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The State Education Department
State Review Officer

No. 93-20


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,

Mari Bebon, Esq., of counsel


Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that the classification of petitioner's child be changed from speech impaired/emotionally disturbed to emotionally disturbed and that the child's program be changed from a modified instructional services-I (MIS-I) to a modified instructional services-II (MIS-II). The appeal must be sustained.

Petitioner's child is 11 years old. In September, 1989, the child initially entered the MIS-I program in P.S. 182. The child remained in the program of that school for the 1990-91 school year. In May, 1991, the child was referred to the CSE because he had allegedly exhibited dangerous behavior toward peers. The CSE recommended that the child be placed in a MIS-II program. Petitioner did not agree with the CSE's recommendation and sought to have the child evaluated at the Kennedy Children's Center in New York. In the interim, the child remained in the MIS-I program. In January, 1992, an aide was assigned to provide individual attention for the child.

On March 6, 1992, the CSE recommended that the child be dually classified as speech impaired/emotionally disturbed, and that the child remain in the MIS-I program, without an aide. Petitioner agreed with the CSE's recommendation. In April, 1992, the child was again referred to the CSE, because of his behavior. On May 21, 1992, the CSE recommended that the child be classified as emotionally disturbed and that he be placed in a MIS-II program. Petitioner requested a hearing to review the CSE's recommendation. On July 23, 1992, the CSE met with petitioner and revised its recommendation for the child. The CSE recommended that the child's classification remain as speech impaired/emotionally disturbed and that the child remain in the MIS-I program, with the related services of speech/language therapy and counseling.

In September, 1992, the child was enrolled in a MIS-I program in Community School 152. Although the CSE had recommended at its July 23, 1992 meeting that the child not receive the services of an individual aide, that information was apparently not communicated to the child's new school, where the child continued to receive the services of an aide. In December, 1992, the child's teacher referred the child to the CSE to obtain a clarification concerning the services to be provided by the aide. In the referral, the teacher and the teacher's supervisor asserted that the child required the services of an aide to keep him on task. In a report to the CSE dated January 28, 1993, the child's teacher estimated that the child was reading at a mid-second grade level, while his mathematic skills were estimated to be at the fifth grade level. The teacher also reported that the child was mainstreamed each day for mathematics, and once a week for science. The teacher reiterated her previous request for the assignment of an aide, and stated that the child appeared to be regressing rather than progressing, in both academic and behavioral skills.

In a psychological evaluation completed on February 8, 1993, the child achieved a verbal IQ score of 69 and a performance IQ score of 90. The child's full scale IQ score of 80 was reported to be in the low average range. Respondent's school psychologist reported that the child exhibited weaknesses in the following areas: fund of general information; expressive vocabulary; and, knowledge of behavioral standards. The psychologist further reported that the child's perceptual motor skills were approximately one year below his age expectancy. The psychologist opined that the child was split between his cognitive control over his actions and his drive for impulsive actions, and that the child's constant need to maintain control of himself was stressful to the child.

In an educational evaluation completed on February 4, 1993, the evaluator reported that the child had engaged in off-task behavior when faced with the challenging tasks. On a standardized test, the child's overall reading ability was assessed to be at a 2.6 grade equivalent. The child's spelling skills were assessed to be at a 3.7 grade level equivalent. In mathematics, the child's skills were found to be at a 4.3 grade level equivalent. The evaluator reported that the child appeared to rely on his visual memory to recognize words, and did not phonetically analyze unfamiliar words. Although the child was functioning at a mid-second grade level in reading, the evaluator found that the child could nevertheless comprehend fourth grade texts which were read to him. The evaluator opined that the child appeared to have made little progress in either reading or mathematics since his last evaluation in March, 1992. The record does not include the results of the latter evaluation. The child's speech/language therapist reported that the child had a mild expressive and receptive language disorder, and exhibited auditory processing difficulties in responding to questions asked of him.

In a report dated February 4, 1993, the child's counselor asserted that the child sought out adults whom he perceived to be "safe" to assist him in his effort to control his impulses, and became agitated if those adults were not available to assist him. The counselor recommended that the child continue to receive individual counseling in order to develop his social skills with peers, improve his self-esteem, deal with issues related to family roles, and assist him to control his impulses. The child was observed in his mainstreamed mathematic class where he was not assisted by an aide. The observer reported that the child's behavior in class was very appropriate and that he remain focused upon his work during the class.

On March 4, 1993, the CSE recommended that the child be classified solely as emotionally disturbed and that his placement be changed to a MIS-II class with a 12:1+1 child/adult ratio. The CSE further recommended that the child receive speech/language therapy twice per week, individual counseling once per week, and small group counseling once per week.

