in the reading consultant's report, the child's reading instruction was appropriate.

Respondent argues that this appeal is untimely because the petition was served in excess of 40 days after petitioner received the hearing officer's decision (cf. 8 NYCRR 279.2 [b]). Respondent's argument is premised upon its assertion that the hearing officer mailed copies of his decision to the parties on July 21, 1992, but respondent was not served with a copy of the petition until September 14, 1992, or 55 days after the decision was allegedly mailed. In the absence of proof in the record of when petitioner actually received the hearing officer's decision, I find that the appeal is timely.

Petitioner asserts that the hearing officer's decision with respect to the appropriateness of the child's reading instruction should be annulled because it was premised upon the consultant's report which was not part of the record before the hearing officer and because the consultant was not independent. Petitioner further asserts that respondent failed to meet its burden of proving that its program of reading instruction was appropriate.

Respondent bears the burden of establishing the appropriateness of the program it provided to the child (Application of a Child with a Handicapping Condition, Appeal No. 92-1). In order to meet its burden of proof, respondent must show that its program is reasonably calculated to ensure that the child will receive educational benefits (Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176). With the exception of a copy of the child's IEP for the 1990-91 school year and the independent reading consultant's report, the record contains little information about the child's educational program. However, the parties agreed at the April 6, 1992 hearing to rely upon the report of the independent consultant, in lieu of presenting other evidence. In essence, the report of the consultant is similar to the testimony of an expert witness, which may be sufficient to enable respondent to meet its burden of proof. The consultant's report reveals that the consultant used a variety of techniques, including individual tests of the child, a review of the child's school records, and interviews with respondent's staff. I find that the consultant adequately assessed the child's language and reading abilities and needs. The consultant offered a number of recommendations to assist in the development of the child's vocabulary, spelling and paragraph development, which should be considered by the CSE in preparing future IEPs for the child. However, such recommendations do not require a finding that the child's program was inadequate. Indeed, the consultant opined that the child had been served well by respondent's schools. Accordingly, upon the limited record before me, I must find that respondent has met its burden of proof with regard to the appropriateness of its reading program.

State regulation requires that the decision of an impartial hearing officer shall be based solely upon the record of the proceeding before the hearing officer (8 NYCRR 200.5 [c][10]). I have held on a number of occasions that a hearing officer's use of documents which are not part of the record, no matter how well intended, is improper (Application of a Child with a Handicapping Condition, Appeal No. 92-31; Application of a Child with a Handicapping Condition, Appeal No. 92-26; Application of a Child with a Handicapping Condition, Appeal No. 92-13; Application of a Child with a Handicapping Condition, Appeal No. 90-16). A hearing officer may not resort to information outside the record because one or both of the parties may be deprived of the opportunity to object to the accuracy or relevance of such information, and because subsequent review of the hearing officer's decision is normally limited to the record before the hearing officer. In this instance, the independent consultant's report was not formally moved into evidence by either party, or entered by the hearing officer. Nevertheless, the parties agreed at the April 6, 1992 hearing that the hearing officer would use the consultant's report, and at the July 13, 1992 hearing the hearing officer stated that both parties had received copies of the consultant's report, Neither party objected to the use of the consultant's report by the hearing officer. Nor does either party suggest that the report before me is not the report relied on by the parties and the hearing officer, a copy of which was annexed to the answer in this appeal. Under the unique circumstances of this case, I find that the failure of the hearing officer to assure that the consultant's report was formally entered into evidence does not afford a basis for annulling the hearing officer's decision.

With regard to petitioner's assertion that the consultant was not independent, the record reveals that the consultant was not an employee of respondent, and had never before been engaged by respondent as a consultant. Petitioner's objection to the consultant's report is based upon the fact that the consultant revealed in her report that she spent 45 minutes talking to the child's resource room teacher and respondent's pupil personnel services, and reviewing the child's records. However, at the April 6, 1992 hearing, the fact that the consultant would consult with the child's teacher was discussed, without any objection by petitioner. I find that the consultant's discussion of the child with one of the child's teachers and a school administrator does not establish that the consultant was biased.

Petitioner also asserts that the hearing officer failed to resolve the issues which were before him, because he did not address her requests for independent evaluations. In essence, petitioner challenges the hearing officer's holding that petitioner was precluded from raising the issues at the July 13, 1992 hearing because petitioner allegedly agreed at the April 6, 1992 hearing that the only issue to be decided was the adequacy of the child's reading program. The record reveals that, in response to the hearing officer's inquiry about the status of the case, petitioner's lay advocate apparently misstated that "... the only issue is [the child's] reading" (April 6, 1992 transcript, page 3). Indeed, the lay advocate's statement must be considered in the context of what the parties and the hearing officer elected to treat as a single hearing which commenced in December, 1990. During the course of this protracted proceeding, petitioner has been assisted by two different lay advocates. Clearly, petitioner first raised the issue of independent evaluations at the September 25, 1990 CSE meeting. Petitioner's request for independent evaluations was clearly raised as an issue at the September 24, 1991 hearing. When the hearing resumed on April 6, 1992, given the protracted time period between impartial hearing days and the September 25, 1990 CSE meeting, the hearing officer should have made certain that the issue, which was not discussed at the brief hearing of December 17, 1990, had indeed been resolved. In spite of the advocate's statement of April 6, I nevertheless find that the hearing officer abused his discretion in not deciding the issue of the independent evaluations when it was raised at the July 13, 1992 hearing (Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 180). A parent of a child with a handicapping condition may at any time request a hearing to contest any matter affecting the child's education. It would be an unnecessary duplication of effort to require petitioner to raise the issue of her request for independent evaluations in a separate hearing (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 150).

