University of the State of New York Emblem

The State Education Department
State Review Officer

No. 93-36

Application of a CHILD WITH A DISABILITY, by her 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

Appearances:

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Daniel S. Feder, Esq., of counsel

DECISION

Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that her child remain classified as emotionally disturbed and that the child's special class program be changed from respondent's modified instructional services-II (MIS-II) to respondent's specialized instructional environment-VII (SIE-VII). The appeal must be sustained.

Prior to entering kindergarten in September, 1982, the child was referred to the CSE by staff of the day care center which she attended and by a psychologist employed by the Columbia Presbyterian Hospital, because of the child's reported hyperactivity, distractibility and suspected low level of functioning. In a psychological evaluation, the child's cognitive skills were found to be in the mildly retarded range. She displayed deficits in visual motor and visual motor integration skills, suggestive of a neurological dysfunction. The evaluator described the child, who was then living with a grandparent, as troubled and feeling responsible for the fact that she was not living with either parent.

In August, 1982, the CSE recommended that the child be classified as learning disabled and be enrolled in a "readiness program" in respondent's P.S. 43. The child remained in the readiness program for two and one-half years. In June, 1985, the child was hospitalized for a seizure. A neurological evaluation of the child revealed that she did have a seizure disorder. In July, 1985, the child was transferred to the New York State Psychiatric Institute (NYSPI) because she had reportedly exhibited aggressive behavior in the hospital. She remained in the NYSPI until November, 1985. At the time of her discharge from NYPSI, the child was diagnosed as having an atypical organic mental syndrome, for which it was recommended that she receive psychotherapy.

In November, 1985, the child entered a modified instructional services-I (MIS-I) program in respondent's P.S. 161. She remained in the MIS-I program until December, 1986, when she was again hospitalized for her seizure disorder. In February, 1987, the child re-entered the NYSPI, where she remained until September, 1987, when she was placed in the Edenwald School, a residential school. However, the child was re-admitted to the NYSPI in November, 1987, as a result of her oppositional behavior in the Edenwald School. She was subsequently transferred to the Bronx Children's Psychiatric Center (BCPC), where she was diagnosed as having an oppositional disorder, as well as developmental language and arithmetic disorders. In June, 1988, the child was discharged from the BCPC, and referred to the CSE.

In November, 1988, the CSE recommended that the child be classified as learning disabled/emotionally disturbed and be placed in the MIS-II program, with individual and small group counseling. In December, 1988, the child began in the MIS-II program in I.S. 162, where she remained until September, 1991, when she matriculated into respondent's Norman Thomas High School. During the ninth grade in the 1991-92 school year, the child was described by her teachers as having little, if any, positive interaction with her peers. Three of her teachers reported that the child was sleepy while in class. Her teachers found the child to be generally cooperative, but they noted that the child exhibited significant mood changes and described her behavior as erratic. She was absent from two of her classes substantially more than from her other classes. Although the child achieved passing grades in some subjects, her academic average for the ninth grade was 62.

In May, 1992, the child's counselor referred her to the school based support team for consideration of placement in a more therapeutic environment. Projective tests in a psychological evaluation performed on May 11, 1992 revealed that the child exhibited an impaired sense of reality. The school psychologist opined that the child had an on-going thought disorder, which together with possible organic brain dysfunctions, might permanently limit the child's ability to use her higher cognitive potential. The school psychologist further opined that the child needed an educational placement with extensive psychotherapeutic support. In an educational evaluation completed on May 11, 1992, the child's overall reading ability was assessed to be at the beginning sixth grade level, although her passage comprehension ability was found to be at the mid-seventh grade level. The child's mathematical skills were reported to be at the mid-first grade level. The evaluator reported that the child's writing skills were poorly developed, and opined that the child needed a great deal of personal attention in order to achieve academically. The child also received a speech/language evaluation, which revealed that she exhibited no significant deficits in speech or auditory discrimination. In a psychiatric evaluation completed in July, 1992, respondent's psychiatrist reported that the child had not displayed some of the behavior which had been observed when she was in school, but the psychiatrist opined nevertheless that the child had a developmental disorder.

The child returned to the Norman Thomas High School for the 1992-93 school year. On October 5, 1992, the CSE recommended that the child be classified solely as emotionally disturbed and be enrolled on a 12-month basis in a SIE-VII class with a child to adult ratio of 10:1+1 in P.S. 12, which has no mainstreamed classes. The MIS-II program in which the child was enrolled had a child to adult ratio of 15:1+1 and was located in a high school with mainstreamed classes. The CSE further recommended that the child receive speech/language therapy twice per week and individual counseling twice per week.

Petitioner did not agree with the CSE's recommendation. At an impartial hearing which was held on January 19, 1993, the hearing officer ruled that the child's individualized education program (IEP) which was prepared at the October 5, 1992 CSE meeting was invalid, because there was no parent member of the CSE at that meeting (See, Application of a Child with a Disability, Appeal No. 93-11), and because the child's teacher had not attended the meeting (See, Application of a Child with a Disability, Appeal No. 93-28). The hearing officer also held that the record presented by respondent was inadequate, and directed that respondent perform an additional psychological evaluation and pay for an independent psychiatric evaluation before a properly constituted CSE made a new recommendation. The hearing officer asked petitioner to authorize the release of information from the child's neurologist and psychotherapist to the CSE.

In a psychological re-evaluation completed on January 29, 1993, a school psychologist reported that the child demonstrated that she had an appropriate general orientation to time, place and person, and adequate recent and remote memory, although the child had deficits in her immediate memory, insight and judgment. The school psychologist further reported that the child was overly concerned about interaction with her environment, which lead her to have feelings of inadequacy and reluctance to make contact with others, and that she had weak ego control. The school psychologist opined that the child sought satisfaction through fantasy and had poor reality contact. At the hearing in this proceeding, the school psychologist testified that the child was easily distracted, did not know how to control her impulses, and had virtually no frustration tolerance. Noting that the child was experiencing considerable academic and psychological difficulties in the MIS-II program at the Norman Thomas High School, the school psychologist in her evaluation recommended that the child be placed in a more restrictive program.

In a progress report dated March 3, 1993, the child's psychotherapist described the child as having a mixed emotion and conduct disorder, with problematic relations with petitioner and the child's siblings. However, the psychotherapist reported that the child had responded well to psychotherapy, had fewer mood swings, and had improved self-esteem. Petitioner provided the CSE with a private October, 1991 psychiatric report, in which the child was described as not exhibiting evidence of psychosis or signs of any organic mental disorder. There is no evidence that a new psychiatric evaluation and a report from the child's neurologist were obtained by the CSE.

On March 3, 1993, a properly constituted CSE again recommended that the child be classified as emotionally disturbed and be placed in an SIE-VII class in P.S. 12 in the Bronx, with the related services of speech/language therapy and counseling. The child's IEP was modified with respect to her annual goals for classroom behavior and vocational education. On April 15, 1993, the hearing in this proceeding resumed. At the hearing, the school psychologist testified that the child had passed English and biology, but failed five other subjects in the first semester of the 1992-93 school year. The child had a cumulative high school average of 64.6 and had obtained 8 of the 40 credits required for graduation, but had not passed any of the required Regents Competency Tests. The child left home and did not attend school for approximately three weeks immediately before the hearing resumed. At the hearing, petitioner expressed interest in obtaining a residential placement for the child.

In a decision dated May 14, 1993, the hearing officer held that respondent had met its burden of proving the appropriateness of the child's classification as emotionally disturbed, because of evidence that she had exhibited inappropriate behavior over a long period of time and that her emotional condition had affected her educational performance. With regard to the recommended SIE-VII program, the hearing officer found that the child's current and less restrictive MIS-II program did not meet the child's needs and that the SIE-VII program would provide the child with the additional attention and structure which she requires. The hearing officer further found that the proposed class in P.S. 12 would be appropriate for the child, provided that respondent could provide a suitable program to remediate the child's mathematics skills which were significantly below those of the other children in the proposed class.

