93-007

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

Respondent served its answer four days after the expiration of the ten-day period for service of answers prescribed by State regulation (8 NYCRR 279.5). It requests that its answer be accepted, because its delay was brief and because of the circumstances under which it was served with the petition. Petitioner has not objected, and in the absence of any evidence of prejudice to petitioner by respondent's delay, I have accepted the answer.

Respondent asserts that the appeal should be dismissed on procedural grounds, because respondent was not identified in the caption of petitioner's papers. Petitioner's pleadings identify the respondent as "P.S. 68, District 11, Region II". However, the pleadings were clear enough to permit respondent to provide the record of the hearing, in response to petitioner's notice of intention to seek review, and it has answered the petition. There is no doubt that to the petitioner, the respondent, and to the Office of State Review the respondent is the intended party. Given all of the facts, I will not dismiss the appeal merely for failure to identify respondent by name in the caption (Appeal of Schecter, Allen and Gerber, 28 Ed. Dept. 118; Application of a Child with a Handicapping Condition, 28 id. 519).

Respondent further asserts that the appeal should be dismissed because the petition is not verified, as required by 8 NYCRR 279.1 and 8 NYCRR 275.5. Having reviewed the record, I find that the petition filed with the State Education Department is verified. Although petitioner should have served respondent with a copy of her verification of the petition, her failure to do so is not a sufficient basis to dismiss the appeal (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 64; Application of a Handicapped Child, 26 id. 204; Application of a Handicapped Child, 25 id. 481).

Even if petitioner's pleadings are accepted, respondent argues that her appeal should be dismissed because of petitioner's alleged failure to comply with State regulation in serving her papers upon respondent. State regulation requires that appeal documents be served upon a school district in the manner prescribed for service of a petition in an appeal to the Commissioner of Education (8 NYCRR 279.2). In an appeal to the Commissioner, a petition may be served upon a school district by personally serving the district clerk, a member of the board of education, the superintendent of schools or a person in the superintendent's office who has been designated by the board of education to accept service (8 NYCRR 275.8 [a]). In New York City, the office corresponding to the superintendent of schools is the Chancellor (Section 2590-h of the Education Law).

The affidavit of service of the petition submitted by petitioner reveals that the notice of petition and petition were personally served upon the Counsel to the Chancellor of the City School District of the City of New York. Respondent asserts that Counsel to the Chancellor has not been designated to accept service upon behalf of respondent, the Chancellor, or the clerk of the district, and that the appeal must be dismissed for improper service.

The notice of petition and petition were served upon Counsel to the Chancellor, on February 12, 1993. In a letter to petitioner dated February 16, 1993, Counsel returned petitioner's papers with the conclusory note that the papers were "defective", without advising the petitioner of the position now being taken by the respondent that the Chancellor's Counsel was not designated to accept service of papers on behalf of the respondent or the Chancellor. The answer discloses that the individual who served the papers upon the Chancellor's Counsel was not informed that the Counsel would not accept petitioner's papers (cf. DeVore v. Osborne, 78 AD 2d 915). The failure of Counsel to reasonably inform petitioner of the alleged inability of the Counsel to accept process at the time of service or when the papers were returned to petitioner four days after they were served, as well as the well known practice in public service of having counsel accept papers on behalf of public officers, affords a reasonable basis for petitioner to have concluded that she had complied with the provisions of the regulation (cf. Appeal of Alcorn et al., 24 Ed. Dept Rep. 201).

The provisions of 20 USC 1415 and its State counterpart, Section 4404 of the Education Law, were intended to provide an expeditious process for resolving substantive disagreements between parents and boards of education regarding children having, or suspected of having disabilities. These rules were intended to serve and promote the administration of justice, not to be traps for the unsophisticated and the unwary. To protract this proceeding by requiring this unrepresented petitioner to serve her papers again would be neither equitable nor consistent with the purpose of both State and Federal law. Objectively viewed, respondent was clearly on notice of the commencement of the appeal (Fashion Page v. Zurich Insurance, 50 NY 2d 265). It is a remarkable position to suggest that the Counsel of the chief school officer of the largest school district in the State is not permitted to accept process on behalf of the Chancellor and that the Chancellor insists on being personally served with all manner of process. Moreover, there is no evidence that respondent has been prejudiced by the allegedly improper service. Accordingly, I will not require petitioner to serve the Chancellor personally as requested by Counsel, and I find that the appeal papers were validly served (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 137).

Petitioner's child, who is ten years old, is in foster care. The child has lived in at least four different foster homes. Petitioner retains legal custody of the child. The child entered school in P.S. 1. On his first grade report card, the child was described by his teacher as bright and highly motivated, with excellent mathematic skills, but needing to learn more self-control. In second grade, the child received satisfactory academic grades. On standardized tests, the child achieved scores on the 68th percentile in reading and the 94th percentile in mathematics. The percentiles were based upon nationwide test results. The child's work habits were described as satisfactory, while his personal and social development was described as in need of improvement.

The child's grades were generally satisfactory for the first marking period of third grade, but his teacher stated on the child's report card that the child needed to concentrate on his work. In October, 1991, at his request, the child was removed from his foster home because allegedly he had been beaten by his foster parent. The child was placed in another foster home, and was enrolled in P.S. 68. The child's grades for the second and third marking periods for third grade during the 1991-92 school year were generally satisfactory. His scores on the same standardized tests were on the 47th percentile in reading and the 44th percentile in mathematics.

On April 5, 1992, the child's teacher referred the child to a school based support team, because the teacher believed the child was having difficulty staying on task and was not completing all of his assignments. In her referral, the child's teacher stated that the child required constant monitoring and became aggressive during play. The teacher also stated that the child's general knowledge was appropriate, and that he was on grade level in reading and mathematics. On April 7, 1992, the child began to receive small group counseling by a school guidance counselor, once per week. In April 1992, the child's foster parent and child care agency caseworker met with the child's counselor and the assistant principal of P.S. 68 to discuss the child's evaluation. The foster parent and the caseworker agreed to an evaluation. On May 5, 1992, petitioner and the child's caseworker met with a CSE social worker to discuss the child's referral to the CSE. Petitioner declined to consent to the child's evaluation by the CSE.

The child entered fourth grade at P.S. 68 for the 1992-93 school year. On November 3, 1992, the principal of P.S. 68 requested that an impartial hearing be held to determine whether the child should be evaluated despite petitioner's refusal to consent to an evaluation, in accordance with 8 NYCRR 200.4 (a)(8).

On December 17, 1992, a hearing was held. In a decision dated January 13, 1993, the hearing officer found that there was substantial evidence to support the need for the child's evaluation, because the child was not progressing academically at a level commensurate with his ability and because he had displayed an inability to control himself in school. The hearing officer authorized the CSE to obtain its own evaluation, or to obtain the results of evaluations previously performed by the child care agency, the Children's Aid Society.

Petitioner asserts that she was not notified of the child's misbehavior in school, and that she should have the opportunity to be more involved with the school in attempting to remediate his behavior. She also refers to difficulties she has encountered in the scheduling of her supervised visitation of the child at the Children's Aid Society. The issue of petitioner's visitation is outside the scope of this proceeding.

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 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 education 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).

The evidence of the child's educational performance which is in the record does not support the hearing officer's determination. The child's report cards reveal that his academic performance in third grade was satisfactory in communications arts, mathematics, social studies and science. In her referral of the child for an evaluation, the child's third grade teacher reported that the child was at grade level in reading and mathematics. The record reveals that the child has missed a significant amount of time in school because he receives therapy at the child care agency during school hours, one day per week. There is no evidence of his academic performance in fourth grade. None of the child's teachers testified at the hearing. The child's guidance counselor, who was the only school employee with personal knowledge of the child at the hearing, testified that she did not know whether the child was performing at or below grade level. Although the guidance counselor further testified that the child's fourth grade teacher had stated to her that "it's not working out", that statement does not establish a basis for ascertaining the child's present educational performance.

There is a significant difference between the results of the child's performance on standardized tests in 1991 and 1992. However, as the child's teacher noted on the child's report card, the 1992 test results are satisfactory, i.e. age and grade appropriate. The tests and conditions for the tests should be re-examined, prior to determining that the child should be evaluated. Notably absent from the record are the results of the New York State Pupil Evaluation Program (PEP) tests administered to children who are in third grade.

At the hearing, the child's caseworker alluded to the results of annual psychological and psychiatric evaluations performed by the child care agency. The caseworker testified that the evaluations established that the child has a learning disability. However, the evaluation results were not made available to petitioner or introduced into evidence at the hearing. The hearing officer should not have permitted the caseworker to testify about evidence which was not in the record (Application of a Child with a Handicapping Condition, Appeal No. 91-34). Although the record includes a letter by the child care agency's psychiatrist supporting the child's evaluation by respondent, the letter is of limited probative value in the absence of an explanation for the psychiatrist's position.

The primary reason for the third grade teacher's referral of the child and for the principal's request for an impartial hearing was the child's behavior in class. His third grade teacher reported that the child was distractible, physically abusive to peers and resistant to the teacher's directions. The teacher further reported that he worked well in small groups and with close supervision, but performed poorly in less supervised activities, such as independent work and homework. The child's third grade class had 32 children. The principal described the child as responding positively to adult supervision, but out of control when not receiving direct adult supervision. An anecdotal record by the child's fourth grade teacher of the child's behavior in school demonstrates that the child is inattentive. The record also includes letters by the assistant principal of P.S. 68 describing some disciplinary incidents. Although the record demonstrates that the child has difficulty behaving in an appropriate manner, inappropriate behavior does not per se support the evidentiary standard which respondent must meet to establish a basis for evaluating the child without petitioner's consent (Application of a Child with a Handicapping Condition, Appeal No. 92-17).

Section 4401-a (2)(b) of the Education Law requires that a board of education attempt to remediate a child's performance, before referring the child to the CSE. The record in this appeal does not adequately demonstrate the extent of the remediation attempted by respondent. The child's guidance counselor testified that she provided counseling to the child in a group of three children once per week for approximately ten weeks, during which she had tried to implement a behavior modification program. However, her testimony revealed no understanding of the child's social problems outside of school or of his academic performance in school. The guidance counselor referred generally to the third grade teacher's class instruction in small group settings which included the child. Nonetheless, the guidance counselor was unable to provide specific information about what instructional techniques may have been used to assist the child beyond providing instruction in a smaller group. The record precludes a finding that respondent has met its obligation to provide meaningful remediation, which is a precondition to evaluating the child.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled.