90-009

Petitioner appeals from a determination of an impartial hearing officer upholding the recommendation of respondent's committee on special education (CSE) that petitioner's son be placed in a combination on-site academic and work study program operated by the Nassau County Board of Cooperative Educational Services (BOCES) for the 1990-91 school year. The appeal must be sustained.

Petitioner's son entered respondent's schools as a ninth grade student in a regular education program in September, 1987. The record does not sufficiently show that diagnostic screening of petitioner's son was performed, as required by 8 NYCRR 117.3. Records, which respondent received from the Newport News, Virginia Public Schools, revealed that the student received satisfactory marks in grades 3 through 5. However, his grades were less satisfactory and he was absent from school much more frequently during the 1985-86 and 1986-87 school years in grades 7 and 8.

During the 1987-88 school year in Syosset, the student passed every subject, except social studies, and was awarded six and one-half high school credits. He failed to attend classes on several occasions during the first two marking periods of the 1988-89 school year, and in December, 1988 was referred to respondent's CSE for an evaluation. Shortly thereafter, petitioner's son voluntarily entered a drug treatment program. A psychological evaluation performed on January 31, 1989 revealed that, although he was of average intellectual ability, petitioner's son was deficient in vocabulary and general knowledge. Respondent's psychologist concluded that the student was easily angered and quick to blame others as being harmful to him. The psychologist described the student as a highly vulnerable youngster whose thinking and judgment are seriously impaired when he has to function without outside direction. The psychologist also opined that the pupil does not take responsibility for wrongdoing. Respondent's psychologist recommended that the student receive individual therapy, and that he be placed in a highly supervised and structured small school setting with consistently enforced rules.

On February 7, 1989, the CSE classified petitioner's son as emotionally disturbed, and recommended that he be placed in a special class, which pursuant to 8 NYCRR 200.6(f)(4)(i), consisted of no more than twelve students with one teacher and one aide. Students in the special class changed classrooms for instruction in different subjects. The student was mainstreamed for special subjects, lunch and physical education. The student's record reveals that he was absent from school 46 days, was tardy on 18 occasions and failed to attend class on 63 occasions during the 1988-89 school year. Despite his attendance record, the petitioner's son passed five of six subjects and received four and one-half units of credit.

On April 10, 1989 the CSE conducted its annual review of petitioner's son. The CSE recommended that the student continue in respondent's special class for the 1989-90 school year. Prior to starting school in September, the student returned to Virginia to be with his father, who had serious health problems. In November, 1989, after the student had returned to Syosset, the student's father died.

During the 1989-90 school year, petitioner's son received passing grades in most of his subjects. Nonetheless he was not granted credit for any of the courses because of his absenteeism. Respondent does not grant credit for courses in which the student has missed more than fifteen percent of the classes. Petitioner's son accrued a total of 38 absences from school and failed to attend 81 classes during the 1989-90 school year. Despite this attendance record he did pass the Regents Competency Tests in mathematics, reading and writing.

On May 29, 1990, petitioner's son was involved in an altercation with two other students on school grounds, one of whom was injured in the altercation. Petitioner's son was suspended from school for five days for his participation in the altercation.

On June 12, 1990, the CSE conducted its annual review of the student, and concluded that a change of placement was necessary because of the student's failure to achieve the academic and behavioral goals of his individualized education program (IEP). The CSE recommended that the student be placed in a Career Extension Program (CEP) operated by the Nassau County BOCES for the 1990-91 school year. Information about the CEP in the record is limited, except that the CEP placement would be in one of a number of businesses with which the BOCES has an agreement. The record reveals that students in CEP work at the place of business and receive small group instruction from BOCES teachers, who come to each work site.

Petitioner requested that an impartial hearing be held to review the CSE's recommendation. In a decision dated July 24, 1990, the hearing officer found that the student's present placement was no longer appropriate to meet his education needs and that the recommended placement presented a more viable option. The hearing officer also suggested that a new evaluation of the student be performed.

In this appeal, petitioner maintains that the classification of her son as emotionally disturbed may not be appropriate.

8 NYCRR 200.1(ff)(2) defines an emotionally disturbed pupil as:

"A pupil with an inability to learn which cannot be explained by intellectual, sensory, or health factors and who exhibits one or more of the following characteristics over a long period of time and to a marked degree:

(i) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

(ii) inappropriate types of behavior or feelings under normal circumstances;

(iii) a generally pervasive mood of unhappiness or depression; or

(iv) a tendency to develop physical symptoms or fears associated with personal or school problems.

The term does not include socially maladjusted pupils unless it is determined that they are emotionally disturbed."

Petitioner maintains that her son has demonstrated the ability to learn, notwithstanding his behavioral difficulties. However, petitioner's position is unsound for two reasons. First, it is well settled that the regulation has been interpreted to mean that a child's emotional condition has a significant effect upon the child's educational performance (Application of a Handicapped Child, 24 Ed. Dept. Rep. 77; Application of a Child with a Handicapping Condition, 28 id. 95; Application of a Child with a Handicapping Condition, 29 id. 163). Although petitioner's son has achieved some passing grades, he exhibits characteristics of emotional disturbance which adversely affect his educational performance and therefore he requires special education and related services. There is clearly a nexus between the student's emotional problems and his performance in school.