In its answer to the petition in this appeal, respondent asserts that the child's classification as emotionally disturbed cannot be established in the absence of a medical evaluation, and requests that the matter be remanded to the CSE. State regulation requires that when a child is referred to a CSE, an evaluation of the child, including a physical examination in accordance with the provisions of Sections 903, 904 and 905 of the Education Law, be initiated by the CSE (8 NYCRR 200.4 [b][1][i]). Once a child has been classified, State regulation further provides that the child be re-evaluated at least every three years by a physician and other appropriate professionals (8 NYCRR 200.4 [e][4]). In this instance, the child was initially classified as learning disabled in 1982, and her classification was changed to learning disabled/emotionally disturbed in 1988. However, there is no report of any physical examination in the record.

State regulation defines an emotionally disturbed child as follows:

(4) Emotionally disturbed. A student 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 students unless it is determined that they are emotionally disturbed.

A classification of emotionally disturbed cannot be sustained in the absence of evidence of a medical examination, because there would be no basis for excluding health factors as a source of the child's academic difficulties. In addition, the record in this appeal discloses that the child has been previously diagnosed as having a seizure disorder and that she has been taking medication to ameliorate the effects of that disorder. The record further reveals that the child has frequent mood swings and has been reported by her teachers to be either sleepy or in a trance-like state in class. The CSE's failure to obtain a report from the child's neurologist including the possible side effects of the child's medications, notwithstanding the hearing officer's interim order, is inexplicable. I will direct the CSE to obtain appropriate information from the neurologist, and have a school physician attend the CSE meeting at which the neurologist's report is considered.

In her interim order after the January 19, 1993 hearing, the hearing officer also directed that an independent psychiatric evaluation be performed. The record does not reveal why no evaluation was performed. However, upon review of the psychiatric evaluations which are in the record, I find that a new psychiatric evaluation is not required for the purpose of determining the appropriate educational classification and placement for the child.

An appropriate educational program begins with an IEP which accurately reflects the results of the evaluations to identify the child's needs, provides for the use of appropriate educational services to address the child's special education needs, and establishes annual goals and short-term objectives which are related to the child's educational needs (Application of a Child with a Disability, Appeal No. 93-1). In addition to failing to obtain adequate information about the child's physical condition, the CSE also failed to assess the child's vocational skills and needs as required by State regulation (8 NYCRR 200.4 [b][4][vii]). The child is now 17 years old, and intends to obtain a high school diploma. Although she has many academic deficits, especially in mathematics, it is essential that petitioner and the CSE begin to plan for the child to achieve appropriate vocational objectives. The child's IEP which was prepared at the October 5, 1992 CSE meeting included annual goals for the child's keyboarding and business classes, but there are no vocationally related goals in the IEP prepared at the March 3, 1993 CSE meeting.

My review of the annual goals in the child's IEP leads me to conclude that the CSE has failed to address the child's special education needs. Instead, the CSE has prepared very general annual goals that the child will successfully complete parallel courses in various subjects, with short-term objectives such as the child "will be able to list 3 examples of democratic government in ancient Greece". The IEP goals do not address the child's severe deficits in reading and mathematics, or her impulsive behavior, mood swings, poor hygiene and deficits in immediate memory, insight and judgment. In determining what services should be provided, the CSE should consider the evidence in the record which suggests that family counseling would be appropriate.

Finally, I note that petitioner asserts in the appeal, but not at the hearing, that the child was asked inappropriate questions by the school psychologist during her evaluation and that the assistant principal at the Norman Thomas School failed to adequately investigate incidents in which the child was involved. Since petitioner did not raise these issues in the hearing, a resolution of them will not bear on the placement of the child, and there is no basis in the record for making any determination of the issues raised, I decline to address them. Nonetheless the issues raised reflect a breakdown in meaningful communication between the parent and the school which can only be improved by the parties' mutual attempts. Accordingly I encourage the petitioner and the respondent to work positively for the benefit of the child.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that within 30 days after the date of this decision the CSE shall obtain the necessary evaluation information outlined in this decision and shall prepare an IEP for the 1993-94 school year which is consistent with the tenor of this decision. A school physician shall attend the CSE meeting at which the IEP is prepared.

Dated:             Albany, New York                                     _________________________
                        September 17, 1993                                         HENRY A. FERNANDEZ