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The State Education Department
State Review Officer

No. 94-25

Application of a CHILD SUSPECTED OF HAVING A DISABILITY, 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

Appearances:

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Susan Hartzell, Esq., of counsel

DECISION

Petitioner asserts that she is the child's aunt and legal guardian. Respondent does not contest petitioner's assertion. Therefore, I find that petitioner is the child's parent for the purpose of having standing to bring the appeal (34 CFR 300.13). Petitioner appeals from the decision of an impartial hearing officer that a sufficient basis exists for the child's evaluation by respondent's committee on special education (CSE), without petitioner's consent. The appeal must be dismissed.

Before reaching the substantive issues of the appeal, I must first address the procedural issue of respondent's untimely answer to the petition. The Regulations of the Commissioner of Education require that an answer to the petition in an appeal from the decision of an impartial hearing officer be served upon the petitioner within 10 days after the petition has been served (8 NYCRR 279.5). The record reveals that the petition was served upon the board of education on September 1, 1994, but the answer was not served upon petitioner until September 20, 1994. In its answer, respondent requests that its answer be accepted because of its inability to comply with the 10 day deadline due to the occurrence of Labor Day and the Jewish holidays, when respondent's offices were closed, within the week after respondent was served with the petition. In an appropriate case, I may accept a late answer where there is a reasonable explanation for the delay and the petitioner would not be prejudiced by the acceptance of the answer (8 NYCRR 276.3; 8 NYCRR 279.1). I find that respondent has offered a reasonable explanation for its delayed answer and that the acceptance of the answer will not impair the parties' right to receive a timely decision in this appeal. Therefore, I have accepted respondent's answer.

Petitioner's nephew is twelve years old. The child entered kindergarten in September, 1987 in respondent's P.S. 136. In December, 1987, the child transferred to P.S. 20. The child's teacher reported that the child had not mastered kindergarten level reading skills, and the child was held over in kindergarten for the 1988-89 school year. At the end of the child's second year in kindergarten, his teacher reported that the child had difficulty with his auditory skills, and suggested that he might have a perceptual impairment. While in the first grade during the 1989-90 school year, the child received the grade of "unsatisfactory" in reading and written language, and the grade of "needs improvement" in oral language, social studies, mathematics and health. The child also was marked as needing improvement in ability to carry out his responsibilities and his ability to show self-control.

During the 1990-91 school year, the child was enrolled in the second grade of the Tabernacle Elementary School, a private school located in Brooklyn, New York. The child received the numerical grade of 65 in each of his subjects. He achieved grade equivalent scores of 1.4 in reading and 1.2 in mathematics. The child repeated the second grade in the same school during the 1991-92 school year. His grades did not significantly improve, and his grade equivalent scores for reading and mathematics only slightly improved to 2.0 and 2.5, respectively.

The child returned to respondent's P.S. 20 for third grade during the 1992-93 school year. In January, 1993, the child's teacher referred him to the CSE for an evaluation. The teacher reported that the child was performing at the first grade level in reading, mathematics, spelling, written language and oral language, and that he required 1:1 instruction. She described the child usually well behaved, but immature, insecure and easily frustrated. Petitioner declined to consent to the proposed evaluation, and the referral was terminated. During the 1992-93 school year, the child participated in a remedial reading program. The child received grades of "unsatisfactory" in reading, written language, oral language, spelling and mathematics in the third grade, but was promoted to the fourth grade.

In October, 1993, the child reportedly brought a penknife to school. The principal of P.S. 20 recommended that the child receive counseling, as an educationally related support service (see Section 3602 [32] of the Education Law). However, petitioner disagreed with the principal's recommendation. She did agree to allow the child to participate in a remedial reading program, which had been recommended for him because of his low score on a standardized test administered to him when he was in the third grade. The child also participated in respondent's "Promoting Success Program", an after-school program in which he received additional instruction in reading. The child's report card for the first three quarters of the 1993-94 school year reveals that he received grades of "unsatisfactory", in reading, oral language, written language, and mathematics, and grades ranging from "unsatisfactory" to "needs improvement" in social studies. He received "satisfactory" grades in science, health, music, art and physical education. In the area of personal and social development, the child received grades of "unsatisfactory" with regard to obeying rules and showing self-control.

On February 5, 1994, the child's fourth grade teacher referred the child to the CSE for an evaluation. The teacher reported that the child's reading skills were at a 2.5 grade equivalent, and that he was unable to read words with more than four letters. She further reported that the child was unable to read cursive writing, or to write in cursive style. The teacher indicated that another student helped the child to copy homework assignments written in cursive, and that when possible an aide assisted the child with word problems in mathematics, reading, and social studies assignments. His teacher also indicated that the child had a short attention span, and that he danced and sang while moving about the classroom. The child's teacher expressed concern about the child's lack of social skills, while noting that the child wanted to please and be accepted.

Petitioner refused to consent to the child's evaluation by the CSE, and the child's referral was withdrawn. However, on May 16, 1994, the principal of P.S. 20 requested that an impartial hearing be held so that an impartial hearing officer could determine whether an evaluation should be conducted without parental consent (34 CFR 300.504 [b][3]; 8 NYCRR 200.5 [b][2]). In her referral, the principal described the child's academic progress as minimal, despite having received remedial reading instruction since his return to P.S. 20 in 1992 and having participated in the Promoting Success Program. She indicated that the child had also received instruction in a small group with the assistance of an aide, during the third and fourth grades, and had participated in a summer school program in 1993. The principal asserted that the child had become increasingly disruptive in the classroom.

The hearing in this proceeding was scheduled to be held on June 22, 1994. On June 8, 1994, respondent's Impartial Hearing Office sent a notice of the hearing by certified mail and by first class mail to petitioner at an address on Grandview Avenue in Staten Island. The address which the Impartial Hearing Office used was the same as the return address in petitioner's letter of April 1, 1994 to the chairperson of the CSE, in which petitioner refused to grant her consent for the child's evaluation. In prior correspondence with petitioner during the 1992-93 and the 1993-94 school years, respondent had written to petitioner at an address on Heberton Avenue in Staten Island, which is one of two addresses which appears on the child's cumulative record.

Petitioner did not appear at the hearing held on June 22, 1994. The hearing officer asked a representative of the Impartial Hearing Office to testify about the notice of the hearing which had been given to petitioner. The representative testified that the Impartial Hearing Office had not received a return receipt for the notice sent by certified mail, and that no one in her office had spoken to the petitioner about the hearing. The assistant chairperson of the CSE testified that on the day of the hearing she had telephoned petitioner's residence, and had spoken with an individual whom she believed to be petitioner's daughter. The assistant chairperson further testified that the other individual told her that petitioner was on her way to attend the hearing.

The hearing officer proceeded to conduct the hearing in petitioner's absence. He accepted 23 documents into evidence, and heard the brief testimony of the child's fourth grade teacher. He then stated that he would issue an order to authorize the CSE to evaluate the child, and that petitioner would be furnished with copies of the hearing transcript and his order.

The Impartial Hearing Office sent copies of the hearing transcript to petitioner by first class mail and certified mail at the Grandview Avenue address to which the notice of hearing had been sent. In a letter to the Impartial Hearing Office, dated July 6, 1994, petitioner asserted that she had not been notified that a hearing would be held on June 22, 1994, and she requested that the hearing be reopened.

In an interim order, dated July 14, 1994, the hearing officer denied petitioner's request. Noting that petitioner had promptly requested that the hearing be reopened after receiving the hearing transcript which had been mailed to the Grandview Avenue address, to which the notice of the hearing had also been mailed, the hearing officer found that petitioner had been properly notified of the hearing. The hearing officer also premised his order denying petitioner's request to reopen the hearing upon the fact that the child's status as a regular education student would not be altered if he were evaluated. He retained jurisdiction of the matter through the 1994-95 school year, and directed respondent not to change the child's placement without petitioner's consent or a further order of the hearing officer. The hearing officer indicated that he would defer issuing a final order in the matter for 10 days, in order to afford petitioner the opportunity to submit written information supporting her position that the child should not be evaluated. Nevertheless, the hearing officer expressed his belief that a sufficient basis existed to suspect that the child might have a disability and that an evaluation should be conducted, because the child had significant learning delays notwithstanding the extra educational assistance which had already been provided to him.

Petitioner submitted to the Impartial Hearing Office a letter, dated July 24, 1994, in which she reiterated her opposition to having the child evaluated or being placed in a special education program. She asserted that the child was receiving three hours per day of tutoring, and that his performance was improving. The Impartial Hearing Office forwarded petitioner's letter to the hearing officer.

On August 2, 1994, the hearing officer issued a decision, which he denominated as a final order. In his decision, the hearing officer briefly reviewed petitioner's expressed concern that she would not be afforded an opportunity to challenge any future CSE recommendation for the child's placement in a special education class, as well as her opposition to special education. The hearing officer reiterated his intention to afford petitioner an opportunity to participate in the CSE's assessment of the information to be obtained from the child's evaluation and to have a hearing in the event that she disagreed with the CSE's recommendation. He directed the CSE to proceed with the evaluation.

Petitioner challenges the hearing officer's decision on the grounds that the hearing officer was allegedly not impartial and that his decision denied her due process of law. Petitioner's claim with regard to the hearing officer's impartiality appears to be premised upon her belief that the hearing officer's decision impugns her credibility. She also asserts that the hearing officer and respondent's employee "work from the same office." She has penned an addendum to her petition in which she asserts that the hearing officer may have been influenced by the fact that the husband of the teacher who testified at the hearing is a judge.

In pertinent part, State regulation provides that an impartial hearing officer shall:

" ... be independent, shall not be an officer, employee or agent of the school district or of the board of cooperative educational services of which such school district is a component, or an employee of the Education Department, shall not have a personal or professional interest which would conflict with his or her objectivity in the hearing, and shall not have participated in any manner in the formulation of the recommendation sought to be reviewed; ... " (8 NYCRR 279.1 [s][1]).

