91-033

In September, 1984, the child entered kindergarten in a bilingual education program at respondent's School No. 9. The child remained in a bilingual program through the conclusion of second grade at School No. 9 in June, 1987. The child did not receive bilingual instruction in subsequent school years. In September, 1987, the child began third grade at respondent's School No. 52, but in February, 1988, he was transferred to respondent's School No. 41. The child's teacher at School No. 41 recommended that the child be retained in the third grade. During the 1988-89 school year, the child repeated the third grade at School No. 52, where he remained for fourth and fifth grade during the next two school years.

In January, 1991, the child's fifth grade teacher referred the child to the CSE, because the teacher found that the child was disruptive in and out of the classroom. Petitioners declined to consent to an evaluation of the child. In accordance with the provisions of 8 NYCRR 200.4 (b)(2), respondent scheduled a hearing before an impartial hearing officer, to determine whether an evaluation should be conducted without petitioners' consent. A hearing scheduled to be held on April 18, 1991 was postponed, at petitioners' request, so that petitioners could arrange for the testimony of their witnesses. A hearing was not held until June 11, 1991.

In a decision dated July 26, 1991, the hearing officer held that the child should be evaluated, despite petitioners' refusal to consent to an evaluation. The hearing officer found that the child's educational development was delayed by as much as two years and that he was failing most of his fifth grade subjects, despite appearing to be a healthy and intelligent child. Noting the child's consistent pattern of disruptive behavior while in elementary school and the testimony of two teachers that intervention techniques had not worked satisfactorily with the child, the hearing officer concluded that an evaluation was necessary to ascertain the nature of the child's difficulties in school.

Petitioners assert that there is no basis for an evaluation, because their child is performing academically at grade level, as demonstrated by his scores in reading and mathematics on the California Achievement Tests in May, 1990. They also assert that the testimony of respondent's witnesses at the hearing was contradictory, and did not afford a basis for an evaluation. Petitioners contend that the written transcript of the hearing is inaccurate, although they do not identify any specific error or omission in the transcript. Finally, petitioners assert that the hearing officer failed to mail to them a written decision within 45 days after the hearing, in violation of the Regulations of the Commissioner of Education.

Respondent asserts that the hearing officer's decision was premised upon the child's chronic behavior problems, as well as the child's academic performance. Respondent further asserts that the child's low level of academic performance and chronic misbehavior afford an ample basis for an evaluation to ascertain whether the child has a handicapping condition. Respondent denies that the transcript is inaccurate, except for one page of testimony which was inadvertently repeated in the transcript. With respect to the hearing officer's failure to render a timely decision, respondent contends that such failure should not preclude it from conducting an evaluation.

Although petitioners have not identified any error in the transcript, I note that in three instances the remarks of the hearing officer, the child's father and a witness were transcribed as "unintelligible". The omitted statements relate to the qualifications of one witness and the petitioners' intention to call witnesses to testify. The repeated page of testimony in the transcript to which respondent referred in its answer has been replaced with a corrected page. In the absence of any specific claim by petitioners as to any other error or omission, I have no basis for concluding that the transcript does not accurately reflect the testimony taken at the hearing.

With regard to the timeliness of the hearing officer's decision, I note that Federal and State regulations require that a copy of the hearing officer's decision must be mailed to each party within 45 days after request for a hearing is received by a board of education (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c][10]). In this instance, the hearing was requested by the CSE, and was initially postponed at petitioners' request. However, the record before me includes a photocopy of the envelope in which the hearing officer's decision was mailed to the petitioners. The envelope is postmarked July 30, 1991, which is slightly more than 45 days after the hearing was held on June 11, 1991. While I do not condone the hearing officer's delay in mailing the decision to the parties, that slight delay does not afford a basis for invalidating the hearing officer's decision (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 64; Application of a Child with a Handicapping Condition, 28 id. 285). In the future, respondent must assure that the decisions of hearing officers are rendered within 45 days after receipt of a request for a hearing, unless an extension of time is granted by the parties in accordance with the provisions of 34 CFR 300.512(c). To that end, I shall refer this issue to the State Education Department's Office of Special Education Services and urge that it investigate whether the school district has appropriate procedures to issue timely hearing officer determinations, and if not, that an appropriate plan of correction is developed and implemented.

