90-007

Petitioner appeals from a determination of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioner's five year old son receive special educational services in a self-contained class for learning disabled pupils during the 1990-91 school year. Petitioner challenges her son's classification as a learning disabled pupil and his placement in a special education class. The appeal must be sustained.

Respondent contends that this appeal is untimely, because the petition was not served upon respondent within 40 days after petitioner received a copy of the decision of the hearing officer, as required by the provisions of 8 NYCRR 279.2(b). Petitioner received the hearing officer's decision on July 9, 1990, and initially served a copy of the petition upon respondent on August 14, 1990. On August 20, 1990, the Office of Counsel of the State Education Department advised petitioner of certain defects in the petition, and directed petitioner to serve respondent with a revised petition within two weeks. Respondent was served with the new petition on August 23, 1990. I find that the appeal is timely.

Petitioner's son was admitted, at an age of two years and ten months, to respondent's Early Intervention Program in September, 1987. Her son was found to be learning disabled by respondent's committee on preschool special education, based upon a school psychologist's conclusion that the pupil was highly distractible, oppositional and restless. The school psychologist did not complete any formal testing of the pupil, because the pupil was unwilling to cooperate with the psychologist. It should be noted that 8 NYCRR 200.16(c)(2) provides that an individual evaluation of a preschool child is to be conducted in accordance with 8 NYCRR 200.4(b), which requires that a physical examination, an individual psychological examination, a social history and other suitable examinations and evaluations be obtained.

An evaluation of the pupil's ability was obtained by respondent's school psychologist in October, 1988, after the pupil had participated in the Early Intervention Program for one year. That evaluation indicated that petitioner's son was functioning within the upper limits of the dull normal range of intelligence. The evaluation noted that the pupil appeared to be more cooperative, less distractible and less restless then he had been upon his entrance into the Early Intervention Program, and recommended that the pupil continue in the program. Petitioner's son continued in the Early Intervention Program for the 1988-89 school year.

The intellectual ability of petitioner's son was evaluated again in February, 1989, when the pupil was four years and two months old. He achieved a verbal score of 96 and a performance score of 78, with a resulting full scale score of 86 on the Wechsler Preschool and Primary Scale of Intelligence, which was consistent with the testing performed in October, 1988. The evaluator found that petitioner's son was able to process auditory information, but did less well with visual motor tasks. The evaluator stated that petitioner's son had willingly performed the tasks which were asked of him, and that he appeared to be a friendly, cheerful student who had a need for external praise and approval. At the time of the evaluation, petitioner's son was in a special education kindergarten class with eleven other learning disabled pupils. The evaluator recommended that petitioner's son be referred to respondent's CSE to determine the appropriate educational services which respondent would provide the pupil for the 1990-91 school year.

On April 23, 1990, respondent's CSE recommended that the pupil be classified as a learning disabled student and that he be assigned to a special education first grade class for learning disabled students with a pupil-teacher ratio of 12:1. A Phase I Individualized Education Program (IEP) was prepared, which petitioner signed. However, on April 30, 1990, petitioner requested that an impartial hearing be held, because she strongly disagreed with the proposed placement. A hearing was held on May 31, 1990. The hearing officer upheld the CSE's placement recommendation, finding that petitioner's son has difficulty with behavior and learning in a school setting, and that he has the potential for substantially higher performance than he had then achieved.

Petitioner contends that respondent failed to provide her with appropriate notice of her due process rights in connection with the hearing held on May 31, 1990, and that she believed that it was merely another meeting of the CSE. The record includes petitioner's letter of April 30, 1990 requesting an impartial hearing and a letter dated May 1, 1990 from the chairperson of the CSE to petitioner informing her that an impartial hearing had been requested for May 31, 1990. The May 1 letter advised petitioner of the right to prohibit the introduction at the hearing of any evidence not previously disclosed to her at least five days in advance of the hearing. Petitioner admitted receiving the May 1 letter at the hearing. The CSE chairperson's letter also indicated that a copy of the pamphlet "A Parents Guide to Special Education", which includes an enumeration of due process rights, was attached to the letter. However, petitioner denies receiving the pamphlet. She does not allege that she ever contacted school officials to receive a copy of the pamphlet referred to in the May 1 letter. Petitioner was asked by the hearing officer if she had any questions about the procedure, and she indicated that she understood the procedure.

