01-021

       Petitioners appeal from the determination of an impartial hearing officer that a sufficient basis exists for respondent's Committee on Special Education (CSE) to evaluate petitioners’ son without petitioners’ consent, in order to ascertain whether the student has an educational disability for which he should receive special education services. The appeal must be dismissed.

        Petitioners’ son was 11 years old when the hearing commenced in August 2000. He entered respondent's East Hills Elementary School (East Hills) in November 1999 as a fifth grader. Prior to entering the Roslyn Public Schools, the student attended public school in Scarsdale, New York. Respondent requested the student’s educational records from Scarsdale. However, the parents did not ultimately consent to the release of any record pertaining to special education and psychological reports (Exhibit SD-30). I note that there is limited information in the record regarding the student's past academic performance and behavior.

        Upon entering East Hills, the student was administered the Wechsler Individual Achievement Test (WIAT) and the Woodcock Johnson Psycho-Educational Test (Woodcock-Johnson) (Exhibits SD-31 and 28). The student achieved grade equivalent scores of 6.1 (66th percentile) for basic reading, 4.1 (34th percentile) for reading comprehension and 6.7 (66th percentile) for listening comprehension on the WIAT. On the Woodcock-Johnson, the student's grade equivalent scores were 5.4 in mathematical computation and 6.3 in applied problems. The school math lab teacher who administered the Woodcock-Johnson reported that the student was "very fidgety" during the entire test and had "great difficulty attending to the task at hand" (Exhibit SD-31). She questioned whether the student could perform in a classroom situation, and suggested that a further evaluation be conducted.

        Upon his entrance to East Hills, the student began exhibiting a number of behavioral difficulties. On November 11, 1999 his teacher began keeping an anecdotal record of the incidents of inappropriate behavior displayed by the student (Exhibit SD-29 and 37). She noted that the student was disruptive, rude, and displayed oppositional behavior (Exhibit SD-33). He also had a difficult time focusing on schoolwork. The teacher testified that the student hit, pushed, or punched other students on a daily basis (Transcript p. 414). She also testified that the student’s behavior was not appropriate for the fifth grade (Transcript p. 403).

        On December 6, 1999, the child study team at East Hills held a meeting concerning the student's social, emotional, behavioral, and academic needs (Transcript p. 89). Subsequently, the student’s teacher implemented a behavior contract to help improve the student’s organization and study skills. Pursuant to the contract, the student was to be rewarded for appropriate behavior with auction points and a weekly forty-minute period of resource room, which the student enjoyed (Exhibit SD-37). The school psychologist worked with the teacher on an ongoing basis to modify the contract as needed (Exhibit SD-56). The teacher also implemented numerous behavior modifications and interventions to assist the student. She moved the student's seat to the front of the classroom and placed him next to students who were quiet to provide him with a model for behavior (Exhibit SD-29). She also spoke with the student's mother about keeping him inside during recess in order to complete his schoolwork. She provided the student with a class buddy, gave the student certain responsibilities to provide him with purposeful activities, and continued to communicate with the student's parents on a regular basis (Exhibit SD-44). However, the student's behavior continued to be problematic.

        On January 20, 2000, the student’s father was called to pick up his son because of his oppositional behavior in music class and in the cafeteria (Exhibit SD-29). While waiting with his father to speak with the principal, the student ran from the building into the street and had to be retrieved. As punishment for his oppositional behavior, the student was obliged to spend his lunch and recess time in the school office (Exhibit SD-29). Additionally, on March 2, 2000, the student was suspended from the bus for 11 days because he had allegedly physically harmed other students, used unacceptable language, and been unable to follow bus rules (Exhibit SD-40).

        A second child study team meeting was held on March 9, 2000, and an additional behavior contract was implemented to address the student's disruptive seat behavior (Exhibit SD-43). This contract focused on encouraging appropriate seat behavior, proper use of school materials, following directions, and respecting other student's personal space.

        On March 15, 2000, the school principal referred the student to the CSE as a result of his ongoing inappropriate behavior (Exhibit SD-47). Petitioners were asked to consent to have the CSE evaluate their son. By letter dated April 12, 2000, petitioners, through their attorney, refused to consent for the evaluation and requested that the referral be withdrawn (Exhibit SD-54). The principal advised petitioners that in view of their son's escalating behavior, the referral would not be withdrawn and their cooperation was again requested (Exhibit SD-64 and 66). Following the CSE referral, the student's behavior continued to deteriorate. On April 27, 2000, the student reportedly threw rocks and spat on the playground and lost recess time for the following day (Exhibit SD-55). In early May 2000, the student was suspended from school for three days for allegedly having exhibited serious and potentially dangerous behavior (Exhibit SD-65).

