The State Education Department
State Review Officer

No. 99-16




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. Michael D. Hess, Corporation Counsel, attorney for respondent, Michelle M. Buescher, 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's classification be changed from learning disabled to emotionally disturbed and that her educational program be changed from resource room services at P.S. 96 to a modified instructional services II (MIS-II) program at P.S. 83. The appeal must be sustained.

        The child was10 years old and in the fourth grade at P.S. 96 at the time of the hearing. She had reportedly been classified as emotionally disturbed and been placed in a modified instructional services IV (MIS-IV) program prior to repeating the second grade in another public school. She began the 1997-98 school year in P.S. 121, where she was enrolled in a regular education third grade class, while receiving resource room services, and counseling once per week. Petitioner enrolled her daughter in P.S. 96 in February, 1998, to give the child a "fresh start" because the girl had reported difficulties while attending P.S. 121. Although the girl was reportedly classified as learning disabled by the time she entered P.S. 96, the record does not reveal when the girl's classification was changed.

        On March 24, 1998, the child was evaluated by a psychologist at the Bronx Mental Health Center. The psychologist reported that the child displayed a positive attitude toward the testing situation, without interference from any attentional, motivational and/or behavioral issues. She noted that the child's demeanor differed dramatically from reports of an earlier evaluation during which the child reportedly displayed symptoms of depression. The child acknowledged that she had thought of suicide in the past, but denied any thoughts of self harm at the time of the evaluation. On the WISC-III, the child scored within the average range of intellectual functioning. The psychologist reported that the child's average scores on the Freedom from Distractibility factor ruled out potential disruption of attention processes rooted in emotional tensions/depression. The child demonstrated relative strengths in the areas of visual alertness, general fund of knowledge, sequential/nonverbal reasoning and part-whole integration. On the Wide Range Achievement Test-Revised 3, the child achieved below grade level scores in reading and spelling. Projective tests revealed that the child's reality testing was intact and that her thought processes were clear, logical and oriented. The psychologist recommended that the child receive individual psychotherapy, remedial assistance to target deficits in academic skills development, and ongoing assessments of her emotional status (Exhibit A).

        The child's social history was updated in a telephone interview with petitioner on May 21, 1998. The update was done as part of re-evaluation of the child because a "Type III referral" had reportedly been submitted by a school counselor for a possible change of the girl's placement. The girl had reportedly been suspended from school on May 20, 1998. The child's mother advised the educational evaluator that she believed that her daughter had made some academic progress. She acknowledged that her daughter argued with her peers at school, but indicated that she related well with her peers at home. The child's mother was opposed to a change in placement for her daughter and was adamant in her position that her daughter remain in regular education (Exhibit 5).

        In an educational evaluation conducted on May 27, 1998, the child achieved grade equivalent scores of 2.4 in reading decoding, 3.1 in reading comprehension and 2.0 in spelling on the Kaufman Test of Educational Achievement (KTEA). The educational evaluator noted that the child read at an average pace with attention to mechanics, and that she made many errors of word substitution/configuration which impacted upon her ability to read for meaning. The educational evaluator indicated that the child expressed her thoughts in simple sentences, that her descriptive vocabulary was weak, and that she printed adequately. The child's spelling skills were at the beginning second grade level. She assessed the child's overall math skills to be within grade level expectations (grade equivalent scores of 3.3 in math application and 3.4 in math computation on the KTEA).

        The evaluator reported that the child continued to require individualized goals to address her reading deficits, and she suggested that those goals would be best addressed in a small group special education setting (Exhibit 4).

        In a counseling progress report dated May 28, 1998, one of respondent's social workers indicated that the child's behavior continued to be inappropriate with peers and adults, and that it continued to interfere with her learning. She recommended that the child have a psychiatric evaluation (Exhibit 9).

        The child was evaluated by a school psychologist on June 2, 1998. The school psychologist reported that the child had achieved a verbal IQ score of 80, a performance IQ score of 106, and a full scale IQ score of 91 when she was evaluated in January, 1996, and that the evaluating psychologist at that time had recommended that a behavior modification program be implemented to address the child's inappropriate behavior, such as constant attention seeking, frequent crying, and verbally aggressive behavior. The school psychologist reported that while the child worked well in the testing situation, she demonstrated a low tolerance for frustration, had a strong sense of what she wanted to do and was not easily swayed by redirection. She observed the child in the classroom for approximately 40 minutes. There were 28 students in the class, most of whom sat in groups. The child sat at a desk by herself. The school psychologist noted that the child failed to follow the teacher's instructions to work independently from a math workbook. Instead, the child rested her head on the desk, talked to students nearby, then began to play with toys that she removed from her school bag. The child's teacher opened the child's workbook and directed the child to put the toys away and to begin the assignment. The child complained about having to put her toys away. When the teacher's back was turned, the child closed the workbook and began playing with her toys again. The teacher spoke to the child about her behavior. When the teacher walked away, the child crawled under her desk and refused to come out. The child's teacher advised the school psychologist that the child's behavior was somewhat better than usual.

        The school psychologist reported that the results of her evaluation showed that the child craved attention from both peers and adults, and that she viewed her world as harmful and threatening. She described the child as an immature youngster who exhibited a low tolerance for frustration, with poor impulse control and poor coping skills. The school psychologist noted that the child was unable to read and/or respond to social cues in an appropriate manner and that she experienced intense emotions related to anger and reacted impulsively. The school psychologist concluded that such feelings interfered with the child's ability to acquire academic skills, interfered with her ability to concentrate in the classroom and accounted for her negative behavior and inattentiveness. She indicated that the child would benefit from a program that incorporated behavior modification techniques (Exhibit 2).

