The State Education Department
State Review Officer

No. 97-69




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

Sinergia, Inc., attorney for petitioner, William A. Gordon, Esq., of counsel

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Frank M. Esposito, Esq., of counsel



        Petitioner appeals from an impartial hearing officer's decision which upheld the recommendations by respondent's committee on special education (CSE) to change the classification of her son from learning disabled to emotionally disturbed, and to change the boy's placement from a modified instructional services-I (MIS-I) class in I.S. 158 to a specialized instructional environment-VII (SIE-VII) class in P.S. 186. Petitioner requests that I find that her son should continue to be classified as learning disabled, and direct respondent's CSE to modify her son's individualized education program (IEP) in certain respects. The appeal must be sustained.

        Petitioner's son is 13 years old. He attended respondent's P.S. 198 from prekindergarten through the fifth grade. In 1991, the child was referred by his first grade teacher to the CSE because of academic difficulties. A school psychologist who evaluated the child reported that he was functioning in the low average intelligence range and had attentional deficits and delayed visual motor skills. The child was reportedly frustrated by his learning problems and was developing "negative expectations" (Exhibit 9). The child also stammered. In April, 1991, petitioner's son was classified as learning disabled by the CSE, which recommended that he receive resource room services.

        During the 1991-92 school year the child was referred again to the CSE by his resource room teacher because his academic progress continued to be hindered by his language deficits and a short attention span. In June, 1992, the boy was re-evaluated by the school psychologist who had previously evaluated him. The evaluator reported that delays in the child's nonverbal reasoning, visual motor skills, short-term recall, speed of information processing, and attentional difficulties were contributing to his learning problems, and that the child had become increasingly oppositional and avoidant in the classroom (Exhibit 9). At the end of June, 1992, the CSE recommended that the child retain his classification of learning disabled, but recommended that he be placed in a self-contained special education class in respondent's MIS-I program and receive speech/language therapy and counseling.

        In June, 1995, the child's triennial evaluation was performed. The child was then nearing the end of the fourth grade, which he was repeating that school year. On the Woodcock Johnson Psycho-Educational Battery Revised, petitioner's son achieved grade equivalent scores (and standard scores) of 4.2 (94) for broad reading, 4.5 (96) for broad mathematics, and 4.1 (95) for broad knowledge (Exhibit 11). The educational evaluator reported that the child stuttered, but he was able to follow verbal directions and appropriately answer questions. However, he took longer to express himself. His writing skills were unremarkable. The school psychologist who had twice previously evaluated the boy also evaluated him in June, 1995. He reported that the child's stuttering was pronounced, and that he intermittently manifested vocal tics and had difficulty retrieving words. Although the boy was more focused than he had been during his two prior psychological evaluations, he still needed to have some questions repeated. The child achieved a verbal IQ score of 82, a performance IQ score of 81, and a full scale IQ score of 80. Those scores were generally consistent with the results of his prior IQ tests. He achieved scores in the deficient range on subtests measuring his verbal understanding, social judgment, and problem solving skills. The child also had difficulty visualizing the whole out of its parts (visual comprehension) and in sequential planning. He also displayed a weakness in his visual motor integration skills.

        The school psychologist reported that the child was guarded with others, and prone to be resistant and sometimes oppositional. The boy was reportedly embarrassed and angry about his stuttering and tics. According to the school psychologist, the child lacked confidence in his abilities and appeared to be caught up in a self-defeating pattern of behavior. I note that in the child's cumulative record (Exhibit 17) his personal-social behavior was generally of some concern in elementary school, especially his willingness to apply himself.

        In June, 1995, the boy's speech/language therapist reported that he had mastered the speech/language goals on his individualized education program (IEP) relating to speech fluency, figurative language and auditory processing. She recommended that the child receive speech/language therapy in a group rather than on an individual basis, because he had mastered speech fluency in a one-to-one situation, but needed to improve his speech fluency in a group.