        On May 23, 2000, the CSE met to discuss the principal’s recommendation that the student be evaluated (Transcript p. 202). The CSE determined that psychological and psychiatric testing of the student was necessary. Although the student’s parents were invited to the meeting, neither chose to attend (Exhibit SD-77). On June 7, 2000, the principal and staff from East Hills met with the student’s father to express their concerns about the student’s behavior (Exhibit SD-90). The student’s father again stated that he would not consent to the CSE evaluation. The student was promoted to the sixth grade at the end of the school year.

        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 parent’s consent (34 C.F.R. § 300.505[b]; 8 NYCRR 200.4[a][8]). Respondent initiated the hearing in this proceeding to obtain authorization to evaluate the student without the petitioners' consent.

        The hearing began on August 1, 2000. It was held on various dates and concluded on November 29, 2000. The hearing officer rendered his decision on February 2, 2001. He rejected petitioners’ contention that there was no basis for evaluating their son because he was performing at or above grade level. He found that the student’s educational performance was not commensurate with his allegedly above average cognitive skills. The hearing officer also found that respondent had attempted to address the student’s behavioral difficulties prior to the principal’s referral to the CSE. Accordingly, he concluded that there was a sufficient basis for ordering the evaluation of the student.

        Petitioners challenge the hearing officer's decision on a number of grounds. They contend that the hearing officer was prejudiced against them and their legal position. They assert that the hearing officer failed to apply the proper legal standard in deciding to compel the psychological testing. They contend that the correct standard is whether the child was unable to perform schoolwork at his present grade level, not whether there is a failure to achieve his full potential. Petitioners maintain that their son does benefit from regular education as he performs at or above grade level and was promoted to the sixth grade. They also claim that respondent failed to meet its burden of proof that there is a sufficient basis for suspecting that their son has a disability preventing him from benefiting from regular education.

        Additionally, petitioners contend that respondent failed to take sufficient steps to remediate their son’s behavior prior to referring him to the CSE as required by N.Y. Educ. Law § 4401-a(2)(b) and 8 NYCRR 200.2(b)(7). Finally, petitioners argue that respondent unlawfully refused to conduct a functional behavioral assessment of their son and refused to provide social skills training as part of his regular education prior to the referral.

        A hearing officer must avoid even the appearance of impropriety, and must render a decision based upon the record (Application of a Child with a Disability, Appeal No. 94-32). A hearing officer, like a judge, must be patient, dignified and courteous in dealings with litigants and others whom the judge deals in an official capacity (Application of a Child with a Handicapping Condition, Appeal No. 91-40). While certain statements made by the hearing officer were unfortunate, they do not demonstrate that he was biased. I note that the hearing officer accommodated petitioners' requests for hearing dates and changed hearing times for them. Having reviewed the entire transcript, I must conclude that the hearing officer did conduct the hearing with impartiality. Petitioners also assert that the hearing officer evidenced bias in the contents of his decision. I disagree. The hearing officer explained why he chose to give slight credence to some of the evidence submitted by petitioners. While his use of a "sick person" analogy was unfortunate, it does not afford a basis for finding that he was biased (Application of a Child with a Disability, Appeal No. 98-73).

        The principal issue in this appeal is whether the hearing officer correctly determined that there was a sufficient basis in the record to suspect that the student 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. 94-38; Application of a Child Suspected of Having a Disability, Appeal No. 94-10; Application of a Child Suspected of Having a Disability, Appeal No. 94-3; Application of a Child Suspected of Having a Disability, Appeal No. 94-1). 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. 92-17; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-29). 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 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).

        A board of education must establish what attempts were made to remediate the student's behavior prior to the referral. State statute and regulation require that a written referral of a student to the CSE by a school employee must include a description of attempts to remediate the student's performance prior to the referral and a description of the extent of parental contact or involvement prior to the referral (N.Y. Educ. Law § 4401.a[2][b] and [c]; 8 NYCRR 200.4[a][2][ii] and [iii]). The principal’s referral to the CSE listed various attempts to remediate this student’s difficulties, including child study team meetings, behavioral intervention strategies, teacher/psychologist consultations, teacher administrative consultations, and parent/administrative consultations (Exhibit SD-47). While the referral did not give specific details, the record shows that respondent’s staff made numerous attempts to aid the child before the referral to the CSE was made. Respondent held two child study team meetings concerning the student. The first was on December 6, 1999, soon after the student arrived in the school, and the second on March 2, 2000 (Exhibit SD-31 and 42). The meetings centered on how the school could best meet the student's social and academic needs. Respondent also established two behavior contracts to establish what was expected as proper behavior and how the student would be rewarded for it. The first contract focused on implementing behaviors which would help lead to academic success (Exhibit SD-37). The teacher testified that "if a child is organized, has the materials, then behavior becomes less of an issue" (Transcript p. 475). The second contract centered on lessening the student's disruptive seat behavior (Exhibit SD-43). The record shows that the teacher used rewards as incentives for the student and gave him certain classroom responsibilities to promote appropriate behavior. Furthermore, there was continuous communication among the administration, teacher, and the student's parents. Based upon the information before me, I find that sufficient steps were taken to attempt to remediate the student's performance prior to the referral to the CSE. (See Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-23).

