Application of a CHILD WITH A HANDICAPPING CONDITION, by his parents, for review of a determination of a hearing officer relating to the education program provided 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, Norma Kerlin and

Sergio T. Tuero, of counsel


Petitioners appeal from a determination of an impartial hearing officer which found that their child had been appropriately classified as emotionally disturbed by respondent's committee on special education (CSE), and that the pupil had been appropriately placed in a Specialized Instructional Environmental VII (SIE-VII) class of Public School 15 which is a part of Public School 94 in New York City. The appeal must be sustained.

Petitioners' child is six years old. The pupil was enrolled in a regular education preschool program from July, 1988 until January, 1989. Following an evaluation of the pupil at Beth Israel Medical Center, in which the pupil was found to have language delays, the pupil was enrolled in a preschool program of the Association in Manhattan for Autistic Children (AMAC), for the 1989-90 school year. A neuropsychological evaluation, performed at AMAC in September, 1989, described the child to be of low average intelligence who appeared to have a higher potential. The evaluator noted that the pupil's language skills were moderately delayed and that his visual motor and visual perception skills were uneven. The evaluator also noted that the pupil experienced considerable tension and anxiety, and that he could be verbally aggressive and non-compliant on occasion.

The pupil was referred to the CSE in the Spring of 1990 for an appropriate placement for the 1990-91 school year. On August 13, 1990, the CSE recommended that the pupil be classified as emotionally disturbed, and that he be enrolled in a SIE-VII class of P.S. 94 which is physically located on the fifth floor of P.S. 15 in Manhattan. Instruction in the class of no more than six pupils is provided by a teacher and an aide. The CSE also recommended that the pupil receive individual counseling twice each week, and speech/language therapy twice each week in a group of not more than three pupils.

On August 26, 1990, the pupil's mother consented to the CSE's classification and placement recommendations. The pupil began attending school at P.S. 94 on September 11, 1990. The transportation arrangements for the pupil were altered, after petitioners expressed their dissatisfaction. However, petitioners remained dissatisfied with the transportation arrangements, because the pupil was allegedly shoved on the steps of a school bus by a bus matron. Petitioners also complained to the site supervisor of P.S. 94 that the pupil's teacher allegedly slapped the pupil's hand on one occasion and about two incidents in which other pupils allegedly offensively touched the pupil. One of the incidents, involving the alleged sexual abuse of the pupil by another pupil, was investigated by respondent's staff and the New York City Police Department. However, both investigations produced insufficient evidence of the alleged act to pursue the allegation.

Shortly after the 1990 Thanksgiving recess, the pupil's mother advised the site supervisor that the pupil would not return to school. In a letter dated December 5, 1990, sent to the school, petitioners explained that they would not allow the pupil to return to school because as the result of the alleged incidents at school and on the school bus, he had become terrified of school. Petitioners requested that an impartial hearing be held. A hearing was held on December 14, 1990, at which the site supervisor testified that the pupil had made a good adjustment to his class and that he was appropriately placed in the SIE-VII class at P.S. 94. The pupil's mother testified of her concern for the pupil's safety. She expressed no preference for any alternative program.

In a decision dated January 11, 1991, the hearing officer noted that although the pupil appeared to function more normally in the absence of his parents, he was nevertheless emotionally disturbed for educational purposes. The hearing officer found that the pupil required the support of a structured environment and small class size which is available in the SIE-VII class at P.S. 94. With regard to the incidents about which petitioners had complained, the hearing officer found that respondent's staff had promptly investigated the alleged incidents, and that in any event, their significance had been overstated by petitioners.

Petitioners assert that their child is not emotionally disturbed. The hearing officer referred in his decision to psychological and educational evaluations conducted in May, 1990. The persons who conducted the evaluations observed him to be preoccupied with bumblebees. Petitioners deny that the pupil was preoccupied. I find that the evaluation data and other evidence in the record does not afford an adequate basis for concluding that the pupil is emotionally disturbed.

State regulation requires that upon the initial referral to the CSE of a pupil suspected of having a handicapping condition, the CSE must perform an individual evaluation, consisting of at least a physical examination pursuant to Section 904 of the Education Law, an individual psychological examination, a social history and other suitable examinations (8 NYCRR 200.4[b][1]). The record before me reveals that the CSE arranged for the performance of an educational evaluation, a psychological evaluation and a speech/language evaluation, as well as a social history. The only evidence of a physical examination of the pupil consists of a one page medical documentation form completed by the pupil's physician which includes the cursory remark that the pupil had had a normal physical examination. The record inadequately demonstrates whether the pupil's vision and hearing have been assessed, both of which are especially significant in view of other evaluation results which found that the pupil had visual discrimination and visual motor problems and had a significantly depressed score on a test of his auditory comprehension.

An individual psychological evaluation is defined by 8 NYCRR 200.1 (t) as:

"... a variety of psychological and educational techniques and examinations in the pupil's dominant language, to study and describe a pupil's developmental, learning, behavioral and other personality characteristics for the purpose of educational planning."

