The State Education Department
State Review Officer

No. 97-16


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

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Ellen B. Fishman, 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 her daughter be classified as emotionally disturbed, and that she be educated in respondent's modified instructional services-I (MIS-I) program. Petitioner asserts that her daughter should be classified as learning disabled, and receive resource room services. The appeal must be dismissed.

        At the outset, I note that respondent did not serve its answer to the petition in this appeal until April 1, 1997, despite having been served with the petition on March 7, 1997 (cf. 8 NYCRR 279.5). Respondent asks that its delay be excused. Its attorney asserts that the press of business and the reassignment of attorneys within her office precluded a more timely completion of the answer. She also asserts, and I agree, that respondent's delay has not prejudiced petitioner's right to receive a prompt decision in this appeal. Under the circumstances, including the fact that petitioner failed to serve her petition within the prescribed 40-day period after receipt of the hearing officer's decision, I will accept respondent's answer. I note that respondent asserts that the petition which it received was not verified. However, petitioner has submitted a verified petition to me.

        Petitioner's daughter is fourteen years old. Although she was born in New York, her family is from Haiti, and Haitian-Creole is spoken in her home. However, the child achieved a score in the 89th percentile on a test of her English language proficiency in 1995, indicating that she did not require bilingual instruction. Although petitioner suggests in her petition that her daughter should have been evaluated by a Haitian-speaking psychologist (see Application of a Child with a Disability, Appeal No. 96-49), respondent has assessed the child's English language proficiency, which is sufficient for her to be tested in English. The record discloses that she received less than satisfactory grades in virtually all of her academic subjects in the fourth and fifth grades. Her personal/social development was reported to be in need of improvement. In 1993, the child was injured in an automobile accident. Thereafter, she reportedly manifested seizures, or seizure-like behavior.

        In March, 1994, while she was in the fifth grade, the child was initially referred to the CSE. A psychiatrist who evaluated the child at that time reported that petitioner's daughter had exhibited arm and leg twitching, followed by short periods of non-responsiveness, since the automobile accident. The girl's thought process was described as logical and goal oriented by the psychiatrist, who noted that the child exhibited a fair range of affect. He indicated that the child had not manifested any psychotic symptoms, or suicidal ideation. The child told the psychiatrist that her seizures had occurred when she was nervous. The psychiatrist opined that the child had conversion and anxiety disorders, which were manifested by anxiety related pseudo-seizures. He recommended that she receive counseling to cope with her anxiety, and that she be educated in a school environment which would provide her with support and reassurance.

        Respondent's CSE recommended that petitioner's daughter be classified as learning disabled, and that she receive supplemental special education instruction in respondent's supplemental instructional services-I (SIS-I) program, also known as resource room services. Petitioner reportedly accepted the CSE's recommendation.

        The child remained classified as learning disabled, and continued to receive resource room services in the sixth grade of I.S. 78, during the 1994-95 school year. She received final grades of 65 in English, 55 in social studies, 55 in mathematics, and 55 in science, and somewhat higher grades in her special subjects such as art and health. I note that her permanent transcript indicates that the girl was absent from school for 45 days, and was late coming to school on 42 days.

        During the 1995-96 school year, the child repeated the sixth grade in I.S. 78. She was placed in a combined sixth and seventh grade class with fewer students than would typically be in a sixth grade class. In addition to receiving resource room services once per day, petitioner's daughter received individual counseling once per week. Two of the child's teachers met with petitioner early in the fall of 1995, because of concerns about the child's performance. On November 2, 1995, one of her teachers referred her to the CSE because the child was having difficulty attending to, and completing, her regular education and resource room assignments. The teacher requested that the child be re-evaluated to ascertain what service would meet her needs.

        In December, 1995, the child was evaluated by a school psychologist, who reported that the child had great difficulty concentrating and maintaining her effort during the evaluation. He also reported that the child often responded impulsively to questions, and that she gave up easily when confronted with a difficult task to perform. The school psychologist described the child's performance during the evaluation as erratic, and as not necessarily representative of her true potential. The girl achieved a verbal IQ score of 87, a performance IQ score of 82, and a full scale IQ score of 83. The school psychologist noted that the child's most significant difficulty had been in arranging pictures in a logical sequence, and understanding cause and effect relations, where her skills appeared to be impaired by her impulsivity. Additional evidence of the impact of her impulsivity was found on her performance on a test of her visual motor integration skills. The school psychologist suggested that some of the child's errors on the latter test could also reflect a deficit in the child's graphomotor (handwriting) skills. He reported that the child appeared to be readily overwhelmed by internal thoughts and feelings, as well as by external stimuli. Consequently, the child had difficulty maintaining a relaxed, focused attitude which was important for her to engage in learning. The school psychologist reported that the child was struggling to maintain a sense of control, but that she lacked boundaries for her ego, and the ability to protect herself from overwhelming anxiety. Her self-image was marked by negative concepts, and she was described as being especially frightened when external limits were unclear to her. The school psychologist recommended that the child be provided with structure in school, i.e., clear-cut limits and controls, and that she receive psychotherapeutic intervention.

