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90-16

Application of a CHILD WITH A HANDICAPPING CONDITION, by her parent, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the City School District of the City of New York

Appearances:

Marjorie J. Siegel, Esq., attorney for petitioner

Hon. Victor A. Kovner, Corporation Counsel, attorney for respondent, Sergio Tuero, of Counsel

DECISION

Petitioner is the grandmother of the pupil who is the subject of this appeal. The pupil resides with petitioner, and the pupil's parents are not available. Therefore, petitioner is the parent of the pupil for the purposes of this appeal (34 CFR 300.10; 8 NYCRR 200.1 [aa]).

Petitioner appeals from the determination of an impartial hearing officer, to the extent that such determination upheld the recommendation of respondent's committee on special education (CSE) that the pupil's program for the 1990-91 school year be changed from a regular education class with resource room services to a self-contained special education class. The appeal must be sustained.

In March, 1989, petitioner referred the pupil to the CSE, at the suggestion of the pupil's teacher, because of a concern for the child's academic progress. The pupil was in the second grade at P.S. 329 in Brooklyn. On April 28, 1989, the CSE classified the pupil as learning disabled, and recommended that she receive resource room services for one class period each school day. The pupil did not receive resource room services while in the second grade. Resource room services were provided beginning in September, 1989, when the child began third grade at P.S. 329.

On January 8, 1990, the pupil's resource room teacher referred the child to the CSE. The teacher recommended that the pupil be provided with clinical counseling, because the pupil had allegedly been exhibiting self-destructive actions for the preceding few months. The CSE arranged for the preparation of updates of the pupil's psychological and educational evaluations, as well as the pupil's social history. On February 28, 1990, the CSE recommended that the pupil receive one 30 minute session of counseling each week, in addition to the resource room services which were then being provided to her. The recommended counseling was to be provided by a guidance counselor to the pupil in a group of four other pupils. The pupil began to receive counseling on March 5, 1990. She continued to receive counseling, except for a one week period beginning on March 9, 1990, when she was suspended from school for allegedly having scratched or attempted to scratch her teacher.

On April 17, 1990, the director of training of the child and adolescent psychiatry unit of Kings County Hospital Center, by letter, advised the CSE that the pupil had been referred to Kings County by the child's caseworker from the New York City Human Resources Administration because the child had allegedly exhibited inappropriate behavior in school. The Hospital recommendation was that the pupil be placed in a special education class. The pupil was interviewed by a school psychologist and a school social worker, who prepared updates of their previous reports. The CSE also obtained brief written statements from the pupil's guidance counselor and her resource room teacher.

On June 21, 1990, the CSE recommended that the pupil's classification be changed from learning disabled to emotionally disturbed, and that the pupil be placed in a Modified Instructional Services II (MIS-II) program, with individual clinical counseling for 30 minutes each week. On July 24, 1990, petitioner was advised that the proposed class would be located at P.S. 215 in Brooklyn.

At petitioner's request, a hearing was held on August 24, 1990 to review the CSE's recommendation. In a decision dated September 13, 1990, the hearing officer found that respondent had not sustained its burden of proving that the pupil's classification should be changed to emotionally disturbed, but also found that the proposed MIS-II program was appropriate to the needs of the pupil.

Petitioner asks that the decision of the hearing officer with regard to pupil's program for the 1990-91 school year be set aside, because of alleged procedural errors by the CSE and the hearing officer and because respondent failed to sustain its burden of demonstrating the appropriateness of the proposed program.

Petitioner, who was not represented by an attorney at the hearing, asserts that the hearing officer failed to inform her of her right to be advised by counsel at the hearing. Federal regulation provides that any party to a hearing has the right to be accompanied and advised by counsel (34 CFR 300.508). Pursuant to Federal regulation, (34 CFR 300.506 (c)(2)) and State regulation (8 NYCRR 200.5 (a)(4)(ii)(c)), a board of education must advise the parent of a child with a handicapping condition of any free or low-cost legal services and other relevant services which may be available in the area. The Impartial Hearing Officer, by letter, mailed to petitioner on July 25, 1990, advised petitioner of her right to be accompanied and advised by counsel. Nevertheless, petitioner asserts that it was incumbent upon the hearing officer to remind her of her right to have an attorney, particularly after she stated at the hearing that someone from P.S. 100 had advised her that she did not have to have an attorney. Although I agree with petitioner that it would have been better practice for the hearing officer to have reminded petitioner of the right to be accompanied by counsel (See page 18, A Guide for Hearing Officers, New York State Education Department, September, 1981), on these facts I do not find that said omission is a basis for invalidating the hearing officer's decision.

