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Application of a CHILD SUSPECTED OF HAVING A HANDICAPPING CONDITION, by his parent, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the City School District of the City of New York


Stephen M. Zeitlin, Esq., attorney for petitioner

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Awo Sarpong, Esq., of counsel


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 classified as emotionally disturbed and be placed in a modified instructional services-II (MIS-II) class at P.S. 321. The appeal must be dismissed.

At the age of three, petitioner's nine year old child was initially evaluated at the Lamm Institute for Child Neurology and Developmental Medicine (Lamm Institute). On January 17, 1986, the child was diagnosed as speech delayed, and was provided speech-language therapy by the Long Island College Hospital.

In September, 1987, the child entered kindergarten at P.S. 124. In March, 1988, the child's teacher referred the child to the CSE, because the child had displayed oppositional behavior, was hostile to other children, and refused to comply with the teacher's directions. In April, 1988, the CSE recommended that the child be classified as emotionally disturbed, and that he be placed in a specialized instructional environment-VII (SIE-VII) class. In September, 1988, the child entered a regular education first grade at P.S. 124 because no SIE-VII class was available for him. On two occasions during the 1988-89 school year, the child was suspended for having physically attacked other children.

In late 1988 and early 1989, the child was re-evaluated at the Lamm Institute. A psychological evaluation of the child revealed that the child cognitively functioned within the average range, and had an age appropriate vocabulary, adequate verbal reasoning skills and an above average linguistic memory. However, the psychologist opined that the child was at a high risk for developing learning problems because of his behavioral difficulties and impulsive problem solving style. A speech and language evaluation revealed that the child had age appropriate expressive language skills, but mildly impaired receptive language processing. In a case summary dated February 23, 1989, the Lamm Institute reported that the child had an organic attention deficit, a hyper-activity disorder, and a conduct disorder. The Lamm Institute recommended that the child be placed in a MIS-II class and that he receive counseling.

On March 14, 1989, the CSE reviewed the report by the Lamm Institute, but the CSE adhered to its previous recommendation that the child be placed in a SIE-VII class. Petitioner asked for an impartial hearing, which was concluded in September, 1989. The hearing officer upheld the CSE's recommendation for the child's classification and placement.

Petitioner removed the child from the public schools and enrolled the child in a private school for second grade during the 1989-90 school year. In December, 1989, the child was enrolled in a second private school, in which he remained until the middle of the second semester. The record reveals that the child was compelled to leave the second private school because of his behavior. The child entered another private school for third grade during the 1990-91 school year. The record reveals that the child displayed inappropriate behavior at the private school, although his behavior reportedly improved for a brief period of time during which the child took medication to control his attention deficit.

In June, 1991, the child was re-evaluated at the Lamm Institute. The psychologist, who had also evaluated the child in 1988, reported that the child appeared to be sad and aloof, rather than active and often destructive as he had been in 1988. The psychologist found that the child had somewhat better control over his overt aggressive impulses than he did in 1988. However, the psychologist reported that the child appeared to be highly distracted by internal stimuli. The child's problem solving style was described as impulsive, rather than considered. The child was described by the psychologist as emotionally detached and exhibiting a flat affect. The child attained a verbal IQ score of 78, a performance IQ score of 84, and a full scale IQ score of 79, which was approximately 12 points below the results of similar tests administered in 1988. The psychologist found that the most notable decline had been in the area of the child's verbal IQ, and opined that the child's decreased performance was associated with his emotional difficulties. The psychologist reported that the child exhibited weakness in auditory memory and knowledge learned in school. The child's graphomotor skills were described as delayed by two years. The psychologist reported that the child's academic skills were delayed by one year. The psychologist found that the child had poor social comprehension, and a limited understanding of cause and effect in social situations and concrete reasoning, which were significantly impacting upon the child's social and emotional development. The Lamm Institute psychologist concluded that the child was emotionally remote and oppositional, and that the child displayed significant anxiety regarding his aggressive and sexual impulses. The psychologist opined that the child had a very high risk for continued emotional and academic difficulties, and recommended that the child receive special education.

