The State Education Department
State Review Officer

No. 96-49



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 Whitesboro Central School District

Foley, Frye and Foley, Esqs., attorneys for respondent, Richard A. Frye, 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, in order to ascertain whether the child has an educational disability for which he should receive special education services. The hearing officer qualified her decision by directing that respondent first assess the child's proficiency in English in accordance with the provisions of 8 NYCRR 154, and if appropriate to provide a bilingual assessment of the child's eligibility for classification and the receipt of special education services under 8 NYCRR 200. Petitioner does not oppose an assessment of his child's proficiency in English, but objects to the proposed evaluation of his son by the CSE. The appeal must be dismissed.

        Before reaching the merits of this appeal, I will first address respondent's contention that the appeal should be dismissed as untimely. The hearing officer rendered her decision on April 25, 1996. However, both parties sought a clarification of the decision from the hearing officer, who participated in a telephone conference call with petitioner and Mr. Albert Shaw, Jr., respondent's CSE chairperson, on May 23, 1996. Respondent has submitted a copy of a subsequent, but undated, written explanation by the hearing officer of her views with regard to the questions raised by the parties. Petitioner attempted to initiate this appeal in a letter to the State Review Officer, which was dated June 12, 1996. In a letter dated June 18, 1996, the Office of State Review advised petitioner of the manner in which appeals to the State Review Officer are to be initiated. On July 15, 1996, petitioner served a copy of the petition upon respondent. 8 NYCRR 279.2 [b] provides that appeals are to be initiated within 30 days after receipt of the hearing officer's decision. The record does not reveal when petitioner received the hearing officer's decision, or her subsequent written clarification. I also note that petitioner perfected his appeal within 30 days after being advised by the Office of State Review of the way to initiate an appeal. I will not dismiss the appeal as untimely.

        Petitioner and his wife are from Poland, and Polish is the dominant language in their home. Their son, who is twelve years old, was born in the United States. He is reportedly fluent in oral Polish, but does not read or write that language. The child entered kindergarten in the St. Mary's School, a parochial school in New York Mills, New York. He remained in the St. Mary's School for the first and second grades, and part of the third grade. His cumulative record from St. Mary's reveals that his performance in kindergarten was satisfactory. In the first grade, he received a "C" in English, a "B" in mathematics and an "F" in science and social studies. He advanced to the second grade for the 1992-93 school year. In the second grade, he received a "D" in English, social studies, and science, a "C" in mathematics, and an "A" in spelling.

        On October 27, 1993, the child was referred by his third grade teacher in St. Mary's to respondent for the possible provision of extra assistance to him. His teacher reported that the boy was doing poorly in all academic areas. She noted that the child spoke in broken English, and had difficulty learning the necessary reading skills. The child's teacher further reported that the child had difficulty interacting with peers, and required direct supervision while on the playground.

        Ms. Lynn LaCourse, who is employed by respondent as a teacher of English as a second language (ESL), was assigned to work with the child. At the hearing in this proceeding, Ms. LaCourse testified that the child's third grade teacher had opined to her that the child was "learning in isolation," i.e., that he was not able to process information, had difficulty recognizing words, and appeared to be memorizing information without understanding it. The third grade teacher also explained to Ms. LaCourse that the boy was working with first and second grade level materials, and receiving 1:1 assistance. Ms. LaCourse administered the Language Assessment Scale to the boy. She testified that his score on that test was on "level 4", which she described as the speech emergent stage. She explained that the child could speak in English, but had difficulty conveying some of his ideas to a listener. Ms. LaCourse concluded that the child was eligible to receive ESL instruction.

