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No. 91-41

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, Jyll D. Townes, Esq., of counsel

Petitioner appeals from a decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioner's child be classified as emotionally disturbed, and which directed that the child be placed in a modified instructional services-II (MIS-II) program, rather than a specialized instructional environment-IV (SIE-IV) program recommended by the CSE. The appeal must be sustained.

In September, 1988, the child entered kindergarten at respondent's P.S. 71. Petitioner referred the child to the CSE on September 19, 1988. She requested that the child be evaluated for a possible speech disability, and alluded to the results of a private evaluation performed at the Mount St. Ursula Speech Center. The private evaluator found that the child had a severe receptive and expressive language delay, with attentional and behavioral problems. The child's kindergarten teacher reported to the CSE that the child was unable to stay focused, perseverated at tasks and did not interact with his peers. The teacher further reported that the child screamed frequently in class in an attempt to gain attention.

On October 18, 1988, the CSE recommended that the child be classified as emotionally disturbed, speech impaired and mentally retarded, and that he enter a specialized instructional environment-VII (SIE-VII) program with counseling and speech therapy. Petitioner did not consent to the CSE's recommendation, and met again with the CSE. On October 26, 1988, the CSE recommended that the child be classified as speech impaired, and that he enter a modified instructional services-IV (MIS-IV) program with counseling and speech therapy. Petitioner did not consent to the proposed placement for the child.

In January, 1989, the principal of P.S. 72 requested that an impartial hearing be held to authorize the placement of the child in the MIS-IV program, despite petitioner's refusal to consent to the recommendation. Thereafter, the child entered the MIS-IV program, after an agreement was reached with petitioner that a full-time crisis management aide would be assigned on a 1:1 basis to assist the child. The child continued in the MIS-IV program, with an aide and the related services of counseling and speech/language therapy, during the 1989-90 and 1990-91 school years.

On January 22, 1991, petitioner participated in an educational planning meeting with an educational evaluator and a classroom aide. On January 23, 1991, the CSE met to prepare a new individualized education program (IEP) for the child. A copy of the IEP, which is in the record, reveals that petitioner participated by telephone in the January 23 meeting. The record reveals that neither a parent member of the CSE nor the child's teacher was present for the meeting. The CSE recommended that the child's classification be changed to emotionally disturbed and speech impaired, and that the child remain in the MIS-IV program for the remainder of the school year.

In March, 1991, the CSE conducted additional evaluations of the child, in preparation for recommending a different program for the child for the 1991-92 school year. During the 1991-92 school year, the child exceeded the age limitation and was not eligible to be placed in the MIS-IV program. The child obtained scores in the mildly deficient range on intelligence tests. However, the psychologist who performed the tests noted that the child's oppositional behavior during tests may have compromised the scores which the child received. The psychologist found evidence of a potential for higher functioning in the child's human figure drawing. The psychologist recommended a highly structured program for the child, because of the child's management needs. An educational evaluator reported that the child displayed a high degree of distractibility, as well as self-stimulating behavior when tested. The child displayed minimal reading and listening comprehension skills while his oral reading skills were reported at first grade level. The evaluator recommended that the child be placed in a program with a low child/teacher ratio, and that a behavior modification program be implemented for the child. A classroom observation completed in March, 1991 reported that the child was distractible and engaged in off-task behavior.

On March 28, 1991, a school psychologist, an educational evaluator and the child's teacher prepared a proposed IEP for the child, in which the child was identified as emotionally disturbed and his placement was listed as the specialized instructional environment-VII (SIE-VII) program. On April 10, 1991, petitioner met with the CSE to review the proposed IEP. The record reveals that neither the parent member of the CSE nor the child's teacher was present at the CSE meeting. The CSE approved the proposed classification and placement in the IEP.

