Application of a CHILD WITH A HANDICAPPING CONDITION, by his parents, for review of a determination of a hearing officer relating to the educational program offered by the Board of Education of the City School District of the City of New York
Hon. Victor A. Kovner, Corporation Counsel, attorney for respondent, Sanjay Malhotra, of counsel
Petitioners appeal from the determination of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioner's son continue to be classified as emotionally disturbed and that the pupil's placement be changed from a regular seventh grade class to a modified instructional services-II (MIS-II) class for the 1990-91 school year. The appeal must be sustained.
In December, 1983, while he was in kindergarten at P.S. 52, the pupil was referred to the CSE. The CSE classified the pupil as speech impaired in January, 1984, at which time he began to receive speech and language therapy three time per week. During the 1984-85 school year, the frequency of the pupil's speech and language therapy was increased to five times per week. While in the second grade at P.S. 206 in September, 1985, the pupil was referred to the CSE by his mother, who was concerned about his behavior. The CSE subsequently recommended that the pupil be placed in a modified instructional services-I class and receive counseling. However, that recommendation was not acceptable to petitioners. The CSE subsequently received a letter from a physician who had examined the pupil at the Cornell Medical Hospital, who opined that a special class program would not be appropriate at that time. Thereafter, the CSE agreed with petitioners to recommend that the pupil continue in a regular class with resource room services, and speech and language therapy. Counseling was not provided by respondent.
In January, 1988, the pupil's resource room teacher referred the pupil to the CSE for a possible reclassification of his handicapping condition, because the pupil had allegedly been physically and verbally abusive in school. Following an evaluation, the CSE recommended that the pupil be reclassified as emotionally disturbed and that he be enrolled in an MIS-II class, with the related services of speech and language therapy and counseling. Respondent was not able to offer an immediate placement, and the pupil remained in a regular class while petitioners and the CSE attempted to resolve their disagreement about the proposed MIS-II class. Petitioners presented the CSE with new information about the private therapy which their son was receiving, as well as information from the pupil's teachers to the effect that his behavior was improving. In January, 1989, petitioners and the CSE reached agreement that the pupil would be classified as emotionally disturbed, but would remain in regular class, with the related services of speech and language therapy and group counseling.
In September, 1989, the pupil entered sixth grade at I.S. 14. He was referred to the CSE in October, 1989 by a guidance counselor, because of the pupil's behavioral problems, including a suspension from school. An educational planning conference was held with petitioners in November, 1989, at which it was agreed that the pupil's classification and program would not be altered.
The pupil was reassigned to a slower paced sixth grade at the end of the second quarter of the 1989-90 school year, because of poor grades in most of his academic subjects. However, the pupil was again referred by his guidance counselor to the CSE, in March, 1990, because of behavioral problems. On March 12, 1990, a psychiatric evaluation of the pupil was conducted. The psychiatrist recommended a special education placement be considered and that school based counseling should be provided to the pupil by a psychologist, rather than a guidance counselor. The CSE psychologist prepared an updated evaluation, in which the psychologist recommended that the pupil be placed in a highly structured educational setting with stronger adult supervision in order to improve the pupil's self-control and allow him to apply his intellectual abilities to his studies.
The CSE met on April 27, 1990, but concluded that additional information was needed before making its recommendation. On May 21, 1990, the CSE recommended that the pupil's classification remain as emotionally disturbed and that he be enrolled in a MIS-II class, with the related services of speech and language therapy and counseling. A specific class placement was offered in I.S. 14, which is the school the pupil currently attends.
Petitioners requested that an impartial hearing be held to review the CSE's recommendation. In a decision dated October 30, 1990, the hearing officer directed that the pupil's classification as emotionally disturbed be continued and that he be placed in the recommended MIS-II class at I.S. 14, with the related services recommended by the CSE. The hearing officer also directed respondent to provide individual counseling to the pupil for 30 minutes each week.
