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
Michael C. Scoon, Esq., attorney for petitioner
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Theresa Crotty, Esq., of counsel
Petitioner appeals from an impartial hearing officerís decision which upheld respondentís Committee on Special Education (CSE) recommendation to change her sonís classification from learning disabled (LD) to emotionally disturbed (ED) and place him in a 12:1:1 placement for the 2002-03 school year. The appeal must be sustained.
At the time of the hearing, petitioner's son was nine years old and in the third grade. The student was classified in July 1999 as LD and placed in a modified instructional service IV (MIS IV) integrated class with speech and language therapy (Transcript pp. 32, 50). In May 2001, the special education teacher requested a reevaluation because the student was displaying behavioral problems (Transcript p. 51). A CSE review was held on June 25, 2001. The studentís classification remained the same and the CSE recommended a self-contained 12:1:1 class with speech and counseling (Transcript pp. 32, 51; Exhibit 2 [1/16/03]).
In March 2002, the studentís teacher requested a reevaluation based upon the studentís improvement (Transcript pp. 51, 70). An educational evaluation was done in May 2002. Word identification skills were reported at 2.8 grade equivalent (GE) and identified as an area of relative strength. Passage comprehension skills were at the 1.7 GE. Math skills were at a K6 GE. Difficulty with abstract concepts was noted. Sentence structure was reported to be age and grade appropriate (Exhibit 3 [1/16/03]). A psychological evaluation was done in June 2002. It resulted in a Full Scale IQ in the borderline range with Verbal Scale slightly higher. The studentís greatest difficulty was reported in visual perception of detail and integration tasks. The psychologist described the student as anxious with some insecurity and low frustration tolerance. It was noted that the studentís emotional problems continue to be impeding his optimal intellectual functioning (Exhibit 2 [1/16/03]). A CSE review was held on June 14, 2002. The studentís classification remained the same but the CSE recommended a 12:1 class placement (Transcript pp. 32-33).
In September 2002 the student reportedly exhibited disruptive behavior during class and during transitional periods, on the school bus, and during lunch (Transcript p. 66). In October 2002 petitioner requested another review of the studentís placement (Transcript pp. 52, 103). A classroom observation was completed by a social worker in conjunction with the requested placement review on October 25, 2002. The observation report described the student as off task and verbally teasing another student (Exhibit 4 [1/16/03]). A school progress report dated November 13, 2002 indicated progress in reading, math and written expression. The student was described as easily frustrated and he often interacted with peers by teasing them. His teacher recommended a smaller class to address these social/emotional issues (Exhibit 6 [1/16/03]). A structured student observation was completed on November 14, 2002. That report described the student as working quietly with another student in the class with a teacher but noted that he was off task more frequently than other students (Exhibit 5 [1/16/03]). An additional progress report dated November 15, 2002, described the student as a bright student with great academic potential who is disruptive to the teacher and to other students around him (Exhibit 7 [1/16/03]).
It appears from the record that at some point during the 2002-03 school year the student was placed in a 12:1:1 class without going through the CSE as required by law (Transcript pp. 90, 96, IHO decision pp. 5; 8). An undated functional behavioral assessment (FBA) indicates disruptive verbal and nonverbal behavior during lessons. The FBA indicates that the inappropriate behavior is the studentís way of getting attention. It further suggests that his hyperactive behavior makes it difficult for him to curtail his impulses and stay focused on classroom assignments (Exhibit 8 [1/16/03]). A behavior intervention plan (BIP) dated November 26, 2002 identifies physical and verbal aggression. The BIP further recommends, as a support employed to help the student change behavior, "to refer the child for further medical and psychiatric evaluation in order to understand better the childís present emotional state and behavior problems" (Exhibit 10, p. 18 [1/16/03]).
On November 26, 2002, another CSE review was held. The CSE recommended that the student be reclassified as ED and placed in a 12:1:1 class with related services. The projected date of initiation for the change was January 22, 2003 (Exhibit 10, p. 2 [1/16/03]). Petitioner disagreed with the CSE recommendations and requested an impartial hearing on December 12, 2002 (Transcript p. 5 [1/16/03]).