In September, 1991, petitioner enrolled the child in P.S. 124 for fourth grade. On September 13, 1991, petitioner requested that the child be evaluated. Respondent's psychiatrist evaluated the child on September 30, 1991. The psychiatrist opined that the child had displayed a moderate attention deficit disorder with hyperactivity, a moderate oppositional defiant disorder and a severe conduct disorder. The psychiatrist recommended that the child be placed in either a MIS-II or SIE-VII class.

A social history, completed on October 1, 1991, revealed that the child had not spoken until the age of three. The child's mother described the child as somewhat hyperactive at home, but she believed that the child was maturing. In an educational evaluation completed on October 15, 1991, the child achieved grade equivalents of 5.1 in decoding, 4.3 in reading comprehension, 2.7 in spelling, 2.7 in mathematic application and 3.1 in computation skills. The evaluator reported that the child had difficulty in mathematics with subtraction and re-grouping. The child's writing skills were described as below grade expectancy, because of the child's poor syntax, lack of punctuation and poor spelling. The evaluation also found deficiencies in the way the child formed and spaced letters when writing. Although the child displayed a vocabulary which was commensurate with his age, the evaluator found that the child had poor speech articulation, including a failure to pronounce the letter "L". The educational evaluator further reported that the child's auditory memory was slightly above grade level, but that the child had to be continually refocused because of his limited attention span and distractibility.

A speech therapist, who evaluated the child in October, 1991, also found that the child had a poor attention span and needed to be refocused to complete tasks. The therapist reported that the child exhibited several articulation problems, including substitutions, omissions and distortions. The child's articulation errors and his rapid rate of speech made the child's speech somewhat difficult to understand. The therapist reported that the child displayed expressive vocabulary skills which were approximately one year above his chronological age and grade. The therapist recommended that the child receive speech/language therapy because of delays in the child's receptive and expressive language.

In lieu of its own psychological evaluation, the CSE relied upon the June, 1991 psychological evaluation by the Lamm Institute. On November 22, 1991, the CSE recommended that the child be classified as emotionally disturbed and that he be placed in the MIS-II program, with individual counseling once per week and small group counseling once per week and small group speech therapy twice per week. By letter dated December 15, 1991, the CSE advised petitioner of its recommendation, and identified a specific MIS-II class for the child at P.S. 154. After visiting MIS-II classes at P.S. 154 and P.S. 27, petitioner declined to consent to the recommendation of the CSE. On January 27, 1992, the CSE offered petitioner another MIS-II class at P.S. 321. However, petitioner declined to consent to the CSE's recommendation.

On February 3, 1992, the child was observed in his class, which should have been done before the CSE made its recommendation on November 22, 1991 (8 NYCRR 200.4 [b][4][vii]). A school psychologist who made the observation, reported that the child was academically involved, but found that the child had exhibited exaggerated behavior because the psychologist perceived that the child had asked the teacher more questions than necessary during a test. A second classroom observation was made on February 6, 1992, by a school social worker. The school social worker reported that the child was generally inattentive during a mathematics lesson which the social worker observed being given.

On February 24, 1992, the CSE reconvened to consider the child's placement. The CSE reaffirmed its prior recommendation that the child be placed in a MIS-II class in P.S. 321. On February 27, 1992, the principal of P.S. 124 requested that a hearing be held to determine whether the CSE's recommendation should be implemented, notwithstanding petitioner's refusal to consent to the child's placement. The principal reported that the child's impulsive and aggressive behavior, as well as his inattentiveness, had interfered with the child's learning. The principal further reported that although the child was reading at the appropriate grade level, he had been unable to master any new subject matter and could not work independently.

The hearing requested by the principal was held on March 20, 1992, and continued on March 24, 1992. By decision dated April 10, 1992, the hearing officer upheld the CSE's recommendation with regard to the classification and placement of the child. Referring to the Federal regulatory definition of an emotionally disturbed child (34 CFR 300.5 [a][8]), the hearing officer found that the child displayed the characteristics of an inability to learn, an inability to maintain satisfactory interpersonal relationships, and had exhibited inappropriate behavior under normal circumstances. The hearing officer further found that the MIS-II program was appropriate for the child, and that the child would be grouped with children having similar needs in the MIS-II class at P.S. 321.

Before addressing the issues of the child's classification and placement, I note that respondent has annexed to its answer certain documents relating to an alleged disciplinary incident involving the child, and to the child's performance on a standardized mathematics test given in April, 1992. Both documents relate to matters which occurred subsequent to the hearing. Respondent asks that the documents be considered as evidence which was not available at the time of the hearing. Evidence which was not in the record before a hearing officer will generally not be considered in a review of the hearing officer's decision, unless such evidence was not available at the time of the hearing, or unless the record is incomplete (Application of a Child with a Handicapping Condition, Appeal No. 91-34). I will not consider any of the documents because petitioner has not been afforded the opportunity to challenge the potentially prejudicial facts recited by respondent in its answer, and the report of the child's score on the standardized math test is simply cumulative and the record in this proceeding is complete (Application of a Child with a Handicapping Condition, Appeal No. 91-34).

Petitioner asserts that the child should not be classified as a child with a handicapping condition, because the child's educational evaluation revealed that the child was reading at, or above, his grade level, and that the child was only one or two grade levels below expectancy in mathematics. Petitioner also relies upon the testimony at the hearing of the child's fourth grade teacher, who conceded that the child did his homework, and had made some progress in mathematics.

Respondent has the burden of establishing the appropriateness of the proposed classification and placement (Application of a Handicapped Child, 26 Ed. Dept. Rep. 156). In order to be classified as emotionally disturbed, a child must meet the criteria set forth in State regulation, which defines an emotionally disturbed child as 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;

(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." (8 NYCRR 200.1 [ff])

The regulation means 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 (Application of a Child with a Handicapping Condition, Appeal No. 91-20; Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 163). Whether a child has an "inability to learn" cannot be determined solely on the basis of the child's achievement test scores (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 435). A child may be classified as emotionally disturbed, if the child's emotional condition significantly interferes with the child's ability to benefit from instruction in a regular education classroom (ibid).

The record in this appeal includes the evaluations by the Lamm Institute, reports by the child's teachers and others who have observed him in class at P.S. 124, as well as his third grade teacher in a private school. The reports consistently describe the child as having a significant inability to attend to tasks, and also having serious social and emotional problems which have had a direct effect upon the child's ability to learn over a long period of time. The testimony of the child's fourth grade teacher reinforced the opinion expressed by the evaluators at the Lamm Institute that the child has the ability to learn, but that his achievement has been impaired by his emotional difficulties. The teacher testified that the child had good verbal decoding skills and was able to verbalize answers, but could not express himself well in writing and became distracted. The teacher testified that the child was able to perform addition, subtraction and simple multiplication, but that despite some progress, the child's math skills were well below a fourth grade level. Although the child's reading level was at the appropriate grade level, an educational evaluator testified that the child's significant deficit in general information and his poor grades in subject areas demonstrated that the child was not "taking in" information.

The guidance counselor at P.S. 124 testified that the child genuinely wanted to make friends with other children, but could not successfully maintain satisfactory relationships. The child's teacher at P.S. 124 testified that the child was unable to accept correction. Although the guidance counselor believed that the child's behavior had improved somewhat since he was in first grade, the guidance counselor testified that the child nevertheless continued to disrupt classes, virtually every day, and continued to express inappropriate thoughts about killing himself and others.

