94-038

Petitioners' child is 10 years old, and is enrolled in the fifth grade of respondent's elementary school. Prior to entering kindergarten in September, 1989, the child was screened by a team which included respondent's school psychologist. At the hearing in this proceeding, the school psychologist testified that the child was inattentive and failed to make eye contact with her, during the screening which she conducted. In November, 1989, the child's kindergarten teacher reported that the child was having difficulty adjusting to school. The teacher asserted that the child had little self-control and a short attention span, and that his behavior was distracting to others. In a April, 1990 pupil progress report, the child's teacher indicated that the child continued to be noisy and disruptive in class, and that he required constant attention. The teacher recommended that the child be tested by the school psychologist, but apparently did not refer the child to the CSE. Petitioners were reportedly opposed to having the child tested because they believed that his behavior in kindergarten simply reflected the fact that he was not used to being with other children.

During the 1990-91 school year, the child was enrolled in the first grade. In a progress report of November, 1990, the child's teacher indicated that the child evidenced appropriate reading and mathematics skills, although he was receiving remedial reading instruction. The first grade teacher reported that the child had a very limited attention span, and that his remarks during classroom discussions were not always related to the topic being discussed. She also reported that the child lacked respect for the rights of others and had difficulty adhering to school rules. In April, 1991, the child's first grade teacher reported that the child had acquired most of the reading skills which had been taught, and that he was performing fairly well in mathematics, except with respect to reasoning and problem solving tasks. She also reported that the child continued to have difficulty with his handwriting and written expression. The teacher further reported that the child was inattentive, disruptive, and disrespectful of others. In May, 1991, as the child neared the end of the first grade, he exhibited relative strength in social studies and science and relative weakness in language skills, on group administered standardized tests. His mathematical computational skills were reported to be at a high kindergarten level, as were his language skills.

Petitioners reportedly intended to have the child privately evaluated during the Summer of 1991. In a letter dated October 17, 1991, respondent's elementary school principal advised petitioners that the child was struggling to perform academically at a level comparable to that of his peers. After noting that petitioner had not provided the results of any private evaluation to the school, the principal asked petitioners to consent to having the child evaluated by the school psychologist. Petitioners eventually agreed to allow the school psychologist to test the child, at the urging of the child's second grade teacher. In November, 1991, the second grade teacher reported that the child had made some academic progress, but noted that the gap between his performance and that of his peers was widening. She opined that the child's lack of confidence and inattentiveness hindered his reading performance, and asserted that the child had to be redirected from three to five times during a lesson. Although the teacher believed that the child had good ideas for writing, she reported that he had great difficulty expressing himself in writing. The child received remedial writing instruction once per week. The teacher also reported that the child lost his place while engaged in class activities, although he tried very hard to do his work. At the time of the report, the child was reported to be failing reading and English. The teacher urged that the child be tested, and reiterated her concerns in a note dated January 24, 1992, in which she asserted that the child could do his work if he had 1:1 interaction with his teacher, but that his behavior prevented him from working on his own. The teacher and the child's mother implemented a behavior management program, which reportedly did not significantly improve the child's behavior.

Petitioners agreed to have the child tested by the school psychologist in April, 1992. The school psychologist, who observed the child twice in his second grade classroom and once in his remedial writing classroom, reported that the child displayed attention seeking behaviors, talked out of turn, and had difficulty remaining in his seat. The child achieved a verbal IQ score of 93, a performance IQ score of 94, and a full scale IQ score of 93, with little variability of subtest scores except in the area of abstract verbal reasoning, in which his score was in the borderline mentally retarded range. The child's age equivalent score on a test of his visual motor perceptual development was approximately one to one and one-half years below that which he should have attained. On achievement tests the child achieved standard scores of 97 in reading decoding, 98 in reading comprehension, 105 in mathematical computation, and 93 in mathematical application. In essence, his achievement was comparable to his ability. The school psychologist reported that projective testing and her own observation of the child revealed that he was an active, socially maladjusted little boy, with limited inner behavior controls. She opined that the child appeared to need to control his environment and those around him through the use of manipulative behavior. The school psychologist described the child's thought, as expressed in conversation, as confused and disjointed, and characterized his responses as negative, nonsensical, angry and rebellious. She opined that the child's social, emotional and behavioral difficulties were pervasive, and were perhaps the result of either a neurological impairment or an emotional disturbance. The school psychologist suggested that the child be instructed in a highly structured environment which included a behavior modification program and frequent reinforcement to improve the child's self concept. At the hearing, the school psychologist testified that she believed her suggestions could be implemented in a regular education classroom. She also recommended that the child be examined by a neurologist, and that individual and family counseling be provided.

