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
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Theresa Crotty, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision that upheld the recommendation of respondent's Committee on Special Education (CSE) to classify her son as emotionally disturbed (ED) and to place him in a specialized class in a specialized school for severely emotionally disturbed students. The appeal must be sustained.
At the time of the impartial hearing (July 2002) petitioner's son was nine years old. During the 2001-02 school year the student was attending the third grade at P.S. 96 and was in a special class with a 12:1+1 staffing ratio. The student was performing well academically. He tested on grade level for reading and above grade level in math. There is nothing in the record to indicate when the student was first classified as a child with a disability or what his initial classification was. On February 27, 2001, while the child was attending P.S. 57, a social history was conducted. The studentís mother reported that the child began head start when he was three years of age and that, as far as she knew, the child had no problems when he attended the program. The child then entered kindergarten at P.S. 102 and the teacher reported that he was having "difficulty sitting still" (Exhibit 14). By first grade, "his hyperactivity also included hitting other children" (Exhibit 14) and his mother was called into school twice to discuss her sonís behavior. In December 2001, the child was sent to live with his father in Easley, South Carolina where he completed the second part of first grade. The studentís mother reported that childís grades were fine but she admits that she never asked questions about his behavior while he attended school in South Carolina.
At the end of the 2001-02 school year, the child returned to New York City to live. The mother reported that she enrolled her son in P.S. 57 for second grade because she did not care for the way P.S. 102 had been run. The mother stated that she had learned, after the fact that, her son had gotten into a fight with another child while in school but that she was never told about it at the time and therefore could do nothing to remedy the situation. The mother told her son that starting in a new school would give him a fresh start. However, from the very beginning, the child began to have problems. The social history notes that his teacher referred the child for evaluation because of his poor socialization skills, his lack of control and his aggressiveness. The child was referred for counseling and a complete evaluation in order to determine the most appropriate placement for him (Exhibit 14).
A psychological evaluation conducted on February 19, 2001 found the childís cognitive functioning to be within the average range. The evaluation report also indicated that the child had the potential to perform better if his impulsivity, focusing difficulties and impatience were addressed. The child was also found to be "emotionally labile and distractible" as well as immature, and to have problems accepting responsibility for his actions (Exhibit 15). He was described as responding favorably to structure and the evaluator suggested that the child would "be responsive to help, support and individualized attention" (Exhibit 15). The record does not contain the individualized education program (IEP) that was developed by the CSE at that time nor does it contain a placement recommendation.
During the 2001-02 school year, the child attended P.S. 96 and was enrolled in a third grade special education class with a 12:1+1 staffing ratio. Although he performed well academically, the student began to manifest escalating aggressive behavior that resulted in numerous verbal and physical altercations with both staff and other students. The child was suspended at least six times for a period of two to five days each (June 14, 2002 Transcript p. 25; Answer p. 6). Four of those suspensions were in-school suspensions and two were out of school.
On March 6, 2002, the child jumped onto a window ledge, opened the window and threatened to jump. EMS was called. (June 14, 2002 Transcript p. 27). On March 12, 2002, the principal of the school wrote a letter to the CSE requesting a re-evaluation of the child due to the danger he posed to himself and others (Exhibit 11). The principal noted that the studentís mother disagreed with the request. On March 5, 2002, the childís teacher prepared a progress report that indicated that the student had severe emotional and management needs and also noted that the child presented a danger to himself and others (Exhibit 6). An April 25, 2002 an educational evaluation report stated that the child was performing on grade level in reading and above grade level in math, and that his writing skills needed some improvement. The report also noted that the child was an angry child who was depressed and verbally and physically aggressive (Exhibit 5). An April 28, 2002, social history update noted that the childís mother had stated that she did not want her son's program changed again, that she did not believe that he was in need of special services, and that his behavior at home was fine (Exhibit 3).
On May 1, 2002, a classroom observation was conducted. When the student was directed by the teacher to take out his book, he refused, got out of his seat and proceeded to walk around the room. The student then began to verbally harass another student and when a paraprofessional intervened, he screamed at her. After about five minutes, he sat down with the paraprofessional but refused to work as instructed. Within minutes, he began another verbal confrontation with another child and the paraprofessional had to intervene again. The child remained quiet through the rest of the lesson but was not on task and the other children were distracted by the confrontations (Exhibit 7). Later that day a second classroom observation was conducted when the class was returning from lunch. During the twenty-minute observation, the child provoked a verbal confrontation with a much smaller child and then escalated the verbal harassment into a physical confrontation with that child. The teacher and paraprofessionals tried to end the fight but the child ignored them. Another student held the petitionerís son down until the teacher could physically restrain him and walk him back into the classroom. The child continued to escalate the situation and the smaller child had to be removed from the classroom for that childís own protection. It took another ten minutes before the student was calm enough for the teacher to proceed with the lesson. When the teacher told the child to take off his coat and open his book, the child refused. The teacher intervened again, resulting in the entire class becoming distracted (Exhibit 7).
