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The State Education Department
State Review Officer

No. 93-16

Application of a CHILD SUSPECTED OF HAVING A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the evaluation of the child by the Board of Education of the Sachem Central School District

Appearances:

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich and Scricca, Esqs., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

DECISION

Petitioners appeal from the determination of an impartial hearing officer that a sufficient basis exists for an evaluation of petitioners' child by respondent's committee on special education (CSE), without petitioners' consent, in order to ascertain whether the child has an educational disability for which she should receive special education and/or related services. The appeal must be dismissed.

Petitioners' child, who is 11 years old, is in the sixth grade in respondent's Gatelot Avenue School, in which she has been enrolled since kindergarten. The child was placed in smaller than usual first and second grade classes, so that her teachers could provide her with more time and attention. The child received remedial reading assistance in the second through fifth grades, and remedial mathematical assistance in the third, fourth, and fifth grades. Petitioners initially declined respondent's offer to provide the child with remedial assistance in sixth grade during the 1992-93 school year, because they were concerned that the child was missing too much regular instruction while in the remedial classes. In its answer, respondent asserts that on January 29, 1993, petitioners requested that the child receive remedial reading.

In December, 1991, the child was referred to the CSE by her fifth grade teacher who reported that the child had difficulty with conceptual thinking and was easily distracted from her work. The teacher further reported that the child was having difficulty functioning academically, despite the remedial assistance she had received. Federal and State regulations provide that a child who has not been previously evaluated or identified as a child with a disability may not be evaluated without the consent of the child's parent (34 CFR 300.504 [b][1][i]; 8 NYCRR 200.5 [b][1]), unless the board of education is authorized by an impartial hearing officer to perform the evaluation without parental consent (34 CFR 300.504 [c][2]; 8 NYCRR 200.5 [b][2]). Petitioners did not consent to the evaluation of the child. At the hearing in this proceeding, the elementary school principal testified that he agreed to petitioners' request not to pursue the matter to a hearing, in order to allow petitioners time to work with the child. Although there was some variation in the child's grades during fifth grade, her report card reveals that she received generally below average or failing grades in reading, English, social studies, and science. Nonetheless, she was promoted to the sixth grade.

In October, 1992, the child's sixth grade teacher informed petitioners in writing that the child was not completing her assignments and was easily distracted in school. On November 5, 1992, the child's father met with the teacher. The teacher explained that the child was experiencing academic difficulty, and suggested that the child be evaluated. The child's father declined to consent to an evaluation.

On November 6, 1992, the child's teacher referred her to the CSE. In his referral, the teacher reported that the child had difficulty understanding concepts in class and that her knowledge of basic facts of the world around her was weak. The teacher also reported that the child did not retain well the information which had been presented to her, as evidenced by the failing grades which she was then attaining in sixth grade. The teacher also reported that the child was easily distracted. The teacher referred the child prior to the end of the first quarter of the 1992-93 school year. Subsequently, the child received failing grades for the first quarter in reading, mathematics, social studies and science.

On December 17, 1992, the chairperson of the CSE informed petitioners that respondent would initiate a hearing for the purpose of determining whether the child should be evaluated without petitioners' consent. A hearing was held on January 19, 1993. In a decision dated March 15, 1993, the hearing officer held that it was not unreasonable or inappropriate for respondent to conduct an evaluation in light of the child's academic problems despite the fact that she had received remediation.

Respondent bears the burden of establishing that there is an adequate basis to suspect that the child may have a disability (Application of a Child Suspected of Having a Disability, Appeal No. 93-7; Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 137). In meeting its burden of proof, respondent need not demonstrate that the child has a disability, but that there is an adequate basis to suspect the existence of a disability which impairs the child's educational performance (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-17; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-29). Respondent must also demonstrate what, if any, academic and/or behavioral remedial assistance it has provided to the child (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33).

