94-010

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 is eight years old, and is enrolled in the third grade in respondent's P.S. 86. Prior to his entry into kindergarten in September, 1990, the child was referred to the CSE. In June, 1990, the CSE recommended that the child be classified as learning disabled and be enrolled in a Modified Instructional Services-IV special education class, with counseling, for the 1990-91 school year. However, petitioners did not consent to have the CSE's recommendation implemented. Respondent did not seek to implement the CSE's recommendation.

        The child was enrolled in a regular education kindergarten in P.S. 86 for the 1990-91 school year, during which he received remedial instruction pursuant to Chapter 1 of the Education Consolidation and Improvement Act (20 USC 3801 et seq). The child's cumulative record reveals that he received satisfactory grades while in kindergarten, despite being absent from school for 42 days. The record reveals little information about the child during the 1991-92 school year, except that he was enrolled in two different first grade classes and apparently moved away from the school district during such school year. During the 1992-93 school year, the child was enrolled in three different second grade classes in P.S. 86. He was also apparently out of school for a substantial portion of the school year. The record does not reveal where the child was instructed while not enrolled in P.S. 86. The child's cumulative record reveals that during the 1992-93 school year he received grades of "unsatisfactory" and "needs improvement" in all academic subject areas, despite receiving remedial services for pupils with compensatory educational needs (PCEN) pursuant to Section 3602 (12)(2) of the Education Law and English as a Second Language (ESL) instruction.

        For the 1993-94 school year, the child was enrolled in a regular education third grade class. A guidance counselor in P.S. 86 testified at the hearing in this matter that the child's teacher expressed concern about the child's ability to function academically in the third grade. In addition, the child was reported to be frequently absent or late in coming to school. On October 26, 1993, a child study team recommended that the child receive counseling, Chapter 1 and ESL services, and that he be transferred to another third grade class. The team further recommended that the child receive "at risk resource room services", i.e., supplementary instruction in a resource room on a space available basis for children who have not been classified as having a disability,and that he be entered in respondent's Attendance Improvement Means Success (AIMS) program. The child was transferred to another third grade class on October 27, 1993, and began to receive the services recommended by the child study team. However, the child was unable to remain in the at risk resource room program beyond December, 1993, because additional children who had been classified as having disabilities were assigned to the resource room.

        The child study team met again on November 23, 1993, at which time the child's third grade teacher reported that the child continued to arrive late for school, and opined that the child had given up attempting to do his school work. The child study team recommended that respondent's crisis intervention team become involved with the child, and that respondent initiate a hearing to obtain authorization to evaluate the child without petitioners' consent, in accordance with the provisions of applicable Federal and State regulations (34 CFR 300.504 [a][3]; 8 NYCRR 200.5 [b][2]).

        In a letter dated January 4, 1994, the principal of P.S. 86 notified petitioners that the child might not meet the academic requirements for promotion to the fourth grade, and invited them to meet with him. The child's guidance counselor and a member of respondent's crisis intervention team reportedly discussed the proposed evaluation with petitioners, but were unable to obtain their consent to evaluate the child. On January 20, 1994, the principal requested that respondent initiate a hearing to obtain a hearing officer's authorization to evaluate the child. In his request, the principal asserted that the child was unable to integrate letters with their respective sounds, which prevented him from being able to read.

        A hearing was scheduled to be held on February 11, 1994, but was rescheduled and held on March 10, 1994. Petitioners, who were not represented by an attorney or assisted by an advocate, arrived at the hearing approximately one hour late. However, the hearing officer required respondent's witnesses to repeat their testimony, and afforded petitioners the opportunity to question the witnesses. In a decision dated March 30, 1994, the hearing officer found that the child was not making significant academic progress in school, and held that respondent had met its burden of proving that there was a sufficient basis to suspect that the child may have an education disability.

        Petitioners contend that the hearing officer erred in finding that the child should be evaluated, notwithstanding their opposition to the evaluation. They assert that the hearing officer erroneously found that the child was nine years old, when he is in fact eight years old. The record reveals that the child is eight years old. Therefore, the hearing officer erred by referring to the child as a nine year old boy in his decision. However, the hearing officer's error is not dispositive of the issues in this proceeding.

        Respondent 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. 94-3; Application of a Child Suspected of Having a Disability, Appeal No. 94-1; Application of a Child Suspected of Having a Disability, Appeal No. 93-7). 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 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 remedial assistance it has provided to the child (Application of a Child Suspected of Having a Disability, Appeal No. 94-1; 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. 91-33).

        Respondent has presented its case through the written statements and testimony of various teachers and the child's guidance counselors in P.S. 68, as well as a few samples of the child's work in school. Although the child's answer sheets for a standardized third grade mathematics test administered to the child on two occasions are included in the record, those sheets show only two recorded answers. The third grade teacher who administered the examination to the child testified that the child declined to even guess at the answers to the examination questions. The teacher further testified that the child could orally count up to 10 and write numbers up to 20, but could add only single digit numbers. The teacher also testified that the third grade mathematics curriculum includes fractions, decimals, multiplication and division. The third grade teacher's description of the child's mathematical skills was confirmed by the testimony of the resource room teacher who had instructed the child in the Fall of 1993.

        Petitioners assert that the guidance counselor's testimony about the child's inability to identify all of the letters of the alphabet was untrue. However, the child's present third grade teacher, the resource room teacher and the Chapter 1 teacher each testified that the child could not recognize each letter of the alphabet. In a written report, the resource room teacher asserted that an informal assessment of the child's reading skills disclosed that he had little knowledge of sound-symbol relationships of phonograms and that the child's sight word vocabulary was at the readiness level. The child's third grade teacher during the first six weeks of the 1993-94 school year reported that the child lacked phonics and word attack skills for reading, and had difficulty expressing himself orally. The child's current third grade teacher testified that the child could orally participate in class, with much encouragement, but that he was unable to work independently or with written materials. The child's ESL teacher testified that the child has difficulty following directions and recalling information. The child's Chapter 1 teacher, who has provided him with remedial assistance since the 1991-92 school year, reported that although the child has significantly improved socially, he has demonstrated virtually no academic growth.

        Upon the record before me, I find that there are ample grounds to suspect that the child may have an educational disability. The testimony of respondent's witnesses about the child's significantly limited ability to function with written materials is supported by the brief samples of the child's work which are included in the record. The child's severe academic deficits require close scrutiny to ascertain if his educational performance has been impaired by an educational disability. I further find that respondent has demonstrated that it has provided the child with appropriate remedial assistance with Chapter 1, PCEN, ESL and at risk resource room services, as well as counseling and the AIMS program. Accordingly, I find that respondent has met its burden of proof to warrant the child's evaluation for a suspected educational disability.

        While conceding at the hearing that their son has experienced significant educational problems, petitioners have opposed the child's evaluation because they do not want him to be placed in a special education class. I must emphasize that neither the hearing officer nor I have determined whether the child has an educational disability, or what, if any, special education services the child should receive. The sole issue decided is whether the child should be evaluated. Petitioners have the right to obtain an independent evaluation, and after the child has been evaluated, the CSE must afford petitioners the opportunity to meet with it to review the results of its evaluation. The CSE will then make its recommendation. If petitioners are dissatisfied with the CSE's recommendation, they will have the opportunity to have an impartial hearing to review the CSE's recommendation.

THE APPEAL IS DISMISSED.