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No. 91-05

Application of a CHILD SUSPECTED OF HAVING A HANDICAPPING CONDITION, by his parent, for review of a determination of a hearing officer relating to the evaluation of the child by the Board of Education of the Middle Country Central School District

Appearances:

Giaccone and Giaccone, P.C., attorneys for respondent, C. Francis Giaccone, Esq., of counsel

DECISION

Petitioner appeals from the determination of an impartial hearing officer that a sufficient basis exists for respondent's committee on special education to evaluate petitioner's son without petitioner's consent to ascertain whether the pupil has a handicapping condition. The appeal must be dismissed.

Petitioner's son, who is now seven years of age, entered kindergarten at respondent's Eugene Auer Elementary School in September, 1989. The pupil was screened on two occasions shortly before or after his entry into kindergarten to ascertain his readiness for kindergarten. On each occasion, the pupil scored significantly below the score at which school personnel would expect pupils to experience academic difficulties upon entry into school. No further evaluation of the pupil was performed. The building principal testified at the hearing that petitioner declined to consent to an evaluation, but petitioner stated that she was not asked to consent to further evaluation.

On October 10, 1989, the pupil was transferred, with petitioner's consent, to an alternative kindergarten class in respondent's Holbrook School. The alternative kindergarten program is designed for pupils who are not ready for kindergarten. The class size is 12 pupils. In December, 1989, the pupil's teacher referred the pupil to the school building child study team, because the teacher opined that the pupil was unable to perform even the most basic skills, such as following simple directions and having minimal self-help skills. The teacher requested that the pupil be evaluated. On December 12, 1989, the child study team concurred with the teacher's request, and respondent's staff attempted to contact petitioner to obtain her consent to the proposed evaluation.

The building principal and a school social worker testified as to their respective and largely unsuccessful attempts to discuss the matter with petitioner. The social worker became involved because of the pupil's extensive absences from school. On March 2, 1990, petitioner did meet with the principal, who testified that petitioner agreed to promptly inform the principal whether she would consent to the pupil's evaluation. However, she did not, and the evaluation issue was not resolved during the remainder of the 1989-90 school year.

For the 1990-91 school year, the pupil was assigned to a regular first grade class in the Eugene Auer Elementary School. The record reveals that most pupils in this school district advance from an alternative kindergarten to a regular kindergarten, and that the pupil had encountered significant difficulty in the alternative kindergarten program. The principal explained at the hearing that the pupil was not assigned to a kindergarten class because of his age and because the pupil needed more assistance than could be provided to him in a half day kindergarten program.

On October 15, 1990, respondent appointed a hearing officer to conduct a hearing to determine if the pupil should be evaluated despite his parents' refusal to consent to an evaluation. The hearing officer telephoned petitioner to arrange a date for the hearing, and it was agreed that the hearing would be held on November 9, 1990. On that day, petitioner telephoned the hearing officer to obtain an adjournment of the hearing because of the pupil's illness. The hearing was rescheduled for November 16. On November 15, petitioner sought an additional adjournment of the hearing. However, the hearing was held on November 16, 1990. Petitioner attended the hearing without an attorney or other representative. At petitioner's request the hearing was adjourned early in the afternoon, with the understanding that the hearing would reconvene on December 3. On December 3, the hearing officer was advised that petitioner had called the school to request an additional adjournment because she had allegedly retained an attorney who could not be present. The hearing officer telephoned petitioner to ascertain the name and telephone number of petitioner's attorney. However, petitioner declined to reveal the name of her attorney to the hearing officer. To date, no attorney has appeared on behalf of petitioner.

The hearing officer declined to grant a further adjournment, and the hearing was concluded on December 3 without the participation of petitioner. In a decision dated December 19, 1990, the hearing officer found that respondent had conclusively demonstrated the need to conduct an evaluation of the pupil, and authorized respondent to perform all necessary tests.

Petitioner asserts that she was never asked for permission to test the pupil at the time of his initial placement in kindergarten at the Eugene Auer Elementary School, but acknowledges that the principal of the Holbrook Elementary School did request such permission. She alleges that she has withheld her consent because she could not obtain answers to her questions about an evaluation. Petitioner also asserts that the concerns about the pupil's academic and emotional needs expressed by his teachers and the other school district staff are petty and do not relate to the pupil's academic performance. Petitioner contends that respondent's staff has already concluded that the pupil should be placed in special education, largely because the pupil's older siblings were special education pupils.