Respondent further asserts that petitioner should exhaust her administrative remedy of an impartial hearing on the issue of independent evaluations. Given the facts of the case, I find that exhaustion is neither necessary nor appropriate. At this point, the question of petitioner's right to independent evaluations is one of law. Federal and State regulations provide that the parent of a child with a handicapping condition is entitled to obtain an independent educational evaluation at public expense, if the parent disagrees with the evaluation obtained by the school district. However, a parent's right to an independent evaluation at public expense is subject to the right of a board of education to initiate an impartial hearing to demonstrate the appropriateness of its own evaluation. If the hearing officer determines that the board's evaluation is appropriate, the parent may have an independent evaluation, but not at public expense (34 CFR 300.503; 8 NYCRR 200.5 [a][1][vi][a]).

A board of education may not unduly delay its decision to initiate a hearing (Application of a Child with a Handicapping Condition, Appeal No. 90-1; Application of a Child with a Handicapping Condition, Appeal No. 92-2; Application of a Child with a Handicapping Condition, Appeal No. 92-19). In this instance, the board of education did not initiate a hearing for this purpose, despite the hearing officer's observation at the September 24, 1991 hearing that respondent must either pay for the requested evaluations or initiate a hearing. Respondent's failure to act is particularly inexplicable, in view of a June 5, 1991 decision of the Commissioner of Education ordering respondent to pay for the independent evaluation of another child after it failed to initiate a hearing (Application of a Child Suspected of Having a Handicapping Condition, 30 Ed. Dept. Rep. 433). I find that petitioner is entitled to receive independent neuropsychological and speech/language evaluations, because of respondent's failure to initiate a hearing to establish the adequacy of its evaluations. Such speech/language evaluation shall include an evaluation of the child's auditory processing skill.

With regard to petitioner's request for an occupational therapy evaluation, the record discloses that an evaluation had been completed, but that such evaluation had not been reviewed by an independent physician which respondent had apparently agreed to have done. I will direct respondent to have the evaluation reviewed by the physician, if it has not already been done.

Petitioner also seeks an order compelling respondent to reimburse petitioner for the cost of an independent neurological evaluation of the child. Although petitioner's advocate raised the issue of payment for the evaluation at the July 13, 1992 hearing, the colloquy between the advocate and respondent's attorney strongly suggests that respondent had not received any bill for the evaluation. Exhibits attached to the petition and to the answer reveal that the evaluation was performed in November, 1991 and that respondent received a copy of the evaluation results in March, 1992. Respondent has also submitted proof of its payment of $175. in August, 1992 to the physician who performed the neurological evaluation. However, petitioner has submitted copies of physician, radiology and laboratory fees in excess of $2600. for the independent evaluation. The U.S. Department of Education has opined that a board of education may establish maximum allowable charges for specific tests (1989 EHLR 213:259). It is not clear from the record whether respondent has in fact established maximum allowable charges for specific tests. If a board of education has not adopted cost criteria, it must either pay the fees charged to the parents by the evaluator, or challenge the right of the parents to be reimbursed for the particular fee in an impartial hearing, where the board would have to establish that the evaluator's fee was unreasonably expensive (Ibid). I conclude that respondent must reimburse petitioner for the fees which petitioner paid for the neurological evaluation, or promptly institute a hearing where it will have the burden of establishing that such fees were unreasonably expensive.

Finally, I am compelled to comment upon the deplorable state of the record in this appeal. The documents submitted as exhibits were not numbered as exhibits, and not all of the exhibits identified in the hearing transcripts were submitted. Portions of the record were not filed until specifically requested by the Office of State Review. While I am satisfied that the record before me does include each of the exhibits directly bearing on the issues of this appeal, I admonish respondent, who is required by State regulation to maintain the record of hearings (8 NYCRR 200.5 [c][2]), to insure that in the future they are maintained in an orderly and complete manner, and promptly filed with the Education Department upon respondent's receipt of a notice of intention to seek review (8 NYCRR 279.7 [a]).

THE APPEAL IS SUSTAINED AS INDICATED.

IT IS ORDERED that the decision of the hearing officer is annulled to the extent that he ruled that petitioner was barred from raising the issue of her request for independent evaluations, and;

IT IS FURTHER ORDERED that respondent shall pay for independent neuropsychological and speech/language evaluations of the child, upon the submission of the results of such evaluations and the bills for the evaluations to the CSE, and shall reimburse petitioner for the cost of the independent neurological evaluation of the child, unless within 15 days after the date of this decision respondent initiates a hearing to challenge the reasonableness of the cost of such evaluation.