The State Education Department
State Review Officer
Application of a CHILD SUSPECTED OF HAVING A HANDICAPPING CONDITION, by his parents, for review of a determination of a hearing officer relating to the evaluation of the child by the Board of Education of the City School District of the City of New York
Hon. Victor A. Kovner, Corporation Counsel, attorney for Respondent, Inga Van Eysden, Esq. of counsel.
Petitioners appeal from the determination of an impartial hearing officer that a sufficient basis exists for respondent to evaluate petitioners' son without petitioners' consent, and denying petitioners' request that respondent's committee on special education (CSE) be required to consider only the results of a private evaluation to be obtained by petitioners. The appeal must be dismissed.
Petitioner's 15 year old son was enrolled in the eighth grade at I.S. 25 in Community School District 25 in New York City during the 1989-90 school year. On February 15, 1990, a school guidance counsellor referred petitioner's son to the CSE for an evaluation, because of concern for the child's school behavior and academic performance. By letter dated February 28, 1990, the child's father objected to the referral, because he opposed school personnel performing the evaluation. Instead, the parent requested that his son be evaluated by a private facility, at public expense.
The CSE took no action in response to the counsellor's referral of February 15, 1990. A written agreement to withdraw the referral to the CSE between the child's parent and the person submitting the referral is required by 8 NYCRR 200.4(a)(7) and (8). The record does not include the requisite agreement. On April 6, 1990, the principal of I.S. 25 requested that an impartial hearing be held to determine whether petitioners' son should be evaluated in the absence of parental consent to an evaluation, in accordance with the provisions of 8 NYCRR 200.4(a)(8). That request was forwarded by the CSE chairperson to the Board of Education.
At the hearing held on May 4, 1990, petitioners conceded the need for an evaluation, but expressed strong reservations about having the CSE perform the evaluation. Instead, the petitioners urged that the CSE be required to rely upon the results of a private evaluation of their son, which they hoped to obtain. They also asked that the district pay for the private evaluation. By decision dated May 25, 1990, the hearing officer found that the CSE had sustained its burden of establishing the need for an evaluation. The hearing officer further found that, while a parent has the right to obtain an independent evaluation, a CSE is not precluded from conducting its own evaluation of a child.
The record reveals that petitioners' son was classified as learning disabled in 1985. In June 1987, at the end of sixth grade and at the request of his parents, he was declassified and in September 1987 petitioners' son entered seventh grade at J.H.S. 168. His cumulative school record shows that during the 1987-88 school year the child received failing grades in communication arts, social studies, mathematics, Spanish and music, and passing grades in four other subjects. His conduct was rated as generally unsatisfactory or in need of improvement. In the 1988-89 school year petitioners' son repeated the seventh grade at J.H.S. 185. He failed communication arts, mathematics, science, Spanish and art, but passed all other courses. He was absent 52 days and tardy on 13 days.
Petitioners' son commenced the 1989-90 school year at I.S. 25 in the eighth grade. By the end of the third marking period in the 1989-90 school year, he had cumulative averages of 60 in English, 50 in social studies, 60 in mathematics, 70 in science, 50 in Spanish, 40 in technology, 65 in art, 50 in music and 45 in health. The record is unclear as to whether his average in English should have been 60 or 65. He was absent on 33 days and tardy on 13 days.
The record also includes incident reports involving the student and teacher comments about the student. The teachers report that the child is generally inattentive in class, does not always complete assignments on a timely basis, does not participate in class, and exhibits behavior which distracts other students. It is also alleged that he assaulted a fellow student with a pen, and defaced school property.
At the hearing, the guidance counsellor who made the referral to the CSE testified the student had been placed in an "at risk" program for 10 weeks. That program provided the pupil with assistance in basic skills three days each week in a resource room, although he was a regular education student. His science and English teachers testified that the pupil's academic performance and classroom behavior were somewhat improved with the extra individual attention which they had given to him. However, the pupil's academic performance and behavior were still not found to be acceptable, even with such additional attention from his teachers.
I find that on the record before me, there is an adequate basis to warrant an evaluation of petitioners' son to ascertain if he has a handicapping condition and if he would benefit from special education services. The student has had significant academic failure in 3 different schools for 3 concurrent years. He has also exhibited poor attendance and disciplinary problems. The student's science teacher testified that petitioners' son has the potential for improved academic performance, and that the student's performance on certain standardized tests suggests that he is capable of better academic performance.
With regard to petitioners' preference for a private evaluation, I note that 8 NYCRR 200.5(a)(1)(vi)(a) provides that a parent has the right to obtain an independent evaluation at public expense, if the parent disagrees with the evaluation obtained by the school district; however, a school district may initiate a hearing to demonstrate that its evaluation is appropriate. In the event that a hearing officer concludes that the district's evaluation is appropriate, a parent may obtain an independent evaluation, but not at public expense. A CSE must also consider any evaluation material submitted by a parent (8 NYCRR 200.5[a}[1}[v]). However, a CSE is not obliged to forego its own testing, in favor of test results supplied by a parent. The record demonstrates that the chairperson of the CSE exhibited a willingness to work with petitioners to avoid any unnecessary or duplicative testing, and I urge the parties to work cooperatively for the benefit of the child.
THE APPEAL IS DISMISSED.
Dated: Albany, New York _________________________
October 15, 1990 Henry A. Fernandez