Although I am unable to conclude on the record before me that petitioner was not aware of her due process rights, I must note that 8 NYCRR 200.5(a)(4)(i)(b) provides that a CSE which recommends a change in, or continuation of, the classification, placement or program of a child with a handicapping condition must give a written notice to the parent of the child. That notice must include a detailed description of the right to obtain a hearing and the procedures for appealing from a decision rendered at a hearing, as well as information about the availability of free or low cost legal assistance and other services, and a description of the pendency provisions which provide for the maintenance of the child's current placement during the pendency of a hearing and subsequent review.

Petitioner also contends that respondent has failed to meet its burden of proof in demonstrating the appropriateness of her son's classification as a learning disabled pupil and of the recommended placement in a self-contained class. Respondent argues that petitioner should be precluded from challenging her son's classification because petitioner signed the child's IEP for the 1990-91 school year and failed to raise the issue of the child's classification at the hearing.

Petitioner's signature on the IEP did not foreclose her right to an impartial hearing. 8 NYCRR 200.5(c) provides that a parent who has received notice from the CSE of its recommendation as to his or her child's classification and placement to the board of education may request, in writing, an impartial formal hearing. Petitioner, who was not represented by an attorney at the hearing, addressed herself primarily to the proposed placement, but did assert that her son was not learning disabled. The hearing officer found that all available information confirmed that the pupil was learning disabled. I find that the issue of classification was raised at the hearing, and should be considered in this review of the hearing officer's decision.

The record includes copies of the psychological evaluations of petitioner's son performed in 1987, 1988 and 1989, and a summary of the child's performance on the Kaufman Assessment Battery for Children, which was administered in March, 1990. Those test results do not afford a sufficient basis for identifying this pupil as a child with a handicapping condition. Each child referred to a CSE must receive an individual evaluation, consisting of a physical examination, an individual psychological examination, a social history and other suitable examinations and evaluations, in accordance with the provisions of 8 NYCRR 200.4(b). Absent evidence that a complete individual evaluation has been performed, there is no basis upon which either the hearing officer or I could conclude that the child has a handicapping condition. Therefore, I must annul the decision of the hearing officer.

Although it is not possible to conclude what, if any, handicapping condition petitioner's son may have, I must note that the results of the Kaufman Assessment Battery for Children indicate that petitioner's child has age appropriate academic skills. The child's teacher testified that the child's behavior presented a significant problem in classroom management, by not concentrating on his own tasks and occasionally interfering with the activities of other students. The CSE chairperson testified that the child's primary problem was an attention deficit disorder, which is not a specific handicapping condition as that term is defined in 8 NYCRR 200.1(ff). Respondent is reminded that a pupil must have a disorder in one or more of the basic psychological processes in understanding or using spoken or written language and must have a disparity between expected achievement and actual achievement, in order to be classified as learning disabled (8 NYCRR 200.1[ff][3]).

A comprehensive evaluation of petitioner's son, in accordance with the requirements of 8 NYCRR 200.4(b), should be completed to ascertain whether the pupil has a handicapping condition. If, as the result of such an evaluation, the CSE determines that petitioner's son has a handicapping condition which requires that a special educational program or services be provided, the CSE should prepare an individualized education program which adequately describes the pupil's educational needs and specifies the educational program and services which will be provided to him. To the maximum extent appropriate, the child should be educated in the least restrictive environment (8 NYCRR 200.6[a][1]). Until such time as an individual evaluation is performed and a determination as to the child's needs has been made, it is inappropriate for this child to be placed in a special education classroom. Therefore, petitioner's son should be placed in the appropriate regular education class.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the determination of the hearing officer is annulled.