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No. 91-29

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 City School District of the City of New York

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent,
Felicia Dunn-Jones, Esq., of counsel


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

The child, who is now nine years of age, entered kindergarten at P.S. 84 in September, 1987. In June, 1988, the child's kindergarten teacher referred the child to the CSE, because of the child's slow, deliberate speech and inability to follow directions or answer questions. At petitioner's request, in September, 1988, the CSE agreed to terminate the referral without further action, in accordance with the provisions of 8 NYCRR 200.4 (a)(7).

The record does not disclose any information as to the child's performance in first grade during the 1988-89 school year. The child's report card for the 1989-90 school year reveals that his academic performance and social skills were satisfactory in the second grade. One week after the beginning of the 1990-91 school year, petitioner met with the child's third grade teacher and a school guidance counselor, who disclosed to petitioner that the child had academic and behavioral difficulties. Petitioner subsequently agreed to have the child seen by a private psychologist, who recommended that a further evaluation of the child be performed.

On November 3, 1990, the child's third grade teacher referred the child to the CSE. The teacher's written referral statement asserted that the child was unwilling to participate in activities and that his attention span was limited to approximately five minutes. The teacher also reported that the child experienced continual fantasies and engaged in poor social interaction with his peers. On January 14, 1991, at petitioner's request, the CSE agreed to terminate the referral.

On March 11, 1991, the principal of P.S. 84 requested that a hearing be held to determine whether the child should be evaluated in the absence of petitioner's consent to an evaluation. Respondent agreed with the request, and arranged for a hearing in accordance with the provisions of 8 NYCRR 200.5 (b)(2). The principal's request noted that on February 22, 1991, he had met with petitioner concerning the necessity of an evaluation. The principal also noted that he had transferred the child twice. First, he placed the child in another third grade class for two weeks and thereafter, he placed the child in another third grade class with a teacher whom petitioner had requested for the child. Nevertheless, the child's behavior remained relatively unchanged. The principal described the child's behavior in school and on field trips. He described the child's limited ability to maintain attention and unusual affect in conversations with the principal. The principal reported that the child would assume multiple roles in a conversation.

A hearing was held on May 23, 1991. In a decision dated June 11, 1991, the hearing officer found that the child had academic and emotional difficulties which warranted an evaluation. The hearing officer noted that petitioner revealed at the hearing her intention to place the child in a private school in September, 1991. The hearing officer directed the CSE to proceed with an evaluation of the child, unless petitioner provided evidence by July 10, 1991 of the child's enrollment in a private school.

Petitioner asserts in her appeal of the hearing officer's decision that respondent violated her rights by failing to provide her with a written description of the school's attempts to offer remediation to the child and of its attempts to contact her about the need for an evaluation.

State regulation requires that a written referral of a child to the CSE must include a description of attempts to remediate the child's performance prior to referral and a description of the extent of parental contact or involvement prior to the referral (8 NYCRR 200.4 [a][2][ii] and [iii]). The principal's request for a hearing, which is the equivalent of a referral, reveals that the child's teacher had attempted to assign a peer partner to the child, and had used small group activities; that the school librarian had worked on a one-to-one basis with the child; and that the child had been placed in three third grade classes in an attempt to find an appropriate environment. Indeed, one of the placements was directly responsive to petitioner's request. In addition to his February 22, 1991 meeting with petitioner, the principal also described other meetings between petitioner and the staff at P.S. 84. On these facts, I find that respondent has complied with its obligations under the regulation.

Petitioner asserts that respondent has failed to establish that her child has any learning difficulty. In support of her position, petitioner relies upon the child's second grade report card and upon the results of standardized testing of the child's performance in reading and mathematics in the Spring of 1990. The test results reveal that the child received a score in the 58th percentile in mathematics and in the 47th percentile in reading on the Metropolitan Achievement Test.

Respondent is not required to demonstrate that the child has a handicapping condition. Respondent must show that there is an adequate basis to suspect the existence of a handicapping condition which impairs the child's performance (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 137; Application of a Child Suspected of Having a Handicapping Condition, 26 id. 233; Application of a Child Suspected of Having a Handicapping Condition, 26 id. 7). The record in this case provides little information about the child's cumulative academic performance at P.S. 84.

I must note that I have not considered the brief written statements from the child's kindergarten, first and second grade teachers, as well as other teachers and an assistant principal, which were received in evidence as the hearing officer's exhibits I-VII. These statements were not disclosed to petitioner at least 5 days before the hearing, and she exercised her right to bar the introduction of such documentary evidence by respondent (8 NYCRR 200.5[c][8]). The transcript of the hearing reveals that the hearing officer acknowledged petitioner's objection to respondent's proposed exhibits, but without explanation entered the documentary evidence as exhibits of the hearing officer, rather than as respondent's exhibits. Although the hearing officer stated in his decision that he had not considered that evidence, I find that the hearing officer erred in entering into evidence the exhibits in question, because of petitioner's appropriate and timely objection to their introduction.

