97-054

       Petitioner appeals from the determination of an impartial hearing officer that a sufficient basis exists for respondent’s committee on special education (CSE) to evaluate petitioner’s son, without petitioner’s consent, in order to ascertain whether the child has an educational disability for which he should receive special education services. The appeal must be sustained.

        Petitioner’s child entered the second grade at respondent’s District 31, PS 21 on October 30, 1995. The school was advised that the child had been diagnosed with an attention deficit hyperactivity disorder (ADHD) and an oppositional defiant disorder (ODD), and had been followed for medication management by a psychiatrist since October, 1995. The school had no additional information regarding the child’s previous history, nor was any such information introduced at the hearing. During the child’s second grade year, he exhibited aggressive and violent behavior which required constant supervision. The principal requested a meeting with petitioner in March 19, 1995 to avoid a suspension of the child for fighting and causing a disruption at lunchtime. Another meeting with the child’s parents was requested by the principal on May 9, 1996, to avoid suspension of the child for using disrespectful language when addressing his teacher. The child was not suspended from school as a result of these incidents. The child, however, was suspended from school at the end of May, 1996 for engaging in inappropriate behaviors which presented a danger to himself and other children, including swinging a chain, repeated physical confrontations with classmates, and throwing rocks at a paraprofessonal. The child was first referred to the CSE on June 10, 1996 by his second grade teacher because of his inappropriate behavior. By letter dated July 2, 1996, petitioner declined to consent to having the CSE evaluate her son. The school closed the case on July 16, 1996.

        In September, 1996, the child returned to the school for third grade. On September 24, and November 6, 1996, because petitioner, reportedly, had not responded to earlier letters recommending special education services, the principal of PS 21 scheduled meetings with petitioner to discuss how best to meet the educational needs of the child. It is unclear from the record if these meetings occurred. The child was suspended from school for two days in October, 1996, for engaging in behavior resulting in injury to other students. On November 14, 1996, the child was transferred to the only other third grade class at the school. Initially, the child appeared to adjust to his new class, but within one month, he again started to exhibit inappropriate behavior. The child was suspended for four days in January, 1997, again for inappropriate behavior. The child’s third grade teacher referred the child to the CSE on January 6, 1997. On January 8, 1997 the principal at PS 21 filed a request for an impartial hearing. By letter dated March 3, 1997, petitioner advised the principal at PS 21 that she did not believe an impartial hearing was necessary because her son had been privately evaluated, and that the tests that were performed during the private evaluation met with the approval of the psychologist on the special education evaluating team.

        The child was evaluated by a private psychologist on various dates in January and February, 1997. The child achieved a verbal IQ score of 123, a performance IQ score of 129, and a full scale IQ score of 127, which placed him in the superior range of intellectual functioning. On the Woodcock Johnson, which is a standardized achievement test, the child scored above his grade level in all areas, and in a manner consistent with his cognitive skills. The private psychologist recommended a school setting appropriate for intellectually gifted children where the child would be academically challenged, with school personnel available to redirect the child when he exhibited behavioral problems. The psychologist diagnosed the child as having ADHD and ODD. She also recommended continued medication and psychotherapy.

        Federal and state regulations provide that a child who is suspected of having a disability may not be evaluated without the consent of the child’s parents, provided that a board of education may initiate an impartial hearing for the purpose of having a hearing officer determine whether the child should be evaluated without the parents’ consent (34 CFR 300.504 [b][3]; 8 NYCRR 200.5 [b][3]. Respondent initiated the hearing in this proceeding to obtain authorization to evaluate the child, without petitioner’s consent.

        The hearing was held on April 2, 1997. Petitioner waived her right to be represented by counsel. At the hearing, the principal of PS 21 described the child’s behavior during second grade as impulsive. She testified that he engaged in aggressive behavior and needed constant supervision. She further testified that the child often had to be removed from the classroom. The principal indicated that when the child was removed from the classroom, he sat at a table outside of her office where he settled down. After he completed his assignments he was permitted to draw, an activity he enjoyed. She stated that when the child returned to his classroom, he would repeat his impulsive behaviors. The principal indicated that the child exhibited the same aggressive behavior in third grade.