Before determining the adequacy of the evidence adduced at the hearing, I must first determine whether petitioner's rights were violated by the hearing officer's determination to proceed with the hearing on December 3, 1990 despite petitioner's absence.

Federal and State regulations require that a board of education obtain parental consent for the initial evaluation of a pupil suspected of having a handicapping condition (34 CFR 300.504 [b][1]; 8 NYCRR 200.5 [b][1]). In the event that such consent is not obtained, a board of education is required to initiate a hearing to determine whether an evaluation should be conducted without parental consent (8 NYCRR 200.5 [b][2]). Although a board of education has the burden of establishing a basis for the proposed evaluation and a parent is not required to present reasons why the evaluation should not be conducted, the opportunity of a parent to attend the hearing is a valuable right which should not be forfeited lightly (Application of a Child Suspected of Having a Handicapping Condition, 29 Ed. Dept. Rep. 432).

Upon the record before me, I find that it was reasonable for the hearing officer to proceed with the hearing on December 3, 1990. The initial hearing was scheduled and adjourned once to accommodate petitioner's schedule, and was terminated early at petitioner's request to allow her to keep another appointment. Petitioner agreed to the December 3 date for the continuation of the hearing, and made no mention at that time that she intended to engage the services of an attorney. The hearing officer acted reasonably in attempting to ascertain the name of petitioner's attorney. Petitioner's refusal to reveal the name of her attorney was unreasonable and precluded the hearing officer from attempting to arrange for a reasonable adjournment. Under the circumstances, I find that it was reasonable for the hearing officer to proceed with the hearing (Application of a Child with a Handicapping Condition, 21 Ed. Dept. Rep. 403; Application of a Child Suspected of Having a Handicapping Condition, 22 id. 412).

With regard to the hearing officer's finding that respondent had met its burden of proof in establishing a basis for proceeding with an evaluation of the pupil without petitioner's consent, I find that there is an adequate basis in the record to warrant an evaluation of the pupil. The pupil's teacher during the 1989-90 school year testified that, when the pupil entered the alternative kindergarten, his skills were below those of children which the teacher had taught at the preschool level. The teacher testified that as of February, 1990 the pupil could count to the number five, but could not identify numbers, and that as of June, 1990 he could recognize some numbers, but had no understanding of the quantity of a number. The teacher further testified that the pupil's responses to her questions were often inappropriate or irrelevant, and that he tended to take words too literally.

Both the pupil's kindergarten teacher and his first grade teacher testified that the pupil had difficulty following daily classroom routines. His first grade teacher testified that the pupil is poorly coordinated, and becomes lost between his classroom and a restroom immediately adjacent to the classroom. Both teachers also testified that the pupil has deficits in his fine motor control, as revealed when he is asked to cut out paper figures or write with a pencil. The pupils first grade teacher testified that the pupil has difficulty in physical education with jumping and balancing, suggesting the existence of gross motor deficits. The principal of the Eugene Auer Elementary School and a school psychologist who observed the pupil in the alternative kindergarten class both testified that the pupil walked with an awkward gait.

The pupil's kindergarten teacher and the school psychologist both testified that the pupil perseverates, i.e. repeats words many times. His first grade teacher testified that as of December, 1990 the pupil still did not speak in complete sentences, and that he often made inappropriate and/or animalistic sounds in class. That teacher further testified that the pupil required close supervision to avoid injury to himself or others, because of his

tendency to put his hands or objects near the faces of other pupils, and having his possessions on the floor. The teacher further testified that, as of December, 1990, the pupil had still not learned the routine of the classroom.

The first grade teacher also testified that the pupil had learned to write his name since entering first grade, but was still learning letters and sounds. The teacher stated that the pupil had difficulty staying on task, and was becoming frustrated by having to share the teacher's attention with other pupils.

In view of the uncontroverted testimony of the school staff who have worked with the pupil, I find that an evaluation should be conducted. Contrary to petitioner's expressed fear that a determination has already been made that the pupil should be in a special education class, the purpose of the hearing and this appeal is to determine whether the pupil should be evaluated. An evaluation will provide useful information about the pupil's needs, which will enable respondent to respond to those needs. It is premature to speculate as to whether the pupil's needs may be met only in a special education class or program. I urge petitioner to cooperate with respondent in undertaking a prompt evaluation of the pupil.

THE APPEAL IS DISMISSED.

Dated: Albany, New York __________________________
March 4, 1991 HENRY A. FERNANDEZ