91-020

Petitioners appeal from the determination of an impartial hearing officer upholding the recommendation by respondent's committee on special education (CSE) that petitioners' child should not be classified as a child with a handicapping condition. The appeal must be sustained in part.

Petitioners' child, who is fourteen years old, has attended respondent's schools since kindergarten. While in elementary school, the child complained of headaches, stomachaches and of being tired. During the 1986-87 school year, while in fourth grade, he was absent 32 days from school. Petitioners had the child examined by a psychiatrist during the 1986-87 school year. The psychiatrist continued to see the child and later testified at the hearing. The psychiatrist opined that the child's tiredness, headaches and stomachaches were probably caused by stress in conforming to school routines. Despite the school absences, the child passed all subjects in fourth grade.

In fifth grade during the 1987-88 school year, the child was absent from school on 49 days, but continued to progress academically. The child's mother testified that his teacher had noted that the child had become more withdrawn, and that petitioners found that it had become more difficult for the child to attend school on a full-time basis. At petitioners' request, the child was screened by a school psychologist in August, 1988. The school psychologist noted that the child displayed some signs of depression and anxiety, and was somewhat manipulative, but determined that he had no academic difficulties. The psychologist expressed the hope that the child would become more interested in school as he entered middle school in September, 1988. The psychologist recommended that his attendance be closely monitored and that a guidance counselor be assigned to monitor the child's adjustment to sixth grade in the middle school.

The child was absent from school for 44 days during the 1988-89 school year. With the exception of a D in physical education, he received B's and C's in each of his sixth grade subjects. However, he began to have more emotional outbursts at school, usually as a result of his inability or unwillingness to conform with rules. The middle school principal assigned the child's guidance counselor to be a crisis counselor to whom the child could come to anytime during the school day.

The guidance counselor testified that despite his interaction with the child, the child's confrontations with his teachers and the principal increased during the 1989-90 school year. The record reveals that the child received detention or was suspended for disruptive behavior, insubordination and failing to complete assignments on numerous occasions. The child expressed remorse to the counselor for the incidents, but in the opinion of the counselor did not appear to be able to prevent them. The counselor also testified that the middle school could not provide the structured environment which the child needed.

The child passed each of his mid-term examinations for seventh grade in January, 1990, despite having been absent for 33 days during the first semester. However, his cumulative average of 72 for the semester was eleven points below his cumulative average for the preceding year, and would have been significantly less except for the A which he received in mathematics. The record reveals that the child was being treated by his psychiatrist with a tranquilizer and an anti-depressant at this time.

The child was present in school for only five days in the third quarter of the 1989-90 school year. In February, 1990, the child expressed in a punitive writing assignment a wish to kill the principal of the middle school. Although the record does not reveal the details, there was an incident at school involving the child on March 17, 1990. On that day, petitioners had the child hospitalized at the New York Hospital-Cornell Medical Center in White Plains.

A psychiatric report prepared on May 2, 1990 reveals that the child was admitted to the hospital for allegedly having violently threatening behavior, depression, suicidal tendencies and hallucinations. The report diagnosed the child as having recurrent major depression with psychotic features. The child was described in the report as having poor attention and concentration because of his paranoia, hostility, depression and anxiety. He was also described as acting out in an oppositional manner around authority figures, as a result of his low self-esteem.

The hospital referred the child to the CSE on or about March 27, 1990, with a recommendation that he receive special education provided by the White Plains Public Schools at the hospital. Respondent ultimately contracted with the While Plains Public Schools for hospital instruction for the child for approximately three weeks in June, 1990. Respondent also sent its school psychologist to the hospital to perform an educational evaluation of the child.

The child attended a summer school operated by the hospital, where his behavior was described as uncooperative, with frequent angry outbursts. The child was discharged from the hospital on September 14, 1990. At the time of his discharge from the hospital, he was receiving daily doses of Lithium Carbonate to moderate his depression. The record reveals that respondent has provided home instruction to the child since September, 1990, although neither the medical nor educational basis for doing so is revealed in the record.

The CSE met on September 26, 1990, but adjourned until November 7, 1990. The record does not reveal any basis for the lengthy delay between the child's referral in April, 1990 and the CSE's recommendation of November 7, 1990 (cf. 8 NYCRR 200.4 [c]). In its recommendation of November 7, 1990, the CSE found that the child should not be classified as having a handicapping condition, because his emotional difficulties did not adversely affect his educational performance. The CSE noted that the child was succeeding in Regents level courses, with the tutorial assistance provided by the school district. The CSE relied on the medical records, psychological evaluation and other data provided by the hospital to complete its evaluation of the child, which did not include an observation of the child as required by 8 NYCRR 200.4 (b)(2)(vii).

