The State Education Department
State Review Officer


No. 98-21

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. Michael D. Hess, Corporation Counsel, attorney for respondent, Stacey L. Cohen, 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 petitioner’s son be educated in a Modified Instructional Services-II (MIS-II) class during the 1997-98 school year. The boy had previously been instructed in a Modified Instructional Services-I (MIS-I) class. The appeal must be dismissed.

        Preliminarily, I will address the procedural issues raised in this appeal. Respondent contends that the appeal should be dismissed as untimely because the notice of intention to seek review was served after the time set forth in the Regulations of the Commissioner of Education. State regulation requires that a notice of intention to seek review be served within 30 days after receipt of the decision, and that a petition for review of an impartial hearing officer’s decision be served within 40 days after receipt of the decision (8 NYCRR 279.2 [b]). The hearing officer’s decision in this proceeding was dated February 6, 1998. Although there is no evidence in the record as to when petitioner received a copy of the decision, petitioner’s affidavit of service indicates that the notice of intention to seek review was dated March 6, 1998, and served upon respondent on March 26, 1998. The purpose of a notice of intention to seek review is to ensure that the record is provided to the State Review Officer. The record in this matter was so provided. Therefore, petitioner’s minimal delay in serving the notice of intention to seek review had no impact on this proceeding. Respondent also alleges that it was not formally served with the petition until August 28, 1998, well after the 40 day time frame set forth in state regulation. However, it acknowledges that a letter from petitioner dated March 21, 1998 constituted the notice of petition and petition. Respondent claims that it was prejudiced by the late filing of the appeal because the child is required to remain in a MIS-I class during the pendency of this proceeding, which it claims is an inappropriate placement for him, and where, it claims, he is disruptive to others. While I am mindful of respondent’s concerns, I must point out that petitioner attempted to serve the petition in March, 1998. Respondent was on notice that petitioner intended to seek review of the hearing officer’s decision, and was aware of the existence of a petition in March, 1998. In view of the circumstances, I will exercise my discretion and excuse the delay (Application of the Board of Education of the Wappingers Central School District, Appeal No. 91-35).

        The child was privately evaluated by a psychiatrist when he was eight years old and in the third grade at P.S. 154 in Flushing, Queens, because of his inattentiveness, restlessness and hyperactive behaviors, which reportedly occurred primarily at school. In his report, the psychiatrist indicated that the child was restless, fidgety and mildly agitated throughout the evaluation, which was conducted on March 29, 1994. The psychiatrist reported that the child had very poor attention and concentration. The child had to be instructed to play with one assigned toy at a time, and needed constant reminders to return to an assigned task. The psychiatrist indicated that the child was able to identify all basic colors and name all major body parts. He also was able to recite the numbers one through 100, and the letters of the alphabet, except for a few errors, which may have been due to his hyperactivity and restlessness. He was able to write the alphabet, but again made a few errors, which could be attributed to his restlessness. The psychiatrist diagnosed the child as having an Attention Deficit Hyperactivity Disorder (ADHD), a Developmental Reading Disorder, and a Developmental Arithmetic Disorder. He suggested that the child would benefit from a multi-modal treatment with psychopharmacological intervention, however, he noted that the child’s mother appeared reluctant to have her son treated with Ritalin because she had concerns about possible side effects. He also suggested a parent training group for the child’s mother. The private psychiatrist indicated that the child would benefit from individual, family and group therapy once he became stabilized on stimulant medication.

        The child has been classified by the CSE as learning disabled, although the record does not reveal when he was initially identified as a child with a disability. In November, 1994, the CSE reportedly recommended that the child be placed in a MIS-I class at P.S. 154. Two years later he was transferred to P.S. 201, following a disciplinary incident. At the time of the hearing in this proceeding, the child was in a MIS-I class in I.S. 237.

        A triennial review of the child was conducted in the fall of 1997, when the child was in the seventh grade in a self-contained class. In a report to the school based support team dated October 8, 1997, the child’s teacher reported that the child continually engaged in attention seeking behavior. She further reported that the child’s social and emotional issues prevented him from making progress in school. The child’s teacher indicated that she had a reward system in place for the child. However, she also indicated that the child’s placement was not meeting his educational, social and emotional needs because he required constant refocusing and extensive counseling. She suggested a behavior management paraprofessional be assigned to help the child focus on his work so that he could make educational progress.

        In a classroom observation conducted on October 8, 1997, an educational evaluator observed that all of the students in the class were focused on their individual tasks except this child, who was talking out loud in a low voice either to himself or to his classmates. The educational evaluator indicated that the child did not focus on his work throughout the entire observation. The child’s teacher continually advised the child to follow rules, and reminded him of how he could earn rewards as part of his behavior modification plan. However, the child remained off-task and continued fidgeting with various objects. The child’s teacher informed the evaluator that the child could not focus without one-on-one guidance. She described the child’s behavior as mostly inappropriate, demanding constant attention. The child’s teacher indicated that the behavior he displayed during the observation was his typical classroom behavior.

