The State Education Department
State Review Officer
Application of a CHILD SUSPECTED OF HAVING 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
Advocates for Children of NY, attorney for petitioner, Robyn Grodner, Esq., of counsel
Petitioner appeals from an impartial hearing officerís decision upholding the recommendation by respondentís Committee on Special Education (CSE) to classify petitionerís daughter as emotionally disturbed and to place her in a self-contained special education class in respondentís specialized instructional environment-VII (SIE-VII) program. The appeal must be sustained.
Respondent has not answered the petition, although its counsel requested and received an extension of time to submit an answer on three occasions during the spring of 2001. 8 NYCRR 279.3 provides that the notice with petition shall advise the respondent that "[I]f an answer is not served and filed in accordance with the provisions of such regulations [of the Commissioner of Education], the statements contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by a State review officer of the State Education Department." A decision of the State Review Officer was annulled by the New York Supreme Court because the decision was based on an independent review of the record, rather than the allegations in an unanswered petition (Matter of Arlington Central School District v. State Review Officer of the New York State Education Department, 185 Misc. 2d 560 ). However, that decision has been appealed, and I must respectfully decline to follow it in the instant appeal because it would not allow me to fulfill my obligation to examine the entire record (34 CFR 300.510[b][i]), and to make an independent decision (20 USC ß 1415[g]). The facts in the petition will be deemed to be true unless found to be inconsistent with the evidence in the record.
Petitionerís daughter was an 11-year-old student at P.S. 202 attending the 4th grade in general education in Community School District 19 at the time of the hearing in this proceeding. She attended three other public schools before entering P.S. 202 in the middle of the 1995-96 school year (Exhibit 11). At that time, the student was in the first grade. She repeated the first grade at P.S. 202 during the 1996-97 school year, during which she reportedly had behavior difficulties (Exhibit 2). While in the second grade at that school during the 1997-98 school year, she was reportedly referred to the CSE for an evaluation. In June 1998, school officials requested an impartial hearing to obtain authorization to evaluate the student without her parentís consent. The hearing officer ordered that the Board of Education conduct all evaluations appropriate to determine whether petitionerís daughter would benefit from special education. In the fall of 1998, petitioner enrolled her child in P.S. 91 in Community School District 17. The CSE in that school district reportedly evaluated the student and recommended that she be classified as emotionally disturbed and given resource room services (Exhibit 2). Petitioner refused to accept the services and removed her daughter from the public school system. The case was then closed by the CSE in Community School District 17.
The student was briefly enrolled in a private school in Brooklyn in the spring of 1999. On April 30, 1999, she was required to leave that school because of inappropriate behavior (Exhibit 9). On May 12, 1999, petitionerís daughter returned to P.S. 202, where she completed third grade. She reportedly exhibited disruptive and aggressive behavior in the fourth grade at P.S. 202 during the 1999-2000 school year. On November 4, 1999, petitionerís daughter was again referred to the CSE for an evaluation for special educational services.
Petitioner did not consent to an evaluation, and the district requested an impartial hearing to override petitionerís refusal to consent. On March 8, 2000, an impartial hearing was held. The hearing officer rendered her decision on April 10, 2000 (Copy annexed to Petition). She found that the Board of Education had met its burden of justifying an evaluation, and ordered the Board to evaluate petitionerís daughter to determine if she would benefit from special education services. The hearing officer directed the Board of Education to perform certain specific evaluations: a functional behavioral assessment, a psychiatric evaluation, and a medical examination including a neurological assessment, as well as any other evaluation it deemed to be appropriate.
On May 2, 2000, an education evaluation was conducted (Exhibit 7). On May 9, 2000, a psychological evaluation was completed (Exhibit 6). A structured classroom observation was conducted on May 16, 2000 (Exhibit 8). However, there is no evidence in the record to indicate that any of the specific evaluations ordered by the impartial hearing officer were performed. In addition, I note that there is no evidence of a social history, as required by 8 NYCRR 200.4(b)(1)(iii).
On June 7, 2000, the CSE met to review the evaluations and discuss the educational needs of petitionerís daughter. Although she was sent notice of the meeting, petitioner did not attend. The CSE recommended that petitionerís daughter be classified as emotionally disturbed, and that she be placed in an SIE VII class. There appears to be an error in the IEP in that it indicates that the student should receive the related service of speech/language therapy, notwithstanding an IEP description of the studentís expressive and receptive language skills as being at age and grade expectancy. In a Final Notice of Recommendation dated June 29, 2000, petitioner was offered a placement for her daughter in P.S. 36 at I.S. 231 (Exhibit 3). That document indicates that the CSE recommended the related service of 30 minutes of counseling per week in a group of three students, rather than speech/language therapy.
Petitioner refused to consent to this recommendation, and the district requested an impartial hearing to obtain authorization to place the student in an SIE-VII class. The impartial hearing took place on November 9, 2000. Petitioner attended the hearing, and expressed her opposition to the proposed placement. She indicated that her daughter was being privately tutored and treated by a psychotherapist. Neither individual testified at the hearing. In her decision dated January 9, 2001, the hearing officer found that respondent had met its burden of proving that the CSEís recommendations were appropriate because it was in the studentís best interests that she be classified as emotionally disturbed and placed in the SIE-VII class of P.S. 36 at I.S. 271.
Petitioner challenges the impartial hearing officerís decision on a number of grounds. She requests that the hearing officerís decision be annulled, and that respondent be ordered to complete medical, neurological, psychiatric, visual perceptual, speech and language and occupational evaluations and a functional behavioral assessment of her daughter. Respondent bears the burden of demonstrating the appropriateness of the classification recommended by its CSE (Application of a Child with a Disability, Appeal No. 91-11; Application of a Child Suspected of Having a Disability, Appeal No. 94-8), and the appropriateness of the educational placement that the CSE recommended (Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). I find that the Board of Education has not met its burden of proof with respect to either classification or placement.
A CSE may not dispense with any of the required elements of an evaluation. Section 200. 4 (b) of the Regulations of the Commissioner of Education provides that an initial evaluation of a child suspected of having a disability must include, among other things, a social history of the child. There is no evidence of a social history in the record. In addition, the CSE did not comply with the prior hearing officerís decision to perform a functional behavioral assessment, a psychiatric evaluation, and a medical examination, including a neurological assessment.
Although the CSEís failure to conduct an adequate evaluation affords a sufficient basis for annulling the hearing officerís decision, I note that petitioner also challenges the composition of the CSE at the June 7, 2000 meeting. Petitioner asserts that the CSE lacked a special education teacher, a district representative, and the studentís regular education teacher as required by 34 CFR 300.344. There are five signatures of the meeting participants on the studentís IEP. However, the regular education teacher participant does not appear to have been the studentís classroom teacher at P.S. 202, and the spaces for the signatures of the district representative and special education teacher members are blank. In the absence of an answer to the petition responding to petitionerís assertion, I must find that there is merit to her claim.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officerís decision is hereby annulled; and
IT IS FURTHER ORDERED that respondent shall complete a medical, neurological and psychiatric examination of petitionerís child as well as a functional behavioral assessment as previously ordered by the Impartial Hearing Officer and a social history, after which it shall reconvene and determine whether the student should be classified as a child with a disability and what if any special education services should be provided to her.
Albany, New York
September 28, 2001
JOSEPH P. FREY