93-032

Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's child not be classified as learning disabled and not receive special education services. The appeal must be sustained in part.

Petitioner's child is 13 years old. The child attended respondent's Harrison Avenue Elementary School for kindergarten through the sixth grade. The child reportedly received grades of C or higher in all subjects through the third grade. In one semester of the fourth grade, the child reportedly received D's in English, reading and art. Although the child's reading skills were not low enough to make the child eligible for remedial reading assistance under the New York State Pupils with Special Educational Needs Program (8 NYCRR 149- 1), he was allowed to participate, at petitioner's request, in the program in the fourth grade.

In the fifth grade, the child achieved satisfactory grades in all subjects.

In a report dated December 11, 1991, when the child was in the sixth grade, the child's pediatrician found that the child exhibited symptoms of an attention deficit disorder without hyperactivity (ADD), organizational weaknesses, language based weaknesses, low self-esteem, stress and social withdrawal. The pediatrician recommended that the child be tested. On March 30, 1992, petitioner requested in writing that the child be evaluated to ascertain if he had a disability. Petitioner's request was addressed to the child's elementary school principal, who encouraged petitioner to request that the child be evaluated by respondent's pupil services team (PST), rather than the CSE. Petitioner signed a consent form authorizing the PST to evaluate the child. Through the first three marking periods of the 1991-92 school year, the child achieved satisfactory or better grades in all subjects, but his grammar and usage skills were described as in need of improvement in each marking period. However, at the hearing in this proceeding, the child's teacher testified that the child's grammar and usage skills were well above the satisfactory level for a child in sixth grade.

In April and May, 1992, a psychoeducational evaluation of the child was performed by respondent's school psychologist. The school psychologist reported that the child had achieved a "B" average during the first three quarters of the 1991-92 school year and that the child's sixth grade teacher had no significant concern about the child's academic performance or his behavior. After observing the child in class, the school psychologist reported that the child appeared to stay on-task better than most of his peers. The child's cognitive skills were found to be in the average range for verbal IQ, in the borderline range for performance IQ and the low average range for full-scale IQ. However, the school psychologist opined that the child's IQ scores might be an underestimate of his ability, because he did not appear to put forth much effort on portions of the IQ tests, and that the child had at least average, if not above-average, cognitive skills. The school psychologist further opined that the child's low frustration tolerance impacted upon his ability to work up to his potential. On achievement tests, the child demonstrated at least average levels of ability in all areas, except written language. The school psychologist reported that the child had done quite poorly on his writing samples, but that his performance appeared to be linked to the amount of effort the child had expended. The school psychologist recommended that the child's progress in junior high school be closely monitored.

There is no evidence that the PST performed any other evaluation, or made any recommendation for the child. In July, 1992, petitioner requested that the child be independently evaluated at respondent's expense. The CSE chairperson advised petitioner that no action could be taken upon her request until the CSE met again in late August. The record does not reveal what, if any, action the CSE ultimately took, and petitioner has not asked for reimbursement in this appeal.

For the 1992-93 school year, the child was enrolled in the seventh grade in respondent's O. W. Winch Junior High School. Petitioner obtained a private psycho- educational evaluation of the child. In a report dated October 10, 1992, the private psychologist found that the child had low-average cognitive ability and commensurate achievement, except for his written expression. The private psychologist opined that the child had a severe disability in written expression, because of difficulty in expressing his thoughts and the immature quality of his written work. While noting that the child's pediatrician had raised the issue of a possible ADD, the private psychologist found no evidence of ADD in his evaluation of the child, and no evidence of psycho-neurological difficulties. In his testimony at the hearing in this proceeding the private psychologist opined that the child did not have any difficulty with the mechanics of writing i.e. graphomotor skills, but had difficulty organizing his thoughts and using appropriate grammar and syntax.

The private psychologist reported that the child gave up easily on tasks when frustrated or not motivated. He recommended that the child's program be reviewed, and concurred in the school psychologist's recommendation that the child could benefit from participation in a mentor program. The private psychologist suggested that a computer program be used to help the child with grammar, syntax and punctuation in his written expression, and that the child receive help with developing his study and note-taking skills. If the suggestions proved to be ineffectual, the private psychologist recommended that the child be referred to the CSE.

