94-003

      Petitioner appeals from the determination of an impartial hearing officer that a sufficient basis exists for the evaluation of petitioner's child by respondent's committee on special education (CSE), without petitioner's consent, in order to ascertain whether the child has an educational disability for which he should receive special education and/or related services. Upon review of the record in this appeal, I find that there is an adequate basis to suspect that the child may have an educational disability. Therefore, petitioner's appeal must be dismissed.

        Petitioner's child, who is 11 years old, is enrolled in the fifth grade in respondent's Iroquois Intermediate School. While in kindergarten during the 1988-89 school year, the child's performance was reported on his permanent record to be below average. His reading and language skills were assessed to be below the national average on a group administered standardized test. At the end of kindergarten, the child's teacher recommended that the child be enrolled in a pre-first grade program, rather than in the first grade. However, the child was enrolled in the first grade during the 1989-90 school year.

        When the California Achievement Test was administered in May, 1990, the child's reading vocabulary skills were found to be approximately seven months' delayed, while his reading comprehension skills were reportedly delayed by one year. His writing was described as in need of improvement. The child's first grade teacher recommended that the child be retained in the first grade, but he was promoted to the second grade.

        While in the second grade during the 1990-91 school year, the child achieved only two months' growth in his reading vocabulary skills and seven months' growth in his reading comprehension skills. The child's permanent school record reveals that his reading, language, spelling, and writing skills were rated as below average, but his mathematic skills were satisfactory. The child's teacher recommended that he be retained in the second grade for the next school year. However, the child was not retained in the second grade.

        The child began to be privately tutored in reading in the Summer of 1991, prior to entrance into the third grade. The tutor worked with the child's third grade teacher and his remedial reading teacher to improve the child's reading, during the 1991-92 school year. While in the third grade, the child's achievement in reading and English was reported to be satisfactory, but below grade level. He achieved satisfactory grades in spelling, mathematics, social studies, and science. His writing skills were described as needing improvement. On the New York State Pupil Evaluation Program (PEP) Test of Mathematics, the child scored above the Statewide Reference Point, but his score on the PEP test for reading was substantially below the Statewide Reference Point. When the California Achievement Test was administered to the child in May, 1992, he demonstrated a growth of eight months in his reading vocabulary skills and six months in his reading comprehension skills. His total reading skills were reported to be at the equivalent at the seventh month of the first grade, or 2.2 years below his actual grade level.

        For the 1992-93 school year, the child was enrolled in the fourth grade, where he continued to receive remedial reading instruction three times per week, as well as private tutoring in reading. The child also received assistance in developing his writing skills from a resource room teacher who was assigned to provide instruction twice per week to another child in the fourth grade classroom, but who also assisted other children who were experiencing difficulty with writing. The child was also provided with remedial mathematics instruction twice per week. In a summary of a conference she held with the child's parents in November, 1992, the child's fourth grade teacher reported that the child appeared to have a strong foundation in mathematics, but needed to strengthen his reading and writing skills.

        The California Achievement Test, which was administered to the child at the end of the fourth grade in May, 1993, revealed that the child had made no progress in improving his reading skills, notwithstanding the additional assistance which he had received to develop such skills. His total reading skills were found to be at a 1.7 grade level equivalent, or 3.2 years below expected grade level. At the hearing in this proceeding, the child's teacher testified that the results of the standardized test were consistent with her own estimate of the child's reading skills. The child received generally satisfactory grades in spelling, mathematics, social studies, and science, while his achievement in reading and English was reported as satisfactory but below grade level.

        In June, 1993, the parents met with the child's teacher and respondent's school psychologist, who reviewed the child's performance in the fourth grade, as well as his academic strengths and weaknesses. The teacher and school psychologist discussed the possibility of referring the child to respondent's CSE for an evaluation. The school psychologist testified at the hearing that the parents expressed their opposition to having the child evaluated by the CSE.

        On June 25, 1993, the CSE received a referral of the child by his teacher who reported that the child had great difficulty in language arts, notwithstanding the remedial assistance which he had received. By letter dated June 28, 1993, the chairperson of the CSE notified the parents of the child's referral to the CSE, and requested that they give their written consent to the child's evaluation. The parents did not respond to the request for their consent to an evaluation, nor did they respond to a second notice of referral and request for consent, dated July 22, 1993.

        In the absence of any resolution of the issue of the child's evaluation, the child entered the fifth grade, where he continued to experience difficulty reading, writing and remaining on task. In a letter dated September 29, 1993, the CSE chairperson advised the parents that a hearing would be scheduled, if they did not respond to the CSE's request for their consent to evaluate the child. Petitioner responded by a letter dated October 4, 1993, in which he asserted that he and his wife wished to continue having the child privately tutored, as an alternative to having the child evaluated by the CSE. A hearing was initially scheduled to be held on November 23, 1993, but was adjourned at the parents' request. On November 29, 1993, the parents met with the chairperson of the CSE, but did not resolve the issue of the child's evaluation.

        The hearing in this proceeding was held on December 8, 1993. In a decision dated January 5, 1994, the hearing officer noted that respondent's extended effort to obtain the parents' written consent for an evaluation violated the child's right to a prompt resolution of the issue of whether he should be evaluated, because of the extensive delay in holding the hearing after the parents withheld their consent to an evaluation. The hearing officer directed respondent to comply in the future with the timeliness requirement imposed by 8 NYCRR 200.5 (b)(3) that a board of education initiate a hearing to determine if a child should be evaluated when the child's parent has not consented to the evaluation within 30 days after the child's referral to the CSE.

