The State Education Department
State Review Officer
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 an impartial hearing officerís decision upholding the recommendation of respondentís Committee on Special Education (CSE) to change her sonís classification from learning disabled (LD) to emotionally disturbed (ED), and to change his placement from a Modified Instructional Services-I class (MIS-I) to a Specialized Instructional Environment VII class (SIE-VII). The appeal must be sustained.
Before reaching the merits of petitionerís appeal, I note that respondent has not answered the petition. The facts in the petition will be deemed to be true, unless found to be inconsistent with the evidence in the record (8 NYCRR 279.3; Matter of Arlington CSD v. SRO of NYS Educ. Depít, 293 A.D.2d 671 ).
Petitionerís son was initially evaluated in January 1992. He was reportedly classified as LD, and was placed in a Modified Instructional Services-IV (MIS-IV) class with speech/language services. Later in the year, counseling was initiated because of behavior problems. When petitionerís son became too old for the MIS-IV program he was placed in an MIS-I class at P.S. 197. In October 1995, the studentís classroom teacher requested a re-evaluation because of behavior and management difficulties. The CSE recommended that petitionerís son be placed in an SIE-VII program. Although an impartial hearing officer agreed with the CSEís decision, the student ultimately remained in an MIS-I class at P.S. 197 (Exhibit 20).
In 1996, another re-evaluation was requested because the student had reportedly become unmanageable in the classroom. A school psychiatrist diagnosed the student as having attention deficit hyperactivity disorder (ADHD), an anxiety disorder, and mild mental retardation. Noting that petitionerís son was having great difficulty controlling his impulses and that his ability to remain on task was very tenuous, the psychiatrist recommended that he be placed in a therapeutic setting with a consistent behavior management plan in place and with counseling (Exhibit 1).
In November 1998, a third request was made for a re-evaluation. The studentís teacher noted that he became extremely angry whenever another student made comments or gestures to him. He would attempt to fight with that student and his anger would persist for days. The CSE recommended that an individual crisis intervention management paraprofessional (para) be provided for the student while on the school bus and during the school day (Exhibit 4). In September 1999, petitionerís son attended I.S. 223. He remained classified as LD and was placed in what appears to be a Modified Instructional Services-II (MIS-II) program for the 1999-2000 school year. After petitioner objected to the MIS-II placement, her son was placed back in an MIS-I class (Exhibit 20).
In April 2000, the CSE recommended continued placement in the MIS-I program with speech/language services and a para for the bus and for the school day during the 2000-01 school year (Exhibit 11). During that school year, the student was disruptive in class, refused to listen to his para or his teachers and fought with classmates. On several occasions his para had to physically restrain him to prevent him from attacking other students (Exhibits 14, 26, 27, 28, 29, 31). At the hearing, petitioner testified that her sonís classmates were constantly picking on him (Transcript pp. 270, 277).
On or about December 5, 2000 the studentís teacher requested a substantial change in the studentís individualized education program (IEP). She indicated that petitionerís son was acting out both physically and verbally. He had allegedly injured two staff members. That same day, the CSE met to discuss a change in placement. It appears that the CSE recommended that the student continue to be classified as LD, and that he remain in the MIS-I placement with a para. The IEP noted that the studentís academic skills were below average in both reading and mathematics, and that he was in need of intensive remediation in all academic areas. The CSE also noted that he required constant supervision (Exhibit 13).
On January 31, 2001 the CSE conducted an educational evaluation. On the Woodcock Johnson Test of Achievement, the student received a grade equivalent score of 3.6 (percentile score of 8) on letter-word subtest. The evaluator noted that he had limited sight vocabulary and poor word attack skills. He would often mispronounce, omit or substitute words. It was noted that petitionerís son was delayed in this area of reading by approximately four years. On the passage comprehensive subtest, the student achieved a grade equivalent of 2.8 (percentile score of 3). He had difficulty recalling information and reading passages due to his limited vocabulary. The evaluator reported that petitionerís son was reading at a beginning third grade level. On the calculation subtest, the student achieved a grade equivalent score of 4.3 (percentile score of 2). He was capable of solving very basic mathematical equations, but was unable to subtract a one-digit number from a two-digit number, or to work with fractions and decimals. The evaluator opined that the student was delayed in this area of math by approximately three years. On applied math problems, the student achieved a grade equivalent score of 1.4 (percentile score of 0.1). The evaluator noted that the student often asked to have problems reread to him and had little insight in to knowing how to solve a word problem, particularly if the problem involved more than one step. She opined that he was delayed in this area by approximately six years. She further opined that the studentís writing skills needed further development. He was unable to construct a paragraph, used poor punctuation and was unable to complete a thought (Exhibit 19).