Petitioners requested an impartial hearing, which was commenced on December 19, 1990, but immediately adjourned because respondent had not formally appointed the hearing officer. Respondent appointed the hearing officer on December 20, 1990. The hearing officer conducted the hearing on January 11 and 25 and February 11, 1991. By decision dated April 4, 1991, the hearing officer acknowledged that the child had emotional problems, but found that it had not been sufficiently demonstrated that the child's classification as having a handicapping condition would provide him with an appropriate education.

Petitioners assert that the hearing officer erred in relying upon the child's passing grades as a basis for concluding that he does not have a handicapping condition. They contend that the child's emotional disturbance has clearly interfered with his ability to benefit from instruction and his ability to function within a regular school environment. They seek a determination that the child should be classified as emotionally disturbed and provided with a suitable instructional program in a residential school.

Respondent asserts that the child's oppositional behavior has not been appropriately addressed in a medical milieu, and that his emotional problems have not had a significant effect upon his educational performance. In essence, respondent asserts that the child's inability to conform with school rules is volitional, or social maladjustment, rather than a manifestation of a mental illness.

Both parties rely upon the definition of an emotionally disturbed child set forth in 8 NYCRR 200.1 (ff)(2), which reads as follows:

(2) Emotionally disturbed. A child 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 child unless it is determined that they are emotionally disturbed.

The regulation has been interpreted to mean that a child's emotional condition has a significant effect upon the child's educational performance and does not require that the child be totally incapable of learning (Matter 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). Inappropriate classroom behavior or a deficit in appropriate social and peer interaction skills would not per se afford a basis for classifying a child as emotionally disturbed, in the absence of evidence of an academic deficit (Application of a Handicapped Child, 27 Ed. Dept. Rep. 4; Application of a Child with a Handicapping Condition, 27 id. 116). The comparable Federal regulation (34 CFR 300.5 [a][8]) defines the term "seriously emotionally disturbed" in terms similar to those of the State regulation, as noted by the hearing officer.

The record before me includes the results of a psychological evaluation performed in April and May, 1990, while the child was hospitalized. The child's verbal IQ was reported as 105 and his performance IQ was reported as 109, yielding a full-scale IQ of 107. The child's reading and mathematics skills were reported to be at the tenth grade level, which was confirmed by respondent's school psychologist in an educational assessment performed on June 9, 1990, while the child was still in the hospital. At the time of such testing, the child was in seventh grade. Respondent's school psychologist also found that the child's written expression was at a twelfth grade level. However, the educational assessment does not attempt to make any explanation for the disparity between the child's average intellectual ability, strong academic skills and poor classroom performance. The assessment also fails to identify his learning style or his academic strengths and weaknesses.

The hospital psychologist described the child's personality functioning as follows:

" It appears that all of the above complaints [dysphoria, agitation, anger and violently threatening behavior] can be attributed to the beginnings of a paranoid psychotic process with regressions to a primitive delusional system ... Currently, the only cognitive functions which are affected by the onset of this pathology are the processes of attention and concentration and his ability to understand the subtle nuances of interpersonal interactions".

The hospital psychologist found that the child had a pronounced difficulty with attention and concentration which affected his short-term memory, as well as his capacity for conceptual abstractions and solving problems in his head, but that the child could learn at close to the peak of his cognitive powers within a structured environment.

Subsequent hospital reports, as well as the testimony and reports of the child's psychiatrist, express preferences for either residential or day special education programs for the child, but do not adequately reveal the nature of and the extent to which the child's emotional dysfunction impacts upon the child's educational performance. However, the record demonstrates that the child's grades have decreased significantly from the fifth through the seventh grade, and that such a decrease was well below what could reasonably be expected of a child with strong academic skills. The decrease in the child's performance occurred simultaneously with an increase in the intensity of his emotional difficulties. There is no basis in the record to conclude that the decrease in performance can be attributed to intellectual, sensory or health factors, or to social maladjustment.