In early October, 1992, the child's teachers in the seventh grade reported to the school guidance office that the child's achievement was at or above average and that his behavior was generally good. On October 27, 1992, the junior high school PST met with petitioner, who requested that the child's teachers complete an ADD assessment form for the use of the private psychologist. Petitioner had further contact with the child's guidance counselor concerning the child's school performance.

In a letter to the junior high school principal, dated November 4, 1992, petitioner asked to have the child referred to the CSE and consented to an evaluation of the child by the CSE. Petitioner also authorized the junior high school PST to evaluate the child. There is no evidence in the record of any additional evaluation by either the PST or the CSE prior to the CSE's recommendation that the child not be classified. At a November 19, 1992 meeting with the child's teachers, petitioner agreed to have the child reassigned to modified English and science classes because of the child's difficulty completing homework, and to meet again at the end of January, 1993, to assess the child's progress.

At the end of the second marking period in January, 1993, the child achieved B's in mathematics and Spanish, C's in social studies and modified English and a D in modified science. On January 28, 1993, the PST referred the child to the CSE. The CSE did not perform any evaluation of the child. At the February 11, 1993 CSE meeting, petitioner presented a list of requests, including additional evaluations of the child, classification of the child as learning disabled, provision of resource room services, instruction in word processing skills, use of appropriate computer software, and test modifications. In its notice to petitioner of its recommendation to respondent, the CSE reported that it had determined that the child did not have a disability which adversely affected his educational performance.

The CSE also directed the PST to determine whether the child required a central auditory processing evaluation, as petitioner had requested. The CSE further directed the PST to convene a meeting of all of the child's teachers to share information about the child's strengths and needs, establish a homework plan, and develop a computer program for him, and to report the child's progress at the end of the next marking period to the CSE. On February 17, 1993, respondent approved the CSE's recommendation.

By letter dated March 8, 1993, petitioner requested that an impartial hearing be held to review the CSE's recommendation. On April 7, 1993, the child's hearing and central auditory processing were evaluated at the request of the CSE. The evaluator reported that the child's hearing was within normal limits and that there was no evidence of a central auditory processing deficit. On April 6, 1993, respondent appointed a hearing officer. The hearing commenced on May 12, 1993, and concluded on May 20, 1993.

In a decision rendered on June 12, 1993, the hearing officer ruled that the CSE had not rendered a timely recommendation following petitioner's referral of the child to the CSE on November 4, 1992, and had not complied with the requirement imposed by 8 NYCRR 200.4 (c)(1) to reveal the reasons for its recommendation that the child not be classified.

The hearing officer further ruled that respondent had failed to promptly appoint a hearing officer, thereby precluding the possibility of the hearing officer rendering her decision within 45 days after petitioner's request for a hearing, in violation of Federal and State regulations (34 CFR 300.512 Ýa¨; 8 NYCRR 200.5 Ýc¨Ý11¨).

The hearing officer upheld the CSE's recommendation not to classify the child as learning disabled upon a finding that the evidence in the record did not establish that there was a discrepancy of at least 50% between the child's expected and actual achievement (see definition of child with a learning disability, 8 NYCRR 200.1 Ýam¨Ý6¨).

Petitioner asserts that the hearing officer erred in not addressing her claim that the CSE failed to promptly evaluate the child and to make a timely recommendation after her March 30, 1992 letter to the elementary principal requesting that the child be evaluated.

State regulation requires that upon receipt by a building administrator of a referral to the CSE, such referral must be immediately forwarded to the chairperson of the CSE (8 NYCRR 200.4 Ýa¨Ý4¨). A referral to the CSE may be withdrawn upon the written agreement of the parent and the building administrator, which agreement must describe whatever alternative program is to be provided to the child and the duration of such program (8 NYCRR 200.4 Ýa¨Ý9¨). At the hearing, the elementary principal testified that he had not forwarded petitioner's March 30, 1992 request for an evaluation of the child to the CSE.

He further testified that he had discussed with petitioner the process by which a child could be evaluated by the CSE and by the PST, and that he had expressed his preference to proceed at the building level, i.e., through the PST. Petitioner testified that as the result of her conversation with the principal, she believed that the child could not be referred to the CSE until the child had been evaluated by the PST.