A hearing officer must avoid even the appearance of impropriety (Application of a Child with a Handicapping Condition, Appeal No. 91-10; Application of a Child with a Disability, Appeal No. 94-8), and must render an impartial decision based upon the evidence in the record. Petitioner did not testify at the hearing, and her credibility was not at issue. The hearing officer's task was to determine whether respondent had notified petitioner of the hearing in a manner which was reasonably calculated to inform her that the hearing would take place. Petitioner's dissatisfaction with the hearing officer's finding that she had received adequate notice of the June 22, 1994 hearing does not afford a basis for me to find that the hearing officer was biased or lacked the requisite impartiality (Application of a Child with a Disability, Appeal No. 94-23). Although petitioner asserts that the hearing officer and respondent's employees work in the same office, I find that there is no evidence in the record to support that assertion. It should be noted that a person who is otherwise eligible to serve as an impartial hearing officer is not deemed to be a school district employee solely because a school district pays the person to serve as a hearing officer (34 CFR 300.507 [b]). There is no evidence in the record to establish that the hearing officer was aware of the office allegedly held by the teacher's spouse.

With regard to petitioner's claim that she was denied due process of law, it should be noted that due process does not require that petitioner be present at the hearing, rather that she have received notice reasonably calculated under all of the circumstances to apprise her that the hearing would be held and have an opportunity to present her objections to the proposed evaluation (Mullane v. Central Hanover Trust Co., 339 U.S. 306 [1950]; Marcus v. Ambach, 136 AD 2d 778 [3rd Dept., 1988]). Although correspondence from respondent's staff had previously been sent to petitioner at the Heberton Avenue address, the most recent address given by petitioner to respondent's staff was the Grandview Avenue address, in her letter of April 1, 1994 to the CSE chairperson. There was nothing in that letter which would have indicated that the Grandview Avenue address was not petitioner's current address. As noted by the hearing officer, there is no evidence that the notice of hearing which was sent by first class mail to the Grandview Avenue address was returned to the Impartial Hearing Office. I note that petitioner requested that the hearing be reopened, after a copy of the hearing transcript was mailed to her at the Grandview Avenue address, and that she has submitted with her petition a copy of a notice to the child's parent/guardian, dated July 20, 1994, which was sent to the same address and which she obviously received. I have also considered the testimony of the assistant CSE chairperson about her telephone call to petitioner's home on the day of the hearing, as well as petitioner's assertion in her petition that she "had questioned everyone at both addresses" about receipt of a written notice of the hearing or any telephone message about the hearing. Under the circumstances, I find that respondent provided petitioner with notice of the hearing which was reasonably calculated to apprise her that the hearing would be held on June 22, 1994, and that the hearing officer afforded her the opportunity to express her views concerning the proposed evaluation.

Respondent bears the burden of establishing that there is an adequate basis to suspect that the child may have an educational disability (Application of a Child Suspected of Having a Disability, Appeal No. 94-1; Application of a Child Suspected of Having a Disability, Appeal No. 94-3; Application of a Child Suspected of Having a Disability, Appeal No. 94-10). 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 remedial assistance it has provided to the child (Application of a Child Suspected of Having a Disability, Appeal No 94-1; 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. 91-33).

The record reveals that the child has had significant difficulty in most of his academic subjects over an extensive period of time. His fourth grade teacher's assessment that the child's reading skills are seriously deficient is supported in a written report by the child's remedial reading teacher for the 1993-94 school year, who indicated that the child was reading on a first grade level, and that he required the assistance of an aide to decode words. She further reported that the child could not discern short or long vowel sounds, nor could he identify words in a sight word vocabulary list. She also confirmed the fourth grade teacher's report that the child could not read cursive writing. The record also includes a report by the child's remedial reading teacher for the 1992-93 school year, who revealed that the child was reading on the kindergarten level during that school year. Both remedial reading teachers and the child's fourth grade teacher reported that the child requires much individual instruction, and that he was extremely frustrated by his academic deficits. The child's teacher in the Promoting Success Program also reported that the child required very individualized instruction even in the small group of ten students whom she taught. At the hearing, the child's fourth grade teacher testified that the child is unable to work independently.

Upon the record before me, I find that there are ample grounds to suspect that the child may have an educational disability. I further find that respondent has demonstrated that it has provided appropriate remedial assistance through its remedial reading program, the Promotion Success Program, and the use of teacher aides to provide individual assistance. Accordingly, I find that respondent has met its burden of proof to warrant the child's evaluation for a suspected educational disability. In doing so, I must emphasize that neither the hearing officer nor I have determined that the child has an educational disability, or what, if any, special education services the child should receive. Petitioner has the right to obtain an independent evaluation. After the child has been evaluated, the CSE must afford petitioner an opportunity to meet with it to review the results of its evaluation and any information which petitioner wishes to submit. The CSE will then make its determination. If she is dissatisfied with the CSE's recommendation, petitioner will have an opportunity to exercise her due process rights to an impartial hearing to review the CSE's recommendation.

THE APPEAL IS DISMISSED.

Dated: Albany, New York                                                                    ____________________________
             September 30, 1994                                                                            DANIEL W. SZETELA