        The child's IEP for the 1995-96 school year indicated that he would remain in the MIS-I program and would receive 30 minutes of counseling in a group of no more than five children once per week and 30 minutes of speech/language therapy in a group of no more than five children twice per week. The IEP also indicated that the boy was a visual learner, who labored with his written work. The boy's IEP goals included increasing his on-task behavior and improving his work study habits, in addition to developing more appropriate relationships with his peers. The child's cumulative record reveals that he received the grade of "Fair" for reading, oral expression, spelling, handwriting, mathematics, health education, and music while in the fifth grade during the 1995-96 school year, and the grade of "Good" for social studies, science, and art during that school year. His written expression and his work and study habits were rated as "Needs Improvement", while his social behavior was rated as "Unsatisfactory".

        In September, 1996, petitioner's son entered a sixth grade MIS-I class in respondent's I.S. 158. His instruction was departmentalized, i.e., he moved with his class from one teacher's room to another for special education instruction in the four academic subjects, and he was mainstreamed for instruction in "special subjects", e.g., art, music, and physical education. The child also received speech/language therapy in a group and once per week counseling in a group. I note that the boy's counselor reported in May, 1997 that petitioner's son rarely attended counseling (Exhibit 12), and his speech/language therapist also reported in May, 1997 that the boy's sporadic attendance had contributed to his lack of progress with her (Exhibit 13). The record reveals that the child had missed 18 of his weekly counseling sessions (Exhibit 22), and that he was absent from school for 56 days, and late to school on 6 days during the 1996-97 school year (Exhibit 28). He received a final grade of 55, which is failing, for each of his sixth grade subjects except art, for which he received a grade of 75. The boy's social studies teacher testified at the hearing that petitioner's son had not done any of the work for the course. The child's communication arts teacher testified that the child had done his work fairly well during September and October, but that he ceased to work thereafter and had difficulty remaining focused. She also testified that when the child was focused, he orally expressed good ideas, but had difficulty expressing his ideas on paper.

        The child had a difficult year behaviorally while in the sixth grade. His anecdotal record (Exhibit 20) revealed that he was uncooperative on a number of occasions, and had been involved in several fights with his peers. He apparently received an in-school suspension for allegedly threatening to spray one of his teachers with a fire extinguisher in December, 1996. The boy had reportedly tried to do the same thing to one of his peers during the preceding month. In late January, 1997, he was reportedly suspended from school for allegedly bringing a pocket of marijuana to school. At about the same time, he reportedly sprayed another child with a detergent which he had removed from a teacher's desk. Later in the spring, petitioner's son reportedly pushed or tried to push two of his teachers.

        On January 14, 1997, the child was re-evaluated by a school psychologist at the request of school staff because of his academic and behavioral difficulties. The school psychologist re-tested the child's visual motor integration skills, and administered certain personality tests. He also interviewed the child, and observed him in his MIS-I classroom on January 8 and 10, 1997. The school psychologist reported that petitioner's son was uncooperative and disrespectful on both occasions, and that he did not observe the child engaging in on-task activities in class. He opined that the child would be more appropriately classified as emotionally disturbed than as learning disabled, and he recommended that the child be placed in a more restrictive setting with a higher adult to child ratio. The school psychologist also recommended that the child continue to receive counseling.

        On February 11, 1997, the CSE recommended that the child's classification be changed to emotionally disturbed, and that he be placed in respondent's SIE-VII program in a class with a child to adult ratio of 12:1+1. The CSE also recommended that the child receive 40 minutes of individual counseling once per week and 40 minutes of group counseling once per week, as well as 40 minutes of speech/language therapy in a group twice per week. As with the boy's previous IEPs, the CSE indicated that testing time limits should be extended or waived for the boy. Petitioner did not agree with the CSE's recommendations, which respondent therefore did not implement. In April, 1997, respondent informed petitioner that it would assign an aide to assist the child in his MIS-I placement pending the availability of a placement in the SIE-VII program (Exhibit 4).

        In March, 1997, the school psychologist reported on the results of additional data about the child's school behavior and emotional adjustment which he had obtained by having two of the child's teachers complete the Achenbach Teacher Evaluation Report (Exhibit 10). He testified at that hearing that petitioner's son had scored in the "clinical" range for aggressive personality and attention problems, and in the "borderline" range for delinquent behavior. The school psychologist further testified that the child had violent and aggressive ideations and had not developed the ability to deal with his frustration and anger.

