The State Education Department
State Review Officer

No. 99-47




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



        Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation of respondent’s committee on special education (CSE) that her son’s classification be changed from learning disabled to emotionally disturbed, and that his educational program be changed from a modified instructional program-IV (MIS-IV) in P.S. 219 to a specialized instructional environment-VI (SIE-VI) in P.S. 224 at P.S. 710. The appeal must be dismissed.

        At the outset, I must note that respondent has not answered the petition, which was served upon the Board of Education on July 2, 1999.

        Petitioner's son was almost seven years old and in kindergarten at P.S. 219 at the time of the hearing in February, 1999. During the 1997-98 school year, the child was in his first year of kindergarten. Respondent reportedly requested an impartial hearing to obtain authorization to evaluate the child without parental consent because of the child’s alleged learning and behavioral difficulties. The hearing was reportedly held in May, 1998, at which time the child’s mother indicated that she would arrange for independent evaluations of her son. She ultimately gave her consent for the evaluations on May 25, 1998 (Exhibit 16).

        In a private psychological evaluation dated August 1, 1998 (Exhibit 19) when the child was six and one half years old, the psychologist noted that the child was repeating kindergarten in summer school. The psychologist described the child as quiet, serious and well-related, with good eye contact. She indicated the he became increasingly restless as the evaluation continued. She described the child’s response times on the tests as varying from impulsive to long delays, and she noted that on manual tasks he used a great deal of trial and error. The psychologist further noted that the child demonstrated both receptive and expressive language difficulties. She cautioned that the child's test results were a minimum estimate of his cognitive functioning, in view of his behavior during the evaluation and his language difficulties.

        On the Wechsler Preschool and Primary Scale of Intelligence-Revised (WPPSI-R), the child achieved a verbal IQ score of 62, a performance IQ score of 67, and a full scale IQ score of 61, placing him in the mildly deficient range of intellectual functioning. The psychologist reported that the child demonstrated weaknesses in arithmetic, vocabulary, visual-motor planning, and social comprehension and judgment. She noted that he was unable to completely control his impulsivity, even with reminders, which she indicated was a factor in his performance. The child’s mother and his summer school teacher were interviewed for the Vineland Adaptive Behavior Scales (VABS). While the mother's responses did not indicate any significant difficulties, the responses of the child’s summer school teacher indicated that the child had clinically significant problems with attention, socialization, and aggressive behavior. The psychologist assessed the child’s adaptive behavior to be two and one-half years behind his chronological age, with receptive language and interpersonal relationships his weakest areas.

        The psychologist indicated that the variability in the child’s comprehension and his distractibility interfered with both learning and social relationships. She concluded that the child was not able to function in a group learning setting in school, indicating that he required a small, structured class. She recommended that the child receive a comprehensive speech/language and occupational therapy evaluation, a neurological or psychiatric evaluation for a potential diagnosis of attention deficit disorder (ADD), as well as group social skills training. She urged that the change in child’s class placement be made before the evaluations were completed.

        A psychoeducational evaluation was conducted on August 18, 1998 by a private learning diagnostic specialist who reported that the child was fidgety and distracted during the evaluation (Exhibit 18). She further reported that the child’s expressive and receptive vocabulary skills were delayed by approximately two years, noting that he exhibited significant articulation difficulties and weaknesses in phonemic awareness and sound/symbol associations. The child scored in the severely deficient range on tests measuring his math readiness skills. He was inconsistent in his ability to count objects, and was unable to solve math problems with or without manipulatives. With respect to writing readiness, the child’s letters were legible and age appropriate, despite an irregular pencil grip. The evaluator concluded that although the child had learned some concepts in school, his language and cognitive processing deficits delayed the development of his academic readiness skills. She recommended that the child receive a speech/language and occupational therapy evaluation, as well as an evaluation of his attentional difficulties. She also recommended that the child be placed in a small, structured class for children with language and readiness delays in which a mulitsensory approach to reading was used.

        The child began his second year of kindergarten at P.S. 201 in the fall of 1998. A classroom observation was conducted on September 14, 1998 when the child was in a regular education class consisting of 21 students, a teacher, and an assistant (Exhibit 14). While on line for physical education and in the cafeteria, the child was observed to wander off on several occasions. However, he would return to his place with prompting. While the teacher was reading a story to her class, the child leaned on a bookcase causing it to sway, but stopped after a warning from the teacher. He then began crawling on the floor, and required two prompts before joining his classmates. The observer reported that the child was able to offer only marginally relevant answers to questions about the story.

        A second observation was conducted on September 14, 1998 (Exhibit 15) by a school psychologist who reported that the child followed his teacher’s directions and quietly ate a cookie during snack time. During a play activity, the child played on the floor by himself, and when joined by other children, engaged in parallel play. At the library, the child gazed into space while the teacher discussed library procedures. Directions to sit on the rug for a story were repeated for the child several times before he responded appropriately. The school psychologist noted that the child generally conformed to class expectations, and that his behavior was unfocused, but not disruptive.