The psychological evaluation performed for the CSE on May 11, 1990, denominated as a "psychological update", consisted of an observation and an interview with the pupil during which the pupil attempted, but did not complete, a Draw a Person test and a California Achievement Test. In lieu of intellectual testing, the evaluator chose to rely upon the results of a neuropsychological evaluation performed in September, 1989 for AMAC. That report noted the pupil's language problems, as well as his insecurity and noncompliant behavior, but did not identify the source of his difficulties. In an educational evaluation performed on May 11, 1990, the evaluator recommended that the pupil's ability to distinguish between reality and fantasy should be determined by a psychologist. However, I note that no such determination has been made.

Although a CSE may rely upon evaluative data obtained by others when conducting its own evaluation, it is incumbent upon the CSE to perform such examinations and

evaluations as will afford it a basis for establishing a handicapping condition and planning for an appropriate educational program. I note that the psychiatric, psychosocial and neuropsychological evaluations prepared at the AMAC are phrased in terms of the standard medical diagnoses, rather than educationally related handicapping conditions. The psychiatric evaluation performed at AMAC concluded that the pupil is a seriously disturbed child, but noted that he was far more organized, easily focused and generally interactive when he was separated from his parents. The information in those reports is useful, but not conclusive as to an educational handicapping condition. The psychological evaluation performed by the CSE does not provide sufficient information for that purpose.

A language assessment of the pupil performed on June 15, 1990, reported that the pupil had a moderate language delay, and that his performance was enhanced by a positive environment. From the record before me, it is not possible to ascertain whether the pupil's language problems are related to his emotional difficulties or possibly to a learning disability. While I reach no conclusion as to the correct classification of the pupil, I do find that the pupil's low scores on tests of visual and auditory comprehension, his inconsistent results on other testing, his unusual pencil grip and the absence of a right or left hand dominance, all support the need for further testing to establish whether there are any organic conditions which would affect his academic performance.

With regard to the pupil's emotional difficulties, the record reveals that the pupil may be affected by the behavior of an older sibling who has Tourette's Disease and emotional difficulties. However, neither the evaluation material nor the testimony at the hearing establishes that the pupil's academic performance is significantly affected by what may be occurring in his home. While I do not rule out the possibility that the pupil may be emotionally disturbed for educational purposes, the CSE must reconsider its finding that the pupil has that handicapping condition, in light of the definition set forth in 8 NYCRR 200.1 (ff)(2):

"Emotionally disturbed. 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 record reveals that the pupil may well have difficulty interacting with his parents. However there is little evidence in the record of an inability to build or maintain satisfactory interpersonal relationships with either peers or teachers, notwithstanding the few incidents with other pupils, which were not that unusual for pupils in elementary school. I note that on the pupil's individualized education program (IEP) which the CSE prepared, his social skills were described as age appropriate. The site supervisor of P.S. 94 testified that the pupil was interested in learning, was good at adhering to classroom rules, and got along well with his classmates. While the IEP referred to the pupil's high level of anxiety and tension, the basis for that statement is insufficiently documented.

State regulation also requires as part of the initial evaluation of a pupil by a CSE that the pupil be observed in the current educational setting (8 NYCRR 200.4 [b][2][vii]). Although the pupil was not of school age and not enrolled in a public school at the time of his referral to the CSE, the CSE could have arranged to have the pupil observed at the AMAC, to obtain the useful information which a classroom observation provides.

In view of my finding that the CSE has not performed an adequate evaluation or established that the pupil is appropriately classified as emotionally disturbed, I do not reach the issue of the appropriateness of the SIE-VII class at P.S. 94. I will require the CSE to re-evaluate the pupil in accordance with the tenor of this decision.

This pupil must attend school either in the public schools of the school district in which he resides or receive instruction elsewhere which is substantially equivalent to that provided in the public schools (Education Law Section 3204 [2]). In this instance, he was initially evaluated and placed with the consent of his parents. Federal and State law require that a pupil be maintained in his or her then current placement during the pendency of any administrative or judicial proceeding held to review the recommendation of an action taken by the CSE, unless the pupil's parents and local school officials agree to an alternative placement (20 USC 1415 [e][3]; Education Law Section 4404 [4]). I urge petitioners to cooperate with the CSE in the re-evaluation which I shall require, so that petitioners and respondent can both comply with their respective obligations under the compulsory attendance laws of New York (Application to reopen the Appeal of a Handicapped Child, 24 Ed. Dept. Rep. 223; Application of a Child with a Handicapping Condition, 30 id. 41). Respondent has an obligation to secure the assistance of the Family Court, if respondent cannot secure petitioners' cooperation in this matter (Application of the City School District of the City of New York, 20 Ed. Dept. Rep. 571). Respondent asserts that it has filed an educational neglect report with the Child Welfare Association, as a first step in this process.



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 calendar days after the date of this decision the CSE shall re-evaluate the pupil in accordance with the terms of the decision and shall determine whether to classify the pupil as having a handicapping condition, and shall recommend an appropriate program for the pupil, if he is classified, to respondent; and

IT IS FURTHER ORDERED that within 40 calendar days after the date of this decision, respondent's attorney shall file with the State Review Officer a written report of the action taken by respondent to comply with this decision, including any action to return the pupil to school.


Dated: Albany, New York __________________________
April 17, 1991 HENRY A. FERNANDEZ