        The principal also testified about the efforts that were made to maintain the child in regular education. She stated that in November, 1997, during the child’s third grade year, she transferred him to a different third grade class. She indicated that the teacher in the child’s new class was very supportive and tried several classroom techniques with the child such as changing his seat and rewarding good behavior. The classroom teacher also completed daily behavior charts and monitored the child’s progress on a daily basis. The principal also testified that the child’s teacher and the school communicated with the child’s parents, his physician and his psychologist. Additionally, the principal testified that the child was paired with a lunch buddy because he often did not eat lunch, which raised concern about the effectiveness of his medication. She indicated that the school was concerned about the timeliness and consistency of the administration of the child’s medicine, and the impact of a missed dosage on the child’s performance at school. Further, the principal testified that on two occasions she considered the child’s behavior to be a crisis situation and requested that the special education guidance counselor meet with the child.

        Petitioner testified that she believed that respondent intended to provide special education services to her son which was not appropriate because her son was intellectually gifted. She acknowledged that the diagnosis of ADHD was appropriate for her son and stated that the best way to treat ADHD was a combination of medication, therapy, behavior modification and good communication between the child’s parents, teachers and therapist. In support of her position she submitted excerpts from books and newspaper articles on ADHD. Petitioner further testified that during both school years there were problems with the administration of her son’s medication at school. She also indicated that though she had been receiving behavioral charts completed by his teachers, she also should have received the anecdotal records. Petitioner claimed that the anecdotal records were more descriptive and provided additional information which would have been useful in the management of her son’s medication as well as the implementation of the behavior modification techniques. Additionally, she stated that her son was extremely intelligent and that his artwork was well above age expectancy. She noted that contrary to the school’s opinion that her son did not function well in groups, he participated in cub scouts, little league, art classes, and day camp. Petitioner expressed concern that her son would be inappropriately evaluated and provided an education that would not allow him to return to a mainstream program. Further, she questioned why the private psychological evaluation completed by the child’s psychologist was not sufficient to satisfy the school’s evaluation process. Petitioner believed that the school should work harder to address her son’s problems within the regular education classroom.

        The hearing officer rendered her decision on May 19, 1997. She found that the testimony demonstrated that the child exhibited behavioral difficulties which necessitated a great deal of intervention. She also found that because of the child’s impulsive and sometimes violent behavior he needed individual attention. She further found that an evaluation would provide information necessary to determine to what extent, if any, the child’s ADHD was interfering with his success at school. She also noted that the evaluation could provide additional information which could be useful in addressing the child’s behavioral problems at school. Accordingly, the hearing officer found that the child should be evaluated by the district’s School Based Support Team.

        Petitioner challenges the hearing officer’s decision on a number of grounds. Among other issues raised, petitioner requests a review of the process for recommending children for special education. However, petitioner’s general complaints about respondent’s practices and procedures with respect to both the Individuals with Disabilities Act (IDEA) should be addressed to the State Education Department’s Office of Vocational and Educational Services for Individuals with Disabilities for resolution pursuant to the provision of 34 CFR 300.660-662 (Application of a Child Suspected of Having a Disability, Appeal No. 95-23).

        Additionally, petitioner contends that the State Review Officer should consider her child’s test scores on the reading and math achievement tests administered to New York City Public School students, which was not part of the record at the impartial hearing because they only became available to her after the hearing. She asserts that the test results are relevant in that they demonstrate that her son is gifted and does not belong in special education. It is well settled that documentary evidence not presented at the hearing may be considered in an appeal from the hearing officer’s decision if such evidence was unavailable at the time of the hearing or if the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 93-22; Application of a Child with a Disability, Appeal No. 95-15). Petitioner claims that she did not receive her son’s test scores until after the hearing, though she does not indicate exactly when she received them. Although the document listing the child’s test scores is not dated, there is a reference in the document to Spring, 1997. Respondent argues that the test scores should not be considered in this appeal because the evidence is new. It does not argue that the scores were available at the time of impartial hearing. I find that the child’s test scores are relevant with respect to the question of the child’s current academic functioning. I will accept the test scores as part of the record in this appeal.