Petitioners assert that the hearing officer did not render his decision within 45 days after they requested that a hearing be held, in violation of the provisions of 8 NYCRR 200.5 (c)(10) and 34 CFR 300.512 (a). The record reveals that petitioners requested a hearing, by a letter dated July 13, 1990, which is date stamped as received by respondent on July 23, 1990. A hearing was convened briefly on August 28, 1990, at which time the parties agreed to adjourn the hearing to October 5, 1990. The transcripts of the August and October hearings do not reveal that the petitioners were asked to agree to waive the 45 day time limit, as should have been done. In any event, the hearing officer's decision was untimely, even if the period between the August and October hearings is excluded, because the decision was not rendered until October 30, 1990. While there is authority for the proposition that a failure to render a decision within 45 days after a hearing is requested does not per se afford a basis for invalidating the decision (Application of a Handicapped Child, 23 Ed. Dept. Rep. 273; Matter of a Handicapped Child, 26 id. 204; Application of a Child with a Handicapping Condition, 28 id. 285; Application of a Child with a Handicapping Condition, 30 id. 64), I need not address this issue for the reasons set forth later in this decision. However, I caution respondent to ensure that in the future, its hearing officers comply with the 45 day time limit set forth in 34 CFR 300.512 (a) and 8 NYCRR 200.5 (c)(10).
Petitioners also assert that the chairperson of the CSE improperly referred to a disciplinary incident involving the pupil during the chairperson's testimony at the hearing. The record reveals that the chairperson did briefly mention the incident. The chairperson testified that she was unaware of an order of a hearing officer in the disciplinary matter finding that there was insufficient evidence to establish the pupil's guilt and directing that the incident be expunged from the pupil's records. While a copy of the decision in the disciplinary matter was entered in the record which is before me, the hearing officer's decision does not refer to the incident in question and there is no reason to conclude that he relied on it in arriving at his decision. Accordingly I find no basis for invalidating the decision on the basis of the chairperson's unfortunate mistake.
There is one additional procedural issue which sua sponte must be addressed. My examination of the record reveals that the individualized education program (IEP) which was prepared at the CSE meeting of May 21, 1990 sets forth the names and position of all the participants in the meeting which developed the IEP. The IEP does not include the pupil's teacher as a participant at the meeting. Both Federal and State regulations require that the participants at a planning conference to develop a Phase I IEP shall include the pupil's teacher (34 CFR 300.344 [a]; 8 NYCRR 200.4 [c]). It is essential that a pupil's teacher participate in meetings where the pupil's IEP is developed, in order that the pupil's academic and social needs are accurately identified. I find that the failure to have the pupil's teacher participate in the development of the Phase I IEP is a sufficient basis for invalidating the CSE's recommendation as to the proposed program for the pupil (Matter of a Handicapped Child, 25 Ed. Dept. Rep. 112; Matter of a Child Alleged to have a Handicapping Condition, 26 id. 251).
At the hearing, petitioners were asked by the hearing officer whether they accepted the classification of their son as emotionally disturbed. Although petitioners stated that they did not dispute the classification, they assert in their petition that they accepted that classification solely as a means to obtain the related service of counseling for the pupil. Notwithstanding the parents assertion, I find that the record amply supports the finding by the hearing officer that the pupil is emotionally disturbed.
8 NYCRR 200.1 (ff)(2) defines an emotionally disturbed pupil 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 depression; or
(iv) a tendency to develop physical symptoms or fears associated with personal or school problems.
The term does not include socially maladjusted pupils unless it is determined that they are emotionally disturbed."
The regulation has been interpreted to mean that a child's emotional condition has a significant effect upon the child's educational performance (Matter of a Handicapped Child, 24 Ed. Dept. Rep. 77; Application of a Child with a Handicapping Condition, 28 id. 95; Application of a Child with a Handicapping Condition, 29 id. 163).
