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No.  91-34

Application of a CHILD WITH A HANDICAPPING CONDITION, by his 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:

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Parisis G. Filippatos, Esq., of counsel

DECISION

Petitioner appeals from the determination of an impartial hearing officer holding that her child should be classified as emotionally disturbed, rather than as learning disabled/emotionally disturbed as recommended by respondent's committee on special education (CSE), and upholding the CSE's recommendation that the child's special class placement for the 1991-92 school year should be changed from a Modified Instructional Services I (MIS-I) class to a Modified Instructional Services II (MIS-II) class. The appeal must be sustained.

Petitioner's child, who is 11 years old, was initially referred to the CSE in January, 1987, while he was in first grade. In March, 1987, the CSE recommended that the child be classified as learning disabled, and that he be enrolled in a MIS-II class in P.S. 238. Petitioner disagreed with the location of the MIS-II class, and the CSE subsequently offered a placement in a MIS-II class in P.S. 101 for September, 1987. The child entered the class at P.S. 101, but in December, 1987, petitioner requested that the child be re-evaluated in order to have him no longer classified as a child with a handicapping condition. Following a re-evaluation of the child in January, 1988, the CSE recommended that the child remain classified as learning disabled, but that his program be changed to a MIS-I class with the related service of counseling on a once per week basis. Petitioner negotiated with the CSE as to the location of the MIS-I class, but accepted the CSE's recommendation. In September, 1988, the child was enrolled in a MIS-I class at P.S. 226, where he remained for the 1988-89 and 1989-90 school years.

In the 1990-91 school year, the child was in a MIS-I class in yet another school, P.S. 97. In March, 1991, the child was referred by his special education teacher to the CSE for a reconsideration of his program, because the teacher believed that the child needed more adult supervision in the classroom in order to make academic progress and to have effective peer relationships. On the written referral, the child's teacher asserted that the child needed constant supervision and that he had remained well below grade level in reading and subject content areas. He also had chronic problems in his relationships with adults and other children. In April, 1991, the child was evaluated by a school psychologist and by an educational evaluator. In early May, 1991, petitioner was interviewed to update the child's social history.

On May 20, 1991, the CSE met to review the current evaluation data and to prepare a new individualized education program (IEP) for the child. Petitioner did not attend the meeting, and the record does not reveal what, if any, alternative means of allowing petitioner to participate in the meeting were employed by the CSE (cf. 8 NYCRR 200.4 [c][3]). The CSE recommended that the child's classification be changed from learning disabled to learning disabled/emotionally disturbed. The CSE further recommended that the child's program be changed to a MIS-II class, with mainstreaming in physical education and for lunch and assemblies, and that he receive counseling for thirty minutes once each week in a group of no more than five children. On July 12, 1991, the CSE advised petitioner of its recommendation, and offered the child a placement in P.S. 215. Petitioner disagreed with the recommendation, but met with the CSE on July 8, 1991. However, the CSE affirmed its earlier recommendation.

At petitioner's request, a hearing was held on July 15, 1991. In a decision dated August 1, 1991, the hearing officer held that the child would be more appropriately classified as emotionally disturbed, than as learning disabled. The hearing officer found that the recommended MIS-II class at P.S. 215 was appropriate for the child, provided that the child did not intimidate other children in such class. The hearing officer ordered the CSE to provide the child with individual, rather than group counseling, twice each week with a minimum of thirty minutes for each session. Noting that the child had achieved minimal progress in learning to read despite having been in special education for four years, the hearing officer ordered the CSE to evaluate the child's reading skills in March, 1992, and to forward the results of the evaluation to the hearing officer.

Petitioner asserts that her child should be classified as learning disabled, but not as emotionally disturbed. With regard to the child's placement, petitioner asserts that the child does not belong in a MIS-II class. I note that, at the hearing, petitioner expressed a preference that the child remain in a MIS-I class. Petitioner asks that I direct respondent to re-evaluate the child.

Respondent asserts that the decision of the hearing officer is supported by substantial evidence, and should not be set aside. With respect to the classification of the child as emotionally disturbed, respondent asserts that the child has exhibited an inability to learn how to read, and has also failed to develop appropriate peer relationships and to exhibit appropriate behavior in the classroom. Respondent further asserts that the child would be appropriately grouped with children having similar skills and needs in the proposed class in P.S. 215, and that such placement is the least restrictive environment for the child.

Procedural Issues

Before reaching the issues of the child's classification and placement, I must first note that respondent asks that I not consider an allegation by petitioner in her petition that her child has been evaluated at the Coney Island Hospital. Respondent asserts that the State Review Officer should not consider petitioner's allegation because no evidence of the evaluation was introduced at the hearing.