Petitioner challenges the hearing officer's consideration of a letter from the pupil's Human Resources Administration caseworker which was solicited by the hearing officer and which was received by him after the hearing had been closed. At the hearing, the hearing officer informed the parties that the caseworker was unable to attend the hearing because of illness and that he would ask the caseworker to submit to him a letter outlining her experience with the pupil and her views on the CSE's recommendation. The hearing officer further stated that his request was necessary because none of the respondent's witnesses had any personal knowledge of the pupil. In his decision, the hearing officer cited the caseworker's letter to him as it related to the pupil's alleged self-destructive behavior.

New York State regulation provides in relevant part that:

"The decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination". (8 NYCRR 200.5[c][10]).

It is axiomatic that the administrative decision be based solely upon information within the record of such proceeding, so that, the parties are fully apprised of the proof to be considered and have a fair opportunity to offer evidence in rebuttal or explanation to any item of proof (Simpson v. Wolansky, 38 NY 2d 391; Multari v. Town of Stony Point, 99 AD 2d 838). In this instance, the parties were informed in advance that the letter would be considered by the hearing officer. However, the record reveals that petitioner was not afforded an opportunity to see or respond to the case worker's letter. Although petitioner did not object to the hearing officer's announced intention to obtain a letter from the caseworker, I nevertheless conclude that it was unfair of the hearing officer to obtain additional evidence in this manner.

Petitioner also asserts that the CSE's recommendation is fatally flawed because of the CSE's failure to obtain at least two observations of the pupil in her regular education class, in violation of Regulation of the Chancellor of the City School District of New York A-831. That regulation provides that when the suspected problem with a pupil is behavioral, an assessment team is to conduct more than one structured observation of the pupil in the pupil's primary setting, i.e. present class, or such team shall state in the record the reason for not conducting additional observations. Although respondent relied upon two brief written statements from the pupil's guidance counselor and resource room teacher as proof of its compliance with the Chancellor's Regulation, the acting CSE chairperson did not claim that either individual was a member of the assessment team or that either had made a formal observation of the pupil. Instead, the acting CSE chairperson speculated that both individuals merely wrote what they thought had occurred or what other people have told them had happened. Respondent does not directly address petitioner's argument, except by asserting that both the resource room teacher and the guidance counselor did, in fact, have some personal knowledge of the pupil. I find that respondent has failed to prove that its CSE complied with the Regulation of the Chancellor.

I must also note that the CSE's determination is, on its face, invalid because there is no evidence that a parent member of the CSE participated in the June 21, 1990 CSE recommendation. The record before me includes the pupil's Phase I individualized education program (IEP) which was developed at the June 21 meeting. The document lists all the participants in the Phase I conference. It reveals that only a school psychologist, an educational coordinator and a school social worker were present. No other individuals are listed as present. New York State law requires that each CSE consist of at least a school psychologist, a teacher or administrator of special education,a school physician and a parent of a child with a handicapping condition, except that the school physician need not be present unless requested to be by the parent, the pupil or another member of the CSE (Education Law Section 4402 [1][b][1]). In New York City, the CSE is assisted by subcommittees. However, the membership of each subcommittee must be similar in composition to that of the CSE (Education Law Section 4402 [1][b][1][b]). The recommendation of a CSE as to the classification and placement of a pupil with a handicapping condition is set forth in the pupil's Phase I IEP (8 NYCRR 200.4 [c]). Therefore, I must also conclude that the CSE lacked a required parent member when it prepared its recommendation of June 21, 1990. The failure to have a parent member of the CSE present at a meeting at which a new IEP is developed is a sufficient basis to invalidate the CSE recommendation (Matter of Handicapped Child, 24 Ed. Dept. Rep. 185; Matter of Handicapped Child, 23 id. 198; Matter of Handicapped Child, 22 id. 262).

