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The State Education Department
State Review Officer

No. 93-11


Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York



Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Felicia Dunn-Jones, Esq., of counsel


Petitioner appeals from the decision of an impartial hearing officer upholding the recommendation by respondent's committee on special education (CSE) that petitioner's child be classified as emotionally disturbed and that the child be enrolled in a special education class for the 1992-93 school year. The appeal must be sustained.

Petitioner's child is nine years old. At the age of six in April, 1990, the child entered school in a bilingual kindergarten class. The child was observed in class by a school guidance counselor on three occasions in May, 1990. After the initial observation, the counselor reported that the child did not pay attention to the teacher or other children, but was not disruptive. The counselor further reported that the child could concentrate for sustained periods of time on activities which interested him. During the two subsequent observations, the guidance counselor observed the child display aggressive and inappropriate behavior. The child allegedly cut one child's hair with scissors, lunged at a child with scissors, and struck children. The counselor reported that on these occasions the child did not appear to be able to concentrate, even when he was calm.

On June 6, 1990, the guidance counselor referred the child to the CSE. In his referral, the counselor noted that the child spoke Spanish, rather than English, and reported that the child's verbal ability in both languages was not commensurate with his age. The counselor's reason for referring the child to the CSE was the child's acting out behavior. The counselor reported that the child was uncontrollable, notwithstanding petitioner's attempts to calm him by staying with him in the kindergarten class for one hour each day. Petitioner consented to having the child evaluated at Columbia Presbyterian Hospital Pediatric Psychiatry Clinic in New York City. In June, 1990, the clinic reported that the child displayed signs of a separation anxiety disorder and an oppositional disorder, with developmental delays in his speech and behavior, and recommended that the child be further evaluated.

In September, 1990, petitioner requested that the CSE close the case, rather than proceed with the child's evaluation. The child was placed again in a bilingual kindergarten. Despite the provision of limited counseling to the child and close supervision by an aide in the classroom, the child continued to have behavioral difficulties in school. On April 17, 1991, petitioner requested that the CSE reconsider the child and consented to his evaluation by the CSE. On April 19, 1991, the child's teacher referred the child to the CSE. The teacher reported that the child had a very short attention span, and had engaged in destructive and dangerous behavior in school. The teacher further reported that the child was at the reading readiness level, and his mathematical skills were at the kindergarten level.

In a social history obtained in April, 1991, petitioner reported that both English and Spanish were spoken in the child's home, and that the child did not have any friends who were his age. A bilingual educational evaluation of the child was performed in May, 1991, when he was approximately seven and one-half years old. Although the child expressed himself in both English and Spanish, he tended to rely more on the latter during the evaluation. The evaluator found that the child could name objects, colors, body parts and displayed excellent visual discrimination skills, but had not fully developed his counting, number and letter recognition skills. In general, the evaluator found that the child's academic skills were at the appropriate grade level, but were below his age level. The educational evaluator noted that the child had a slight lisp and had made articulation errors during conversation, and recommended that the child's speech be evaluated.

A bilingual psychological evaluation was conducted in May, 1991. The child's verbal IQ was reported to be in the mentally retarded range, while his performance IQ was reported to be in the borderline range. The school psychologist reported that there was more variability in the child's performance skills, the lowest of which was reported to be the child's ability to perform visual sequencing tasks that required some knowledge of social conventions. The child's fine motor coordination was age appropriate, but his short-term visual memory was found to be below average for children of his age. The school psychologist noted that the child's speech was immature, and that the child required encouragement to complete academically oriented tasks. The child became restless and uncooperative during the evaluation. The school psychologist opined that the child displayed a passive-aggressive personality, and was struggling to establish his independence and to control his anger and aggressive impulses. The school psychologist concluded that the child needed to learn more adaptive means to establish relationships and to express his feelings and ideas.

On June 20, 1991, the CSE recommended that the child be classified as emotionally disturbed and be placed in a special class with a 12:1+1 child to adult ratio in P.S. 132, and that he receive individual and group counseling. However, a parent member of the CSE did not attend the CSE meeting (cf. Section 4402 [1][b][1] of the Education Law).

Petitioner did not accept the CSE's recommendation. In September, 1991, the child was enrolled in a regular education first grade class at P.S. 132. In March, 1992, the child was suspended from school for allegedly having injured another child's face with a plastic dagger and for allegedly having kicked and bitten a school psychologist. On March 12, 1992, the principal of P.S. 132 requested that an impartial hearing be held to authorize the child's initial placement in a special education class without petitioner's consent. However, on March 26, 1992, petitioner agreed to have the child further evaluated.

In an April, 1992 psychiatric evaluation, the child was described as emotionally and behaviorally immature. The psychiatrist recommended that the child receive a psychiatric followup, speech/language evaluation and therapy, and individual and family therapy. A speech/language evaluation was attempted twice in April, 1992, but was not completed because the child was uncooperative.

On May 14, 1992, the CSE, without a parent member, recommended that the child be placed in an education class with a 10:1+1 child to adult ratio. In a bilingual educational evaluation performed on June 24, 1992, the child's receptive language skills were reported to be at a first grade level in Spanish. The evaluator noted that the child was beginning to acquire language skills for social studies and science. The child was unable to add or subtract, but he recognized the concepts needed to solve word problems. The evaluator opined that the child needed instruction in a modified curriculum in an environment which provided positive reinforcement.

On June 26, 1992, the CSE recommended that the child be placed in a bilingual special education class with a 12:1+1 child to adult ratio and that he receive individual counseling twice per week. The CSE did not identify a specific class for the child. Once again, the CSE was improperly constituted because it did not include a parent member. Petitioner did not accept the CSE's recommendation.