Petitioner's request for an evaluation of the child does not specifically refer to the CSE. Nevertheless, I find that her request must be deemed to be a referral to the CSE, which is the entity charged with responsibility for evaluating children suspected of having disabilities (8 NYCRR 200.4 Ýb¨). There is no evidence of a written agreement by petitioner to withdraw her referral. While respondent may have alternative procedures for assisting children who encounter difficulty in school, such procedures may not delay or deny the parents' access to the CSE (8 NYCRR 200.4 Ýa¨Ý9¨Ýii¨). Although the CSE chairperson testified at the hearing that a parent could go directly to the CSE, a school guidance counselor and a school psychologist each testified that a parent must go through the PST process before being referred to the CSE. In the absence of proof in the record that petitioner was aware of her right to proceed immediately with an evaluation and recommendation by the CSE and that she consciously waived her right to do so, I must find that respondent did not provide a timely evaluation of, and recommendation for, the child by the CSE following petitioner's March 30, 1992 request.

Petitioner asserts that the hearing officer erred in allowing respondent's witnesses to testify about the child's performance on the New York State Pupil Evaluation Program (PEP) fifth grade writing test, because the result of such tests were not disclosed to her at least five days before the hearing. State regulation affords each party the right to prohibit the introduction of any evidence the substance of which has not been disclosed to such party at least five days before the hearing (8 NYCRR 200.5 Ýc¨Ý9¨). At the hearing, respondent raised the issue of the child's PEP test results during the cross-examination of the child's private psychologist and the direct examination of two school psychologists. Indeed, one of the school psychologists, who is a member of the CSE, testified that her opinion that the child did not have a learning disability in writing, was based, in part, upon the PEP test results. I find that the hearing officer erred in allowing the witnesses to testify about the child's PEP test results over petitioner's objection.

On the merits, petitioner asserts that the decision of the hearing officer should be annulled because the record demonstrates that the child meets the Federal and State regulatory definition of a child with a learning disability. Respondent bears the burden of establishing the appropriateness of its CSE's recommendation with respect to classification (Application of a Child Suspected of Having a Handicapping Condition, Appeal 92-23; Application of a Child Suspected of Having a Handicapping Condition, Appeal 92-26).

Before a CSE may make a recommendation, a child must be adequately evaluated.

Respondent's CSE chose to rely upon the evaluations conducted by respondent's PST and the private psychologist. However, the CSE did not have all of the information it was required to have before making its recommendation. State regulation requires that a CSE conduct an evaluation which must include a physical examination of the child in accordance with the provisions of Section 903, 904 and 905 of the Education Law (8 NYCRR 200.4 Ýb¨Ý1¨Ýi¨). There is a copy of such an exam completed in 1986, annexed to the child's social history in the record. However, I find that the use of that six-year old exam, completed when the child was in the first grade, does not satisfy the regulatory requirement of a physical examination of the child as part of the child's evaluation. There is no evidence of a more recent physical examination in the record.

A child's evaluation must also include an observation in the child's current educational setting (8 NYCRR 200.4 Ýb¨Ý3¨Ýviii¨). Federal regulation requires that a child suspected of having a learning disability be observed, and that a CSE prepare a written report of its evaluation which must include a statement of the relevant behavior noted during the observation of the child (34 CFR 300.543 Ýb¨Ý3¨). In this instance, respondent's school psychologist observed the child in his sixth grade class as part of his psychological evaluation for the PST. Petitioner and the child's pediatrician had expressed concern about the child's organizational skills, sequencing ability, selective attention, possible memory problems and language based weaknesses. The school psychologist's observation addressed the child's general behavior in class, but did not address the child's completion of tasks and organization of materials. I find that the description of the observation included in the school psychologist's report does not adequately address the concerns expressed by the pediatrician which are similar to concerns expressed by some of the child's seventh grade teachers, and therefore does not satisfy the requirement of the Federal regulation.

The failure to conduct a physical examination may afford a basis to annul a CSE's recommendation (Application of a Child with a Handicapping Condition, Appeal No. 92-12; Application of a Chid with a Handicapping Condition, 30 Ed. Dept. Rep. 41). A failure to perform an adequate observation of the child may also afford a basis for annulling a CSE's recommendation (Application of a Child with a Handicapping Condition, Appeal No. 91-20; Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 256). In view of the failure of respondent's CSE to obtain a physical examination or conduct an adequate observation, I find that the CSE's recommendation must be annulled.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is annulled, and;

IT IS FURTHER ORDERED that within 30 days after the date of this decision respondent's CSE shall complete an adequate evaluation of the child in accordance with the terms of this decision and shall recommend whether the child should be classified as a child with a disability.