        The boy began receiving ESL instruction for 120 minutes per week, on December 13, 1993. He continued to receive instruction from Ms. LaCourse until February 2, 1994, which was approximately when his parents removed him from St. Mary's. Ms. LaCourse testified that the child tried hard to learn, and made some progress in improving his oral and written articulation skills. She further testified that at the outset, the child did not have "survival skill" level terminology, e.g., understanding left and right, above and below, but that he acquired some of that terminology while working with her. Ms. LaCourse, who indicated that she had received some special education training, was asked by the hearing officer whether the child had evidenced any sign of a learning disability. Ms. LaCourse testified that the child appeared to have an auditory memory problem, because he was unable to remember what she had discussed with him at the beginning of the lesson when the lesson ended. She also testified that the child appeared to have difficulty expressing his ideas in writing.

        On February 8, 1994, petitioner enrolled his son in the third grade of the Kernan Elementary School of the City School District of the City of Utica, where he also received ESL instruction. Although his ESL teacher reportedly did not speak Polish, her aide spoke that language. He was also given Chapter 1/PSEN (see 20 USC 2701 et seq. and Section 3602 [1][e] of the Education Law) remedial reading and mathematics instruction, while in the Kernan School. In June, 1994, his remedial reading teacher reported that the child had shown growth in developing his reading skills.

        In May, 1994, the child took the New York State Pupil Evaluation Program (PEP) tests in third grade reading and mathematics. His raw score of 20 on the reading PEP test was below the State reference point of 28, while his raw score of 34 in mathematics exceeded the State reference point of 26 on that PEP test. It should be noted that State regulation requires school districts to provide remedial instruction to children who score below the State reference point on the PEP tests (8 NYCRR 100.3 [b][3]).

        On the California Achievement Test, which was administered to him in June, 1994, the child's total reading score was at the 28th percentile, and his total mathematics score was at the 56th percentile. There was relatively little disparity in the subtest scores for reading: 24th percentile for vocabulary, and 34th percentile for comprehension. However, there was a significant difference in his scores for mathematical computation (85th percentile), and for mathematical applications (31st percentile), which presumably reflected his impaired reading skills. The boy's word analysis skills were found to be at the 41st percentile. The child's score for spelling was at the 31st percentile, while his scores for science and social studies were at the 12th and 41st percentiles, respectively. On his report card, he received final grades of "C-" in reading and language (writing skills and grammar), "B" in spelling and mathematics, and "S" (satisfactory) in social studies and science. His teacher indicated that the boy needed to improve his ability to listen and follow directions.

        In August, 1994, the boy was enrolled by his parents in respondent's Hart's Hill Elementary School. Petitioner reportedly would not allow his son to receive ESL instruction because the ESL teacher did not speak Polish. He did agree to allow the boy to receive remedial instruction in reading, which was given to him for a total of 90 minutes per week. The child's remedial reading teacher, Ms. Christine Orcutt, testified that she provided instruction in both reading and writing. She testified that the child had difficulty with basic reading comprehension, the meaning of words, and following directions. The remedial reading teacher also testified that the child could not write fluently, and that she worked with him to improve his grammar, spelling and syntax, as well as his ability to organize his ideas. Ms. Orcutt stated that the child had difficulty remaining on task, and required constant redirection. She also testified that the "gap" between the performance of her students and those who did not require remedial services generally closed, after her students had received remedial instruction. However, she had found that this child had made very minimal progress with her, from September, 1994 through January, 1996, when the hearing in this proceeding was held. Ms. Orcutt further testified that the child had demonstrated the most growth in his ability to interact with others.

        Ms. Gail Lawton, the child's fourth grade teacher, testified that the child was cooperative, but had difficulty understanding directions. She assigned the boy to a seat near the blackboard, where she usually stood, so that she could give him visual clues, such as pointing to the things in the material the child had on his desk. Ms. Lawton testified that the child needed visual clues, in order to remain focused upon the tasks he was required to do. She modified the child's assignments, and interpreted words for him. Ms. Lawton testified that the child could do addition, subtraction, and one-digit multiplication computations, but had difficulty with two-digit multiplication, long division, decimals, and fractions. She further testified that the boy was unable to solve mathematical word problems, although he was assisted with picture and manipulative materials. Ms. Lawton also testified that the child struggled with reading decoding, had no concept of vowels and consonants, and omitted or substituted the sound of words.

        In late September, 1994, Ms. Lawton expressed her concern about the child's ability to function in her class to the Hart's Hill child study team. The child was given vision and hearing screening examinations, the results of which were reported to be normal. A speech improvement assessment was performed, and he was found to be eligible for speech improvement (not special education) services. He began receiving 30 minutes of speech improvement services, four times per week. The primary purpose of those services was to improve his comprehension of the content of his social studies and science courses.

        In October, 1994, Ms. Lawton met with the child's parents. She suggested that the child should be tested by respondent's CSE. The child's parents asked for some time to think about her suggestion. After the second meeting with Ms. Lawton in November, 1994, petitioner agreed to contact respondent's school psychologist to discuss the nature of the suggested testing. On January 30 1995, Ms. Lawton advised the child's parents that even with program modifications, the child was not working at the fourth grade level, and that the staff had concerns about his developmental progress. The child's parents met with Ms. Lawton, on February 7, 1995. At that time, petitioner reportedly signed a form giving his consent to have the child evaluated by the CSE. However, petitioner subsequently withdrew his consent, before the proposed evaluation had begun.

        On or about March 7, 1995, the principal of the Hart's Hill Elementary School agreed to petitioner's written request to alter the services which his son was receiving. The child was provided with 30 minutes of remedial mathematics assistance, three times per week, and the services of one of the boy's two speech improvement teachers were discontinued.

        Ms. Lawton testified that the content of the child's social studies course remained way beyond him, even though he was receiving assistance in that subject from the speech improvement teacher. At a conference with them in April, 1995, she advised the child's parents that the boy's progress had been minimal. The child was reportedly given some form of standardized test at the end of the school year. Ms. Lawton testified that the child's score of 9 out of a possible 30 on the reading portion of the test was well below average. She indicated that she had not read test directions or questions to him on the reading examination, but did explain words on the mathematics examination to him. On the mathematics portion of the test, the child received a score of 31 out of 65. Ms. Lawton testified that the child had not worked at the fourth grade level, and that he was not an independent learner. The child's report card for the 1994-95 school year indicated that he had been given a modified program in reading, writing, mathematics, and social studies, and that he required additional support in the classroom. The child did not receive letter grades for those subjects. He also received a "C" in science. When asked by petitioner about the child's memory, Ms. Lawton testified that the boy could successfully memorize a short list of words for his weekly spelling test, but that one week later he could not spell the words correctly in sentences, or remember the meaning of those words. She opined that the child's learning difficulties involved more than just his limited experience with English.

        During the 1995-96 school year, the child was enrolled in the fifth grade class of Mr. James Gadbow, in respondent's Hart's Hill Elementary School. There were 17 regular education students, and eight special education students who were mainstreamed for portions of the school day, in Mr. Gadbow's class. At the hearing in this proceeding, Mr. Gadbow testified that the child had difficulty following multiple-step directions. Mr. Gadbow also testified that the child worked well with him on an individual basis, but he had difficulty remaining on task when Mr. Gadbow was not working with him. He described the child as being a less independent worker than the other children in his class. Mr. Gadbow further testified that the child received individual instruction by Ms. Orcutt in reading and language arts, as well as specialized assistance in mathematics. According to Mr. Gadbow, the child exhibited relative strength in mathematical computation, but had difficulty with word problems. He testified that the child's writing lacked the appropriate sentence structure, and that his spelling skills were at the mid-third grade level. Mr. Gadbow testified that the child could memorize spelling words, with intense preparation, but that he did not necessarily retain them for application thereafter. Mr. Gadbow testified that no single method of instruction consistently worked for this child.

        On October 12, 1995, Mr. Gadbow met with petitioner to discuss the child's progress in school. Petitioner was reportedly still opposed to having his son evaluated by the CSE. Mr. Gadbow thereafter referred the child to the CSE. However, petitioner reportedly declined to consent to having the CSE evaluate his son. On November 29, 1996, the CSE unanimously recommended that the child be evaluated, notwithstanding petitioner's opposition to an evaluation.

