91-023

Petitioner appeals from the determination of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioner's child be dually classified as emotionally disturbed and learning disabled, and that the child be placed in a modified instructional services II (MIS-II) special education class for the 1990-91 school year. The appeal must be sustained.

        Petitioner's child attended kindergarten and first grade in Miami, Florida. During the 1989-90 school year, the child was in a regular education second grade class at respondent's P.S. 11, which is in Community School District 30. The record reveals that, in May, 1990, a guidance counselor referred the child to the CSE for Community School District 30, because the child allegedly had difficulty controlling her behavior in class. There is no evidence in the record of any disposition of that referral.

        The child was, thereafter enrolled in a summer program of P.S. 12, which is in Community School District 24, and entered third grade at P.S. 12 in September, 1990. Two weeks after entering third grade, she was transferred at petitioner's request, to a bilingual third grade class in P.S. 12. The child's teacher referred the child to a school based support team (SBST), which met with petitioner on October 30, 1990. The SBST referred the child to the CSE for Community School District 24, which met on November 14, 1990, without petitioner. The record does not disclose what, if any, attempts the CSE made to provide the alternative means for petitioner's participation in the meeting, as required by Federal regulation (34 CFR 300.345 [d]). On November 14, 1990, the CSE recommended that the child be classified as emotionally disturbed and as learning disabled. The CSE further recommended that the child be placed in a MIS-II class, which is a class of not more than 12 children who are taught by a special education teacher, with the assistance of an aide. The CSE also recommended that the child receive counseling, in a group of not more than three children, once each week. The proposed class was located in P.S. 14, to which the child was to have been transported by respondent.

        Petitioner requested a hearing to review the CSE's recommendation. The hearing was held on January 3, 1991. By decision dated January 22, 1991, the hearing officer upheld the CSE's recommendation with respect to classification and placement. The hearing officer described the child as "... out of control without the necessary help she needs to overcome her problems".

        Petitioner asserts that her child's behavior is improving, as a result of the private counseling which she and the child are receiving. Petitioner states that the frequent changes in her child's educational placements may be a major cause of the child's behavioral difficulties, and that the proposed change would exacerbate those difficulties.

        Respondent has not filed an answer to the petition. Prior to the date when the answer was due, respondent's attorney advised petitioner that the CSE's recommendation had been withdrawn. Respondent's attorney further advised petitioner that the CSE would contact petitioner about a further evaluation of her child, and that in the event the CSE made a new recommendation, petitioner would have the right to challenge the new recommendation at a new impartial hearing.

        The parties to an impartial hearing are ordinarily bound to comply with the decision of an impartial hearing officer, unless that decision is altered or set aside by the State Review Officer (20 USC 1415 [e][1]). However, it would frustrate the purpose of both Federal and State law if a parent and a board of education were precluded from jointly resolving their differences, without the intervention of the State Review Officer, simply because a hearing officer had rendered a decision. Although petitioner appears to have achieved the relief which she seeks from me, annulment of the CSE's recommendation, I must note that petitioner has not withdrawn her appeal. Therefore, I have reviewed the record, and find that the decision of the hearing officer must be annulled.

        The record before me includes the child's individualized education program (IEP), which was developed at the November 14, 1990 CSE meeting. That document lists the participants at the meeting as psychologist, a social worker, a principal and an educational evaluator. New York State law requires that each CSE consist of at least a school psychologist, a teacher or administrator of special education, a school physician and a parent of a child with a handicapping condition, except that the school physician need not be present unless requested by the parent, the pupil or another member of the committee (Education Law Section 4402 [1][b][1]). There is no evidence that the parent of a child with a handicapping condition participated in the recommendation that the child be classified or that she be placed in the MIS-II class. The failure to have a parent member of the CSE present at a meeting at which a child is classified or an IEP is developed is a sufficient basis to invalidate the CSE recommendation (Matter of Handicapped Child, 24 Ed. Dept. Rep. 185; Matter of Handicapped Child, 23 id. 198; Matter of Handicapped Child, 22 id. 262).

        State regulation requires that each child referred to a CSE because of a suspected handicapping condition receive an individual evaluation consisting of at least a physical examination in accordance with the provisions of Section 904 of the Education Law, an individual psychological examination, a social history and other suitable examinations and evaluation (8 NYCRR 200.4 [b][1]). There is no evidence in the record of a physical examination of the child. This omission is especially significant in view of the fact that the record reveals that the child is being treated with medicine by a psychiatrist and that a private psychologist recommended that the child have a neurological examination. Petitioner declined to have the neurological examination performed at the hospital chosen by respondent, and is reportedly waiting for approval from Medicaid to have the examination performed elsewhere. Respondent should work with petitioner to arrange for a prompt neurological examination.

        Although the child's primary language before entry into school was Spanish, she is now reported to be proficient in English, at least to the extent that she does not require bilingual education. However, I find that the CSE should further assess the child's language comprehension and auditory memory skills. The record reveals that the child received low scores on tests of her reading comprehension and her auditory memory. Further testing would provide a better understanding of her learning disability, if any, and would provide an appropriate basis for preparing an IEP to address her learning needs.

        With respect to the proposed classification of emotionally disturbed, I must note that the record does not establish any basis for finding that the child has exhibited over a long period of time any of the characteristics set forth in the definition of that handicapping condition in State regulation (8 NYCRR 200.1 [ff]). With the exception of the classroom observation, there was no evidence of her behavior in class or its impact upon her ability to learn. The observation revealed that the child has a short attention span and was constantly moving in or out of her seat. I also note that when asked about the child's behavioral problems by the hearing officer, the principal of P.S. 12 testified that her behavioral problems in the third grade were generated by her lack of comprehension of English. The child's frustration as the result of an inability to comprehend can be addressed by an appropriate educational program, and does not afford a basis for concluding that she is emotionally disturbed.

        Until the child has been adequately evaluated and appropriately classified, it is premature to consider an appropriate placement.

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 calendar days after the date of this decision, the CSE shall complete the requirements for an appropriate evaluation of the child as described in this decision, and shall meet to consider whether the child should be classified and, if so, to recommend an appropriate placement for her.