The child was promoted to the third grade for the 1992-93 school year, notwithstanding the fact that he received failing marks in reading, language arts and mathematics in the second grade. Within the first month of the 1992-93 school year, the child's third grade teacher wrote to petitioners to advise them that the child's behavior was unacceptable. The teacher reported that the child was disruptive and lacked self-control. In the child's November, 1992 progress report, the third grade teacher advised petitioners that the child was failing reading, English, spelling, mathematics and social studies. The teacher reported that the child's work was unorganized, seldom finished and of poor quality, and that the child did not appear to care about his work. He also reported that the child continued to indulge in attention seeking activities, and that the child was not well liked by his peers.

In February, 1993, the child's third grade teacher informed petitioners in writing that the child was not meeting the minimum requirements for promotion to the fourth grade, and asked them to consider whether the child should remain in the third grade or whether they should seek special help for the child. The teacher also opined that the child had emotional problems. In a letter to the teacher, dated February 23, 1993, petitioners acknowledged that the child had emotional difficulties, but asserted their belief that the only course of action was to medicate the child which they did not wish to have done. They also asserted their belief that the child's academic performance had begun to improve.

In April, 1993, the child's teacher informed petitioners that the child was failing reading, English, mathematics and social studies, although he had received a C+ in spelling. At the end of the 1992-93 school year, spelling was the only subject which the child had passed. He received the grade of unsatisfactory in each area of attitudes, social growth and study habits set forth on his report card. The child's teacher noted on the report card that the child had accomplished very little during the year, and that he was being advanced to the fourth grade at petitioners' request, rather than the teacher's recommendation.

After the first five weeks of the 1993-94 school year, the child's fourth grade teacher advised petitioners that the child could not remain on task while in class and that he had difficulty working with others. The fourth grade teacher testified that he had attempted to help the child become organized by teaching him how to record homework assignments on an assignment pad, but that the child nevertheless failed to complete his assignments. He also testified that the child was unable to remain in his seat, or to concentrate, long enough to take tests. He asserted that the child merely dashed off quick responses to test questions, and was failing his tests. On November 18, 1993, the child's mother met with the elementary school principal and the child's fourth grade and his special subject teachers. The special subject teachers expressed concerns similar to those of the fourth grade teacher. They reportedly discussed providing the child with 1:1 assistance, additional time with a computer to support his learning and the implementation of a behavior modification program. They also discussed having the child evaluated.

On December 10, 1993, the principal referred the child to the CSE. In his referral, the principal asserted that the child had shown little academic progress and that he had minimal ability to focus upon any task, set of directions, or expected behaviors. A packet of information including a form for petitioners to consent to the child's evaluation was sent to petitioners on December 10, 1993 and again on January 25, 1994. Petitioners were invited to meet with the CSE on February 2, 1994. Petitioners did not consent to have the child evaluated by the CSE. In a telephone conversation with the CSE chairperson, the child's father reportedly expressed the view that the child's referral to the CSE would not accomplish anything.

Notwithstanding petitioners' failure to consent to the child's evaluation, the CSE chairperson observed the child in his classroom on February 1, 1994 (cf. 34 CFR 300.504 [b][1][i]; 8 NYCRR 200.5 [b]). The child reportedly engaged in various off-task behaviors during the observation, including walking around the room, talking out of turn, hitting his hand with a ruler, and giggling.

The CSE did not meet on February 2, 1994, because petitioners had not consented to an evaluation. On that date, the CSE chairperson asked the superintendent of schools to have respondent initiate an impartial hearing to obtain authorization from a hearing officer to evaluate the child without petitioners' consent (34 CFR 300.504 [b][3]; 8 NYCRR 200.5 [b][2]). On February 3, 1994, the elementary school principal suspended the child from school because of the child's reported inability to maintain appropriate behavior in school. In a letter dated February 3, 1994, the principal advised petitioners that he had removed the child from school because of "the need to provide a positive learning environment for the other children in the classroom." The principal also informed petitioners that a tutor would be assigned to provide two hours of instruction per day at the child's house. The superintendent of schools scheduled a hearing to be held on February 18, 1994 with regard to the child's suspension from school. However, petitioners did not appear for the scheduled hearing, and the superintendent offered to reschedule the hearing. The record does not reveal whether the disciplinary hearing was held.

On February 22, 1994, after four days of instruction by a tutor at home, the child returned to respondent's elementary school. However, he was assigned another tutor, who provided him with instruction apart from his classmates in all but the special subjects for the remainder of the 1993-94 school year. The child did participate with his fourth grade classmates in various special subjects, such as art, music and physical education.

An impartial hearing was scheduled to take place on March 10, 1994 to resolve the issue of the child's evaluation by the CSE. At the request of petitioners' attorney, the hearing was postponed so that the attorney could meet informally with the superintendent of schools and the principal. Following their meeting, the attorney and principal agreed that the child's referral to the CSE would be withdrawn because petitioners were initiating an extensive private evaluation of the child, the results of which petitioners agreed to share with respondent.