Petitioner requested that an impartial hearing be held to review the CSE's recommendation. On April 1, 1993, the hearing was held. In a decision dated April 30, 1993, the hearing officer held that the child should be classified as emotionally disturbed and that he should be enrolled in respondent's MIS-II program. However, the hearing officer directed that the child's enrollment in the new program be deferred until September, 1993, since the child could not remain in the school recommended by the CSE beyond June, 1993, because of his age. The hearing officer also modified the CSE's recommendation to provide that the child should continue to receive instruction in mathematics and science in the mainstream, rather than in special education. The hearing officer further ordered the CSE to review the child's program in January, 1994 and June, 1994, to ascertain whether the child could benefit from additional mainstreaming.

Petitioner challenges the CSE's recommendation with respect to both classification and placement. During the pendency of this appeal, the CSE met on June 24, 1993, when it recommended for the 1993-94 school year that the child be classified as emotionally disturbed and enrolled in respondent's MIS-II program, except for mathematics and science. Respondent asserts that the appeal should be dismissed as moot, because the March 4, 1993 CSE recommendation has been vacated or superseded by the June 24, 1993 CSE recommendation, and that petitioner must first exhaust her administrative remedy of an impartial hearing to review the latter recommendation.

Respondent's assertion is without merit. Appeals dealing with specific class placements (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 482) and the identity of a related service provider (Application of a Child with a Disability, Appeal No. 93-21) were found to be moot at the end of a school year because no meaningful relief could be granted, and because there was no basis for assuming that the dispute between the parties would recur and evade review (Rettig v. Kent City School District, 788 F. 2nd 328 [6th Cir., 1986]). In this instance, the dispute between the parties is not moot. The CSE has again recommended that the child's classification be changed to emotionally disturbed and that he be enrolled in the MIS-II program. Only the specific MIS-II class recommended for the child has changed. However, I do not reach the issue of the appropriateness of the new class because it is not necessary to do so, and there is no information about the new class in the record.

Respondent has annexed to its answer four documents which were not part of the record submitted to the hearing officer. The documents are the individualized education program (IEP) prepared at the June 24, 1993 CSE meeting, the results of a medical evaluation of the child conducted on June 15, 1993, two observations of the child in school conducted on June 15, 1993 and portions of a behavioral management plan used with the child during the 1992-93 school year and submitted to the CSE at its June meeting. Petitioner objects to the inclusion of the documents in the record of this appeal. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer's decision, if such evidence was unavailable at the time of the hearing or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 93-22). I find that the documents in question meet the criteria for inclusion in the record of this appeal.

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 Disability, Appeal No. 93-11). I find that the record is inadequate to support the child's classification as emotionally disturbed. Although respondent's witnesses at the hearing referred to the results of prior psychological and psychiatric evaluations, the only documentary evidence of a psychological evaluation of the child in the record is the February 8, 1993 evaluation. That report states that the child might have some difficulty with interpersonal relationships, and was reluctant to show his feelings, and that he might have a tendency to withdraw to avoid what may be perceived as consciously controlled socializing. At the hearing, another school psychologist testified that the child's low verbal scores certainly reflected the possibility that the child had a learning disability which affected his ability to read. The school psychologist's opinion is consistent with the results of the child's most recent educational evaluation. The school psychologist testified that the child's emotional problems affected his behavioral functioning to the extent that the child's optimal school performance was impeded. When pressed by the hearing officer to explain the basis for the CSE's recommendation that the child be classified as emotionally disturbed, the school psychologist stated that the child has a long history of self-control problems and general dysfunction. The child's management needs which are set forth in the IEP which the CSE prepared for the child are merely described with a conclusory statement that he requires a self-contained class with related services. The IEP described six annual goals relating to his academic needs, but only one annual goal relating to his emotional needs.

Although the record includes brief anecdotal records about the child prepared by his teacher and his aide, the record does not sufficiently link the child's behavior to the deficits in his educational performance (Application of a Child with a Handicapping Condition, Appeal No. 92-42). To sustain a classification of emotionally disturbed, respondent must demonstrate that the child's learning difficulties can not be explained by intellectual, sensory or health factors (8 NYCRR 200.1 [am][4]). In view of the testimony of respondent's school psychologist that the child appears to have a learning disability, I find that the CSE's recommendation that the child should be classified as emotionally disturbed must be set aside.

The record reveals that the CSE's recommendation that the child be enrolled in respondent's MIS-II program was premised, at least in part, upon the CSE's belief that the child was emotionally disturbed. Accordingly, the CSE's recommendation that the child be enrolled in such program must also be set aside.


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

IT IS FURTHER ORDERED that within 20 days after the date of this decision, respondent's CSE shall review its evaluation data concerning the child to ascertain whether the child has a learning disability and shall recommend to respondent an appropriate classification and placement for the child.

Dated:             Albany, New York                                     _________________________
                        August 11, 1993                                               HENRY A. FERNANDEZ