The State Education Department
Application of a CHILD SUSPECTED OF HAVING 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, Blanche Greenfield, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which held that respondents committee on special education (CSE) had appropriately declined to classify petitioners son as a child with a disability. Petitioner seeks to have the boy classified as a child with a disability, and placed in a residential treatment facility. The appeal must be sustained in part.
At the time of the hearing, the child was eight years old, and in a regular education second grade class at P.S. 87. The child began kindergarten at P.S. 87 in the fall of 1996. His kindergarten teacher reportedly recommended that the boy receive speech therapy because of a lisp. The child began to receive counseling for a lack of self-confidence, low self-esteem, and anxiety while in kindergarten (Exhibit SD-7). He continued to receive counseling while in the first grade. The boys parents reportedly agreed to have the child receive counseling in a group of students (July 16, 1999 Transcript, page 38).
In the fall of 1998, the parents sought help for the child because he had had a temper tantrum that lasted all day. In October, a psychiatrist at the Long Island Consultation Center diagnosed the child as having an Attention Deficit Disorder (ADD), and prescribed 10 mg of Ritalin twice a day and Prozac twice a day for the boy. On November 1, 1998, the child reportedly had a temper tantrum at home, in which he hit himself, punched the wall, hit his head against the wall, pulled out the telephone wire, broke a floor tile, and made a hole in the bathroom door. He reportedly said he wanted to kill his mother, and wanted to throw himself out the window. He was admitted to the South Oaks Psychiatric Hospital from November 1 through November 9. His dosage of Ritalin was increased to 15 mg twice a day. The child reportedly had no behavioral problems while in the hospital (Exhibit SD-3).
The child was referred to the Committee on Special Education (CSE) by his parents for a psychological evaluation in November, 1998. Petitioner indicated that he believed that his son needed to be placed in a residential facility. He informed the CSE that the child had recently been hospitalized, and diagnosed with an Attention Deficit Disorder Syndrome with No Impulse Control. In the referral to the CSE, petitioner indicated that upon his sons discharge from the South Oaks Psychiatric Hospital on November 9, 1998, the boy had been referred to FEGS Psychiatric Services for an outpatient follow-up by a social worker. He also indicated that his child was still out of control and experienced fits of rage when at home (Exhibit SD-1).
In the boys social history, petitioner indicated that his son was hospitalized again due to a prolonged temper tantrum on November 17, 1998. The child had reportedly expressed suicidal and homicidal thoughts, punched his mother in the face, and tore his younger sister's diaper with scissors. The child was taken to St. Vincent's Hospital, where the father reported that the child had been hearing voices. The child remained in the hospital until November 23, 1998. The boy was placed on Depakote and Risperdal. Petitioner reported that the child exhibited some improvement, but he was still "arrogant". Petitioner also reported that the medication caused the child to be slow cognitively and to drool. A psychiatrist from St. Vincent's suggested that the parents limit "time outs" which they had imposed upon their son for disobedience or misconduct to 15-20 minutes each (Exhibit SD-3). The child's medical report indicated that the child needed corrective lenses and he took asthma medication. The report included a special alert that the child had a psychiatric disorder and would try to harm himself (Exhibit SD-9). On December 14, 1998, the parent signed the consent for initial evaluation (Exhibit SD-2).
An educational evaluation was performed on January 25, 1999. The child achieved a basic reading score in the ninety-ninth percentile, with a grade equivalent of 6.8. His reading comprehension score was in the ninety-eighth percentile, with a grade equivalent of 5.2. The evaluator noted that the child was able to recognize cause and effect, predict outcomes and draw conclusions. In math reasoning, the child achieved a score in the eighty-first percentile, with a grade equivalent of 3.3. In math operations, the child achieved a score in the forty-seventh percentile, with a grade equivalent of 2.5. The child's written expression score was in the twenty-fifth percentile, with a grade equivalent 2.1. The written test was administered last, and the evaluator felt that the child might have been tired. The evaluator described the child as friendly and cooperative, although the child described himself as having "bad behavior" (Exhibit SD-5).
The child's teacher reported that the boy had no academic difficulties. She stated that he was good at reading, math, science, writing and speaking. His oral expression skills were reported to be excellent, and his written expression skills were reported to be very good. The teacher reported that the child participated in class activities and discussions, even though he displayed a lack of self-confidence at times. She stated that he was self motivated and worked well independently and in groups. On two occasions, the teacher felt the need to explain safety issues to the child. Once, the child went outside the school with another child to look for the other students in the class after their classmates had reportedly departed from the cafeteria while the two children were still eating. The teacher asked the child's parents to discuss safety issues with their son. The second incident concerned an electrical outlet. The children were given several objects in science class, and the teacher instructed them to experiment with the objects. Two of the objects were a wire and a light bulb. Apparently, the child attempted to turn on the light bulb by sticking the wire in an electrical outlet. The teacher stopped class and informed the students about the danger of sticking things into an electrical outlet. The teacher felt that the child did not realize the danger of his action. She did not believe that either incident was indicative of a behavioral problem (Exhibit SD-6).
