01-004

        Petitioners appeal from an impartial hearing officer's decision which found that respondent's notice of its intent to evaluate the student complied with federal and state laws and regulations. Petitioners also challenge the hearing officer's determination that there was no basis in the record to find that the method of testing the student was improper. The appeal must be dismissed.

        At the time of the hearing in September 2000, petitioners' 15-year-old son was attending the Arlington High School. He had been classified as learning disabled by respondent’s Committee on Special Education (CSE). The student’s educational history is set forth in Application of a Child with a Disability, Appeal No. 00-066, which involved his educational program for the 1999-2000 school year.

        In May 2000, petitioners were notified by one of respondent’s employees that respondent intended to administer certain tests to their son in preparation for the CSE’s annual review. Their consent for such testing was requested (Exhibit 2). The student's father signed the consent form on May 20, 2000 (Exhibit 3). After being informed that parental consent had been obtained, one of the student's teachers planned to administer the Woodcock Reading Mastery Tests (WRMT) to the student on June 9, 2000 (Transcript pp. 13 and 18).

        The teacher testified that on the day before the scheduled test date, he reviewed an alternate form of the WRMT with the student to acclimate the student to the test situation (Transcript p. 26). He further testified that he told the student that the actual testing would occur the next day (Transcript p. 21). The student, however, testified that he had taken a test on June 8, 2000, and that his teacher had prompted him on several test questions (Transcript pp. 54-55). The teacher denied prompting the student (Transcript pp. 67-68). The student's mother testified that her son was upset when he came home from school on June 8, 2000, because he had been tested that day and his teacher had assisted him with some answers (Transcript pp. 31-32). She did not send her son to school on June 9, 2000, the scheduled test date (Petition paragraph 7). The teacher testified that the student did not appear in his class after June 8, 2000, and the actual test was not administered to the student (Transcript p. 22).

        The student's mother requested an impartial hearing on June 9, 2000, to challenge the manner in which the test had allegedly been administered to her son (Exhibit A). She demanded that all testing be suspended until her complaints were resolved. In response to the hearing request, respondent appointed a hearing officer on July 4, 2000. However, it did not notify her of the appointment until August 10, 2000 (Hearing Officer's Exhibit 1). The hearing was conducted on September 28, 2000, and the hearing officer rendered her decision on December 7, 2000. She determined that the school district had informed petitioners of the nature of and reason for the evaluation. Accordingly, she found that respondent's notice was in full compliance with federal and state laws and regulations. The hearing officer also found that the teacher followed his standard testing procedures, and did not treat the student any differently from the other students he was evaluating. She found that there was no basis in the record to find that the procedures followed by the teacher were improper. She ordered respondent to conduct all appropriate evaluations to determine the student's classification and placement for the 2000-01 school year.

        Petitioners appeal from the hearing officer's decision on three grounds. First, I will address their procedural claim. Petitioners assert that the hearing officer failed to consider the issue of whether the hearing was conducted in a timely manner. They argue that their son was denied a free appropriate public education because the hearing was not scheduled to begin until more than 45 days after their request for a hearing. A review of the record reveals that this issue was not clearly raised at the impartial hearing. Rather, it was alluded to at the close of the hearing during a discussion about submitting closing statements in writing. Petitioners' attorney merely stated that the timing of the hearing would be an issue (Transcript p. 102). Notwithstanding the manner in which this issue was raised, I have considered it and find it to be without merit.

        Federal and state regulations require hearing officers to render their decisions within 45 days after the request for a hearing has been received by a board of education (34 C.F.R. § 300.511[a]; 8 NYCRR 200.5[i][4]). However, a hearing officer may extend the 45-day period for a specific period of time at the request of either party (34 C.F.R. § 300.511[c]). The record shows that respondent appointed the hearing officer on July 4, 2000, but did not notify her of the appointment until August 10, 2000 (Hearing Officer's Exhibit 1). The record does not reveal why respondent did not advise the hearing officer of her appointment until more than one month after it had made the appointment, and two months after it had received the hearing request. I note that two weeks after the hearing officer was notified of her appointment, she sent a letter to the parties confirming that the hearing was to convene on September 28, 2000 (Hearing Officer's Exhibit 2). The fact that the hearing officer was confirming the hearing date suggests that there had been some prior discussions with the attorneys to schedule the hearing. While I urge respondent to ensure that hearing officers are appointed and notified of their appointment in a more timely manner, I find that under the circumstances, the delay in the process does not afford a basis for annulling the hearing officer’s decision (Application of a Child with a Disability, Appeal No. 00-066).

        In addition, petitioners challenge the hearing officer's finding that respondent's notice of its intent to evaluate their son complied with federal and state laws and regulations. They assert that respondent failed to comply with the requirements and intent of the notice provisions. Federal and state laws and regulations require that written notice be given to the parents of a child with a disability before a school district proposes to initiate or change a student's evaluation (20 U.S.C. § 1415[c]; 34 C.F.R. § 300.503[a][1][i]; N.Y. Educ. Law § 4402[1][b][3][c]; 8 NYCRR 200.5[a][1]). Written notice must include—

(1) A description of the action proposed or refused by the agency;

(2) An explanation of why the agency proposes or refuses to take action;

(3) A description of any other options that the agency considered and the reasons why those options were rejected;

(4) A description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action;

(5) A description of any other factors that are relevant to the agency's proposal or refusal;

(6) A statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; and

(7) Sources for parents to contact to obtain assistance in understanding the provisions of this part.

(34 C.F.R. § 300.503).

        I agree with the hearing officer that respondent's notice of its intent to evaluate the student complied with the notice requirements of federal and state laws and regulations. The notice advised petitioners that respondent proposed to test their son for the purposes of its annual review. It listed the tests it intended to administer. It also provided the name of an individual at the school to contact in the event the parents had any questions or concerns. Additionally, the notice included a statement indicating that a copy of the parents' due process rights was enclosed.

        Finally, petitioners object to the testing process followed by the teacher. They argue that there was no evidence in the record demonstrating that conducting a practice test was within proper test protocol. I find this issue to be premature. Federal regulations require that standardized tests be administered in accordance with any instructions provided by the producer of the test (34 C.F.R. § 300.532[c][1][ii]). However, if an assessment is not conducted under standard conditions, a description of the extent to which it varied from standard conditions must be included in the evaluation report (34 C.F.R. § 300.532[c][2]). The record shows that the student was not administered the WRMT because his mother kept him home from school on the day he was scheduled to take the test. She had also demanded that all testing be suspended. Since no testing was conducted, no evaluation report was prepared. Therefore, there was no opportunity to describe variations, if any, from standard testing conditions.

        Petitioners raise other issues challenging the appropriateness of the evaluation process. I will not address those issues because they were not raised at the impartial hearing (Application of a Child with a Disability, Appeal No. 99-60).

THE APPEAL IS DISMISSED.