The record reveals that the pupil has displayed progressively worse behavior, including temper tantrums, and physical attacks upon other pupils. The pupil is unable to maintain satisfactory interpersonal relationships with peers and teachers. Psychological evaluations establish that the pupil is at least of average intellectual ability, with strengths in verbal reasoning, visual organization and visual integration. However, he was unable to cope with the academic demands of the sixth grade class in which he had been placed as a result of his reading achievement scores. After placement in a slower paced sixth grade, he passed all but one of his academic subjects. Nevertheless, it is clear from the record that the pupil is capable of a higher level of academic achievement, provided his emotional difficulties can be overcome. Therefore, he has properly been classified as emotionally disturbed.
I have carefully considered the arguments advanced by petitioners and respondent with respect to the appropriateness of the educational program recommended by the CSE. Respondent has the burden of establishing the appropriateness of its recommended program (Matter of a Handicapped Child, 22 Ed. Dept. Rep. 487; Matter of a Handicapped Child, 23 id. 415; Matter of a Handicapped Child, 25 id. 353; Application of a Child with a Handicapping Condition, 27 id. 335; and Application of a Child with a Handicapping Condition, 29 id. 83). I find that respondent has not met its burden of proof, because it has not established that the proposed program 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]; 8 NYCRR 200.6 [a]). 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 disability is such that education in regular classes with the use of supplementary aids or services cannot be achieved satisfactorily (34 CFR 300.550 [b]).
A review of the pupil's IEP for the 1989-90 school year, when he was in regular education classes, and the proposed IEP for the 1990-91 school year, in which instruction is to be provided exclusively within a self-contained special education class, reveals that the pupil's academic and social development goals are essentially similar in each IEP. The issue is what is the least restrictive environment in which those goals may be achieved.
Petitioners' son has no serious academic deficiencies. The pupil's primary educational need is to increase his social development, in terms of being able to maintain satisfactory interpersonal relationships and to improve his self-control. There is little in the record to demonstrate that respondent has effectively addressed these needs. Although the pupil's need for counseling was recognized by the CSE as early as 1985, group counseling was not provided by respondent until 1988. Inexplicably, the CSE has continued to recommend group counseling by a guidance counselor at a minimal level, notwithstanding the fact that such counseling has not been effective. It is important to note that respondent's psychiatrist recommended that counseling be provided by a clinician, i.e. psychologist. However, the IEP developed on May 21, 1990 provides that the pupil will receive counseling in a group of no more than 5 pupils for 30 minutes once each week, and the record demonstrates that such counseling is provided by a guidance counselor, instead of a clinician. The record shows that during the 1989-90 school year counseling had been provided to this pupil primarily by a guidance counselor. Only occasionally has it been provided by the psychologist. Respondent's psychologist testified that he voluntarily attempted to provide one-to-one counseling to the pupil, to the extent that his schedule would allow such counseling. The testimony of the psychologist and other members of respondent's staff suggest that the psychologist had achieved some success in helping the development of self-control techniques. However, such voluntary and occasional efforts by the psychologist are not a substitute for the regular and consistent program of one-to-one counseling by a psychologist which this pupil clearly requires.
I cannot concur with respondent that the pupil should be educated in a self-contained class, in the absence of evidence that respondent has provided an effective program of counseling to maintain the pupil in a regular education setting. Therefore, I will direct respondent's CSE to reconsider the pupil's special education needs, in terms of providing no less than two 30 minute sessions of individual counseling by one psychologist each week, in addition to any group counseling which the CSE may recommend. The pupil should be assigned to regular education classes, in accordance with his academic abilities. The teachers of those classes should be informed of the self-control techniques which the pupil will develop with the aid of the psychologist, and of the pupil's need to be able to leave class to seek the assistance of the psychologist, or other appropriate counselor if the psychologist is not available.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing officer 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 prepare a new IEP for petitioners' son and recommend a new program for the pupil, in accordance with the provision of this decision.
Dated: Albany, New York
January 17, 1991 HENRY A. FERNANDEZ