A subsequent school progress report, dated December 17, 2002, states that the student is easily distracted and constantly needs to be refocused. It also states that he does not behave properly with his classmates and engages in name-calling. Further, he constantly leaves his seat, calls out during class and is disrespectful to his teacher. The report concludes that the studentís social and emotional needs are too severe to be addressed in his current program and that such needs are affecting his classroom performance (Exhibit 13 [1/16/03]).
On January 16, 2003, the impartial hearing officer (IHO) issued an interim order, directing respondent to provide the student with a crisis management paraprofessional in school and on the bus pending the outcome of the hearing (Transcript p. 43).
Petitioner subsequently obtained an independent evaluation at The Brookdale University Hospital and Medical Center where a developmental behavioral pediatrician, a clinical social worker and a clinical psychiatrist evaluated the student. The team conference summary indicates a diagnosis of mixed developmental disorder and notes the need to rule out attention deficit hyperactivity disorder (ADHD). The team recommended a referral to the CSE and also recommended placement in an inclusion class with supportive services (Exhibit A [4/11/03]). The psychiatric evaluation notes that a medication regimen was discussed with petitioner but that petitioner did not appear interested (Exhibit D [4/11/03]).
On March 25, 2003, the CSE met after having received the independent evaluation provided by petitioner. By that time, the studentís academic performance had improved substantially and the studentís most recent report card noted that the "Student works cooperatively with others and respects class and school rules with the assistance of a 1:1 paraprofessional" (Exhibit E [4/11/03] Transcript p. 86). The CSE again recommended that the student be classified as ED and placed in a 12:1:1 class with speech and counseling, a full time paraprofessional in school and on the bus and mainstreaming for one period per day in reading (Exhibit 1 [4/11/03]). Petitioner again disagreed with the recommended classification and placement.
In her decision dated May 8, 2003, the IHO upheld the reclassification of the student as ED and placement in a 12:1:1 class with a paraprofessional, related services and one inclusion reading class. Petitioner seeks review of that decision, challenging the recommended change in her sonís classification and requesting that he be returned to an inclusion classroom. Respondent contends that the decision of the IHO should be upheld in its entirety.
A 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. 01-101; Application of a Child with a Disability, Appeal No. 01-057; Application of a Child with a Disability, Appeal No. 94-16). State and federal law requires that a childís individualized education program (IEP) be reviewed, and if appropriate, revised periodically, but not less than annually (20 U.S.C. ß 1414[d][A][i]; 8 NYCRR 200.4[f]). What constitutes a suitable evaluation depends on the nature of the studentís disability and the nature of the change in the studentís placement (Application of a Child with a Disability, Appeal No. 02-032; Application of a Child with a Disability, Appeal No. 93-22).
Petitioner contends that respondent did not obtain a physical examination as part of the studentís evaluation prior to making its recommendation to change his classification and placement. A medical evaluation is needed to rule out a health factor as a contributor to the studentís inability to learn (8 NYCRR 200.1[zz][i]). The record does not indicate that respondent admitted such information into evidence. The parent admitted a letter dated December 9, 2002 from a physician from Kings County Hospital that indicates that the student was seen on September 27, 2002 and that he was in good physical and mental health (Exhibit A [1/16/03]; Transcript p. 30). There is no indication that the CSE had this information when they proposed a change in the studentís classification in November 2002, since the note from the doctor was dated after that CSE meeting. In addition, the student underwent a physical examination as part of petitionerís independent evaluation in January, the results of which were forwarded to the CSE. The diagnosis from the independent evaluation indicated a need to rule out ADHD (Exhibit B [4/11/03]).
Section 200.1[zz] of the Commissionerís regulations provides:
Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student's educational performance:
(i) an inability to learn that cannot be explained by intellectual, sensory, or health factors;
(ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
(iii) inappropriate types of behavior or feelings under normal circumstances;
(iv) a generally pervasive mood of unhappiness or depression; or
(v) a tendency to develop physical symptoms or fears associated with personal or school problems.
The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance.