        In a classroom observation conducted while the child was in dance class, the school social worker indicated that the child's overall behavior was inappropriate. The child reportedly did not follow any of the directions given by her regular teacher or the dance teacher, and tended not to interact with her peers (Exhibit 8).

        On June 11, 1998, the child's third grade teacher reported that the child was reading at a third grade level, but her comprehension skills were very weak. The teacher also reported that the child had difficulty with word problems in mathematics. She noted that the child rarely did class work. The child's teacher indicated that the child had difficulty socializing with other children. She further indicated that the child was verbally abusive and attention seeking, non-responsive, defiant, disrespectful and did not follow the rules of the class (Exhibit 7).

        On June 17, 1998, the School Based Support Team (SBST) reviewed the child's case. The SBST recommended that the child be referred for a psychiatric evaluation, which was conducted on June 26, 1998. The psychiatrist reported that the child admitted to being very moody and often feeling mad and angry. The child also admitted that she has thought about suicide. The psychiatrist diagnosed the child as having dysthymia, which is reportedly a form of chronic depression. A bipolar disorder was ruled out. The psychiatrist noted that another psychiatrist had recently seen the child and had suggested that she take medication for her condition (Exhibit 3). There is no report from the other psychiatrist in the record which is before me. The psychiatrist who evaluated the child on June 28 briefly listed some of the thoughts which the child had expressed to her, but did not explain the significance of her medical diagnosis for purposes of educational planning.

        On August 31, 1998, the CSE reportedly recommended that the child's classification be changed to emotionally disturbed, and that she be placed in a MIS-II program at P.S. 83. I note that there is no individualized (IEP) from that CSE meeting in the record before me. The CSE met again on October 26, 1998, at which time it recommended that the child be classified as emotionally disturbed, and that she be placed in a 12:1 + 1 MIS-II class, with 30 minutes of individual counseling and 30 minutes of counseling in a group of three per week. Shortly thereafter, petitioner requested an impartial hearing. A very brief hearing was held on November 23, 1998.

        The hearing officer rendered his decision on January 30, 1999. The hearing officer found that there was no basis in the record for classifying the child as learning disabled, since there was no evidence of a disorder in her basic psychological processes and no evidence of a significant discrepancy between her actual and expected achievement. He further found that there was substantial evidence to support a classification of emotionally disturbed. He noted that the child had a history of inappropriate behavior and feelings, as well as aggressive acts. He further noted that the child did not cooperate with her teachers and that her educational performance had been compromised. The hearing officer further found that the program recommended by respondent's CSE was appropriate.

        Petitioner appeals from the hearing officer's decision. She challenges the recommended change in her daughter's classification from learning disabled to emotionally disturbed. 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])

        I note that a child cannot be classified as emotionally disturbed if his "inability to learn" can be attributed to physical or sensory factors (Application of a Child with a Disability, Appeal No. 97-69). In this instance, the most recent physical examination occurred in April, 1996, when a physician opined that a neurological examination was not indicated and that the results of the girl's physical exam were normal. I find that the results of that exam were reasonably current for the purposes of this appeal. To be classified as emotionally disturbed, a child's emotional condition must significantly interfere with his or her ability to benefit from instruction in a regular education classroom (Application of a Child Suspected of Having a Disability, Appeal No. 92-26; Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 435 Application of a Child with a Disability, Appeal No. 98-80). I have reviewed the child's anecdotal record (Exhibit 12), which reveals that the child has demonstrated inappropriate behavior toward her peers and her teachers on a number of occasions. The record also shows that she had some emotional issues. However, the child's school record shows that she is functioning at or slightly below grade level. While the child's behavior is inappropriate, I am unable to conclude, upon the information before me, that her emotional condition significantly interfered with her ability to benefit from instruction in a regular education classroom.

        While there is some suggestion in the record that the child may have difficulty processing some information as is evidenced by her low scores for reading decoding and spelling, there does not appear to be a significant discrepancy between her actual and expected achievement in those areas. Consequently, I agree with the hearing officer to the extent that he found that the discrepancy did not meet the regulatory standard for classification as learning disabled.

        The record reveals that this child's behavior in school is completely unacceptable. However, in view of my finding that respondent did not meet its burden of proof with respect to the proposed change in classification, as well as the child's apparent ineligibility for continued classification as learning disabled, I must remand this matter to the CSE of Community School District 11. The CSE should consider the child's current performance in school. The CSE should also consider whether declassification support services such as psychological services and social work services (see 8 NYCRR 100.1 [q]) might be appropriate for her. I note that the record reveals that the child is receiving private counseling. I urge the school staff to work with the private counselor to help the child develop appropriate school behavior. Petitioner must also assist in this process by emphasizing the importance of appropriate behavior to her daughter and cooperating with school personnel in effecting a change in the child's behavior.


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

        IT IS FURTHER ORDERED that the case is remanded to respondent to have its CSE reconvene to reassess the child to clarify the child's educational needs to determine whether the child should be classified as a child with a disability in accordance with the tenor of this decision.



Dated: Albany, New York __________________________
December 28, 1999 ROBERT G. BENTLEY