On petitioners' substantive assertion, I find that respondent has failed to meet its burden of proof that there is an adequate basis to suspect that the child may have a handicapping condition (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 137). A child with a handicapping condition is one who "... because of mental, physical or emotional reasons can only receive appropriate educational opportunities from a program of special education" (Section 4401 [1] of the Education Law). While it is not necessary to demonstrate that a child, in fact, has a handicapping condition in order to evaluate the child without parental consent, there must nevertheless be some basis for concluding that the child is not presently benefiting from regular education with the assistance of academic or behavioral remedial services. This requires a showing that the child is unable to perform academically in an acceptable manner, even with the assistance of academic or behavioral remedial services (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 137). The appropriate questions in this appeal are what evidence is there in the record of the child's inability to do school work at his present grade level and what, if anything, has respondent done to provide the child with academic or behavioral remedial assistance.

The record before me reveals that, on standardized tests, the child has performed at or above grade level from 1984 through 1990. In May, 1989, he attained passing scores in the third grade reading and mathematics on the New York State Pupil Evaluation Program (PEP) tests, although his score in reading was just above the minimum for a passing score. I note that, although the child took the PEP tests during the year in which he repeated third grade, his scores on other standardized tests for reading during both 1987-88 and the 1988-89 school years were at a third grade level. By May, 1990, the child's total reading score, while in fourth grade, was at a grade equivalent of 4.7. The record does not include the results of comparable standardized testing of the child during the 1990-91 school year. Although the child's performance on various sub-tests has varied from year to year, there is no basis in the record for believing that the child lacks the ability to do school work at his expected grade level.

From the comments of his teachers on the child's annual report cards, I note that each teacher thought that the child could have done better in school if he had wanted to do so. Even the teacher who recommended that the child repeat third grade also noted on the child's report card that he was capable of doing grade level work, but was immature. The child has received above-average to average grades throughout much of elementary school. However, by fourth grade during the 1989-90 school year, his grades had fallen to below-average in all subjects, except Spanish. The child's fourth grade teacher noted on the child's report card that the child was being promoted to fifth grade for the 1990-91 school year on the basis of his age, rather than his academic performance.

During the third marking period of the 1990-91 school year, the last full marking period before the hearing was held, the child failed reading, language arts, writing, mathematics and science, and received below-average grades in social studies and music. The child's fifth grade teacher testified at the hearing that the child did average work for a fifth grade child when he completed tests and assignments, but that the child received failing grades because of his refusal to complete assignments and tests. The teacher further testified that the child has good reading and oral comprehension skills. The child's oral expression skills are satisfactory, although his grammar and sentence structure should be improved, in the opinion of his teacher. The child was taught mathematics by another fifth grade teacher, who did not testify at the hearing. In a written statement by the child's mathematics teacher, which is in the record, the teacher stated that the child's progress has been hindered by his general refusal to do work or be attentive, but the teacher did not describe the child's level of performance in mathematics.

Although the hearing officer concluded that the child was delayed in his educational development by almost two years, I note that the child had been held back in third grade for what appear to be social reasons, rather than academic reasons. The child received passing grades in all of his subjects, but demonstrated poor work/study skills. I find that the hearing officer erred in comparing the child's academic performance with that of his chronological peers, by failing to consider that the child had not been exposed to the sixth grade curriculum. The child's present level of performance and rate of progress cannot be determined because, there are no standardized test results for the 1990-91 school year in the record. Although the child's report card grades in the fourth and fifth grades suggest that the child's academic performance has declined, the testimony of his fifth grade teacher compels me to conclude that the decline is attributable to the child's refusal to do his assignments and tests. Therefore, the child's report card grades do not necessarily reflect his ability to benefit from regular education.