On May 7, 2002, the school psychologist conducted a functional behavioral assessment (FBA). The psychologist noted that the child was physically and verbally aggressive and a danger to himself and others. The child was reported to have had problems with impulsivity, distractibility and oppositional behavior since kindergarten. The report further notes that adult intervention had not been successful because the child did not like to be told what to do. The child exhibited poor judgment and a lack of empathy, and in the opinion of the school psychologist, he needed a small highly structured classroom with constant supervision (Exhibit 9).
On May 1, 2002 the CSE sent the parent a notice that the CSE would meet on May 9, 2002 to discuss the results of testing and the recommended program. On May 9, 2002, the CSE met to reconsider their recommendations for the child. The parent did not attend the meeting and did not contact the CSE to request a different time or date. The CSE recommended that the student continue to be classified ED and recommended that he receive home instruction until an opening in could be found in an appropriate program. The CSE further recommended that the child be placed in a 12-month specialized school at P. 811 in P.S. 101 that specializes in treating children with severe emotional problems. It further recommended that the child receive counseling (Exhibit 2). The parent requested an impartial hearing on May 30, 2002, to challenge the CSEís recommended placement.
On June 14 and July 16, 2002, an impartial hearing was held. Although both parties agreed that the program the child was attending at that time was not appropriate they disagreed on what the appropriate program should be. The CSE recommended a 12-month "Specialized Program in a Specialized School" with counseling. Petitioner asserted that the class her son attended did not have enough structure and that the teacher did not have control over the classroom. She further contended that the program recommended by the CSE was too restrictive. The impartial hearing officer determined that the CSE was properly constituted, that the parent had chosen not to attend the May 9, 2002 meeting and that the program recommended was designed to meet the childís educational and emotional needs. He determined that the child had "serious emotional issues and difficulties that manifest itself (sic) through anger towards his peers" (Impartial Hearing Officer Decision p. 10). The hearing officer further determined that the program recommended by the CSE was an appropriate placement and ordered a review of this placement after six months.
Petitioner asserts that when she agreed to have her son placed in a special education class she thought that he would receive extra help and have more than one teacher. When she observed his class, she noted that the class had fewer students but had only one teacher, and that the two other staff in the room did not interact with the children. She asserted that if a paraprofessional or other staff member were assigned to her son that individual would be able to keep his behavior in check. Petitioner also requests placement in a different district because she has no faith in her district. Respondent maintains that the decision of the impartial hearing officer was correct and that the child has severe emotional problems that can only be addressed in a highly specialized program in a special school.
Federal regulation requires that CSE meetings be scheduled at mutually agreed upon times and places (34 CFR ß300.345 [a] ). The federal regulation encourages, but does not require, parental attendance at CSE meetings. Under certain circumstances, a CSE may meet without the parents of a child (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 286; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-45). The relevant portions of 34C.F.R ß 300.345 provide that:
(c) If neither parent can attend, the public agency shall use other methods to ensure parent participation, including individual or conference telephone calls.
(d) A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. In this case the public agency must have a record of its attempts to arrange a mutually agreed on time and place such as -
(1) Detailed records of telephone calls made or attempted and the results of those calls;
(2) Copies of correspondence sent to the parents and any responses received; and
(3) Detailed records of visits made to the parent's home or place of employment and the results of those visits.
The only evidence in the record about the scheduling of this matter is the notice dated May 1, 2002 that was sent to the parent. There is no record of attempts by respondant to contact the parent and arrange for a mutually convenient time and place to conduct a CSE meeting. Petitioner, however, has never disputed the receipt of the notice and never requested a postponement of the CSE meeting. I further note that she has not raised this issue in her appeal so I will not disturb the impartial hearing officerís decision that the CSE was appropriately constituted.
A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 ). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. ß 300.550[b]; 8 NYCRR 200.6[a]).
An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the studentís needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). An initial evaluation of student suspected of having a disability must include a physical examination, an individual psychological evaluation or a written report from a psychologist indicating that further evaluation is unnecessary, a social history, an observation of the student in the current educational placement, and such other assessments or evaluations as are necessary to make an appropriate recommendation (8 NYCRR 200.4[b]).
In reaching my determination in this case, I am confronted by two vastly different views of the same child. Respondent's staff has painted a dark and terrifying picture of an angry child who is a danger to himself and others. He is reported to have suicidal ideations. The childís therapist describes the child as "caring, sensitive and vulnerable" with no signs of suicidal ideation (Exhibit A). The impartial hearing officer recognized this problem when he stated that the child could have been clinically tested (Decision p. 10), but he improperly placed the burden of the testing on the parent and not on respondent where it belongs.
I find that the CSE has failed to order the evaluations that are necessary for it to make an appropriate recommendation in this case and I therefore find the IEP developed on May 9, 2002 to be invalid. In view of the circumstance in this case, the CSE should have recommended a complete psychiatric evaluation of the child. I further find that the FBA included in the IEP is overly broad. It is not truly a functional behavioral plan but merely a proposal to craft a plan in the future. It does not address specific behaviors and does not establish a way to measure the childís progress. Upon completion of the psychiatric evaluation, the CSE should reconvene to review the evaluation and determine if an FBA should be conducted and to determine an appropriate placement.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing officer is annulled and the matter is remanded back to the CSE to conduct a psychiatric evaluation and reconvene for the purposes set forth above.
Albany, New York
October 17, 2003
JOSEPH P. FREY