94-001

Petitioners appeal from the determination of an impartial hearing officer that a sufficient basis exists for the evaluation of petitioners' child by respondent's committee on special education (CSE), without petitioners' consent, in order to ascertain whether the child has an educational disability for which he should receive special education and/or related services. Upon review of the record, I find that there is an adequate basis to suspect the existence of a disability which impairs the child's educational performance. Therefore, the appeal must be dismissed.

        Petitioners' child, who had his sixteenth birthday this week, is enrolled in the ninth grade in respondent's Newfield High School. The child was initially referred to the CSE by his first grade teacher, in November, 1984, because the child exhibited poorly developed listening, work and study skills and appeared to have speech problems. The child was reportedly working at the readiness level in reading and mathematics. Petitioners consented to having the child evaluated by the CSE. The school psychologist who evaluated the child reported that the child had average cognitive skills and performed verbal tasks better than non-verbal tasks. The child's performance on tests measuring his visual and auditory sequencing was somewhat below average, and the school psychologist opined that the child's reversal of letters and numbers could be related to the child's difficulty with reading which his teacher had reported. In February, 1985, the CSE recommended that the child be classified as learning disabled and that he receive five hours per week of resource room services in reading for the remainder of he 1984-85 school year.

        The child advanced to the second grade for the 1985-86 school year, during which he continued to experience academic difficulty notwithstanding his receipt of resource room services. For the 1986-87 school year, the child was enrolled in respondent's Alternative Primary Program, which respondent characterizes as a repeat of the second grade. During the next school year, the child was in a regular education third grade class, but received resource room services.

        The child's triennial reevaluation was completed in February, 1988. The child's third grade teacher reported to the CSE that the child was unable to write a sentence without individual assistance, had poor sight reading and phonics skills, and had great difficulty understanding and applying third grade mathematical concepts. She further reported that the child experienced extreme frustration in a regular education setting, and required individual or small group instruction. The school psychologist who reevaluated the child reported that the child's IQ scores were slightly lower than those reported in his 1985 evaluation, but that the child's general knowledge of information and non-verbal abstract reasoning scores were significantly decreased. The school psychologist also reported that the child continued to exhibit signs of having visual-motor difficulties, and that projective testing was also evaluated by a speech/language specialist, who reported that the child had severe articulation problems and that his auditory discrimination skills were below their expected developmental level.

        In May, 1988, the CSE recommended that the child remain classified as learning disabled and be placed in a special education class with a 12:1 child to adult ratio and receive speech/language therapy during the 1988-89 school year. Petitioners requested that an impartial hearing be conducted to review the CSE's recommendation. A hearing officer ordered the CSE to further evaluate the child and then recommend an appropriate classification and placement.

        The child was enrolled in a regular education fourth grade class with resource room services during the 1988-89 school year pending the completion of the evaluation ordered by the hearing officer. He received D's and F's in all academic subjects throughout the year. His teacher reported that the child was frustrated by the fourth grade curriculum. In a letter to the CSE, the teacher asserted that the child required a smaller class in order to attain any measure of success. The teacher noted that the child had been absent from school on 28 days.

        The CSE was reportedly delayed in completion of its evaluation of the child because it could not obtain the results of a medical examination. The child was examined by an ophthalmologist who reported that the child was nearsighted, but opined that his nearsightedness was not an etiological basis for the child's reading problem. An audiological evaluation conducted in May, 1989 revealed that the child had normal bilateral hearing sensitivity.

        In June, 1989, the CSE recommended that the child remain classified as learning disabled, and that he be placed in a 12:1+1 special education class for the 1989-90 school year. The CSE further recommended that a social worker be assigned to investigate the child's frequent absences from school. Petitioners objected to the CSE's recommendation. In September, 1989, the CSE recommended that the child be enrolled in a regular education fifth grade class and receive resource room services, pursuant to an agreement with petitioners that the child's progress would be reviewed by the CSE at the end of the first semester. The CSE completed its review in January, 1990, when it recommended that the child continue in regular education with resource room services for the remainder of the school year.

        In August, 1990, the CSE recommended that the child be declassified. The CSE's recommendation was reported made in deference to the strong feeling of the child's mother that the child should remain in regular education. During the 1990-91 school year, the child was enrolled in a regular education sixth grade class in respondent's Selden Middle School, where he received some remedial reading instruction. Nevertheless, on a group administered standardized test in April, 1991, the child reading vocabulary was reported to be a 3. grade equivalent and his reading comprehension was reported to be at a 3.3 grade equivalent. The child's mathematical concepts and mathematical application skills were reported to be at 4.0 and 4.6 grade equivalents, respectively. The child failed to achieve a score at or above the State Reference Point on the New York State Sixth Grade Pupil Evaluation Program Mathematics Test. He received failing grades in language arts, science, mathematics and social studies, while in the sixth grade.