By letter dated May 10, 1991, petitioner requested a meeting with the CSE chairperson, to discuss her preference that the child be placed in a MIS-I program with an aide. On June 12, 1991, the CSE reconvened for the purpose of discussing its recommendation with petitioner. The record reveals that the parent member of the CSE did not attend the meeting. The record includes a notice to petitioner, dated June 3, 1991, advising petitioner of the June 12 meeting. However, petitioner did not attend the meeting, at which the CSE reaffirmed its recommendation of April 10, 1991.

On June 22, 1991, petitioner requested that an impartial hearing be held. A hearing was held on July 26, 1991. In an interim order, dated August 9, 1991, the hearing officer found that the CSE's recommendation was inherently invalid because no parent member of the CSE had participated in the January, April or June meetings of the CSE which had resulted in the CSE's recommendation. Noting that petitioner had asserted at the hearing that the child's evaluations might be tainted because of alleged discrimination, the hearing officer afforded petitioner the opportunity to obtain an independent evaluation, including a social history, physical examination, educational evaluation, psychological evaluation and other suitable testing, at respondent's expense. The hearing officer further provided that such evaluations were to be done by September 3, 1991. In the alternative, the hearing officer stated that petitioner could agree, in writing, to the use of any or all of the evaluations performed from March, 1991 to the present. The hearing officer directed that a CSE meet with all of its required members to make recommendations for the child's classification and placement by no later than September 10, 1991.

By letter dated August 21, 1991, the CSE chairperson asked petitioner to identify the persons who would perform the independent evaluation of the child, and offered to assist petitioner in finding an approved evaluation facility. By letter dated September 17, 1991, the chairperson advised the hearing officer that petitioner had orally informed a member of the CSE staff that she would not pursue any additional testing of the child, and requested that the hearing officer issue a further decision on the matter. On October 3, 1991, petitioner also requested that the hearing officer issue a final decision based upon the record which had been produced at the July 26 hearing.

In a decision dated October 3, 1991, the hearing officer noted that the CSE's recommendation had been made without the participation of any parent member of the CSE. Nevertheless, the hearing officer determined that there was sufficient evidence in the record for him to ascertain the appropriateness of the CSE's recommendation. The hearing officer found that the child displayed the characteristics of an emotionally disturbed child, in being unable to establish relationships with his peers and in his manipulative and confrontational behavior with adults, and that his behavioral difficulties impeded his academic progress. The hearing officer found that the child's speech disability was secondary to his behavioral problems, and that the child would be appropriately classified as emotionally disturbed. However, the hearing officer found the SIE-VII program recommended by the CSE was too restrictive, and directed the CSE to place the child in a MIS-II program for the 1991-92 school year, with a crisis management aide, speech therapy and counseling. The hearing officer further directed that the child be re-evaluated in June, 1992.

Shortly thereafter respondent's Division of Special Education (DSE) completed its investigation of a complaint filed by petitioner in July, 1991, that the child's teacher and a social worker had discriminated against the child because of his national origin. In essence, petitioner asserted that these individuals worked with the CSE to prevent the child from transferring from the MIS-IV class at P.S. 71 to a MIS-I class in such school, as happened with the other children in his MIS-IV class.The DSE concluded that the social worker, who was a member of the DSE staff, had not discriminated against the child, and declined to consider the complaint against the teacher, because she was an employee of a community school district. Petitioner also asserted at the hearing that other children from the child's MIS-IV class were allowed to articulate to a MIS-I class at P.S. 71, while her child had been recommended for an SIE-VII class in a different school. Unfortunately, the record on this issue is undeveloped and there is no evidence in the record about the ethnicity or needs and abilities of such other children. Accordingly, the record does not allow me to arrive at a conclusion as to that issue.

Petitioner asserts that the hearing officer erred in reaching any conclusion as to the appropriate classification or placement of the child, because he had previously concluded that the CSE's recommendation was inherently invalid in the absence of any participation by a parent member of the CSE in the meetings which led up to and resulted in the recommendation. She also asserts there was an insufficient basis in the record for the hearing officer to conclude that the child should be classified as emotionally disturbed. Petitioner further asserts that the MIS-II program found by the hearing officer to be appropriate is not the least restrictive environment for the child. She urges that the child be placed in either a MIS-I or MIS-V program at P.S. 72, which is the child's neighborhood school.