The record also reflects a paucity of information about the pupil's present educational needs in the record. Accordingly, the appeal must also be sustained because there is no rational basis for drawing any conclusion as to the appropriate classification or placement of the pupil. Respondent's failure to present at the hearing a single witness with personal knowledge of the pupil seriously hampered its effort to substantiate the CSE's recommendation. However, even the documentary evidence which was considered by the CSE and was introduced at the hearing does not reveal a basis for changing the classification of the pupil's handicapping condition or placing her in a far more restrictive environment.

The record suggests that the pupil was making satisfactory progress in the program recommended by the CSE for the 1989-90 school year, but that the pupil began to experience emotional turmoil in November or December of 1989. At that time, the pupil's mother, who is alleged to be dependent upon drugs, returned to live with petitioner and the pupil for a period of approximately 45 days. Thereafter, the pupil's mother departed the home. The record reveals that the mother's return and subsequent departure had an emotional impact upon the pupil. However, there is little evidence of the effect of the pupil's emotional reaction to these events upon the child's ability to learn. It is especially significant that although an educational update was prepared by the CSE staff in February, 1990 when the pupil's emotional difficulties were first identified, no educational evaluation was prepared between then and the June 21, 1990 meeting when the CSE voted to recommend a change in the pupil's classification and program. Nor does the record include any report of the pupil's performance from the pupil's regular education teacher during the 1989-90 school year. It must be noted that State Regulation defines an emotionally disturbed pupil is defined as:

"A pupil with an inability to learn which cannot be explained by intellectual, sensory or health factors and who exhibits one or more of the following characteristics over a long period of time and to a marked degree:

(i) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

(ii) inappropriate types of behavior or feelings under normal circumstances;

(iii) a generally pervasive mood of unhappiness; or

(iv) a tendency to develop physical symptoms or fears associated with personal or school problems. The term does not include socially maladjusted pupil's unless it is determined that they are emotionally

disturbed." (8 NYCRR 200.1 [ff][2])

Respondent asserts that, notwithstanding its failure to establish a rational basis for the proposed classification of emotionally disturbed, the hearing officer's decision as to the pupil's program should be upheld. Respondent relies upon the decision in Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 470, which held that the appropriateness of a proposed program or placement is to be determined by the pupil's needs, rather than merely relying upon the pupil's classification. However, respondent's reliance upon the aforesaid decision is misplaced because the pupil's actual learning needs are not sufficiently set forth in the record before me.

Respondent has also failed to demonstrate that the proposed placement is the least restrictive environment for the pupil. Federal and State regulations require that, to the maximum extent appropriate, each pupil with a handicapping condition must be educated in the least restrictive environment (34 CFR 300.550 [b] and 8 NYCRR 200.6 [a][1]). Federal regulation further provides that a pupil with a handicapping condition may be removed from the regular educational environment only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (34 CFR 300.550 [b][2]). The record is devoid of any evidence the CSE considered any less restrictive environment for the pupil than the proposed MIS-II program, or that it allowed sufficient time for the group counseling, recommended in February, 1990 to have a beneficial effect upon the pupil.

The pupil did not begin to receive group counseling from a guidance counselor until March 5, 1990. There is no evidence of a significant change in the pupil's behavior except for the misconduct described in a principal's notice of suspension dated March 9, 1990. The resource room teacher's recommendation of January 8, 1990 was that the pupil be provided with clinical counseling on a one to one basis. Nonetheless, the CSE chose to provide group counseling by a guidance counselor. The record reveals no attempt by the CSE to provide a more intensive level of counseling, such as clinical counseling by a school psychologist. Absent evidence that CSE had attempted to maintain the pupil in a regular education by increasing the level of supplementary service, I am unable to find that the proposed placement is in the least restrictive environment.

For all of the foregoing reasons, I find that the appeal must be sustained with regard to the proposed MIS-II program for the pupil.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer with regard to the recommended program of the pupil for the 1990-91 school year be, and the same hereby is, annulled; and

IT IS FURTHER ORDERED that within 30 days after the date of this decision respondent's CSE shall make a new recommendation as to the appropriate classification and program for petitioner's granddaughter for the 1990-91 school year.

Dated: Albany, New York

<          December 18, 1990                                                                                                                          HENRY A. FERNANDEZ