95-023

          Petitioners appeal from the determination of an impartial hearing officer that a sufficient basis exists for the evaluation of petitioners' daughter by respondent's committee on special education (CSE), without petitioners' consent, in order to ascertain whether the child has an educational disability for which she should receive special education services. The appeal must be dismissed.

        Petitioners' daughter is ten years old. At the time of the hearing in this proceeding, the child was enrolled in a regular education fourth grade class in respondent's School No. 54. The child entered kindergarten in respondent's School No. 57, where she remained for the first and second grades. The record does not include any information about the child's first three years in school, except for the results of group administered standardized tests in May, 1992, when the child was completing the first grade, and in May, 1993, as she was completing the second grade. In 1992, the child achieved grade equivalent scores of 1.0 in word attack skills, 1.4 in vocabulary, and 1.5 in reading comprehension. Her grade equivalent of 1.5 in total reading was in the third stanine, or below average. The child's grade equivalent score of 1.6 in total mathematical skills was in the fourth stanine, or only slightly below average. In May, 1993, the child took a different standardized reading test. Her instructional level of reading was reported to be in the third stanine, which made her eligible to receive remedial "Chapter 1" (See 20 USC 2701 et seq) reading services in the third grade. In the Summer of 1993, the child participated in respondent's Chapter 1 Summer Enrichment Program, where she worked on reading, writing and mathematics.

        During the 1993-94 school year, when she was in the third grade, the child received Chapter 1 remedial assistance in a group of twelve children, three times per week. Her Chapter 1 teacher testified that she worked on reading decoding and comprehension skills with the children, as well as developing their sight word vocabulary. The Chapter 1 teacher further testified that she also provided the children with instruction to develop their writing skills. The child's report card for the 1993-94 school year reveals that she received grades which ranged from satisfactory to unsatisfactory in reading and mathematics, while working below grade level in each subject. She received similar grades in language arts, writing, science and social studies. At the end of the first marking period, the child's teacher reported that it was difficult for the child to complete class activities independently. The teacher's reports at the end of subsequent marking periods reveal that the child's work habits improved, but that she had some difficulty controlling her temper.

        The child advanced to the fourth grade for the 1994-95 school year. In a conference with petitioners in October, 1994, the child's fourth grade teacher expressed her concerns that the child might not be able to keep up with her work, notwithstanding the fact that petitioners were having the child privately tutored. From October until December, 1994, the teacher informed petitioners of the child's behavior in school, by a behavior log which the child brought home every night. The log is not part of the record in this appeal. The child's Chapter 1 teacher and her fourth grade teacher each testified that the child could be provoked by others, especially those who made fun of her limited reading skills.

        The child continued to receive Chapter 1 remedial assistance in reading, twice per week, during the 1994-95 school year. The Chapter 1 teacher testified that the child was reading at the second grade level, and she described the child as having a poor sight word vocabulary. The Chapter 1 teacher opined that the child appeared to be able to learn better through the auditory mode, rather than the visual mode, and that the child's ability was greater than was indicated by her performance. She noted that the child had difficulty expressing thoughts in writing, and that the child's written sentences were fragmentary.

        In her fourth grade class, the child was assigned to a below grade level reading group. Her fourth grade teacher agreed with the assessment of the Chapter 1 teacher that the child's reading skills were at the second grade level, and agreed that the child tried hard to learn to read. Although the child had shown some improvement, the fourth grade teacher testified that the child continued to exhibit deficits in letter-sound relationships, vocabulary, reading comprehension, and written expression. The teacher further testified that the child became increasingly frustrated with having to revise drafts of her writing assignments. For the first marking period of the 1994-95 school year, the child received the grade of B for mathematics, music, and "homework", and the grade of C for her other subjects, except reading and language arts. She received the grade of D in reading and in language arts. In an addendum to the child's report card, the teacher stated that the child was having significant difficulties in reading and language arts, and expressed her concern about the child's ability to progress as the curriculum became more difficult. Although the child received a grade of C in writing, the teacher noted that the grade reflected teacher modeling, rather than individual work by the child.

        On November 22, 1994, the child's fourth grade teacher referred her to respondent's committee on special education (CSE). The teacher reported that the child was reading at approximately the second grade level, and that her deficiencies in reading were affecting her performance in other subjects, particularly her ability to write. The teacher further reported that the child's difficulty with reading was adversely affecting her self-esteem. The fourth grade teacher noted that the child had received preferential seating near the front of the class, and had been given an alternative spelling list to learn, which was described at the hearing as phonically based. In addition, the teacher reported that the length of the child's writing assignments had been reduced, as had the number of drafts of such assignments. The teacher described the child as very sad, and in danger of suffering damage to her social/emotional state, unless she received assistance.

        In a letter, dated November 23, 1994, a representative of School No. 54 asked petitioners to consent to having the child evaluated by the CSE. Petitioners did not consent to the evaluation. On January 11, 1995, the CSE asked respondent to appoint a hearing officer to conduct a hearing to determine if a sufficient basis existed to suspect that the child might have an educational disability for which she should be evaluated, not withstanding petitioners' refusal to consent to an evaluation by the CSE.