Although there was some variation in the child's grades during fourth and fifth grades and the beginning of sixth grade, the record discloses a consistent pattern of below average or failing performance in reading, mathematics, social studies, and science. The child's report card for those grades reveal that her teachers were concerned about the child's ability to follow directions, assume responsibility for her work and be organized. At the hearing in this proceeding, the child's sixth grade teacher testified that the child had difficulty staying focused and completing work on a timely basis. The teacher also testified that the child sometimes seemed to have a grasp of what was going on in the classroom, but that at other times, the child did not. Although the child had been successful in language arts and spelling during the first quarter of the year, the teacher testified that the child was nevertheless functioning at a minimal level. Of particular concern to the teacher was the child's low level of reading comprehension skills. The teacher testified that the child had great difficulty understanding material presented to her.

The record includes the results of standardized tests which the child has taken in elementary school. On tests administered in May, 1992, when the child had almost completed fifth grade, her total reading skills were assessed to be at a mid-third grade level. When compared to the results of tests administered one year earlier, the child's reading comprehension skills had improved by only two months. A standard rate of improvement was expected to be one year. The child's language mechanics and language expression skills also improved by less than one year between May, 1991 and May, 1992. The child's total math skills improved by slightly more than one year during the same time period. Nevertheless, the child's total math skills were assessed to be at a mid-fourth grade level in May, 1992. On the Pupil Evaluation Program (PEP) tests administered when the child was in third grade, she achieved a score slightly below the statewide reference point in reading and slightly above the statewide reference point in mathematics. On the fifth grade PEP test in writing, the child's score was right at the statewide reference point. State regulation requires that a child be provided with remediation in the areas in which the child scores below the statewide reference point on PEP tests (8 NYCRR 100.3 [b][3]).

On group IQ tests administered to the child in 1990, and 1992, the child was found to function cognitively in the low average range. There was a significant disparity of 21 points between the child's verbal IQ and nonverbal IQ in the 1992 test results. The child's sixth grade teacher opined at the hearing that a child with a low average IQ should be successful with the curriculum used in this child's class.

On the record before me, I find that the child has not performed at a level commensurate with her ability, despite having received substantial remedial assistance in reading and mathematics. The record reveals that the child received five hours of remedial reading per week in second grade, and two hours per week in the third, fourth and fifth grades. She also received one and one-half hours of remedial mathematics per week for three years, but her total math skills are still below grade level. Petitioners assert that the child is young for her class, and suggest her rate of progress is appropriate in view of her relative youth. However, the record reveals that the child entered kindergarten in September, 1986, the month of her fifth birthday, and is not young for her grade. In view of the child's low level of academic performance and the comments of her fourth, fifth and sixth grade teachers about her distractibility, I find that respondent has met its burden of proof.

At the hearing and in this appeal, petitioners have expressed their concern about having a social history or a psychological examination as part of the child's individual evaluation. I must point out that a State regulation requires that an individual evaluation include a social history and a psychological evaluation, except when a school psychologist has determined that a psychological evaluation is unnecessary (8 NYCRR 200.4 [b]).

Petitioners object to the delay in the rendering of the hearing officer's decision. Federal and State regulations require that copies of the hearing officer's decision be mailed to the parties within 45 days after the board of education receives a request for a hearing or initiates a hearing (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c][11]). In this instance, the hearing was initiated on or about December 17, 1992, and the hearing officer rendered his decision on March 15, 1993. I do not condone the delay in this matter, however under current law, that delay does not afford a basis for invalidating the hearing officer's decision (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33). However, I shall refer this issue to the State Education Department's Office of Special Education Services to investigate whether respondent school district has appropriate procedures to meet its obligation to insure that timely hearing officer determinations are made, and if not, that an appropriate plan of correction is developed and implemented. In the future, respondent must assure that hearing officer decisions are rendered in a timely manner.

THE APPEAL IS DISMISSED.

Dated:             Albany, New York                                     _________________________
                        May 24, 1993                                               HENRY A. FERNANDEZ