Notwithstanding the error by the hearing officer, I find that it would serve no useful purpose to require a second hearing on the issue of the need for an evaluation for this child because the record, even without the documents which should have been excluded, adequately demonstrates that the child may have a handicapping condition which interferes with his education. The testimony of the child's third grade teacher at the time of the hearing reveals that the child was not performing at a level commensurate with his ability. The teacher testified that the child has significant difficulty in focusing on school activities and requires close supervision. While the teacher believed that the child has adequate ability, he testified that the child was unable to complete tests because he could not sustain his concentration long enough to accomplish that task. The teacher estimated that the child's attention span was no more than 5 to 10 minutes, while that of other children in the class was approximately 35 minutes. Although the child initially did little of the work assigned to him, the teacher testified that, by May, 1990, the child was completing about three-quarters of his assignments. Nevertheless, the teacher opined that the child's work was minimal in all subjects, and at a lower level academically than was expected. I also note that although the child was reading at or about his expected grade level at the time of the hearing, this child was reported by his kindergarten teacher to be already reading while in kindergarten. The child's third grade teacher testified that the child was falling behind academically, and could not be expected to keep up with this classmates by the time he reached fifth grade.

The child's unusual speech was noted by three staff members: his kindergarten teacher in the June, 1988 referral, the principal of P.S. 84 in his hearing request, and a guidance counselor. At the hearing, the guidance counselor described the child as articulate, but using a unique selection of words which do not always fit together. The guidance counselor also discussed her contacts with a psychiatrist and a psychologist employed by the HIP-Manhattan Mental Health Service, where the child was examined at petitioner's request in December, 1990.

The record includes copies of the reports by the psychiatrist and the psychologist at the HIP. The psychiatrist described the child as having an affect which was inappropriate to the situation, and speech which was often not always clear or coherent. The psychiatrist did not diagnose any condition for the child, but recommended that the child be psychologically and neurologically tested. In a letter to the principal of P.S. 84 dated January 11, 1991, the HIP psychiatrist stated that the child talks nonsense at times, but is not clearly delusional. While not providing any educationally relevant diagnosis, the psychiatrist found that the child needed a small class with much structure and individual attention to assist him in his educational progress and emotional development. The psychologist at HIP reported that the child attained scores of 88 and 92 on the verbal IQ and performance IQ portions of the WISC-R test, with intra-test scatter denoting inconsistency in cognitive functioning The psychologist suggested that such test scatter is often reflective of emotional disorders. The psychologist found that the child had a small fund of general information, which may be because the child is selective about the information he will receive and/or may reflect his feelings about school. The psychologist opined that the child was probably showing signs of a major emotional disorder, but believed that no firm conclusion should be reached until a speech and language evaluation and a neurological evaluation of the child were completed. There is no evidence in the record that either evaluation has been performed.

The record also reveals that the child has had difficulty in interacting with his peers. The child's kindergarten teacher noted this difficulty in her 1988 referral of the child to the CSE. The child's third grade teacher testified at the hearing that the child had made some progress in adjusting to the routine of the class since joining the class in March, but he nevertheless was not really interacting with the children in the class. The teacher's testimony about the child's interaction is consistent with the report of the HIP psychiatrist, in that the teacher and the psychiatrist observed that the child is not always attentive to his environment.

Upon the record before me, I find that respondent has presented sufficient information about the possible existence of a handicapping condition to warrant an evaluation of the child.

Finally, I must note that, although the appeal must be dismissed, respondent is obligated to proceed with an evaluation, whether or not the child continues to be enrolled in respondent's school (Application of a Child Suspected of Having a Handicapping Condition, 24 Ed., Dept. Rep. 218). Federal and State law require each board of education to assure that all children residing within the school district who are in need of special education will be identified, located and evaluated (20 USC 1414[a][1][A]; Section 4402 [1][a] of the Education Law). Even if the child does attend private school, respondent would not be relieved of its obligation to provide appropriate services. Federal regulation and State law require a board of education to make appropriate services available to a child with a handicapping condition who has been placed by his parents in a private school (34 CFR 300.403; Section 3602-c of the Education Law). Consequently, the matter does not become moot if the child attends private school (Application of a Handicapped Child, 25 Ed. Dept. Rep. 63), and the CSE is directed to proceed with the proposed evaluation.


Dated: Albany, New York __________________________
September 13, 1991 HENRY A. FERNANDEZ