        With regard to the child's need for an evaluation, the hearing officer found that the child's reading skills were at least two years below his appropriate age and grade levels, and that his reading skills had been delayed throughout his education in elementary school. The hearing officer further found that there was evidence that the child had significant difficulty writing, and held that respondent had presented adequate evidence to suspect that the child had an educational disability for which he should be evaluated by the CSE. Petitioner appeals from that determination.

        Prior to reaching the merits of petitioner's appeal, I will determine 3 procedural issues. Respondent asserts that the appeal should be dismissed because the petition is not verified, as required by 8 NYCRR 279.1 and 8 NYCRR 275.5. However, the petition which was filed with the State Education Department is verified. Although petitioner should have served respondent with a copy of the verification of the petition, his failure to do so does not afford a basis for dismissing the appeal (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 64; Application of a Child Suspected of Having a Disability, Appeal No. 93-7). Respondent further asserts that the appeal should be dismissed because petitioner personally served a notice of petition and petition upon the district clerk (cf. 8 NYCRR 279.2 (b) and 8 NYCRR 275.8 [a]). However, the affidavit of service attached to the notice of petition and petition which were filed with the State Education Department alleges that the papers were served by another individual who is not a party to this appeal. Therefore, I find that there is no basis for dismissing the appeal upon the ground asserted by respondent.

        At the hearing in this proceeding, the hearing officer advised petitioner of his right to challenge her impartiality, and described her professional background to petitioner. Petitioner briefly expressed a concern about the hearing officer's impartiality, but the hearing officer declined to recuse herself. Although petitioner has not specifically raised the issue of the hearing officer's impartiality in this appeal, I nevertheless note that upon the present record I would be constrained to find that there is no basis for requiring the hearing officer to recuse herself.

        Petitioner also challenged the CSE's delay in complying with the State regulatory requirement that he and his wife be informed of the opportunity to meet with the CSE or its designees to discuss the proposed evaluation (8 NYCRR 200.5 [b][2]). Although the regulation does not specify a time within which parents must be informed of the opportunity for an informal meeting, I find that parents should be provided with such information by the CSE in the latter's notification to the parents of the child's referral, in order to eliminate the need to hold hearings when parents and the CSE can resolve their differences at such informal meetings. In this instance, I find that the purpose of the regulatory requirement was achieved when the child's teacher and the school psychologist met with the parents immediately prior to the child's referral to the CSE and discussed with them the possibility of such a referral.

        With regard to the merits of the appeal, it is well established that respondent bears the burden of establishing that there is an adequate basis to suspect that the child may have a 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. 93-7). In meeting its burden of proof, respondent 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). Respondent must also demonstrate what, if any, academic remedial assistance it has provided to the child (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33).

        The evidence offered at the hearing by respondent includes standardized test results that reveal that, from kindergarten through the fourth grade, the child has made very little progress in language-based skills, including reading and writing. The test results are reinforced by the testimony of the child's fourth and fifth grade teachers, and the resource room teacher who worked with the child when he was in the fourth grade. The child's fourth grade teacher testified that the child had comprehended the material presented to him in mathematics, social studies and science, but noted that no basal text had been used in science and that the child's achievement in social studies had been based upon the work he had done in projects. The fourth grade teacher described the child as very frustrated in reading, and asserted that the child had not advanced in language arts as rapidly as two children in her class who were classified as learning disabled in language. The child's fifth grade teacher testified that the child could not independently read grade level material, and opined that his independent reading level was about that of a child in the second grade. The fifth grade teacher further testified that she had to read to the child the materials used for instruction in all areas, and that she also had to read instructions on tests to the child and give him extra time to complete tests. The fifth grade teacher further opined that the child was off task, because he did not feel successful in doing his school work.

        With regard to the child's difficulty in writing, the resource room teacher testified that the child usually avoided writing tasks, where possible, and had very poor spelling skills and difficulty understanding sound-symbol associations. The teacher further testified that the child had difficulty with the mechanics of writing, punctuation and capitalization. Although the child could verbalize what he wished to write, the resource room teacher testified that the child had great difficulty putting his thoughts on paper and sequencing ideas. A sample of a written exercise by the child was introduced into evidence, and was contrasted with two samples produced by other children in the class under identical circumstances. The writing sample of petitioner's child is remarkably less coherent and legible than the samples of the other children.

        Respondent has also demonstrated that it has provided the child with remedial assistance in both reading and writing over an extended period of time. Nevertheless, the child's performance in language arts remains significantly below that of his peers. Although petitioner asserts that the gap between his child's reading skills and those of the child's peers is narrowing because of the work by his private tutor, I must find that there is still a substantial gap and that the child should be evaluated to determine the reasons for the child's significantly lower performance in language arts.

        Petitioner asks that the hearing officer's decision be modified to direct respondent to have the child evaluated by a psychologist selected by the petitioner rather than an evaluation performed by the school psychologist. He alludes to the prior involvement of three of the child's siblings in special education, and suggests that the results of an evaluation done by school district personnel might not be accurate. I find that petitioner's request must be denied. There is no basis in the record for finding that respondent could not conduct an appropriate evaluation. Furthermore, I must point out that Federal and State regulations accord petitioner the right to obtain an independent evaluation of the child, if he is dissatisfied with the results of respondent's evaluation, and that such independent evaluation will be at respondent's expense, unless respondent initiates an impartial hearing and establishes the appropriateness of its evaluation (34 CFR 300.503 [b]; 8 NYCRR 200.5 [a][1][vi][a]).

THE APPEAL IS DISMISSED.