        The child was formally observed in her regular education mathematics class on January 4, 1995. The observer reported that the child had participated in class, but that her answers to questions were incorrect. The child raised her arms and cracked her fingers to show excitement, and she kept her thumb, finger, or a pen in her mouth during most of the observation. The child's resource room teacher reported that the child had poor reading and mathematics skills, did not follow directions, and was disruptive in class. She recommended that the child be placed in a small class. The child's combined sixth and seventh grade teacher reported that the child could read and write at about the fifth grade level, but that she was unable to concentrate. She indicated that the child appeared to be sad and disoriented, and that she lacked organizational skills.

        The educational evaluator who assessed the child's academic skills on February 14, 1996 reported that the child's performance on the Upper Expressive One Word Vocabulary Test indicated that her expressive language skills were delayed by three years. She noted that the child had difficulty identifying items, and that she mispronounced many words. The child's writing sample revealed that her handwriting was poorly spaced, and that her technical writing skills, such as grammar, spelling, and sentence structure, required remediation. The child achieved grade equivalent scores of 4.4 for word identification, and 3.9 for passage comprehension in reading. The evaluator indicated that the girl's oral reading skills were at the fourth grade level. On a silent reading test, the child was unable to recall a sufficient number of facts, even with prompting, on passages which were above the third grade level. She achieved grade equivalent scores of 5.6 in mathematical calculation, and 4.0 in applied problem solving. The evaluator indicated that the child was unable to multiply numbers with a two-place multiplier, or to work with fractions and decimals. When compared to the achievement test scores which she had attained when previously evaluated in March, 1994, the child had achieved approximately two years of growth in her mathematics skills. However, her reading skills had not improved in the nearly two year interval, and the delay in her expressive language skills had increased by approximately two and one-half years.

        On February 9, 1996, the CSE recommended that the child's classification be changed from learning disabled to emotionally disturbed. It further recommended that she be removed from the regular education program, and receive primary instruction in special education in respondent's MIS-I program. Departmentalized instruction is provided to groups of no more than 15 children in the MIS-I program. In addition, the CSE recommended that the child receive individual counseling once per week, and counseling in a small group once per week. On February 12, 1996, petitioner acknowledged receipt of a notice of the CSE's recommendation. Although she reportedly had questions about her child's new educational program, she did not immediately request that an impartial hearing be held to review the CSE's recommendation. Her daughter was enrolled in the MIS-I program, where she has remained.

        The child continued to manifest behavioral and academic difficulties in the MIS-I program. On May 14, 1996, she was formally observed in a reading class. The observer reported that the child disrupted the class by cursing, and that she did not immediately comply with her teacher's request that she pick a book up from the floor. During a silent reading exercise, the child could not remain focused for more than a few seconds, and she engaged other students in conversation. She was able to read aloud appropriately, but had failed to do the day's homework. The observer reported that the child sucked her thumb several times during the class. The child's teachers reported to the CSE that she exhibited inappropriate behavior in the class and that she refused to take responsibility for her actions. Nevertheless, she was described as capable of doing the school work in the MIS-I program. The child received final grades of 75 in English, 65 in mathematics, 75 in social studies, 55 in reading, and 75 in science. Although she was late for school on 25 days, her attendance improved significantly during the 1995-96 school year. She was absent on 18 days.

        On May 31, 1996, the CSE met with petitioner, but adhered to its prior recommendation that the child be classified as emotionally disturbed, and that she be enrolled in the MIS-I program. It met with petitioner again on September 18, 1996, in an attempt to resolve her disagreement with the child's continued placement in the MIS-I program. However, the CSE recommended that no change be made in the child's instructional program.

        At petitioner's request, an impartial hearing was held on October 16, 1996. An interpreter was provided for petitioner, who was assisted by a relative who was an educational consultant. The school psychologist and the educational evaluator who had each evaluated the child testified that she had been appropriately placed in the MIS-I program. The school psychologist further testified that the classification of emotionally disturbed was appropriate for the child because she was not functioning at a level commensurate with her ability as a result of her emotional difficulties. The child's social studies teacher for the 1995-96 school year testified about the child's behavior and achievement. She indicated that the child did not adhere to the limits and boundaries which had been set for her, and that her experience with the child was similar to those of the child's other teachers in terms of the child's behavior. Petitioner asked the hearing officer to find that her daughter should be removed from the MIS-I program, and returned to respondent's regular education program with supplemental services. She indicated that she would also obtain a private tutor for her daughter.