I also note that the child had been inexplicably absent from school for approximately 20 school days during the 1990-91 school year. The child's fifth grade teacher testified that petitioners had not provided written excuses for such absences. A child's failure to perform as a result of his lack of motivation in school and absence from school does not afford a basis to suspect the existence of a handicapping condition (Application of a Child Suspected of Having a Handicapping Condition, 30 Ed. Dept. Rep. 140; Application of a Child Suspected of Having a Handicapping Condition, 29 id. 432). Although the child appears to be underachieving, there is no evidence in the record that respondent evaluated the child as an underachiever who is not suspected of having a handicapping condition in accordance with the provisions of Section 203.1 of the Regulations of the Commissioner of Education. Such testing could have provided information to assist respondent's staff in addressing the child's obvious social needs, which given the facts of this case, are a reasonable suspected cause of his difficulties in school.

The record clearly shows that the child's disruptive behavior in school was the primary reason why the child was referred to the CSE. The child's fifth grade teacher testified that the child got along well with a small group of friends, but that he had a tendency to pick on other children. The teacher further testified that the child had a temper, and frequently escalated minor classroom incidents into major confrontations. The child's Spanish teacher testified that the child had become increasingly disruptive in the Spanish class, and had been verbally abusive to her, despite her efforts to befriend the child and to calm him down after disciplinary incidents in which the teacher had intervened as an acting principal. The child's mathematics teacher and his fifth grade teacher also described the child as abusive to teachers. The child's inappropriate social behavior has been noted by each of his teachers since kindergarten. The record reveals that the child has been suspended from school on 11 occasions, since April, 1986, for a variety of offenses, such as fighting, bringing knives to school, and being disrespectful of teachers. The child's refusal to accept the authority of his teachers has become more apparent in recent years.

With regard to the provision of remedial assistance, I note that Section 4401-a (2)(b) of the Education Law provides that whenever a school district employee refers a child suspected of having a handicapping condition to a CSE the written referral must include a description of the district's attempts to remediate the child's performance or state the reason why no such attempts were made. The record reveals that in December, 1986, the child's second grade teacher referred the child to respondent's early intervention team for assistance in ascertaining why the child displayed negative behavior and would not finish his work. The record does not reveal what, if any, assistance the teacher received. Other documents in the record reveal that the child received counseling in the last half of the 1986-87 and the first half of the 1987-88 school year. At a conference with the child's mother in November, 1987, respondent's staff agreed to develop a behavior modification program for the child and to communicate with his mother on a weekly basis. However, the record does not reveal whether respondent's staff implemented the proposed program. In December, 1990, after being involved in three fights, the child was referred to respondent's school climate committee, a group of teachers who meet with children and their parents to attempt to correct disciplinary problems. At that meeting, the committee suggested that the child be referred to the CSE. However, the child's mother advised the committee that she would deal with the child, and did not wish to have the child referred to the CSE.

Although there are brief references in the record to a behavior modification program for the child during 1986 and/or 1987, from this record I cannot determine whether the program was implemented on a consistent and extended basis. Nor does the record reveal the results of such program. The child's fifth grade teacher and his Spanish teacher have attempted to work with the child on an informal basis after school, and each teacher has talked to petitioners about the child's behavior. However, the record remains deficient and fails to reveal what, if any, support services were provided to assist the teachers in modifying the child's behavior. In particular, it is important to note that there is nothing in the record to suggest that respondent has even attempted to minimally address the child's behavioral difficulties through the use of educationally related support services in accordance with Section 3602 (32) of the Education Law and 8 NYCRR 100.2 (v) (Application of a Child with a Handicapping Condition, 27 Ed. Dept. Rep. 116).

I find that respondent failed to demonstrate that the child has an inability to benefit from regular education or to adequately explain the nature and extent of its efforts to remediate the child's performance, both of which are necessary in determining whether an evaluation is warranted (Application of a Child Suspected of Having a Handicapping Condition, 29 Ed. Dept. Rep. 334).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer be, and the same hereby is, annulled.