Secondly, the psychological evaluation performed on January 31, 1989 establishes that the student has had difficulty interacting with adult males, and that his limited ability to control his feelings results in inappropriate types of behavior under normal circumstances. It is clear from the record that the student has exhibited several of the characteristics set forth in the regulation.

While the hearing officer adopted the recommendation by the student's private psychologist that a psychiatric evaluation of the student be obtained to help resolve the question of classification, I find that there is no basis for compelling respondent to obtain a psychiatric evaluation, in light of my finding that the student is appropriately classified as emotionally disturbed.

The central issue in this appeal is whether the placement recommended by the CSE for the 1990-91 school year is appropriate for petitioner's son. Pursuant to the provisions of the Education of Handicapped Children Act (20 USC 1401 et seq.) and Article 89 of the Education Law, respondent is responsible for providing an appropriate program for each of its pupils with handicapping conditions. An appropriate program must include instruction specifically designed to meet the unique needs of the pupil, supported by such services as are necessary to permit the pupil to benefit from instruction (Rowley v. Bd. of Education, 458 U.S. 176). It is well settled that a board of education bears the burden of establishing the appropriateness of its program (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Matter of Handicapped Child, 23 id. 415; Matter of Handicapped Child, 27 id. 335; and Application of a Child with a Handicapping Condition, 29 id. 83).

In this instance, the CSE has proposed that the student's placement be changed to a more restrictive environment, in an out-of-school setting in which only students with handicapping conditions are educated. However, Federal and State regulations require that, to the maximum extent appropriate, each pupil with a handicapping condition must be educated in the least restrictive environment (34 CFR 300.550 [b][1] and 8 NYCRR 200.6[a][1]). In this case, respondent must show that the pupil's educational needs cannot be met in the less restrictive placement of respondent's special class and that the recommended and more restrictive placement is appropriate for the student (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 1; Application of a Child with a Handicapping Condition, 29 id. 52; Matter of Bd.of Ed. Liverpool CSD, 29 id. 77). I find that respondent has demonstrated neither the inappropriateness of the student's present class nor the appropriateness of the recommended BOCES class.

Although respondent's staff alleged at the hearing that petitioner's son had been guilty of repeated disruptive behavior in his present placement, with the exception of one instance, there is virtually no specific evidence of such misbehavior in the record before me. Moreover, the record is inexplicably silent with regard to respondent's provision of supplementary aids or services to petitioner's son to help him deal with his emotional disturbance in the Syosset High School. The student's IEPs, which are part of the record before me, do not provide for any psychological counseling, nor do they provide for the use of an additional aide to ensure that the student attends each class at its scheduled time. Where a student's management needs can be addressed in a less restrictive environment by the provision of additional support services or supplementary aides, a CSE is obligated to provide those services or aides (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 339). A student's IEP should set forth the related services recommended by the CSE to meet the student's specific needs (8 NYCRR 200.6[d]). Absent evidence of respondent's provision of these services, I cannot agree with respondent that the CSE has discharged its responsibility to place this student in the least restrictive environment (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 339).

In reviewing the proposed placement in the BOCES program, I find that there is insufficient evidence that this program would be appropriate to the student's needs. There is no evidence in the record of a vocational assessment of this student that is required by 8 NYCRR 200.4(b)(2)(vi). The unsupported testimony at the hearing of the chairperson of the CSE that the proposed placement would provide a suitable program of vocational education is insufficient to establish the appropriateness of the program of vocational education.

There is also no description of the skills and needs of the other students in the class of the proposed placement. Accordingly, it is not possible to determine whether this student would be appropriately placed in accordance with the criteria set forth in 8 NYCRR 200.6(f)(2).

I have considered respondent's other arguments in this appeal, and find that they are without merit.

For all of the foregoing reasons, I must remand this matter to the CSE to reconsider an appropriate placement for petitioner's son for the 1990-91 school year. The CSE must consider what services could be provided to enable this student to function effectively in the less restrictive environment of the Syosset High School.

Finally, I strongly urge the respondent to reconsider whether this student was validly denied high school credits during the 1989-90 school year because of his absences from class. The Commissioner of Education has held that a board of education may deny academic credit to a student on the basis of excessive absence (Matter of Dickerson, 20 Ed. Dept. Rep. 132; Matter of Fitchett-Delk, 25 id. 178), provided that such board does not distinguish between excused and unexcused absences (Matter of Gibbons, 22 Ed. Dept. Rep. 134; Matter of Dickershaid, 26 id. 111). The record reveals, upon the testimony of one of respondent's administrators, that respondent's policy of denying credit for students who miss more them 15 percent of their classes only applies to unexcused absences. Furthermore, I would urge that respondent must also consider whether the student's absences are a direct consequence of his handicapping condition, and whether it is appropriate to penalize the student if his absences are attributable to his handicapping condition.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer be, and the same hereby is, annulled; and,

IT IS FURTHER ORDERED that within 30 days after the date of this decision respondent's CSE shall prepare a new individualized education plan for petitioner's son and recommend an appropriate placement in the least restrictive environment for the student, in accordance with the provisions of this decision; and

IT IS FURTHER ORDERED that respondent shall reconsider the denial of academic credit to petitioner's son in accordance with the provisions of this decision.