        Petitioners argue that respondent refused to conduct a functional behavioral assessment or provide social skills training as part of its remediation efforts. However, they provide no legal basis to support their argument. I note that a functional behavioral assessment must be part of an initial evaluation for a student suspected of having a disability when the student’s behavior impedes his or her learning (8 NYCRR 200.4[b][1][v]). I must find respondent was not obligated to provide either to the student.

        When a school suspects a student has a disability, it must show that there is an adequate basis to suspect the existence of a disability which impairs the student's educational performance (Application of a Child Suspected of Having a Disability, Appeal No. 97-54). Initially, the student's educational performance must be assessed. The results of standardized tests generally show that the student is working on grade level. However, his report cards and teacher reports indicate his work falls below grade level in some academic areas. On his final report card for the fifth grade, the student received 39 out of a possible 58 marks of satisfactory or below (Exhibit SD-105). The student's classroom teacher indicated that to her a satisfactory mark indicated below grade level performance (Transcript pp. 530-533). She felt the student displayed academic difficulties because he had poor organizational and study skills (Transcript pp. 388, 389, 400 and 401), difficulty focusing and attending to schoolwork (Transcript p. 496), difficulty behaving appropriately with peers and adults (Transcript p. 414), and non-compliance with adult direction and/or school rules (Exhibit SD-33). The teacher noted she regularly had to repeat directions to him, and that within five minutes the student would again engage in disruptive behavior (Transcript p. 396). The teacher testified "I think an evaluation is necessary so we can find out what is causing this low academic performance" (Transcript p. 528).

        Further, as noted above, during his fifth grade year the student exhibited numerous incidents of aggressive behavior and required constant supervision. The teacher’s 28-page anecdotal record reportedly documented over 169 separate acts of oppositional, injurious, and disruptive behavior (Exhibit SD- 29 and 37). The record reveals that the child's behavior seemed most likely to escalate when he was not being constantly supervised. Reports of incidents on the playground, on the bus, in the cafeteria, and in music, gym, and art establish that he had the most difficulty controlling behavior in less structured situations. On his report card the areas of work habits and personal development are marked as "improvement needed" or "area of concern" (Exhibit SD-105). These are similar to the areas on the report card from Scarsdale marked "needs to improve" (Exhibit SD-24). On the student's pupil progress summary chart, school behavior/adjustment is marked with a check-minus in below-average range, and the same is indicated under work habits (Exhibit SD-106). The classroom teacher stated that she spent at least an hour a day trying to control the student’s behavior (Transcript p. 395 and 396). Thus, the record clearly indicates that the student exhibited inappropriate behavior, which negatively impacted his educational performance.

        Additionally, I note that the student’s mother testified that her son’s IQ level was between a 136 and 140 (Transcript p. 863). While there is no documentation in the record to support her testimony, I am concerned that a student with such a high IQ is only performing at the satisfactory level academically. An evaluation will provide a means to confirm the student’s IQ and ascertain any potential learning difficulties. Based upon the evidence before me, I find an adequate basis to suspect the student may have a learning disability and an evaluation is needed. This does not necessarily mean that the student will be classified, but it will provide respondent with information about the student's needs and help them respond to his behavior and academic difficulties.

        Petitioners rely on the decision in Application of a Child Suspected of Having a Disability, Appeal No. 97-54, to support their position that their son does not need to be evaluated. However, in that appeal, the student had been privately evaluated, had been diagnosed with an Attention Deficit Disorder (ADD) and Oppositional Defiant Disorder, received medication for those conditions and had been attending school in the district for over one year before the referral was made. Yet here respondent knows almost nothing about the student. Despite the fact that private evaluations were performed, only single page letters ruling out ADD and Attention Deficit Hyperactivity Disorder were submitted into evidence by petitioners (Exhibits P-1 and 2). As the hearing officer noted, "with no psychological or psychiatric records on the student, [respondents] have been 'dealing in the dark' in their repeated attempts to develop and implement effective and appropriate strategies" (IHO Decision p. 16).

        I have considered petitioners' other claims and find them to be without merit.

THE APPEAL MUST BE DISMISSED.