96-013

          Petitioner appeals from the decision of an impartial hearing officer which directed that petitioner's child be independently evaluated at respondent's expense during the Summer of 1995. The appeal must be dismissed.

        Petitioner's 15 year old son is bilingual. He has severely deficient reading skills in English and Spanish, despite having received bilingual special education instruction since 1989. During the 1994-95 school year, the child was enrolled in a bilingual special education program, with monolingual resource room services, in respondent's I. 166. The child has been classified as learning disabled. His classification is not in dispute in this proceeding.

        When evaluated by a school psychologist in January, 1995, the child achieved a verbal I.Q. score of 81, a performance I.Q. score of 86, and a full scale I.Q. score of 82. He evidenced some difficulty performing tasks requiring visual motor integration skills, and his visual memory was reported to be in the low average range. Projective tests revealed that the child had a low level of self-esteem, and had difficulty identifying his feelings and being sensitive to the feelings of others.

        At the time of his educational evaluation in January, 1995, the child was in the eighth grade. The evaluator reported that the child's cognitive thought processing and spontaneous speech were better developed in English than in Spanish. Nevertheless, the boy's expressive and receptive vocabulary skills in English were reported to be 6 to 7 years below age expectancy. His independent reading skills were reported to be at a mid-first grade level, and the evaluator reported that the child had not mastered basic phonic skills for reading or writing in either English or Spanish. His writing skills were reported to be at a beginning first grade level in English, and at the kindergarten level in Spanish. The boy could add and subtract multi-digit numbers, and could multiply single digit numbers by two digit numbers. He could also divide by single digit numbers, but had not mastered the multiplication tables. The evaluator reported that the child could not complete simple algebra problems, and had scored at a mid-fifth grade level in performing mathematical calculations. His applied mathematical problem solving skills were reported to be an early fourth grade level. The boy's social studies skills were reported to be at the upper first grade level, while his science skills were reported to be at the kindergarten level.

        The child was evaluated in January, 1995, at petitioner's request. Petitioner, who was interviewed by a school social worker in November, 1994, reportedly was dissatisfied with the child's lack of progress in reading and writing. The record reveals that when the child was previously evaluated in May, 1993, he had achieved a grade equivalent score of 1.2 in reading. Indeed, a school psychologist acknowledged that the child had made virtually no progress in reading during the six years he had been in respondent's special education program, when the psychologist testified at the hearing in this proceeding.

        The record reveals that the child entered respondent's schools in 1988, when he was placed in a second grade regular education class. In the Winter of 1989, the child, who was in the third grade in P.S. 134 was referred to respondent's Committee on Special Education (CSE) because of his reading difficulties. The CSE recommended that the child be classified as learning disabled, and that he be enrolled in a bilingual modified instructional services - I (MIS-I) class in P. 31. The child has remained in the bilingual MIS-I program. Following a re-evaluation in the Fall of 1991, the CSE recommended that the child receive speech/language therapy, which began in February, 1992. The child, who had been attending P. 31, transferred to P. 42, where he completed the fifth grade in the 1991-92 school year. The child reportedly achieved passing grades in all of his courses in P. 148, during the 1992-93 school year. At the end of the 1992-93 school year, the CSE reportedly recommended that the child's speech/language therapy be discontinued. In the Fall of 1993, the child transferred to I. 166 for the 7th grade, after having been injured in a violent incident in P. 148. The record does not disclose details of that incident. The boy reportedly received passing grades in all of his seventh grade subjects, except Spanish, during the 1993-94 school year.

        In connection with his re-evaluation during the 1994-95 school year, the child was observed in his MIS-I class in December, 1994, and in a resource room class in February, 1995. On both occasions, he was reported to be well behaved, attentive, and capable of working independently. The child also received a vocational assessment, in which he reportedly expressed interest in working in non-academically related activities. The boy also reportedly told the school psychologist who had evaluated him in January, 1995 that he was interested in participating in a work/study program.