Respondent asserts that the hearing officer's decision with respect to classification and placement is supported by substantial evidence. Respondent concedes that the recommendation of the CSE was flawed by the failure to have a parent member of the CSE present at the CSE meetings, but asserts that no useful purpose would be served by remanding the case to the CSE. In essence, respondent asserts that petitioner asserts that petitioner knowingly waived her right to have the recommendation of the CSE made by a properly composed CSE, and that the hearing officer was obliged to render a final decision as requested by petitioner.

Prior to July 1, 1991, section 4402 (1)(b)(1) of the New York State Education Law provided that the board of education of each school district must establish a CSE, composed of at least a school psychologist, a teacher or administrator of special education, a school physician, a parent of a child with a handicapping condition and such other persons as the board of education may designate, and authorized boards of education in large city school districts to establish subcommittees of the CSE, provided that each subcommittee was similar in composition to the CSE. The statute was amended, as of July 1, 1991, to require the appointment of a CSE in each community school district within the City School District of the City of New York, and to authorize the creation of subcommittees of the CSE in such community school districts which shall consist of at least the child's teacher, a representative of the school district who is qualified to provide or supervise the provision of special education, and a school psychologist, in certain instances. However, a subcommittee in respondent's district is not authorized to act where the child is being considered for initial placement in a special class outside the child's school of attendance. In this instance, the record reveals that the proposed placement was in a special class at P.S. 186, rather than P.S. 71 which was the child's school of attendance. Accordingly, I do not reach the question of whether the recent statutory change could or should be applied retroactively to the CSE's recommendation on April, 1991, as confirmed in June, 1991.

With the exception of the physician member of a CSE, who need not be present unless requested by a child's parent, each statutorily required member of a CSE must be present at a meeting during which the CSE makes a recommendation concerning a child. A board of education may not dispense with or simply ignore the statutory requirement concerning the composition of a CSE (Matter of a Handicapped Child, 22 Ed. Dept. Rep. 262). Although respondent asserts that petitioner waived the right to have a validly composed CSE, it offers no authority for the proposition that such right is waivable. I must also note that it does not follow from petitioner's declination of the opportunity to obtain an independent evaluation that petitioner waived the defect in the composition of the CSE. Therefore, I reject respondent's assertion that petitioner, in effect, waived the right to have a parent member present when she requested that the hearing officer render a decision without any additional evaluation of the child.

Upon learning that petitioner did not wish to have an additional evaluation, the CSE should have reconvened to review and reconsider its recommendation, in accordance with the hearing officer's interim order. The CSE's obligation to consider its recommendation was not contingent upon its receipt of information about the child, but was required in order to comply with the statute. Notwithstanding the hearing officer's inexplicable failure in his final decision to require the CSE to reconsider its recommendation, I find that the recommendation of the CSE and the decision of the hearing officer must be annulled (Application of a Child with a Handicapping Condition, Appeal No. 90-16; (Application of a Child with a Handicapping Condition, Appeal No. 90-18). A properly constituted CSE must be convened to review all relevant information about the child and to recommend an appropriate classification and placement for the child. Until the CSE has made its recommendation, it is premature to attempt to determine the appropriate classification and placement of the child. Although respondent urges that I find that a MIS-II class at P.S. 36 which was offered to petitioner in accordance with the hearing officer's decision is appropriate, I note that there is no evidence about that class in the record before me.

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 calendar days after the date of this decision, respondent's CSE shall recommend an appropriate classification and placement for petitioner's child for the remainder of the 1991-92 school year.

Dated: Albany, New York __________________________
January 21, 1992 HENRY A. FERNANDEZ