        The child was evaluated by a speech/language evaluator on October 9, 1997, who noted that the child had difficulty staying on task. She also noted that the child had difficulty maintaining eye contact, and had to continually be reminded to look at visual stimuli. The speech/language evaluator reported that the child exhibited mild expressive language deficits and severe receptive language deficits. He had moderate deficits in his ability to follow oral directions containing linguistic concepts, e.g., "either/or," "then," "after." He also had difficulty making associations among words. The child exhibited significant difficulty in processing and recalling of spoken sentences of increasing length and complexity, and processing orally presented comparative, spatial and sequential categories. The speech/language evaluator estimated the child’s language skills to be at the age level of a 7.10 year old child, indicating a delay of approximately five years. She indicated that his weak auditory and memory skills could be influencing his ability to make associations among words and meanings when orally presented. She recommended continuing the child’s group speech/language therapy, but reducing the size of the group to no more than 3:1, in addition to individual sessions three times per week for one period each.

        A social history conducted on October 10, 1997 was based on an interview with the child’s mother. The child’s mother advised the educational evaluator that her son required constant structure, and could benefit from a one-on-one paraprofessional. She also indicated that she was pleased with her son’s MIS I class, the structure it provided, and the use of a behavior card. She also indicated her willingness to work with school personnel to help her son.

        In an educational evaluation conducted on October 10, 1997, the child achieved grade equivalent scores of 3.9 in listening comprehension on the Woodcock Language Proficiency Battery-Revised. As noted above, the child was in the seventh grade at the time of his triennial evaluation. The educational evaluator reported that the child’s score indicated that he had a low frustration tolerance, and that his attentional problems greatly impacted the test. On the BASIS spelling test, the child achieved a grade equivalent score of 3.4. The educational evaluator indicated that the child did not have a consistent knowledge of spelling rules or phonetic analysis. His written expression was assessed to be below average, due to errors in spelling, grammar, punctuation and vocabulary. On the Kaufman Test of Educational Achievement (KTEA), the child achieved a grade equivalent score of 4.8 in reading decoding, indicating that he was functioning in the below average range. The child’s score on the visual word matching component of the Slingerlands Test indicated he was at an "at risk" status. The child transposed and reversed letters, which would present difficulty when he performed written work. The child achieved grade equivalent scores of 2.2 in mathematical applications and 2.9 in mathematical computation on the KTEA. He refused to perform tasks that were difficult for him. The educational evaluator described the child’s behavior during the testing as restless, fidgety, and unpredictable, requiring constant attention, coaxing and reinforcement. She indicated that the child exhibited limited eye contact, and an aggressive affect and rapport. She further indicated that the child’s attention span, ability to focus, frustration tolerance and impulse control were inadequate.

        In a psychological evaluation conducted on October 15, 1997, the child achieved a verbal IQ score of 84, a performance IQ score of 83, and a full scale IQ score of 83, indicating a low average range of intellectual functioning. The child achieved low average scores in common sense thinking, auditory short term memory of digits, and word definitions. His acquired knowledge of facts and mathematics was in the upper borderline range. The child’s performance scale scores were reported to be in the average range, with the exception of a relative weakness in making associations between symbols and sequencing of social situations. On the Bender Gestalt Test, the child’s figures were neatly executed, however, slight difficulty with angulation was noted. The school psychologist described the child as restless and fidgety. He noted that with repeated assurances, the child attempted all tasks and persevered, particularly on the manually oriented tasks.

        A psychiatric evaluation of the child was conducted on October 21, 1997. The district’s psychiatrist reported that during the evaluation, the child displayed constant fidgeting movements, distractibility and difficulty inhibiting impulsive behavior. The child’s eye contact was described as intermittent and fair at best. The district’s psychiatrist indicated that the presenting concern was the child’s failure to learn because he reportedly had failing grades in all areas. A parallel concern was the child’s disruptive behavior, with an incessant level of off-task distracting activities which impeded the instructional tone of the classroom. The district’s psychiatrist concurred with the previous diagnosis of ADHD, noting oppositional features and "hints" of other behaviors which point to the risk of later development of a more serious type of disruptive behavior disorder. He recommended a trial of stimulant medication and family oriented psychotherapy, with parent management training. He indicated that the child was in need of a more restrictive educational setting, and opined that the child should be classified as emotionally disturbed.

        The CSE met to review the results of the boy’s triennial evaluation on November 10, 1997. It recommended that the child’s classification be changed from learning disabled to emotionally disturbed. It further recommended that the child be placed in a MIS-II class, with the related services of speech/language therapy and counseling. Petitioner disagreed with the recommended change in classification and placement, and requested an impartial hearing.