I find that respondentís CSE has not demonstrated that the studentís learning difficulties cannot be explained by intellectual, sensory or health factors, which is a prerequisite for classification as emotionally disturbed (8 NYCRR 200.1[zz]; Application of a Child Suspected of Having a Disability, Appeal No. 00-089; Application of a Child with a Disability, Appeal No. 95-4). There are a number of references in the record to the studentís hyperactivity that were not addressed by the CSE. For example, the independent evaluation report provided to the CSE indicated a need to rule out ADHD (Exhibit A [4/11/03]). The report also referred to the possible future use of medication (Exhibit D [4/11/03]). In addition, respondentís school psychologist testified that the studentís "hyperactive behavior made it difficult for him to control his impulses at times and to stay focused" (Transcript p. 67). The FBA noted that the studentís hyperactive behavior makes it difficult for him to control his impulses and stay focused on classroom assignments (Exhibit 8 [1/16/03]). The record refers to various incidents of the studentís misbehavior, such as constantly leaving his seat both in school and on the bus, talking out of turn and crawling on the floor. These behaviors could be consistent with ADHD. The BIP recommends, as a support employed to help the student change behavior, "to refer the child for further medical and psychiatric evaluation in order to understand better the childís present emotional state and behavior problems" (Exhibit 10, p. 18 [1/16/03]).
The record reveals that the student has not been formally assessed to ascertain whether he, in fact, has ADHD. The CSE should have ascertained the extent to which the studentís distractibility or hyperactivity may be hindering his educational performance before recommending reclassification and a more restrictive placement. It is not even clear whether the CSE even considered the information from the independent evaluation, as it is not reflected on the studentís proposed IEP.
Moreover, the record does not demonstrate that the student exhibited any behavior that might support an ED classification "over a long period of time and to a marked degree that adversely affects a student's educational performance" as is required by the regulation. In March 2002, respondentís CSE recommended a change in placement from the more restrictive 12:1:1 program to the 12:1 program because the student improved. In September 2002, the studentís behavior deteriorated. On November 26, 2002, only two months later, the CSE recommended the change in classification to ED and the more restrictive 12:1:1 placement. Therefore, on this record, the recommended change in classification to ED is not supported.
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 with a Disability, Appeal No. 93-9). Having found that the CSE failed to evaluate petitionerís son adequately to support a change in his classification, I must also find that due to the inadequate evaluation it has not properly identified his educational needs. His educational needs must be correctly identified in order to prepare annual goals that are related to meeting those needs. Once his needs have been accurately identified and appropriate goals have been prepared, the CSE then can appropriately determine what special education placement and services are necessary to allow the student the opportunity of achieving those goals in the least restrictive environment. On this record, I find that respondent has not met its burden of proving that it offered to provide an appropriate educational program for the student and that any change in placement is premature.
Petitioner also asserts that she was deceived into giving up her right to have a parent member participate at the CSE review meeting. I find that the issue is beyond the scope of my review because it was not raised below (Application of the Bd. of Educ., Appeal No. 02-024; Application of a Child with a Disability, Appeal No. 01-010; Application of a Child with a Disability, Appeal No. 00-081).
Finally, federal and state regulations require each school district to maintain an accurate record of the proceedings before a hearing officer (34 CFR ß 509[a]; 8 NYCRR 200.5[i][iv]). It is respondentís obligation to furnish the State Review Office with a complete copy of the record (8 NYCRR 279.7). The failure to maintain an accurate and complete record may constitute a basis for annulling a hearing officerís determination (Application of a Child with a Disability, Appeal No. 93-4). Despite numerous attempts by the efforts of the State Review Office to obtain complete copies of some of the exhibits submitted at the hearing, respondent failed to provide the same. While I find that the record was sufficient for me to render a determination, I direct respondent to ensure that in the future that a complete copy of the record before the hearing officer is provided to the State Review Office in accordance with section 279.7 of the Commissionerís regulations (Application of the Bd. of Educ., Appeal No. 99-58; Application of a Child with a Handicapping Condition, Appeal No. 92-35).
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officerís decision is annulled; and
IT IS FURTHER ORDERED that respondentís CSE shall promptly complete a new evaluation of the student including any and all assessments necessary to either confirm or rule out ADHD, an appropriate functional behavioral assessment and behavior intervention plan and shall recommend an appropriate classification and placement for the student.
Albany, New York
November 21, 2003
ROBERT G. BENTLEY