        Petitioner raises other issues, most of which address the hearing officer’s characterization and assessment of the testimony. She also argues that merely because her son was diagnosed with ADHD, it does not follow that he is learning disabled or emotionally disturbed, and therefore he does not belong in special education. I must point out that the issue to be decided is whether the child should be evaluated, not whether he should be classified as a child with a disability.

        Respondent argues that the impartial hearing officer’s decision is supported by the record and should not be disturbed. Respondent further argues that the private psychological evaluation should not replace the CSE evaluation; that the school offered various programs to the child, but his dangerous behavior continued; and, that current academic success does not dictate continued academic success. Respondent is correct in asserting that it is not required to accept a private evaluation, in lieu of performing its own evaluation (Vander Malle v. Ambach, 673 F. 2d 49 [2d Cir., 1982]). However, that is not dispositive of this appeal.

        The primary issue in this appeal is whether the hearing officer correctly determined that there was a sufficient basis in the record to suspect that the child may have an educational disability, and should be evaluated by respondent’s CSE. 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).

        When a school suspects that a child has a disability, it must show that there is an adequate basis to suspect the existence of a disability which impairs the child’s educational performance. Initially, the child’s educational performance must be assessed. The record shows that the child is in the superior range of intellectual functioning. The record also shows that at the end of his second grade year, the child was functioning at or above grade level in reading and mathematics, demonstrating excellence in all identified skill areas in mathematics, and in all but two, which were rated as satisfactory, identified skill areas in reading. In January of the child’s third grade year, he continued to function in the above average range in reading and mathematics, demonstrating excellence in all identified skill areas in each subject. Additionally, the child’s report card shows that the child was rated as performing either good or excellent in most subjects during the first marking period. For the second marking period, the child’s teacher commented that the child’s behavior hindered his academic progress, and that it was difficult to assess the child because little work was completed. Nevertheless, the child’s performance was rated as satisfactory in most subjects during the second marking period. Additionally, the child’s scores on the reading and mathematics achievement tests administered in the Spring of his third grade year show that the child scored in the 95^th percentile in reading and the 99^th percentile in mathematics. Based on the record before me, I am unable to find that the child’s educational performance was impaired by his inappropriate behavior.

        I must note, however, that the record clearly demonstrates that the child exhibited inappropriate and sometimes violent behavior. Inappropriate behavior does not per se support the evidentiary standard which respondent must meet to establish a basis for evaluating the child without the petitioner’s consent (Application of a Child with a Handicapping Condition, Appeal No. 92-17; Application of a Child Suspected of Having a Disability, Appeal No. 93-7). The relevant inquiry is whether there is evidence that the child is unable to do school work at his present grade level, despite having received academic or remedial assistance (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33). The record demonstrates that the school tried various strategies to maintain the child in regular education. In class, various seating arrangements were tried, and he was rewarded for positive behavior. When he was removed from the class, he was placed at a table outside of the principal’s office where he would be allowed to draw after he completed his assignments. Additionally, he was allowed to call his mother which reportedly had a calming effect on him. He was transferred to a different third grade class. Toward the end of third grade, the principal offered to put the child in a fourth grade class in her building because the child tended to respond to her. The record also shows that despite the behavior that required all these interventions, the child was still able to perform at least satisfactorily at his grade level.

        Although I find that respondent has demonstrated its efforts to remediate the behavior of the child, the child’s educational achievement was nevertheless at grade level. I am constrained to find that respondent has not met its burden with respect to establishing a basis for evaluating the child. Accordingly, I find that the hearing officer’s decision must be set aside. Having so ruled, I can only express the hope that petitioner and respondent’s staff will work together in addressing the child’s behavior which impacts not only on the child’s academic progress but also on that of his classmates.

        I have considered the petitioner’s other arguments which I find to be without merit.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled.