92-009

Petitioner appeals from a decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) to change the placement of petitioner's child from regular education classes, with resource room assistance and counseling, to a special education class in respondent's modified instructional services-II (MIS-II) program, with counseling. The appeal must be sustained.

In June 1989, petitioner's child was initially referred by her fourth grade teacher at P.S. 32 to the CSE because the child had experienced difficulty in reading which led to frustration and behavioral problems in school. With the exception of the 1987-88 school year when she repeated third grade, the child had been promoted each year. However, the child's cumulative record reveals that her social behavior had been continuously rated unsatisfactory since the 1986-87 school year.

On August 16,1989, the CSE recommended that the child be classified as learning disabled and emotionally disturbed, and that the child receive resource room services and counseling while remaining in regular education classes. Petitioner accepted the recommendation, and the child received resource room services and counseling during the 1989-90 and 1990-91 school years. However, the child's anecdotal record reveals that the child's social behavior did not improve and she continued to be disrespectful of her teachers and abusive toward other children during the 1989-90 and 1990-91 school years.

On April 26, 1991, the child's resource room teacher referred the child to the CSE, with a request that the child be psychologically evaluated. The resource room teacher reported that the child was unable to maintain positive relationships with her peers, was disruptive of the learning environment, and in need of a behavioral management program. On May 8, 1991, the child was evaluated at the request of the CSE by a psychiatrist, who opined that the child was tense, impulsive and angry. The psychiatrist recommended that the child be placed in an MIS-II class. On May 22, 1991, the child was evaluated by a psychologist, who reported the results of the child's IQ test which revealed that the child cognitively functioned in the low-average to average range. The psychologist noted that the child lost interest when asked to perform certain tasks, and that projective testing revealed that the child was tense and angry/confused, with a need to assume a leadership role with her peers. The psychologist recommended that an educational program for the child should address her socialization needs, as well as her impulsive behavior. In an educational evaluation of the child, performed in May, 1991 when the child was in fifth grade, the child's language skills were found to be grade appropriate. However, the educational evaluator testified at the hearing that the child's reading comprehension and math computation skills had not increased, despite the fact that the child had been provided with resource room services since September, 1989.

On June 12, 1991, the CSE recommended that the child be classified as emotionally disturbed, and that the child be placed in an MIS-II class. The CSE further recommended that the child continue to receive counseling for 30 minutes each week, in a group not to exceed five children. The rationale given by the CSE for its recommendation of a change in the child's placement was that she required a more structured setting than could be provided in the resource room program. The Phase I individualized education program (IEP) for the child, which was prepared at the June 12,1991 CSE meeting, lists the participants at the meeting. The IEP reveals that neither a CSE member who is the parent of a child with a handicapping condition nor the child's teacher attended the June 12,1991 CSE meeting. There is no evidence that petitioner attended the June 12 CSE meeting.

By letters dated July 19 and August 14, 1991, the CSE offered petitioner a placement for the child in an MIS-II class in I.S. 293, which is the school the child would have attended for seventh grade if she remained in regular education classes. Petitioner did not respond to the CSE's letters. In September, 1991, the child was placed in regular education seventh grade classes, with resource room services and counseling at I.S. 293.

On October 22, 1991, the CSE met with petitioner to discuss the child's continuing behavioral problems in regular education classes. The child's teacher did not participate in the October 22 meeting. Petitioner continued to resist the proposed change of placement. Deeming petitioner's continuing objection to be a request for a hearing, respondent initiated an impartial hearing, which was held on October 26, 1991. In a decision dated November 27, 1991, the hearing officer found that the child was appropriately classified as emotionally disturbed, and that the child required the more structured setting which an MIS-II class would provide. However, the hearing officer further found that the specific class offered to the child was inappropriate, because the child would not have been grouped with children of similar academic achievement. The hearing officer also found that the child's IEP should be amended to provide for one session of individual counseling per week. The hearing officer directed the CSE to find an appropriate MIS-II class for the child.

Petitioner does not challenge the finding by the hearing officer that the child should be classified as emotionally disturbed. However, petitioner opposes the removal of her child from regular education classes and her placement in a special education class on a full-time basis. She asserts that the child's sibling had an unsatisfactory experience in a special education class. With regard to the child in this appeal, petitioner asserts that the child's academics and her behavior have improved, and that she should be allowed to remain in regular education classes.

In reviewing the record I find that there is a significant procedural issue which must be addressed. At the time of the CSE's meeting on June 12, 1991, section 4402 (1)(b)(1) of the New York State Education Law provided that the board of education of each school district must establish a CSE, composed of at least a school psychologist, a teacher or administrator of special education, a school physician, a parent of a child with a handicapping condition and such other persons as the board of education may designate, and authorized boards of education in school districts in cities having more than 125,000 inhabitants to establish subcommittees of the CSE, provided that each subcommittee was similar in composition to the CSE. The statute was amended, as of July 1, 1991, to require the appointment of a CSE in each community school district within the City School District of the City of New York, and to authorize the creation of subcommittees of the CSE in such community school districts which shall consist of at least the child's teacher, a representative of the school district who is qualified to provide or supervise the provision of special education, and a school psychologist, in certain instances. However, a subcommittee in respondent's district is not authorized to act where the child is being considered for initial placement in a special class. Although the child had previously received resource room services, she had not been educated in a special class. Nevertheless, the defect of the omission of the parent member of the CSE at the June 12, 1991 meeting was cured by the presence of the parent member of the CSE at the October 22, 1991 meeting of the CSE, at which the prior recommendation of placement in an MIS-II class was approved.

Although respondent cured the defect in its procedure with regard to the parent member of the CSE, there is nevertheless a fatal flaw in its procedure. Both Federal and State regulations require that a child's teacher participate in meetings in which the child's IEP is prepared (34 CFR 300.344 [a][2]; 8 NYCRR 200.4 [c][3]). In the absence of the child's teacher, the other participants at such meetings are deprived of the opportunity to obtain accurate information about the child's academic and social needs. The child's teacher was not present at either the June 12 or October 22 meeting. The absence of the child's teacher from both meetings affords an adequate basis for annulling the decision of the hearing officer and the recommendation of the CSE (Application of a Child with a Handicapping Condition, Appeal No. 91-39; Application of a Child with a Handicapping Condition, Appeal No. 90-22).

In its answer to the petition, respondent acknowledges that the child's teacher was not present at the CSE meetings, and asserts that there is no evidence that a physical examination of the child had been performed. Respondent asks that the matter be remanded to its CSE.

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, respondent's CSE shall obtain a physical examination of the child and shall recommend an appropriate placement for petitioner's child for the remainder of the 1991-92 school year.