        The hearing was held on December 22, 1997. The hearing officer rendered her decision on February 6, 1998. She found that the change in the child’s classification was not appropriate, and ordered the CSE to reconvene to classify the child as learning disabled. She further found that the change in the child’s recommended placement to a MIS-II class was appropriate because the child required a more structured classroom setting. Although the students in the recommended MIS-II class were not within a 36-month range in academic functioning, the hearing officer determined that the class was appropriate for the child, with the additional resources which it would provide to him, e.g., two teachers and an aide for no more than ten children.

        Petitioner appeals from the hearing officer’s decision on the ground that the recommended placement is inappropriate, and her son’s ability to focus and concentrate on his school work has improved since he was evaluated by the CSE because he is taking medication to control his ADHD. Petitioner is requesting that her son remain in his MIS-I placement. She also is seeking a reevaluation of her son, and is requesting that the evaluation team include a medical doctor and a Ph.D. With respect to petitioner’s request that her son be reevaluated, I must note that petitioner should direct her request to the CSE. Petitioner has the right to obtain an independent evaluation at public expense if she is dissatisfied with the CSE’s evaluation. However, the fact that she has that right does not afford a basis for concluding upon the record before me that the CSE did not accurately identify the child’s needs before it made its recommendations.

        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 has not challenged her son’s IEP in terms of its description of the child’s needs. I have nevertheless reviewed the IEP, and I find that it does accurately reflect the results of the child’s evaluations. I have also reviewed the child’s IEP annual goals and short-term instructional objectives because it is important to establish that the goals and objectives are appropriate, before determining what special education services are required in order to afford the boy a reasonable chance of achieving his goals and objectives. Although I must note that the three annual goals for mathematics and their supporting short-term objectives would appear a bit ambitious for this child, e.g., multiplying four and five digit numbers by one and two digit numbers, and converting fractions to equivalent fractions, I am not persuaded that the boy’s goals and objectives are inappropriate, and require that his IEP be invalidated.

        The central issue in this appeal is whether the special education services recommended by the CSE, i.e., instruction in an MIS-II classroom would have afforded petitioner’s son a reasonable chance of achieving his IEP annual goals and short-term objectives, and is consistent with the requirement that each child with a disability be educated in the least restrictive environment. The record shows that the child’s MIS-I class had a student to teacher ratio of 15:1. His behavior in that class was described as attention-seeking and disruptive. In a report to the school based support team (Exhibit 13), the child’s teacher indicated that the child did not do his classwork. She opined that the class was not meeting the child’s needs because he required constant refocusing. She believed that the child required another adult in the classroom or a one-on-one behavior management paraprofessional to make educational progress. The CSE representative testified that the child required a more restrictive, structured setting with greater resources devoted to the child’s management needs in order to minimize disruptions and enable him to benefit from school. He indicated that the proposed MIS-II class was comprised of 9 students, one teacher, and a paraprofessional. The supervisor of special education at IS 237 testified that the MIS-II class was for students classified as learning disabled and emotionally disturbed. She further testified that it would be an appropriate placement for the child because there were fewer students, as well as a second adult and a crisis intervention teacher assigned to the classroom.

        Petitioner asserts that the children whom she observed in one MIS-II class, which was not the class in which her son was to be placed, were two to three years older that her son, and that their behavior was inappropriate. Respondent must comply with the regulatory requirement to group children together for instructional purposes by the similarity of their needs with respect to their academic achievement, social development, physical development, and management needs (8 NYCRR 200.6 [a][3]). With respect to the range of ages in the MIS-II class in which the child was to be placed, the supervisor of special education testified that one student in the proposed class was beyond the appropriate age range, but the school had obtained a variance from the chronological age requirement (see 8 NYCRR 200.6 [g][5] and [6]. She indicated that the student in question was mainstreamed for most of the day, and attended the MIS-II class for only a few subjects. The supervisor of special education also testified about the levels of functioning of the students in the MIS-II class. She indicated that with the exception of reading, where the child would be placed in a middle level reading group, he would be grouped with at least one other child functioning in the below average range, academically and socially, with similar management needs. Based upon the information before me, I find that respondent met its burden of proving that the MIS-II class was an appropriate placement for petitioner’s son.

        Although petitioner has not raised the issues in her petition, I note that at the hearing she alleged that she had not been notified that her son would be reevaluated and that she had not consented to the reevaluation. The representative of the CSE testified that it provided notice of the triennial evaluation, by mail, to petitioner, and that the notice was not returned in the mail. I find that respondent has demonstrated that it did provide notice. Pursuant to Section 200.5(a)(2)(i) of the Regulations of the Commissioner of Education, a parent has the right to withhold consent to an initial evaluation. However, petitioner consented to having her son evaluated in the past, and her consent was not required for her son’s triennial evaluation (34 CFR 300.504[b]; 8NYCRR 200.5[b][1]).

        I have considered petitioner’s other claims which I find to be without merit.




Dated: Albany, New York __________________________
February 5, 1999 ROBERT G. BENTLEY