        Petitioners withdrew the child from school, and instructed the child at home during the 1991-92 school year, when the child was in the seventh grade. The child returned to respondent's Selden Middle School, where he was enrolled in the eighth grade during the 1992-93 school year. On a pre-test for the New York State Preliminary Competency Test in Reading the child achieved a score which was substantially below the minimum competency level. Respondent's staff informed petitioners of the child's need for remediation in reading. However, petitioners insisted that respondent not provide remedial services, which they asserted that they would provide to the child. At the end of the second marking period, the child received failing grades in mathematics, science and social studies. In late January, 1993, petitioners agreed to have respondent provide remedial instruction to the child. In March, 1993, the child's score of 39 on the New York State Preliminary Competency Test in Reading was 9 points below the State Reference Point, and his score of 50 percent on the New York State Preliminary Competency Test in Writing was 15 points below the State Reference Point for that test. In April, 1993, the child achieved grade equivalent scores of 5.5 and 6.0 on group standardized tests of his reading comprehension and mathematical applications skills, respectively.

        On April 1, 1993, the assistant principal of respondent's middle school referred the child to the CSE, because the child was in danger of having to be retained in the eighth grade. The child was described as being cooperative and motivated, but unable to achieve at an appropriate level. Petitioners were asked to give their consent to have the CSE evaluate their child (34 CFR 300.504 [b][1]; 8 NYCRR 200.5 [b][1]). Petitioners declined to consent to an evaluation of their child. On September 13, 1993, respondent appointed a hearing officer to conduct an impartial hearing to determine whether an evaluation should be conducted without parental consent (34 CFR 300.504 [b][3]; 8 NYCRR 200.5 [b][2]).

        The hearing was scheduled by the hearing officer to be held on October 15, 1993, but was adjourned at petitioners' request. During the pendency of the hearing and hearing officer's decision, the child has been enrolled in the ninth grade in respondent's Newfield High School. In the hearing which was held on November 12, 1993, the middle school assistant principal testified that the child would not have been academically eligible to enter the ninth grade, but had been allowed to enter the ninth grade because of the "pendency" provisions of Federal and State law (20 USC 1415 [e][3]; Section 4404 [4] of the Education Law). The high school assistant principal testified that the child's ninth grade teachers had advised her that the child would receive F's in English, mathematics, Spanish and science, and the assistant principal predicted that the child would also receive an F in global studies, for the first marking period of the 1993-94 school year. In a decision dated December 8, 1993, the hearing officer held that respondent had conclusively demonstrated a need to evaluate the child, and directed the CSE to proceed with an evaluation.

        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 Suspected of Having a Disability, Appeal No. 93-7; 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 educational performance (Application of a Child Suspected of Having a Handicapping Condition, Appeal 92-17; Application of a Child Suspected of Having a Handicapping Condition, Appeal 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 record reveals that petitioners' child has encountered academic difficulty throughout school. Although the child repeated the second grade and received resource room services while he was in elementary school and received remedial reading instruction during the second semester of the sixth grade, his basis educational skills were substantially below grade level by the end of the sixth grade. The child's most recent standardized test results indicate that, as of April, 1993 when the child was enrolled in the eighth grade, his reading comprehension was at the mid-fifth grade level and his mathematical skills were at the beginning sixth grade level. The validity of the test results is borne out by the testimony of his eighth grade English and mathematics teachers, each of whom described the child as having significant educational deficits and not achieving at a satisfactory rate. The child's eighth grade remedial reading and social studies teachers also testified that the child had very basic skills deficiencies. The remedial reading teacher opined at the hearing that the child could not do eighth grade level work because of the deficiencies in his reading, writing and spelling skills. Respondent's school psychologist opined at the hearing that, given this child's cognitive skills as measured in his 1989 psychological evaluation, he should be performing academically at a better rate. The child's teachers were unanimous in their testimony that the child tried hard, but was unable to succeed academically.

        The record further reveals that respondent has provided, or attempted to provide, the child with remedial assistance in elementary and middle school. Upon his return to respondent's middle school for the 1992-93 school year, the child was placed in general level courses for his academic subjects in classes having no more than 15 children. Notwithstanding the increased opportunity for individual attention, the child continued to experience academic difficulty.

        Petitioners assert that their child has at least average cognitive skills, and would not benefit from placement in a special education class. However, the issue in this appeal is not whether the child should receive special education, but whether there is an adequate basis for believing that the child may have a disability which adversely impacts upon his educational performance and therefore should be evaluated. Petitioners further assert that the child's academic difficulties to date are the result of defects in the regular and special education which respondent has provided to the child. In particular, petitioners assert that the child's Phase II individualized education programs (IEPs) of prior school years are incomplete. I find that petitioners assertion is without merit. Petitioners also express doubt about the validity of any evaluation performed by respondent's personnel. Although there is no basis in the record for finding that respondent could not conduct an appropriate evaluation, I must point out that Federal and State regulations accord petitioners the right to obtain an independent evaluation of the child if they are dissatisfied with the results of respondent's evaluation, and that such independent evaluation will be at respondent's expense, unless respondent initiates an impartial hearing and establishes the appropriateness of its evaluation (34 CFR 300.503; 8 NYCRR 200.5 [a][1][vi][a]).

        I find that there is sufficient basis in the record for the CSE to proceed to evaluate petitioners' child in accordance with the provisions of 8 NYCRR 200.4 (b). In the physical examination of the child, the CSE must ensure that the child's vision is assessed. Two of the child's ninth grade teachers have reported that the child appears to have trouble seeing the blackboard in class. The CSE must also ensure that its evaluation includes an appropriate assessment of the child's vocational skills, aptitudes and interests (8 NYCRR 200.4 [b][4][vii]).

THE APPEAL IS DISMISSED.