In March, 1994, the child was examined by an optometrist, who prescribed eye glasses for the child. On April 4, 1994, the child was examined by a family physician. Although the results of the examination were unremarkable, the report which was provided to respondent briefly alluded to the child's hyperactivity. A subsequent examination of the child by another physician disclosed that the child had various allergies. The results of an audiological examination performed on July 14, 1994 were also reported to respondent. The audiological examination did not reveal any significant difficulty with the child's hearing. Respondent did not receive any more results of evaluations from petitioners, although the child was reportedly going to have psychological, neurological and psychiatric examinations. At the hearing, the child's father acknowledged that these other examinations would be made, but denied having agreed to share the results with respondent.

As the child neared the end of the fourth grade in May, 1994, he took group administered standardized tests. He achieved grade equivalent scores of 2.8 in reading vocabulary, 3.0 in reading comprehension, 2.4 in language mechanics, 1.8 in language expression, 3.2 in spelling, 3.2 in mathematical computation and 2.6 in mathematical concepts and applications. During the last two quarters of the 1993-94 school year, his grades varied from B+ in mathematics to F in social studies. Although he did not fail any course in the fourth quarter, the child received D's in social studies, science, English, and reading. His work study skills and social behavior was marked as either unsatisfactory, or in need of improvement.

On July 26, 1994, the elementary school principal again referred the child to the CSE. Petitioners were informed of the referral, and were asked to consent to having the child evaluated by the CSE. On August 31, 1994, the principal sent petitioners a second copy of the consent form, with a request that they sign the form by no later than September 7, 1994. The child was assigned to a fifth grade class for the 1994-95 school year. Petitioners declined to consent to the child's evaluation by the CSE. A hearing was held on October 3, 1994.

In a decision dated October 25, 1994, the hearing officer noted that petitioners did not disagree with the need for an evaluation, but wished to pursue their own evaluation of the child and reserved the right to determine whether the results of the private evaluation would be shared with respondent. The hearing officer found that there was an ample basis in the record to support the need for the child's evaluation, and held that the CSE had the right and the duty to evaluate the child, regardless of whether petitioners had the child privately evaluated.

Petitioners assert that they do not oppose the evaluation of their son, but they do object to the evaluation being done by or under the direction of school officials. They further assert that they have had the child examined by two internists, an allergist, an ophthalmologist, endocrinologist, a clinical social worker, a psychologist, and "other health care workers", and that they are in the process of obtaining a psychiatric evaluation of the child. They ask that they be allowed to continue to have the child privately evaluated and that the child be spared the burden of undergoing duplicative testing by the CSE.

As the hearing officer correctly noted, the CSE has the responsibility to ensure that a child who has been referred to it because of a suspected disability is appropriately evaluated (8 NYCRR 200.4 [b]). Although a CSE must consider the results of privately obtained evaluations if presented to it by a child's parents (8 NYCRR 200.5 [a][v]), and may rely upon the results of a private evaluation in lieu of conducting its own evaluation (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-12), it may nevertheless require its own evaluation (Vander Malle v. Ambach, 673 F. 2nd 49 [2nd Cir., 1982]; Appeal of Carol M., 32 Ed. Dept. Rep. 146). Therefore, the central issue of this appeal is whether there is an adequate basis to suspect that the child may have an educational disability, so that he must be evaluated.

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. 94-1; Application of a Child Suspected of Having a Disability, Appeal No. 94-3; Application of a Child Suspected of Having a Disability, Appeal No. 94-10). 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 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).

Upon the record before me, I find that respondent has met its burden of proof. The psychological examination of the child when he was in the second grade revealed that he had average cognitive skills. However, his academic performance has not been commensurate with his mental ability. I need not, and do not, determine whether the disparity between the child's ability and achievement is evidence of a disability, but it is sufficient to warrant his evaluation. In addition to his poor academic performance, the testimony of the child's fourth grade teacher, the report card comments of his other teachers, and the written report of his individual tutor during the latter one-half of the 1993-94 school year suggest that the child has a serious and long standing difficulty relating to his peers. The child has received remedial assistance in reading and writing in the years before the 1993-94 school year. There is also evidence that a behavioral modification program has been tried with him. Even with the intensive 1:1 instruction which the child received from the tutor in the 1993-94 school year, he remains significantly behind his peers academically.

With regard to petitioners' concern about duplicative testing of the child, I note that with the possible exception of psychological testing at the Strong Memorial Hospital to which the child's father alluded during the hearing, there is no evidence that petitioners have obtained the evaluations which the CSE seeks to have performed. Petitioners can help the CSE minimize the possibility of duplication by promptly sharing the results of any privately obtained evaluation with the CSE.

THE APPEAL IS DISMISSED.