        On February 27, 1995, the CSE met to review the results of the child's re-evaluation, and to recommend his educational program for the 1995-96 school year. The CSE recommended that the child be enrolled for the ninth grade in respondent's specialized instructional environment-IV (SIE-IV) program, on a twelve-month basis. The child's individualized educational program (IEP) indicated that he was to be enrolled in a "comprehensive career/life skills" program, rather than a high school diploma program. The CSE also recommended that the child receive Spanish language counseling once per week, in a group of no more than five students, and adaptive physical education. The boy's IEP included annual goals to improve his vocabulary, reading, writing, listening and mathematical skills, and to improve his self-esteem. It also included two prevocational skill goals. In a notice to her, dated April 3, 1995, petitioner was offered a placement for the child in P. 754, in the Bronx, also known as the School for Career Development.

        The hearing in this proceeding began on April 11, 1995, but was adjourned to enable the child's parents to obtain the services of an attorney, and because one of respondent's witnesses was unavailable. The hearing reconvened on June 12, 1995. Although the parents were not represented by an attorney, they elected to proceed without an attorney. They indicated that they did not agree with the CSE's recommendation, and that they wanted the child to be educated in an academic, rather than a vocational program.

        The school psychologist member of the CSE testified that the CSE had considered three special education programs for the child. The first was an academically oriented MIS-I program leading to a diploma, which is intended for students who are functioning at or above the third grade level in reading and mathematics. The second program, also a version of the MIS-I program, combines functional academic instruction and some vocational training, but does not lead to a high school diploma. It is intended for students who are functioning below the third grade level in reading and mathematics. The School for Career Development, which offers more vocational training than the second program, was the third program which the CSE considered. The school psychologist testified that he thought the School for Career Development was the appropriate program for petitioner's son because he had reportedly expressed interest in learning a trade. He conceded that the child also met the criteria for admission to the second of the two MIS-I programs.

        The school psychologist was asked by the hearing officer why the child had not made any significant progress in reading in the past six years. The school psychologist replied that it was because the child has a learning disability. A special education teacher from the School for Career Development testified that the child has difficulty reading because he had deficits in his ability to sequence thoughts and classify ideas. She noted that the child was frustrated by his experience in school, and suggested his instructional program should focus on building the child's self-esteem in other areas which encompass mathematics and reading, which could lead to an improvement in his mathematics and reading skills.

        In his decision, which was rendered on July 14, 1995, the hearing officer concluded that the CSE had failed to demonstrate that the proposed placement for the child in SIE-IV program at the School for Career Development was appropriate. His conclusion was premised, in part, upon a finding that the mathematics skills of the students in the proposed SIE-IV class exceeded the three-year range permitted by 8 NYCRR 200.6 (g)(7). He also found that the School for Career Development could not meet the child's needs because it did not have a specialized reading or resource room program. However, the hearing officer found that the CSE's most important omission was that it had failed to determine why the child could not read. He also noted that the educational evaluator's recommendation that the child continued to receive speech/language therapy conflicted with the recommendation by the speech/language evaluator that the child's speech/language therapy be discontinued. The hearing officer directed the CSE to arrange for the child to be independently evaluated, at the CSE's expense, by August 15, 1995, for the purpose of determining why the child could not read. The hearing officer indicated that the independent evaluators should also provide specific recommendations for the child's educational program. He also directed that the services of a reading specialist, resource room services, and speech/language therapy be made available to the child during the summer, at respondent's expense.

        In its answer to the petition, respondent asserts that the child was to be evaluated by the Communication Disorders Center of the Mt. Sinai Medical Center, on or about August 16, 1995. It further asserts that the child was seen once by a bilingual learning specialist at Mt. Sinai, but did not return for further evaluations by the specialist. The boy was reportedly seen by a psychologist at Mt. Sinai in January, 1996. Respondent asserts that it has no indication that the child's evaluation at Mt. Sinai has ever been completed, and admits that a complete independent evaluation should be performed.