Evidence which is not in the record before a hearing officer will generally not be considered in a review of the hearing officer's decision, unless such evidence was not available at the time of the hearing (Application of a Child Suspected of Having a Handicapping Condition, 26 Ed. Dept. Rep. 233), or unless the record is incomplete (Application of a Handicapped Child, 23 Ed. Dept. Rep. 390). However, there is no additional evidence to be considered, because petitioner has not offered any evidence of the evaluation to which she refers in the petition. Consequently, I have not considered the results of any evaluation of the child at the Coney Island Hospital.

The parties' references to the Coney Island Hospital do raise another issue. The record reveals that the hearing officer was aware of evidence which is not in the record before me. The hearing officer alluded to an off-the-record discussion with petitioner about the child receiving services from the Coney Island Hospital, at page 27 of the transcript and again at page 88 of the transcript. On page 91 of the transcript, the hearing officer referred to an individual, who was apparently employed at the Coney Island Hospital and who allegedly would provide service to the child. However, the record does not reveal how the hearing officer became aware of the individual or his involvement with the child. State regulation requires that the decision of a hearing officer be based solely upon the record before him (8 NYCRR 200.5 [c][10]). Although off-the-record discussions are not precluded, they should be kept to a minimum and may not take the place of documentary or testimonial evidence adduced before a hearing officer.

In addition, the hearing officer permitted a school psychologist to read into the record a portion of a psychological evaluation of the child done in 1987, although the evaluation was not among the documents shared with petitioner at least five days in advance of the hearing, nor formally offered into evidence. If the results of such evaluation had been offered into evidence, the hearing officer would have had the obligation to advise petitioner, who was not represented by an attorney or assisted by an advocate, of her right to object to the introduction of the evaluation in accordance with the provisions of 8 NYCRR 200.5 (c)(8). By not introducing the document, respondent did not afford petitioner an opportunity to offer evidence in rebuttal or explanation. I find that the hearing officer erred in permitting respondent to selectively read into the record a portion of a document which had not been shared with petitioner in advance.

Substantive Issues

With regard to the appropriate classification for the child, the record reveals that, on tests of the child's intellectual capacity administered in November, 1989 and April, 1991, the child achieved full scale IQ scores of 83 and 80, respectively, with little variation in the results of sub-tests. In educational evaluations performed in November, 1989 and April, 1991, the child's listening comprehension was assessed at a grade equivalent of 4.0. Although the child's mathematical computation skill improved from a 1.9 grade equivalent in 1989 to a 4.7 grade equivalent in 1991, his reading skill remained at the first grade level. In the April, 1991 educational evaluation, the evaluator reported that the child's basic word attack skills were severely delayed, and that he could identify only the sound/symbol association for consonants and some consonant blends. The evaluator further reported that the child had difficulty organizing and expressing his thoughts in writing, and that his knowledge of science, social studies and the humanities was far below grade level. The evaluator described the child as friendly and cooperative, but also very restless, impulsive and highly distractible.

State regulation defines a learning disabled child as:

"A pupil with a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual handicaps, brain injury, neurological impairment, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include children who have learning problems which are primarily the result of visual, hearing or motor handicaps, of mental retardation, of emotional disturbance or of environmental, cultural or economic disadvantage. A child who exhibits a discrepancy of 50 percent or more between expected achievement and actual achievement determined on an individual basis shall be deemed to have a learning disability". (8 NYCRR 200.1 [ff][3])

An emotionally disturbed child is defined in state regulation 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." (8 NYCRR 200.1 [ff][2])

Although a child may have more than one handicapping condition, the definitions of learning disabled and emotionally disturbed are mutually exclusive. A child cannot be classified as learning disabled if his learning problems are primarily caused by an emotional disturbance, nor can a child be classified as emotionally disturbed if the child's inability to learn can be explained by intellectual, sensory or health factors. Accordingly, I find that the CSE erred in recommending that the child be classified as both learning disabled and emotionally disturbed. The issue to be decided is whether the record supports petitioner's assertion that the child is learning disabled, or the hearing officer's conclusion that the child should be classified as emotionally disturbed. I find that the child should be classified as learning disabled. The child has an IQ in the low normal range, yet he clearly has a significant deficit in his reading skills. The child's reading ability is well below what would be expected for a child with his intellectual ability. I have considered the evidence proffered by respondent in support of its contention that the child is emotionally disturbed, but I am unpersuaded by such evidence. In essence, respondent relies upon the results of psychological testing which reveal that the child has feelings of inadequacy about his academic performance and displays anger. Respondent also relies upon the child's anecdotal record, which reveals numerous instances of misbehavior while in his MIS-I class, as well as at lunch and in gym class. However, there is nothing in either psychological evaluation which is in the record before me which would substantiate the existence of an emotional disturbance apart from the child's frustration over his inability to read. The child's anecdotal record demonstrates that his teachers had difficulty managing his behavior during the 1990-91 school year, but that record does not demonstrate that he has displayed any of the criteria set forth in 8 NYCRR 200.1 (ff)(2) over the requisite period of time.

