92-024

Petitioner appeals from the determination of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that the child be classified as emotionally disturbed and be placed in a modified instructional services-II (MIS-II) class at P.S. 233. The appeal must be sustained.

Petitioner's eleven year old child was born in Jamaica, West Indies. At the age of six, the child entered first grade at P.S. 399 during the 1986-87 school year. During the 1987-88 school year, the child attended three different schools, P.S. 316, P.S. 213 and P.S. 397, for second grade. In June, 1988, the child's teacher at P.S. 397 referred the child to the CSE of Community School District 17, because the teacher believed that the child was having a great deal of difficulty with reading, despite receiving daily remedial reading assistance pursuant to Chapter 1 of the Education Consolidation and Improvement Act (20 USC 3801 et seq). The teacher also reported that the child appeared to be unhappy, had difficulty getting along with his peers, could not work independently, and was easily distracted. The child's mother consented to having the child evaluated by the CSE, which found that the child had severe deficits in reading and general knowledge. The child's math skills were reported to be at the second grade level. In August, 1988, the CSE recommended that the child be classified as learning disabled, and that he be placed in a modified instructional services-I (MIS-I) class, with counseling as a related service.

The child's parents did not accept the CSE's recommendation. Respondent did not initiate a hearing to obtain authorization to place the child in the recommended special class notwithstanding the parents' refusal to consent to such initial placement, as it was required to do by State regulation (8 NYCRR 200.5 [b][3]). The child repeated second grade at P.S. 399 during the 1988-89 school year, and completed the third grade at such school during the 1989-90 school year.

The child was enrolled in P.S. 193 in Community School District 22 for fourth grade during the 1990-91 school year. The child's anecdotal record reveals that he was involved in a number of incidents of physical contact or threatened physical contact with other children. On October 18, 1990, the child was suspended from school for five days because he fought with another child in the school yard and used inappropriate language towards an adult. On November 11, 1990, the child's teacher referred the child to the CSE because of his poor behavior and poor performance in reading. The teacher reported that the child had physically harmed other children, required constant supervision, and frequently disrupted his class. The teacher described the child as performing below grade level in mathematics, with relative strength in addition and subtraction, and relative weakness in multiplication and division. The child's teacher reported that the child had a difficult time decoding words, and had poor reading comprehension skills. The child's written expression was described as in need of improvement, with a particular deficit in English usage.

In March, 1991, the child's parents again consented to having the child evaluated. A psychological evaluation completed in March, 1991 revealed that the child was cognitively functioning in the average range, with a verbal IQ of 95, a performance IQ of 92, and a full scale IQ of 92. Respondent's school psychologist reported that the child was concerned about conflicts between his parents at home, and perceived that harsh punishment was administered at home. The school psychologist also reported that projective testing revealed the child's anxiety, sadness and reluctance to express his feelings. In an educational evaluation performed in April, 1991, the child achieved a grade equivalent of 3.0. His word identification skills were determined to be at a 2.9 grade level, while his passage comprehension skills were found to be at a 3.6 grade level. The child's oral comprehension was assessed to be at a fourth grade level. The child's mathematical skills ranged from a 5.9 grade equivalent in operations and applications to a 6.0 grade equivalent in basic concepts. Syntax and grammatical errors were noted in an assessment of the child's written expression.

In a social history completed in April, 1991, respondent's social worker reported that there had been turmoil in the child's family during the 1987-88 school year, which was the year in which the child attended three schools. A review of the child's cumulative record reveals that was the last school year in which the child's personal and social development were rated as satisfactory.

On May 13, 1991, the CSE of Community School District 22 recommended that the child be classified as emotionally disturbed, and that he be placed in an MIS-II class at P.S. 233, with the related service of group counseling once per week. The CSE recommended that the child be placed in the recommended class on June 18, 1991. However, the CSE did not notify the child's parents of its recommendation, until June 21, 1991. The parents did not consent to the implementation of the CSE's recommendation. In June, 1991, the child and his family moved into Community School District 18. By notice dated September 6, 1991, a placement officer for Community School District 18 notified the child's parents that if they did not respond to respondent's placement offer by September 25, 1991, the offer would have to be withdrawn. In that event, the parents would be contacted by the CSE chairperson or the child's principal, who would determine whether to close the case or ask for an impartial hearing.