        Federal and State regulations provide that a child who is suspected of having a disability may not be evaluated without the consent of the child's parents, provided that a board of education may initiate an impartial hearing for the purpose of having a hearing officer determine whether the child should be evaluated without the parents' consent (34 CFR 300.504 [b][3]; 8 NYCRR 200.5 [b][3]). Respondent initiated the hearing in this proceeding to obtain authorization to evaluate the child, without petitioner's consent. The hearing was held on January 11, 1996. Petitioner waived his right to be represented by counsel, and to have the assistance of an interpreter. At the hearing, petitioner acknowledged that he had declined respondent's offer of ESL instruction for his son, notwithstanding his belief that his son's academic difficulties were caused by his limited ability to read and write English. He explained that he did not believe that his son could be successfully taught English by respondent's ESL teacher, Ms. LaCourse, because she does not speak Polish. He asserted that respondent should have provided the child with a Polish speaking tutor, rather than attempt to evaluate him as a child suspected of having a disability.

        In her decision which was rendered on April 25, 1996, the hearing officer found that petitioner's son was experiencing academic difficulty, despite having received remedial reading and mathematics instruction, speech improvement services, and curriculum modifications. She noted that the child was struggling to achieve academically, even with the active assistance of his parents and teachers. The hearing officer further noted that State regulation provides that a student who has been identified as having limited English proficiency, as this child was in December, 1993, must be evaluated on an annual basis to determine whether he or she continues to require bilingual education or ESL (8 NYCRR 154.3 [b]). Although respondent clearly had no obligation to do so while the child was enrolled in the Utica public schools, it had not evaluated his proficiency in English since his entry into respondent's schools in the Fall of 1994. The hearing officer found that respondent should assess the child to ascertain if he was a limited English proficiency (LEP) pupil (see 8 NYCRR 154.2 [a]). However, she further found that there was a sufficient basis in the record to suspect that the child might have a disability, and authorized the CSE to evaluate the child, after his proficiency in English had been assessed. She noted that State regulations require that a CSE must evaluate a LEP pupil with a bilingual multidisciplinary assessment (8 NYCRR 154.4 (e); 8 NYCRR 200.4 [b][4][i]). The hearing officer directed respondent's CSE to obtain the services of a Polish speaking psychologist to evaluate the child.

        Petitioner challenges the hearing officer's decision on the ground that it was untimely. He asserts that he received the hearing officer's decision on April 26, 1996, which was 106 days after the hearing was held. As petitioner notes, Federal and State regulations require that a hearing officer render his or her decision within 45 days after the board of education has received a request for a hearing (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c][11]). However, Federal regulation also provides that a hearing officer may grant specific extensions of time beyond the 45-day limit at the request of either party (34 CFR 300.512 [c]). The record reveals that the hearing officer asked the parties to agree to an extension of time to render her decision, until no more than two weeks after she received the hearing transcript, and that both parties agreed (Transcript page 209). The record does not reveal when the hearing officer received the transcript. In what appears to be a transmittal letter sent to the child's parents with her decision, the hearing officer noted that it had taken her far longer than she had anticipated to research and analyze the issues which had been presented. However, even if I were to assume that the hearing officer rendered her decision after the specific extension of time to which the parties had agreed, I find that the hearing officer's tardiness would not afford a basis for setting aside her decision (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 64; Application of a Child with a Disability, Appeal No. 96-2). I will direct respondent to ensure that the hearing officers whom it appoints comply with the timeliness requirement.