A psychological evaluation was performed on February 1, 2001. On the WISC-III, the student received a verbal score of 65, a prorated performance score of 73, and a full scale score 67. The psychologist reported that the studentís full scale score was within the intellectually deficient range, and described him as an immature and vulnerable adolescent who was disabled in his efforts to please and achieve by extreme degrees of inattentiveness, impulsiveness, and physical activity (Exhibit 20).
On February 21, 2001 respondentís CSE recommended that the studentís classification be changed to emotionally disturbed. It also recommended that he be placed in an SIE-VII class with a 12: 1 child to adult ratio, that he have the assistance of a para for the bus and that he receive group counseling and group speech/language therapy. The IEP prepared by the CSE included a behavior intervention plan for the student, although a functional behavioral assessment had not been conducted (Exhibit 22). His teacher and the school site supervisor testified that they were unsure of what a functional behavioral assessment was (Transcript pp. 130, 162). On or about February 21, 2001, petitioner was offered a placement for her son in P.S. 141 at I.S. 002 in Brooklyn (Exhibit 23). On March 1, 2001 petitioner requested an impartial hearing because she disagreed with the CSEís recommendations (Exhibit 24).
The impartial hearing began on March 28, 2001, and concluded on August 9, 2001. During the hearing, petitioner submitted evaluations by a psychologist at the Long Island College Hospital. The psychologist diagnosed petitionerís son as having ADHD, an oppositional defiant disorder (ODD), and mild to moderate mental retardation. He opined that placement in the SIE-VII class was not suitable for the student because of his mental retardation (Exhibits A, D). In a decision dated September 13, 2001, the impartial hearing officer upheld the CSEís recommendation to classify the student as emotionally disturbed. However, she also held that respondent had failed to establish that the student would be appropriately grouped for instructional purposes in the proposed SIE-VII class. The hearing officer ordered that the matter be remanded to the CSE to identify an appropriate placement for the student. Specifically, respondent was to identify a special education class with a class ratio of 12:1+1 that would appropriately meet the studentís academic and emotional needs.
Petitioner appeals from the hearing officerís determination that her son should be classified as emotionally disturbed. The board of education bears the burden of demonstrating the appropriateness of the classification recommended by its CSE (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child suspected of Having a Disability, Appeal No. 94-8).
I find that respondent cannot demonstrate the appropriateness of its recommended classification. There is no evidence of any projective testing of the student having been performed as part of the CSEís evaluation of petitionerís son. There is also no evidence of a functional behavior assessment having been done. Such an assessment is required when a studentís behavior impedes the studentís learning (8 NYCRR 200.4[b][v]). The record, including documents prepared by and testimony of respondentís staff, shows that the studentís behavior impedes his learning. On his IEP, the CSE noted that the studentís achievement had been hindered by inattentiveness, impulsivity and physical activity, and indicated that he would benefit from placement in a highly structured educational setting designed for primary social-emotional needs (Exhibit 22). The CSE also prepared a behavior intervention plan that focused on reducing certain behavior the student allegedly manifested in class and in school hallways. However, the CSE lacked data with respect to the frequency of and precursors for the studentís inappropriate behavior with which to prepare a suitable behavior intervention plan. It also failed to identify appropriate positive behavioral interventions to be used with the student.
When a required component of a referred studentís evaluation has not been done prior to the CSEís classification decision, the classification decision may not be upheld (Application of a Child Suspected of Having a Disability, Appeal No. 00-089; Application of a Child Suspected of Having a Disability, Appeal No. 00-002; Application of a Child Suspected of Having a Disability, Appeal No. 99-32; Application of a Child with a Disability, Appeal No. 99-18; Application of the Board of Education of the Taconic Hills Central School District, Appeal No. 99-12; Application of a Child with a Disability, Appeal No. 98-54; Application of a Child Suspected of Having a Disability, Appeal No. 97-55; Application of a Child Suspected of Having a Disability, Appeal No. 97-50; Application of a Child Suspected of Having a Disability, Appeal No. 93-45; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-20; Application of a Child with a Handicapping Condition, Appeal No. 91-10). In the absence of any projective testing or a functional behavior assessment, I must find that respondent has not met its burden of proof with respect to the CSEís recommendation that petitionerís son be classified as emotionally disturbed.
The CSEís recommendation that the student be placed in respondentís SIE-VII program appears to have been based upon its determination that he should be classified as emotionally disturbed. In view of my finding that the CSEís classification recommendation cannot be sustained, it follows that its placement recommendation must also be annulled.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officerís decision is hereby annulled; and
IT IS FURTHER ORDERED that the CSE shall promptly conduct a functional behavioral assessment before recommending changes in the studentís classification or placement.
Albany, New York
November 29, 2002
JOSEPH P. FREY