        The hearing in this proceeding began on May 16, 1997. It resumed on June 3, 1997, and concluded on July 24, 1997. After hearing the testimony by respondent's school psychologist, the hearing officer determined that the child should be evaluated by a psychiatrist, and she afforded petitioner the opportunity to have the evaluation done privately at public expense. On May 28, 1997, the child was seen by a psychiatrist at the Center for Attention Deficit and Behavior Disorders (Exhibit 31). The psychiatrist apparently had access to some, but not all, of the child's educational records. Relying upon information provided by petitioner, the psychiatrist stated that the child had manifested significantly increased aggression towards his peers and teachers during the preceding six months. He noted that the child spoke with a marked stammer and hesitancy and that his vocabulary was less than age appropriate. The psychiatrist reported that the child was well related, and exhibited a good mood and an appropriate affect. He also reported that the boy did not evidence a formal thought disorder. He was unable to determine whether the child could be diagnosed as having an attention deficit disorder (ADD). The psychiatrist indicated that he was unaware of signs of a conduct disorder in the child, but did recommend that the child receive counseling in school and psychotherapy outside of school to deal with his feelings of anger and sadness.

        On June 3, 1997, the child's academic skills were re-assessed (Exhibit 26). The educational evaluator reported that on the Woodcock Johnson Tests of Achievement - Revised petitioner's son achieved grade equivalent scores of 6.4 for broad reading, 5.5 for broad mathematics, 4.5 for science, and 4.8 for social studies. When tested with the same test in June, 1995, he had achieved grade equivalent scores of 4.1, 4.5, 4.5 and 4.3 respectively. In an informal writing sample, the child's penmanship was found to be immature. He did not use any punctuation marks, and there were errors in spelling.

        On June 12, 1997, the school psychologist who had evaluated the child earlier in the year summarized the results of his interviews with the child's teachers and other staff who had worked with him during the 1996-97 school year (Exhibit 25). The teachers and staff generally indicated that the boy was a loner and had little or no positive relations with his peers. The Dean indicated that the child responded violently to the least provocation from other children and was untrusting of adults. He further indicated that petitioner's son did not accept direction or responsibility for his actions.

        On June 16, 1997, the CSE prepared the child's IEP for the 1997-98 school year. It again recommended that he be classified as emotionally disturbed, and be placed in the SIE-VII program (Exhibit 24). On the IEP, the CSE indicated that it had considered placing the child in the regular education program and in its modified instructional services-II (MIS-II) program, but had concluded that neither program would provide him with adequate social control and behavior management. The CSE also recommended that the child receive individual and group counseling for 30 minutes each once per week, and specified that the group not exceed two students. It further recommended that the child receive individual and group speech/language therapy for 30 minutes each once per week, with the group not to exceed three students. Time limits for tests were to be extended to 1 1/2 times the normal limits.

        In her decision which was rendered on August 15, 1997, the hearing officer indicated that she was concerned about the evidence which respondent had presented to demonstrate the appropriateness of the CSE's recommended classification of emotionally disturbed. She noted that the State regulatory definition of emotionally disturbed requires that the student exhibit certain characteristics, such as an inability to establish and maintain satisfactory relationships with peers over a long period of time and to a marked degree. However, the evidence which was before her related primarily to the child's behavior during the 1996-97 school year, except for a June, 1995 teacher report which indicated that the child had difficulty with peer relationships. The hearing officer found that the child's psychiatric evaluation was incomplete because it had not included an observation of the child in school. Nevertheless, she upheld the recommended classification of emotionally disturbed on the basis of his academic performance and anecdotal record during the 1996-97 school year.

        With respect to petitioner's challenge to the proposed SIE-VII placement as being too restrictive, the hearing officer noted that petitioner wanted her son to remain in the MIS-I program, with the addition of a full-time individual aide, individual counseling several times per week, a home tutor, and a transition plan. She further noted that the boy's MIS-I class had been changed once during the 1996-97 school year, and that he had received the services of an individual aide for a two-week period. However, she found that respondent's attempts to ameliorate the child's performance and behavior had been unsuccessful. The hearing officer further found that an MIS-II placement in the child's present school building, although intended for emotionally disturbed students, would not be appropriate for petitioner's son because MIS-II classes have the same 15:1 child to adult ratio as the boy's MIS-I classes. She therefore upheld the CSE's recommendation for a SIE-VII placement.