At the request of the P.S. 132 principal, an impartial hearing was held on June 30, 1992. When the hearing began, the hearing officer summarized an off-the-record discussion of the parties prior to the hearing, in which petitioner allegedly agreed to have the child placed in the program recommended by the CSE. The hearing officer reported on the record that petitioner had agreed to the placement, upon condition that the hearing officer retain jurisdiction and receive progress reports about the child at the middle and the end of the 1992-93 school year. The hearing officer further stated that he would issue an interim order to implement the alleged agreement, and that he would render a final decision in the matter at the end of the 1992-93 school year. Petitioner, who spoke through an interpreter at the hearing, immediately advised the hearing officer that she would not sign anything without an attorney, and expressed her disagreement with the CSE's recommendation that the child be classified as emotionally disturbed. Following another off-the-record discussion, the hearing officer stated that either petitioner or respondent could ask the hearing officer at any time to render a final decision. He then closed the hearing. On July 17, 1992, the hearing officer issued an interim order directing the child be placed in a modified instructional services-II (MIS-II) class with a 12:1+1 child to adult ratio, but not identifying a specific class.

Respondent offered the child a placement in a special education class in P.S. 152. Petitioner refused to accept the placement. Respondent requested that the hearing officer determine the child's pendency placement. On October 16, 1992, the hearing officer issued a second interim order, which declared that the child's pendency placement was a MIS-II class which the CSE had allegedly identified on or after the date of its recommendation.

At the request of the principal of P.S. 132, the hearing was reopened on October 22, 1992. The principal testified that the child had been placed in a regular education second grade class. The principal further testified that the child's academic performance was below grade level. The special education site supervisor for P.S. 152 briefly testified about the composition of the recommended class. However, no testimony or other proof of the appropriateness of the MIS-II program recommended by the CSE was offered.

In a decision dated December 2, 1992, the hearing officer held that the CSE was correct in recommending that the child be classified as emotionally disturbed because the child had a serious emotional problem which affected his ability to achieve educational progress. The hearing officer also upheld the recommended placement in a MIS-II class at P.S. 152.

Respondent acknowledges that the CSE's recommendation was invalid because a parent member of the CSE did not attend the CSE meetings of May 14 and June 26, 1992 at which the child's individualized education program was developed (Application of a Child with a Handicapping Condition, Appeal No. 92-31; Application of a Child with a Handicapping Condition, Appeal No. 92-26).

Even absent the procedural flaw, the CSE's recommendation cannot be sustained. Respondent bears the burden of establishing the appropriateness of the classification and placement recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-2; Application of a Child with a Handicapping Condition, Appeal No. 92-30). The record before me is inadequate to support the child's classification as emotionally disturbed or his placement in a MIS-II class. Despite statements by various evaluators and hearing witnesses about the child's physical condition, such as his hearing, breathing through his mouth, lisp, and difficulty speaking, there is no evidence of a physical examination of the child, as required by 8 NYCRR 200.4 (b)(1)(i), in the record.

Although the CSE attempted on two occasions to evaluate the child's speech/language, it did not complete such evaluation. A CSE is not absolved of its responsibility to adequately evaluate a child who may be difficult to test. The CSE must evaluate the child a sufficient number of times to obtain adequate data to determine the nature of the child's disability and level of functioning (Matter of a Handicapped Child, 20 Ed. Dept. Rep. 256; Matter of a Handicapped Child, 22 id.; Matter of a Handicapped Child, 24 id. 1 133). In the absence of the results of a physical examination and a speech/language evaluation, I find that the CSE has not met its obligation to evaluate the child in all areas relevant to the suspected disability (Matter of a Handicapped Child, 25 Ed. Dept. Rep. 260).

To sustain a classification of emotionally disturbed, respondent must demonstrate that the child's learning difficulties cannot be explained by intellectual, sensory or health factors (8 NYCRR 200.1 [am][4]). Notwithstanding the child's limited cognitive functioning, significant speech/language deficits and relative inexperience in a school setting, I note that the child has made some educational progress. Upon the present record, the classification of emotionally disturbed cannot be sustained.

The paucity of evidence in the record to support either the classification or placement may have been a consequence of the manner in which the hearing was conducted by the hearing officer. The hearing officer's statement at the outset of the hearing that petitioner agreed with the classification and placement recommendation of the CSE was immediately challenged by petitioner. Nevertheless, the hearing officer inexplicably chose to ignore petitioner's statement, and conducted what little remained of the hearing on June 30, 1992 and the brief hearing held on October 22, 1992 as if the appropriateness of the child's classification as emotionally disturbed and of the recommended MIS-II placement were not in dispute. During both days of hearing, petitioner, who was unrepresented by an attorney or assisted by an advocate, stated that she did not agree with the proposed classification of emotionally disturbed. At the October 22, 1992 hearing, petitioner told the hearing officer that there was no basis for placing the child in a special education class. However, the hearing officer made no effort to assist petitioner, either by questioning respondent's witnesses or inviting petitioner to present her case. I find that the hearing officer's conduct of the hearing substantially deprived petitioner of the right to require respondent to demonstrate the appropriateness of the CSE's recommendation and to present her case on why the child should not be classified (Application of a Child with a Handicapping Condition, Appeal No. 92-38).

For all of the foregoing reasons, the decision of the hearing officer must be annulled.



IT IS ORDERED that the decision of the hearing officer is annulled; and,

Dated:             Albany, New York                                     _________________________
                        April 26, 1993                                               HENRY A. FERNANDEZ