A psychological evaluation was conducted on February 8, 1999. On the Weschler Intelligence Scale for Children - Third Edition (WISC-III), the boy achieved a verbal IQ score of 121, a performance IQ score of 89, and a full scale IQ score of 106. The evaluator reported that the child was socially engaging and emotionally responsive. The child was appropriately cooperative in initiating interactions and responding to interactions. Although projective testing revealed some features of impulsiveness, the evaluator found that the child had the ability to delay impulses and immediate gratification, and that he was interested and curious. The evaluator also noted that the child sometimes failed to notice subtle nuances in his surroundings, and exhibited difficulty in accurately assessing his social environment. The evaluator felt that the child might feel some depression, and she reported that the child felt strife within the family system (Exhibit SD-4).
The child's counselor reported that the child had been receiving intermittent counseling since kindergarten. His counseling goals concerned his lack of confidence, low sense of self esteem, anxiety about the consequences of his behavior, impulsive behavior, bids for attention, and an obsession with food. The counselor reported that the child had on occasion stolen snacks and begged for money. The counselor felt that the child's behavior was in reaction to the "very strict and punitive code of discipline in the home." She reported that the child's parents described the child as being very difficult, engaging in power struggles, lying, sneaking, talking back and being disobedient. The parents punished the child with spankings, loss of privileges, and many hours in "time out". The counselor stated that the parents had been given suggestions by school personnel emphasizing positive discipline, behavior modification, empowerment, and family time. The counselor reported that most suggestions were met with resistance. During the 1998-99 school year, the child's behavior at school improved significantly, while his behavior at home deteriorated. The counselor opined that while the child's home situation may improve, the most appropriate approach to the child's problems was to assist him with coping strategies (Exhibit SD-7).
A social worker who had observed the child in a classroom setting in February and June, 1999 reported that there were no significant observable differences between the child and the other students during either observation. She noted that the child related well to his peers and his teacher (Exhibit SD-8). On February 26, 1999, the CSE reviewed the results of the childs evaluations. It declined to recommend that the child be classified as a child with a disability. It recommended that he remain in a general education program (Exhibit SD-11).
In March, 1999, petitioner requested an impartial hearing. Although scheduled to begin on April 16, 1999, the hearing was adjourned on consent to allow petitioner time to gather information (Transcript dated April 16, 1999). On May 21, 1999, petitioner requested that the hearing officer issue subpoenas allowing him to obtain documents about his son from Long Island Consultation Center, St. Vincent's Hospital, and South Oaks Hospital. Respondent requested copies of all documents petitioner obtained, and a subpoena for records from Long Island Jewish Hospital. Petitioner did not object to respondents request. The hearing officer granted both requests for subpoenas. Upon receiving the documents, petitioner and respondent agreed to meet to review the reports (Transcript dated May 21, 1999). Neither party appeared before the hearing officer when the hearing reconvened on June 18, 1999 (Transcript dated June 18, 1999). The hearing officer adjourned the matter to July 16, 1999 (Statement of Agreement and Interim Order). The CSE met on June 24, 1999. It again declined to recommend that the child be classified as a child with a disability, and it continued to recommend a general education program for him (Exhibit SD-10). The hearing was held on July 16, 1999.
In her decision which was rendered on August 18, 1999, the hearing officer held that the CSE properly declined to classify the child as a special education student. While acknowledging that the child had been diagnosed with ADD and displayed symptoms of depression, the hearing officer found that the evidence did not show that the child had an inability to learn as a result of those conditions. She found that the child functioned very well academically, and that he was not a behavior problem in school. She concluded that the child did not require special services or programs, and the CSE appropriately declined to classify him. The hearing officer suggested that the parents explore remedies under Article 7 of the Family Court Act, e.g. a PINS petition, if they felt their sons behavior at home was beyond their control.
Petitioner challenges the hearing officers determination that the CSEs refusal to classify his son was supported by the evidence in the record. In order to be classified as a child with a disability under Federal regulation (34 CFR 300.7[a]), 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 board of education bears the burden of establishing the appropriateness of the CSE's recommendation that a child not be classified as a child with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 93-18; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-42).
At the February 26, 1999 meeting, the CSE reviewed a psychological evaluation, an educational evaluation, a social history, teacher reports, classroom observations and a counseling report. When the CSE reconvened in June, 1999, it reviewed information about the boys two admissions to a hospital as a result of his behavior at home, and information about the private counseling which he had received (Exhibit SD-13). I note that there are a number of diagnoses in that information, e.g., attention deficit disorder, attention deficit with hyperactivity disorder, oppositional defiant disorder, and impulse control disorder. The childs physician reported that the boy had a "Psych. Disorder", and he cautioned that school staff should be alert if the boy tries to harm himself (Exhibit SD-9). I find that the CSE should have conducted a psychiatric evaluation before making a recommendation about the child's classification and program. I will direct the CSE to perform a psychiatric evaluation to identify what, if any, condition the child may have, and a description of how that condition may affect the childs education. When it has received the results of the evaluation, the CSE shall reconvene to consider whether the child should be classified. I have considered petitioner's other allegations, which I find to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officers decision is hereby annulled; and
IT IS FURTHER ORDERED that the child be evaluated by a psychiatrist at school district expense within 30 days after the date of this decision, after which the CSE shall reconvene to determine whether the child is eligible for classification as a child with a disability for educational purposes.
Albany, New York
August 30, 2000
ROBERT G. BENTLEY