        Although the record is not entirely clear, the CSE reportedly recommended that the child be classified as learning disabled, and be placed in a MIS-IV program in September, 1998 (Transcript p. 8). In October, 1998, the child was transferred to a MIS-IV setting at P.S. 219. An October 30, 1998 school progress report indicated that the child rarely completed his class work, and did not consistently complete his homework (Exhibit 13). The child’s teacher reported that the child was at a readiness level for mathematics and reading. While he could recognize letters, he had no phonetic awareness. The child’s teacher indicated that the child was disruptive both in and out of class, continued to create dangerous situations to himself and others, and required constant supervision. She noted that the child’s most recent behavior prevented him from completing all of the academic tasks presented to him in class.

        On November 3, 1998, the child’s teacher referred the child to the CSE for a change in placement (Exhibit 12). She requested a management paraprofessional for the child because he posed a danger to himself and others. Attached to the referral form were several pages of anecdotal reports describing the child’s behavior for the latter half of October.

        The boy was re-evaluated by a school psychologist on November 12, 1998 (Exhibit 11). She noted that the child had been attending P.S. 219 for approximately six weeks before he was referred to the CSE for a change of placement. The school psychologist observed the child in his classroom on three occasions. She described the child’s resistance to teachers’ efforts to include him in lessons, noting that he would roll on the floor, crawl under desks and attempt to leave the room unattended. The VABS was completed with the child’s teacher. The results of that assessment of the boy's adaptive behavior indicated that activities of daily living and motor skills were relative strengths for the child. However, his communication and socialization skills were described as being quite delayed, and his written expression was practically non-existent. The school psychologist reported that the child’s teacher attempted to teach and manage him in different ways, but the child's inability to listen, follow rules, and control impulses had made it almost impossible to teach him. Even with the paraprofessional’s one-on-one attention, the child was unable to focus. The psychologist opined that the child’s constant need for motion and stimulation, combined with his extreme distractibility and poor impulse control affected all areas of functioning. She concluded that the child’s needs were not being met in his current setting. She, too, recommended that a psychiatric evaluation be conducted to further investigate the child’s poor impulse control and high level of activity.

        The psychiatric evaluation was conducted on November 23, 1998 (Exhibit 10). The psychiatrist reported that the child’s parents were averse to referral to a pediatric neurologist, and had indicated their strong opposition to the possible use of medication to control their son's distractibility. The psychiatrist indicated that he had observed the child for a period of 45 minutes which spanned a classroom activity, transition to science class and science class. The psychiatrist reported that the child displayed a severe degree of inattention, distractibility, and impulsivity, with a secondary display of oppositional behavior. The child was oblivious to ongoing classroom activity, with ostensibly no awareness the he was "out of synch" with his peers. He was also unaware of the conventional expectation to adhere to a class routine. The psychiatrist concluded that the child had an attention deficit hyperactivity disorder (ADHD). He indicated that the child was in need of a more restrictive class setting, and that his need for a trial of stimulant medication was "extreme". The psychiatrist further indicated that the child’s classification should include emotionally disturbed.

        On November 30, 1998, the child was observed in his MIS-IV class by an educational evaluator, who noted that there were nine children in the class, a teacher and a paraprofessional (Exhibit 8). He reported that the child did not participate in the lessons to any degree. During one lesson, the child sat behind the class, rocking a chair back and forth, then began to crawl away from the group on his chest. He also was playing with a toy, and put it away only after numerous requests. The child’s teacher advised the educational evaluator that the child required constant individual assistance to focus and complete activities assigned. She indicated that he was regularly engaged in off-task activities and was quite disruptive. She further indicated that the child demanded constant individual attention. Behavior modification techniques had been instituted by the child’s teacher with limited success. The child required immediate reinforcers which resulted in brief periods of on-task behavior.

        On December 17, 1998, the CSE recommended that the child be classified as emotionally disturbed. It further recommended that the child be placed in a 12:1:1 specialized instructional environment-VI (SIE-VI) class with the related services of individual and group counseling. The child’s individualized education program (IEP) which the CSE prepared included annual goals addressing the child’s behavioral, language and academic deficits. The minutes from the CSE meeting indicated that the CSE believed that the child was a mildly mentally deficient youngster with significant behavioral difficulties who was unable to complete assignments or follow adult directions (Exhibit 6). The CSE also believed that the child required very close supervision. In view of the boy’s excessive acting out behavior, the CSE suggested that a crisis management paraprofessional be assigned to the child until a SIE-VI placement was secured. An interim service plan providing for the crisis management paraprofessional was developed (Exhibit 4). The child’s parents were not in attendance at the meeting despite having been provided notice on December 9, 1998 (Exhibit 7).