        The hearing in this proceeding was held on February 16, 1995. At the hearing, petitioners, who were not represented by an attorney, acknowledged that the child had academic difficulties, and needed help. They advised the hearing officer that the child had been diagnosed by a physician as having an attention deficit disorder (ADD), when the child was in the first grade. The child has taken the drug Ritalin since that time, to control her ADD. Petitioners also advised the hearing officer that they had obtained additional reading instruction for the child at Nazareth College, and that the child was scheduled to be evaluated on February 23, 1995 by the Developmental Unit of the Genesee Hospital, in Rochester, New York. The child's mother asserted that she had contacted respondent's Americans with Disabilities Act officer to secure supportive services for the child pursuant to Section 504 of the Rehabilitation Act of 1973 (29 USC 794). She explained that she did not want the child to be classified by the CSE as a child with a disability, or to be provided with services in respondent's special education program.

        In his decision of March 10, 1995, the hearing officer found that the child had begun to fall behind in her academics because of her inability to read and write at the fourth grade level, despite efforts by respondent to remediate her reading and writing deficits. Noting that petitioners preferred to have the child privately evaluated, the hearing officer held that respondent had established an adequate basis for conducting its own evaluation.

      Petitioners assert that respondent never notified them of the academic difficulties their child was experiencing. However, the child's fourth grade teacher indicated in her referral to the CSE that she had a conference with petitioners on October 25, 1994, at which the child's academic and emotional concerns were discussed. At the hearing, the child's father alluded to that discussion with the child's teacher. In the referral, the teacher also indicated that she had a telephone conversation with the child's mother on October 3, 1994. I find that there is no merit to petitioners' assertion.

      Petitioners also assert that private psychological/educational testing of the child was completed on February 23, 1995, and a physical evaluation was completed on February 28, 1995. They allege that psychological testing was to be performed in May, 1995, shortly after their petition in this appeal was filed. Petitioners argue that there is no additional testing which respondent needs to complete.

        A CSE must consider any evaluation report submitted to it by a parent, as part of the CSE's review of a child (8 NYCRR 200.5[a][1][v]). However, a CSE is not obligated to forego its own testing in favor of test results supplied by a parent (Vander Malle v. Ambach, 673 F. 2d 49 [2nd Cir., 1982]; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 90-2; Application of a Child Suspected of Having a Disability, Appeal No. 94-38). A CSE must take care to ensure that unnecessary testing is avoided (Healey v. Ambach, 103 AD 2d 565[1984]). Petitioners have not offered reports of the private evaluations which they have obtained, and there is no basis in the record of this appeal for me to determine whether the testing which the CSE wishes to do would be unnecessarily duplicative of the private evaluations.

        The central issue in this appeal is whether there is an adequate basis to suspect that the child may have an educational disability. The board of education 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; Application of a Child Suspected of Having a Disability, Appeal No. 94-38). In meeting its burden of proof, the board of education 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. 91-29; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-17). The board of education must also demonstrate what, if any, attempts have been made to remediate the child's performance (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-17; Application of a Child Suspected of Having a Disability, Appeal No. 94-1).

        Although respondent has inexplicably failed to include the results of group standardized tests administered to the child in the third grade during the 1993-94 school year, the testimony of the child's fourth grade and Chapter 1 teachers about her second grade functional reading level is uncontroverted. The Chapter 1 teacher also testified that the child was eligible to receive Chapter 1 services during the 1994-95 school year, because she had scored below the statewide reference point on the third grade Pupil Evaluation Program (PEP) tests, which are administered to children near the end of the third grade (8 NYCRR 100.3[b][2]). State regulation requires that children who score below the statewide reference point receive remedial services (8 NYCRR 100.3[b][3]). In this instance, the child began receiving Chapter 1 remedial services in the Summer of 1993, before she entered the third grade, and continued to receive them during the 1993-94 school year, prior to taking the PEP tests. The child's performance on the PEP tests, despite the remedial services which she has received, strongly suggests that she may have an educational disability. Further evidence of a possible educational disability may be found in the testimony of both of her teachers, who testified that the child has difficulty following their directions, and requires individual assistance to understand what her teachers want her to do.

        While I have considered the fact that the child's grades for the second marking period of the 1994-95 school year improved in reading, language arts, and mathematics, I am not persuaded that those grades demonstrate that a significant change has occurred in the child's educational performance. The child's teacher indicated on the child's report card that the child continued to work at a level below that of the fourth grade, and that her grade of B+ in language arts had been achieved with individualized instruction, and her grade of A in mathematics had been achieved with "extra help". At the hearing in this proceeding, the fourth grade teacher continued to insist that the child would be unable to keep up with the academic work as the curriculum becomes more difficult, just as the teacher had reported to the CSE in her referral of the child to the CSE.

        Upon the record before me, I find that respondent has met its burden of proof with respect to establishing a basis for evaluating the child. Although petitioners have expressed their opposition to having the child classified as a child with a disability and becoming involved in respondent's special education program, I must point out that it is premature to speculate about the possible classification and placement of the child (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-5).

        I do not reach petitioners' assertion that the child has been evaluated by a school psychologist without their consent. The issue was not raised at the hearing in this proceeding, and they have not provided any information about the alleged evaluation. Petitioners are not without a remedy for their complaint about the alleged evaluation by the school psychologist. Federal regulation requires each State educational agency to establish a procedure for investigating and resolving complaints about a board of education's alleged violation of Federal statute or regulations (see 34 CFR 300.661). Petitioners should address their complaint about the matter to the State Education Department's Executive Coordinator of the Office for Special Education Services.

THE APPEAL IS DISMISSED.