        Petitioner challenges the recommended change in her son's classification. 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])

        As petitioner notes, this child's most recent physical examination was done in 1992 (Exhibit 18). Although he was seen by a psychiatrist in May, 1997, there is no indication in the record that the psychiatrist conducted a physical examination of the child. In order to sustain a classification of emotionally disturbed, a CSE must demonstrate that the child's inability to learn can not be explained by intellectual, sensory or health factors. I find that respondent has not demonstrated that the child's inability to learn can not be attributed to health factors, because of its failure to obtain the results of a current health examination (Application of a Child with a Disability, Appeal No. 93-11; Application of a Child with a Disability, Appeal No. 93-36). I am aware that visual, hearing, and motor disabilities are excluded from the child's present classification as learning disabled (8 NYCRR 200.1 [mm][6]), but that still does not excuse respondent from having a current physical examination of the child in order to support the proposed change in his classification.

        There are additional reasons why the proposed change in the child's classification can not be sustained on the present record. The child's psychological evaluation in June, 1995 and the more recent psychological examination in January, 1997 indicated that the child had perceptual discrimination and visual motor coordination difficulties. The 1995 evaluation also indicated that the child had difficulty retrieving information from his fund of general information i.e., a processing deficit. Those difficulties would afford a basis for finding that the child is learning disabled, provided that he otherwise meets the definition of learning disabled. The record reveals that the child has attentional difficulties, but apparently no one has formally assessed him to ascertain whether he in fact has ADD. The results of the child's educational evaluation in June, 1997 indicates that he had slight delay in his mathematical skills, and deficiencies in his writing skills. I am concerned about his apparent lack of progress in science and social studies from 1995 to 1997, as well as his general academic failure during the 1996-97 school year. He was absent from school for nearly one-third of that school year. As I recently noted, a child who does not attend school on a regular basis is not likely to master the curriculum (Application of a Child Suspected of Having a Disability, Appeal No. 97-50). Those absences, as well as his apparent refusal to open a book while in class, must be considered in determining both the nature of his disability and an appropriate educational program for him.

        Having found that the CSE's proposed classification cannot be sustained on the present record, I will remand this matter to the CSE to complete the necessary physical examination, and to update its information about the child's academic performance and behavior during the 1997-98 school year while in his pendency placement. I remind the CSE that reprehensible behavior does not per se afford a basis for classifying a child as emotionally disturbed (Application of a Child with a Disability, Appeal No. 96-65), and I urge the CSE to thoroughly ascertain this child's special education needs in recommending the child's classification for the 1998-99 school year. I must also note that petitioner's apparent belief that her son was not responsible for most of the incidents described in the record is both unrealistic and not conducive to the resolution of her son's problems.

        With regard to petitioner's challenge to the appropriateness of the CSE's recommendation that her son be enrolled in the SIE-VII program during the 1997-98 school year, I first note that the school year has ended. The CSE's recommendation for the upcoming school year must be based upon the recommendation for classification which it will make pursuant to this decision. In its consideration of an appropriate program and placement, the CSE must of course place the child in the least restrictive environment. Before it concludes that a more restrictive placement than respondent's MIS-I program is indicated, the CSE should review what supportive services have been provided to the child in that program. In particular it should consider the amount and efficacy of the counseling which it has provided to the child. At the hearing, there appeared to be a consensus that the child required individual counseling. The record would suggest that individual counseling should be provided more than once per week. Petitioner's son briefly received the services of a full-time aide during the 1996-97 school year. Respondent's witnesses indicated that the aide had made little difference in the child's behavior or performance. However, now that he has received those services for a longer period of time pursuant to Exhibit 4 and the hearing officer's order, the CSE should have a better basis for determining whether the child can function in the less restrictive MIS-I setting, or requires a more restrictive setting like a SIE-VII class. The CSE should also include a behavior management plan which specifically addresses the child's needs on his IEP.


        IT IS ORDERED that the hearing officer's decision is hereby annulled; and

        IT IS FURTHER ORDERED that respondent's CSE shall promptly obtain the results of a physical examination of the child, and shall reconsider its recommendations for this child's classification and placement in accordance with the tenor of this decision.




Dated: Albany, New York __________________________
August 20, 1998 ROBERT G. BENTLEY