        By letter dated January 5, 1999, the parents were notified of the CSE’s recommendation to classify their son as emotionally disturbed, and place him in a SIE-VI program at P.S. 224 in class 907 (Exhibit 3). Petitioner advised the CSE that she objected to the recommended placement (Exhibit 2). She indicated that the child had made improvements with his current teacher and that he was happy in her class.

        Before the hearing in this proceeding was held, petitioner's son was evaluated by a speech/language therapist. In a report dated January 25, 1999 (Exhibit 1), the speech/language therapist noted that the child was unable to stay in his seat for more than a few minutes at a time. She further noted that the child required constant prompting and re-direction during questioning, and that repetition, simplification and expansion had to be consistently utilized during conversation and formal tasks. The speech/language therapist indicated that the child’s language skills were delayed in all areas, noting that his articulation patterns were typical of a younger child’s. She assessed the child’s auditory processing to be fair to poor. His overall intelligibility was judged to be fair to poor, deteriorating over the length of the utterance. The child’s overall fund of knowledge, labeling and descriptive skills were delayed. The speech/language therapist noted that the child had more difficulty focusing on information which was presented orally, and that visual presentations appeared to help him focus his attention. On the Clinical Evaluation of Language Fundamentals -3 (CELF), the child scored in the third percentile, suggesting an overall severe delay in fundamental language skills. His receptive language score was in the first percentile. The speech/language therapist concluded that the child not only had difficulty maintaining his attention, but he also had significant delays in the acquisition and use of language for academic and conversational purposes.

        The impartial hearing was held on February 10, 1999. The hearing officer rendered his decision on April 20, 1999. He noted that the child’s behavior was routinely and seriously disruptive and inappropriate, and found that the classification of emotionally disturbed was proper. Additionally, the hearing officer found that the child was not learning in his current placement. He noted that the child responded positively to the paraprofessional, demonstrating the need for greater structure. Accordingly, he found that the proposed class was reasonably calculated to allow the child to experience educational benefits. Petitioner appeals from the hearing officer’s decision. She challenges the proposed classification and placement for her child.

        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])

        The definition of emotionally disturbed has been interpreted to mean that a child's emotional condition has a significant effect upon the child's educational performance (Application of a Child with a Disability, Appeal No. 95-11). Although I am aware that psychological testing indicated that the boy's cognitive skills were in the mildly deficient range, it does not follow that his inability to learn should be attributed to intellectual factors. As the psychologist who tested the boy in August, 1998 noted, the boy's low scores were a minimum estimate of his ability, and appeared to reflect his behavior. I agree with the hearing officer that the record demonstrates that the child has exhibited inappropriate behavior under normal circumstances over a long period of time to a marked degree. The record includes several pages of anecdotal and other reports describing the child's inappropriate and dangerous behavior (Exhibits 8, 11, 12, 13, 14, 15). The child’s teacher testified about the child’s dangerous behaviors (Transcript p. 34). In the child’s October, 1998 progress report, the child’s teacher indicated that the child’s behavior prevented him from completing his academic tasks. The professionals who evaluated the child were consistent in their descriptions of the child’s behavior and how his inattentiveness, impulsivity, and distractibility affected his ability to learn. I find that there is a nexus between the child's emotional problems and his performance in school, and that he requires special education and related services. Accordingly, I find that he meets the criteria for classification as emotionally disturbed.

        The board of education also 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 his needs. I have nevertheless reviewed the IEP, and I find it accurately reflects the results of the boy's evaluations. I have also reviewed the IEP's 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. I find that the goals and objectives address the child’s behavioral and language deficits, and are consistent with his level of functioning.

        Petitioner challenges the proposed SIE-VI placement. The supervisor of that program testified that the SIE-VI program was for children in kindergarten and first grade, all of whom exhibited attentional difficulties. She further testified that the maximum size of the class was 12 students, with a teacher and two paraprofessionals. Speech, occupational and physical therapists were assigned to each classroom, and services were provided on a push-in basis, i.e., within the classroom. The students in the proposed class were at beginning reading and math levels, and had below average verbal abilities. The SIE-VI supervisor described the program as a language based program with six learning centers, one each for reading, math, language, fine motor skills, computers and independent living. The students worked in groups of two at each center, and rotated to different centers at 15 minute intervals. She indicated that the structure of the program afforded each student an opportunity to be constantly involved in learning. The SIE-VI supervisor testified that most of the children were at the beginning stage of learning to play cooperatively. She also testified that a reward system was used with the students.

        The record shows that the child's reading, math, language and social skills were quite delayed. He was inattentive, impulsive and distractible, exhibiting behavior that was not conducive to learning. The record further shows that the child’s management needs could not be met in the MIS-VI program, even with a crisis management paraprofessional. The proposed program is a language-based program structured to address both the language and attention deficits which this boy has. Based upon the information before me, I find that the recommended program is reasonably calculated to allow the child to receive educational benefits. I concur with the hearing officer that the classification, program and placement recommended by respondent’s CSE are appropriate.









Dated: Albany, New York __________________________
July 14, 2000 ROBERT G. BENTLEY