Respondent asserts that regardless of whether the child is appropriately classified as emotionally disturbed the proposed placement in a MIS-II class is appropriate, because the MIS-II class offers all that is necessary to address the child's educational problems. Respondent bears the burden of establishing the appropriateness of its program (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Matter of Handicapped Child, 23 id. 415; Matter of 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 the record in this appeal provides insufficient information about the child's needs and learning style and the components of the proposed program to afford a rational basis for concluding that the proposed MIS-II class is appropriate for the child. An appropriate program begins with an IEP which accurately reflects the child's present levels of development and individual needs and establishes goals for the child to achieve which are consistent with the child's needs and abilities. While it is clear that this child has a severe deficit in reading, respondent has failed to demonstrate that it understands the nature and extent of the child's learning disability or that it has assembled a program which is reasonably likely to enable the child to attain the goals set forth in his IEP.

There is a dearth of information in the record about how the child learns in school, and what his management needs are. Unfortunately, the CSE failed to present any witness at the hearing who had personal knowledge of the child, except a school psychologist who saw the child on two occasions in April, 1991. The psychologist's testimony did not reveal how the child learned or the extent of the child's management needs. None of the child's teachers testified at the hearing. The teachers' brief remarks about specific incidents of the child's misconduct which are set forth in the child's anecdotal record do not reveal what management techniques have been tried and whether any technique has been effective.

Although respondent asserts that the child has severe management needs which require that his program be changed from a MIS-I class with twelve children and one teacher to a more restrictive MIS-II class which has an additional adult aide to assist the teacher, I find that the child's IEP does not support such change. The proposed IEP lists the child's annual goals for social development as learning to better control his impulses, raising his hand before speaking, and beginning to feel more positive about himself. Respondent has not established that these goals may be achieved only in the more restrictive setting of a MIS-II class. I also note that, despite the long list of alleged misbehavior set forth in the child's anecdotal record, the educational evaluation report suggests that child's behavior in the classroom is generally adequate, but that his actions in unsupervised settings are often inappropriate.

The record is devoid of any evidence as to the child's learning style in the classroom, which could have been provided through the testimony of his teachers or a meaningful observation report (8 NYCRR 200.4 [b][vii]) to support the need for a change in the child's program. The observation report which is in the record consists of a brief paragraph about the child's performance in gym class, where he refused to stay in a line of children, as requested by his teacher. That report is clearly inadequate as an explanation of the child's ability to function in his present education setting.

In view of the fact that this child has made virtually no progress in learning to read since 1987, it is imperative to ascertain what techniques to teach reading have been tried. The record includes only the child's initial IEP for the latter one-half of the 1986-87 school year and a proposed IEP for the 1991-92 school year. In 1987, the child had an IEP goal of learning to sight read two pre-primer words each week. The child's proposed IEP for the 1991-92 school year lists as a goal that the child will improve his sight vocabulary by reading words on a first grade level word list. The latter IEP includes a comment that the child should build his sight vocabulary, i.e. to memorize certain words, as a way to compensate for his poor phonic skills. However, sight reading is inherently limiting for a child. There are other methodologies in addition to phonics and sight reading, such as the whole language reading approach which should be considered, especially in light of the child's significant deficit in reading despite the use of the sight vocabulary technique in the 1987-88 school year. Prior to selecting any methodology to teach the child how to read, the CSE should perform a language evaluation of the child, so that the nature and extent of his ability to process language can be determined.

When asked by the hearing officer to explain why the proposed program would assist the child in learning to read when other programs had failed to do so, a special education supervisor testified that the child would be in an innovative program in the MIS-II class, in which the child would sight learn whatever words interested him. The supervisor testified that the child would become enthusiastic about reading. However, the proposed IEP reveals that the child's sight vocabulary words will be chosen from a standard Dolch first grade word list. Respondent offers no explanation for this inconsistency. I find that the child's IEP does not adequately address his need to improve in reading.

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 thirty days after the date of this decision respondent's CSE shall have the child's language skills evaluated, and shall prepare a new IEP for the 1991-92 school year which adequately describes the child's skills and needs and which provides an appropriate program to address those needs, as well as his management needs outside the classroom.

Dated: Albany, New York __________________________
November 19 , 1991 HENRY A. FERNANDEZ