        Petitioner also challenges the impartiality of the hearing officer. He asserts that the hearing officer remained with respondent's attorney and its CSE chairperson in the hearing room, after the hearing had concluded. He asks why did they stay in the room? Petitioner alleges that during a conversation which he and the CSE chairperson had with the hearing officer on May 23, 1996, the CSE chairperson referred to the hearing officer by her first name, and indicated that " ... we got to make a deal ... " with regard to petitioner's son. Respondent denies petitioner's allegation. A hearing officer must avoid even the appearance of impropriety, and must render a decision based upon the record Application of a Child with a Disability, Appeal No. 94-32). While I have considered petitioner's allegations. I find that there is no basis in the record which is before me to conclude that the hearing officer lacked the requisite impartiality.

        The primary issue in this appeal is whether the hearing officer correctly determined that there was a sufficient basis in the record to suspect that the child may have an educational disability, and should be evaluated by respondent's CSE. The board of education 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; Application of a Child Suspected of Having a Disability, Appeal No. 94-38). In meeting its burden of proof, the board of education 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. 91-29; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-17). The board of education must also demonstrate what, if any, attempts have been made to remediate the child's performance (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-17; Application of a Child Suspected of Having a Disability, Appeal No. 94-1).

        Initially, I noted that the record does not include the results of any standardized achievement tests which have been administered to the child since June, 1994, when he was in the third grade. Although the child received at least satisfactory marks while in the third grade in Utica, his scores on the California Achievement Test, which was taken near the end of the third grade, revealed that he had significant deficits in his language mechanics and expression (writing) skills. Those skills were at the 14th percentile. His reading skills, while better than his writing skills, were nevertheless well below national norms. As noted above, the child had received extra assistance while in the third grade. He continued to receive additional assistance from respondent's staff during the fourth and fifth grades. Nevertheless, his fourth grade teacher, Ms. Lawton, testified that the child's performance in reading continued to be well below average at the end of the fourth grade. Mr. Gadbow, the child's fifth grade teacher, testified that the child had not made much academic progress in the fifth grade, despite the 1:1 instruction which Ms. Orcutt was providing to him. In addition to Ms. Orcutt's services, which he was receiving three times per week, the child was also being helped by a resource room teacher who provided "push-in" instructional services in Mr. Gadbow's room twice per week.

        In addition to testifying about the child's academic performance, Ms. Lawton and Mr. Gadbow indicated that the child had significant difficulty following directions and working independently. Both teachers testified that the child appeared to have difficulty retaining information and generalizing from the information which he had been taught. Their testimony was supported by that of Ms. Orcutt, the child's reading teacher, and Ms. LaCourse, the child's former ESL teacher. The child's teachers did not opine that the child had a disability, but each of them strongly urged that he be evaluated by the CSE to determine if he indeed did have a disability.

        Petitioner has understandably expressed a concern that an evaluation by the CSE may fail to distinguish between the effects of the child's limited proficiency in English, and the effects of an alleged educational disability. Mr. Gadbow who is reportedly certified to teach special education, as well as regular education, testified that he would feel confident about the validity of the results of an evaluation performed with the assistance of a Polish interpreter, or by a Polish speaking psychologist. Both Federal and State regulations require school district to administer tests and other evaluation instruments to a child in the child's native language, and to administer tests in such a way as to accurately reflect the child's aptitude or achievement (34 CFR 300.532 [a][1][c]); 8 NYCRR 200.4 [b][4][i][a] and [iii]).

        Upon the record before me, I find that there is sufficient evidence in the record to warrant an evaluation of the child by respondent's CSE. The evaluation must be conducted in accordance with Federal and State regulatory requirements to ensure that the results accurately reflect any alleged educational disability which petitioner's son may have (Matter of a Handicapped Child, 22 Ed. Dept. Rep. 515; Matter of a Handicapped Child, 24 id. 133). The CSE's evaluation should be undertaken, only after respondent has complied with the hearing officer's directive that it assess the child's English proficiency. The child's parents should understand that they must cooperate with the CSE, and that they will have an opportunity to meet with the CSE to discuss the results of the child's evaluation. They will also have the opportunity to challenge any recommendation which the CSE may make, after the child's evaluation has been performed.





Dated: Albany, New York __________________________
September 23, 1996 FRANK MUŅOZ