        In November, 1995, petitioner attempted to initiate an appeal from the hearing officer's decision by delivering a notice of intention to seek review, a notice of petition, and other forms to the Board of Education. However, she did not deliver a petition. When apprised of this by respondent's attorney, the Office of State Review advised petitioner, in a letter dated November 17, 1995, how to initiate an appeal. In December, 1995, petitioner reportedly sent a brief letter in Spanish to the Board of Education with regard to the hearing officer's decision. Thereafter, petitioner filed her papers with the Office of Counsel of the State Education Department, which advised her on February 6, 1996 that she needed to do certain things in order to perfect her appeal. On February 27, 1996, the Office of State Review sent a copy of A Parent's Guide to Special Education for Children Ages 5-21 to petitioner to assist her in bringing her appeal. On March 5, 1996, petitioner again filed her papers with the Office of Counsel, which accepted her appeal. By letter dated March 13, 1996, the Office of State Review advised respondent's attorney that the appeal had been accepted, and provided him with an English translation of the petition, which was written in Spanish.

        Respondent argues that the appeal is untimely, and that it is moot because at least part of the hearing officer's order to have the child privately evaluated has been implemented. It also argues that petitioner has failed to cooperate with Mt Sinai and the CSE. In her petition, petitioner asserts that she does not believe that the "tests" which had been ordered for the child are appropriate. She asked that the child be placed in a private school.

        I find that respondent's argument that the appeal is moot is not persuasive. Respondent admits that the independent evaluation ordered by the hearing officer has not been completed at Mt. Sinai. It does not suggest that an evaluation has been completed elsewhere. Therefore, the issue of having the child independently evaluated is not moot.

        State regulation requires that the petition and appeal to the State Review Officer must be served upon the board of education, the district clerk, or the chief school officer within 40 days after receipt of the hearing officer's decision (8 NYCRR 279.2 [a]). Respondent bears the burden of proving its affirmative defense that the appeal is untimely (Application of a Child with a Disability, Appeal No. 93-38). I note that respondent has failed to show when petitioner received a copy of the hearing officer's decision, which would normally be dispositive of its claim of untimeliness (Hyde Park CSD v. Peter C., Sharon C. and the State Review Officer, 93 Civ. 0250, [S.D. N.Y., 1994]; Application of a Child with a Disability, Appeal No. 93-23). However, the record reveals that petitioner attempted to institute this appeal in November, 1995, but did not comply with the requirements for bringing an appeal until approximately 60 days thereafter, despite having been advised of how to do so. Appeals from hearing officer's decision must be brought promptly to assure that children receive the services they need, and are legally entitled to receive. In this instance, there is a serious question about the nature of the child's special education needs and the services which he should receive. The resolution of that question has been needlessly delayed. I cannot condone petitioner's delay in bringing her appeal, and I find that the appeal is untimely.

        Even if the appeal were timely, I would dismiss it on the merits. An impartial hearing officer may order that a child be evaluated at school district expense (8 NYCRR 200.5 [c][6]). However, the power to order that an evaluation be performed is not unlimited (Application of a Child with a Disability, Appeal No. 93-14). I find that the evidence in the record which is before me amply supports the hearing officer's decision. The CSE psychologist noted at the hearing that this child has the ability to learn, as indicated by his slow, but nevertheless steady, improvement in mathematics skills. However, he has made virtually no progress in reading in the past six years. I agree with the hearing officer that it is disingenuous to say that the child cannot read because he has a learning disability. The record indicates that the child has been attentive in school, and does his work. It does not indicate what methods of instruction have been used to teach the child to read, nor does it identify his learning style.

        The independent evaluation which the hearing officer has ordered is necessary to identify the nature of the child's disability. By identifying the nature of the child's disability, the CSE will then be able to select the appropriate special education services for the child. Once the CSE has obtained the results of the independent evaluation, it must consider the advisability of continuing to provide bilingual instruction, since there is some evidence in the record that the child functions better when using English. The CSE must also clearly identify the child's spoken and written language needs. It should use the results of the child's independent evaluation to design an effective reading program. The CSE should also re-examine its recommendation that the child receive adaptive physical education and twelve-month programming. The present record does not reveal the rationale for either recommendation.

        While petitioner's frustration with respondent's efforts to date is understandable, I must point out that a private school would also need the information which an independent evaluation can provide to address the child's needs. At this point, I cannot ascertain whether the child's needs, once they are properly identified, can be met in a public or a private setting. Therefore, I find that petitioner's request for a private school placement is premature. I urge petitioner to cooperate with Mt. Sinai in completing the child's independent evaluation.

THE APPEAL IS DISMISSED.