Respondent relies in part upon the report of the hospital psychologist, who stated that the child's attention and concentration deficits did not seem to be greatly limiting to his academic performance, and who urged that the child not be berated for his idiosyncratic perceptions of the world so that he would not retreat within himself to the point where his academic performance is curtailed. It is not apparent from the psychologist's report whether he was aware of the child's academic record. I must also note that those portions of the psychologist's report which expressed the hope that the child could continue to perform academically were conditioned upon such things as a structured environment and special consideration for the manifestations of his emotional dysfunction. Therefore, I find that respondent's reliance upon the psychologist's report for the proposition that the child can continue to function in a regular educational environment is misplaced.

The hearing officer found, and respondent urges, that the child should be afforded the opportunity to succeed within a regular education program with supportive services. Respondent points to the testimony of its high school principal as to the availability of various supportive services in the high school which the child would be eligible to attend as an eighth grader. Although the efficacy of these services is somewhat doubtful in view of this child's history at respondent's middle school, I will not confuse the issue of appropriate placement with the issue of classification. Whether the child should be in a mainstream setting or a special class need not, and indeed cannot, be determined upon the record which is before me.

The record before me reveals that the child's academic performance has been significantly impacted by his emotional difficulties over a sustained period of time. While the child had not reached the point of failing a significant number of courses by the time he was hospitalized, it is not necessary that he do so in order to be classified as emotionally disturbed. I also find, on the basis of his mother's testimony, his teacher comments and the hospital reports, that he has become a loner, unable to maintain interpersonal relationships with peers and teachers. Based upon the testimony of the child's psychiatrist and his mother, I further find that he has developed physical symptoms associated with school, such as headaches and stomachaches. While all of the foregoing is consistent with the definition of an emotionally disturbed child for educational purposes, I must note an essential element of any decision to classify a child is missing.

An evaluation of a child must include an observation of the child in the current education setting (8 NYCRR 200.4 [b][2][vii]). The CSE's failure to obtain an observation, despite the opportunity to do so in June, 1990 at the hospital school, is especially significant because of the paucity of details in the record about the child's learning style, his educational strengths and his weaknesses. The record before me consists largely of medical and clinical data relating to the child's hospitalization, as well as his anecdotal or disciplinary record in school. Although the medical and clinical data effectly refute respondent's assertion that the child's emotional problems are volitional, they do not provide an adequate basis for identifying his educational needs. There is no information concerning the manner in which the child functioned in the classroom. Accordingly, I must annul the hearing officer's decision (Application of a Handicapped Child, 27 Ed. Dept. Rep. 456; Application of a Child with a Handicapping Condition, 29 id. 256).

I note that the child has not been in a regular educational environment in 14 months and that his present educational program is home instruction by a group of tutors, which cannot provide adequate information as to his learning style and his present ability to interact with other pupils and teachers in a school environment. It is essential to obtain up-to-date educational information about the child, in view of the length of time since he was last in a classroom, his treatment for mental illness and the effects, if any, of the medication which he now takes. Therefore, it is necessary for me to require the CSE to provide a temporary day program, such as the hospital school operated by the White Plains City School District, for the child with appropriate transportation for the child, in order to obtain the necessary information for classification and educational planning. Until the CSE provides such a setting for the child's evaluation, it cannot satisfy its obligation to provide appropriate programs and services under 20 USC 1401 et seq. and 29 USC 794. The child shall remain in such program for a minimum of 60 days, unless the CSE obtains medical evidence that the child's mental health would be adversely affected by remaining in the program. The CSE must also obtain recommendations from the mental health professionals responsible for the child's care and the educational staff of the facility in which the CSE places the child as to his need for health and educational services and the respective responsibility for providing and coordinating such services. The mental health professionals should explain the impact, if any, of the medications the child is taking will have on his educational performance. The educational staff should recommend to the CSE what, if any, special education needs the child has which cannot be met in a regular classroom, what level of academic material would be appropriate for the child, whether a full-day program would be appropriate, and the appropriate student-staff ratio.

Until the foregoing information is obtained, it is premature to discuss any appropriate educational placement for the child. Therefore, I must deny petitioners' request that I order respondent to place the child in a residential school.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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 calendar days of the date of this decision, the CSE shall enroll the child in a suitable educational program to obtain diagnostic information in accordance with the terms of this decision; the child shall remain in such program for a minimum of 60 calendar days unless the CSE obtains medical evidence that the child's mental health would be adversely affected by remaining in the program, and

IT IS FURTHER ORDERED that no later than 120 calendar days after the date of this decision, the CSE shall recommend to respondent whether the child should be classified and the appropriate program and/or services, if any, for the child.