Although petitioner asserts that the child should not be classified on the basis of brief evaluations or upon the testimony of respondent's witnesses, some of whom did not know the child, there is a remarkable consistency between the reports of the Lamm Institute evaluators, the report of respondent's evaluators, and at least two witnesses who have worked with the child over a period of time. I find that the record supports the hearing officer's conclusion that the child would be appropriately classified as emotionally disturbed because of the child's inability to remain on task and impulsive problem solving style, which inhibit his ability to learn, and his inability to build and maintain satisfactory interpersonal relationships with peers and teachers.

The last issue in this appeal is whether the MIS-II program and the class selected by the CSE were appropriate for the child, recognizing that the 1991-92 school year has ended. Respondent bears the burden of establishing the appropriateness of the recommended program and class (Application of a Child with a Handicapping Condition, Appeal No. 92-1). In meeting its obligation, respondent must show that its program or placement is reasonably calculated to ensure that the child will receive educational benefits (Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176), and that the program or placement is the least restrictive environment for the child (34 CFR 300.550 [b] and 8 NYCRR 200.6 [a][1]).

An appropriate program begins with an individualized education program (IEP) which accurately reflects the findings of the child's evaluations in identifying the child's needs, provides for the use of appropriate special education services to address the child's needs and established annual goals which are related to the remediation of the child's educational deficits (Application of a Child with a Handicapping Condition, Appeal No. 92-1). This child's IEP accurately identifies the child's needs in the areas of attending to task, language processing and expression, mathematical applications and computation, and improvement of his social skills. The IEP annual goals and short-term objectives are directly related to the child's needs. With regard to the recommended related services of speech/language therapy and counseling, there is ample evidence in the record to support the use of such services to meet the child's needs.

The central issue raised by petitioner, who acknowledges that the child would benefit from related services, is whether the child's needs can be met in a regular education program. The record reveals that respondent has attempted to maintain the child in a regular education program, by providing the child with two periods per day of resource room services and small group counseling by the school guidance counselor. The child's teacher testified that for the first two months of the 1991-92 school year, the child received instruction in three fourth grade classes, in an effort to determine where the child would be most compatible. The school staff also made arrangements with petitioner to have the child go home for lunch, in order to minimize his contact with others during an unstructured portion of the school day. Nevertheless, the child has not benefitted significantly by his current placement in regular education, and the record demonstrates that he has not been successful in regular education since kindergarten.

I find that the child requires a small, highly structured class, with a second adult in the classroom, in order to maintain his focus on the instruction which is presented, and to preclude him from indulging in inappropriate behavior. The child's fourth grade teacher testified that it was not possible to provide the child with the attention which the child required in a regular educational class, and that the child's performance was better in a small group. Petitioner asserts that the child should be placed in a small class, with a behavior modification program, in the regular educational program. However, I find that the child requires more than a small class, with a behavior modification program. The child needs special education to address his learning deficits, notwithstanding petitioner's general reservations about special education. Respondent's MIS-II program, which has classes of no more than 12 children with a special education teacher and an aide, would provide both a small class and specialized instruction to meet the child's educational needs. Although one of respondent's witnesses at the hearing opined that the child might require a more structured program, such as the SIE-VII program with a child-adult ratio of 6:1+1 and little opportunity for mainstreaming, I find that the requirement of placement in the least restrictive environment dictates that the child be first placed in the less restrictive MIS-II program.

With regard to the appropriateness of the specific class offered by respondent at P.S. 321, I find that the class profile entered into evidence and the testimony of the Community School District 15 special education supervisor were adequate to afford a basis for the hearing officer to conclude that the child would have been grouped with children who had similar needs (8 NYCRR 200.6 [a][3]). In placing this child in an appropriate class for the 1992-93 school year, respondent should consider the child's relatively high reading level.


Topical Index

Educational PlacementSpecial Class12:1+1
IDEA EligibilityRequires Special Education
Parent Appeal
Parental ConsentConsent for Services
Preliminary MattersAdditional Evidence/Record Issues
Special FactorsInterfering Behaviors (FBA/BIP)