        In his decision which was rendered on January 7, 1997, the hearing officer found that the child met the Federal regulatory definition of an emotionally disturbed child (34 CFR 300.7 [b][7]) because she had been diagnosed by a psychiatrist as having an anxiety and psychosomatic disorder which diminished her ability to reach her academic potential. He further found that the MIS-I program was appropriate to meet the child's educational needs, and that it was the least restrictive environment for her. Having reviewed the profile of the child's class which respondent had offered in evidence, the hearing officer found that the child had been appropriately grouped for instructional purposes with children of similar needs and ability in her MIS-I class (see 8 NYCRR 200.6 [g][2]).

        Petitioner asserts that her child is not emotionally disturbed. She contends that her daughter is able to maintain appropriate relationships with her peers and adults, and that she exhibits appropriate feelings and behavior. Petitioner denies that her daughter is pervasively unhappy or depressed about school, or that she has any fears about school.

        The board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Handicapping Condition, Appeal No. 91-11; Application of a Child with a Handicapping Condition, Appeal No. 92-37; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 94-16). An emotionally disturbed child is defined by State regulation as:

"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." (8 NYCRR 200.1 [mm][4])

        In order to be classified as a child with a disability under Federal regulation (34 CFR 300.7[a][1]), or its State counterpart (8 NYCRR 200.1 [mm]), a child must not only have a specific physical or mental condition, but such condition must adversely impact upon the child's performance to the extent that he or she requires special education and/or related services (Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-42). The record reveals that petitioner's daughter has at least low-average intelligence, and that her academic achievement has not been commensurate with her cognitive ability. Her educational evaluation in February, 1996, just prior to her removal from regular education classes and placement in the MIS-I program, revealed that she had not made any significant progress in reading in approximately two years, and that her communication skills continued to lag behind those of her peers. The child's standardized test results for 1993 through 1996 which were reported in Exhibit 13 also established that the child continues to read at a significantly lower level than her chronological peers. On the record which is before me, I find that petitioner's child requires special education. However, the question remains as to whether she should be classified as emotionally disturbed, or whether there is a more appropriate classification for her.

        I have considered petitioner's request that her daughter be classified as learning disabled. A learning disabled child is defined in State regulation as:

"A student 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 students 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 student 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 [mm][6])

        The comparable Federal regulatory criteria for finding that a child has a learning disability are set forth in 34 CFR 300.541, which requires that there be a severe discrepancy between a child's achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematics calculation or mathematics reasoning. Although the State regulatory definition expressly refers to a 50 percent discrepancy between expected and actual achievement, it is well established that the State's 50 percent standard is the functional equivalent of the Federal severe discrepancy standard, and should be viewed as a qualitative, rather than a strictly quantitative standard (Riley v. Ambach, 668 F. 2d 635 [2nd Cir., 1981]; Application of Bd. of Ed. Connetquot CSD, 27 Ed. Dept. Rep. 272; Application of a Child with a Handicapping Condition, Appeal No. 91-15). In order to be classified as learning disabled, a child must exhibit a significant discrepancy between his or her ability and achievement (Application of a Child with a Handicapping Condition, Appeal No. 91-34; Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 94-16).

        By definition, a child whose learning problems were caused by physical disability, or emotional disturbance, would not be eligible for classification as learning disabled. In this instance, the record includes the brief results of the child's medical examination, which indicate that she had normal vision and hearing, and that she was physically well. The psychiatrist's report in the testimony of respondent's school psychologist revealed that the child had significant emotional problems, which had been manifested in her behavior in school. The reports of the child's teachers indicate that not only has the child's educational performance been impaired, but that she has been unable to maintain satisfactory relationships with her peers. I find that the child's emotional difficulties are primarily responsible for her problems in school. Consequently, she could not be appropriately classified as learning disabled, but is appropriately classified as emotionally disturbed.

        The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). Petitioner does not specifically challenge the provision of her child's IEP. However, she contends that the MIS-I program is not the least restrictive environment in which her daughter can learn.

        In general, a board of education must demonstrate that it has attempted to remediate a child's educational deficits in the board's regular education program with whatever supplemental services may be necessary to justify placing the child in a more restrictive environment (34 CFR 300.550 [b][2]; Application of a Child with a Disability, Appeal No. 96-78). I find that the record demonstrates that respondent has attempted to address the child's educational deficits in its regular educational program by placing her in the smaller combined sixth-seventh grade class in which to repeat the sixth grade, as well as by providing her with counseling and resource room services. Despite these services, the child did not make satisfactory progress in her mainstream classes. Therefore, I find that respondent has demonstrated that the child requires primary instruction in special education, and that the MIS-I class is the least restrictive environment for her. Having reviewed the MIS-I class profile, I concur with the hearing officer's determination that the child has been appropriately grouped for instructional purposes.

        I urge petitioner to work with school personnel to meet the child's educational and emotional needs.






Dated: Albany, New York __________________________
April 28, 1997 ROBERT G. BENTLEY