In September, 1991, the child was enrolled in a regular education fifth grade class at P.S. 244 in Community School District 18. At the hearing, the principal of P.S. 244 testified that he did not learn of the CSE's May 13, 1991 recommendation until November, 1991. The child's anecdotal record reveals that he struck other children and various objects in school, and was insubordinate to his teachers. At the request of his teacher, a guidance counselor observed the child in his class, on November 22, 1991. The guidance counselor reported that the child made inappropriate facial expressions and an inappropriate gesture at the teacher, and pounded on his desk for approximately 15 minutes. The record further reveals that in November, 1991, the child deflated a tire on his teacher's car.

Petitioner met with the principal of P.S. 244 on four occasions during the Fall of 1991, to discuss the child's behavior. On November 26, 1991, the principal of P.S. 244 advised petitioner that the child would be transferred to another fifth grade class. The child's anecdotal record revealed that he was disruptive in his new fifth grade class. On January 6, 1992, the principal of P.S. 244 suspended the child from school for four days because the child had placed his hands on another child's neck and had choked the other child. On the same day, the principal also requested that an impartial hearing be initiated to obtain authorization to implement the CSE's recommendation of May 13, 1991, without the consent of the child's parents. The principal noted that the child had received counseling from a school substance abuse prevention intervention specialist, and that petitioner and the child had attended a district operated nurturing program designed to help parents and children get along better as a family unit. The principal asserted that the child's behavior had not improved, despite the change in classrooms. The record reveals no explanation for the principal's delay in requesting the hearing until the January, 1992 suspension of the child.

On February 11, 1992, the CSE of Community School District 18 conducted a review, which the child's parents did not attend. There is no evidence in the record of any notice to the parents of the CSE meeting, nor is there any evidence of what attempt the CSE may have made to provide for alternative means of parental participation in the meeting (8 NYCRR 200.4 [c][3]). The CSE found that the child, nine months after the initial recommendation, continued to require a small, highly structured class, with a second adult in the classroom to address the child's management needs. The CSE recommended that the child be classified as emotionally disturbed and placed in an MIS-II class, with group counseling once per week.

The hearing requested by the principal of P.S. 244 was held on March 4, 1992. Neither of the child's parents attended the hearing. The record reveals that a copy of a letter addressed to the principal from respondent's Impartial Hearing Office, announcing that the hearing had been rescheduled to be held on March 4, 1992, was sent by certified mail to the child's parents on February 4, 1992. The letter was returned to the sender, because it was not claimed by the parents. A representative of the Impartial Hearing Office testified at the hearing that a second copy of the principal's letter had been mailed by first class mail to the parents, and had not been returned to the Impartial Hearing Office. When asked by the hearing officer if the Impartial Hearing Office had any proof that the child's parents were aware of the hearing date, the representative testified that the records of the Impartial Hearing Office revealed that the child's mother had indicated that March 4, 1992 was an acceptable date for the hearing. The hearing officer ruled that the parents had been properly notified of the hearing, and proceeded in the parents' absence.

By decision dated March 31, 1992, the hearing officer found that the child's anecdotal records demonstrated his inability to maintain satisfactory interpersonal relationships and his inappropriate behavior in school, and that the child would be appropriately classified as emotionally disturbed. The hearing officer further found that the recommended MIS-II class would meet the child's needs, and that he would be grouped with children having similar needs.

Petitioner asserts that his child does not have a handicapping condition. He also asserts that the child should not be placed in a special education class, based upon his experience with two other children who were placed in special education classes.

I do not reach the issue of the appropriateness of the CSE's recommendation, because I find that respondent's procedural errors compel me to annul the hearing officer's decision.

To the extent that the hearing was held to implement the May 13, 1991 recommendation by the CSE of Community School District 22, I find that the recommendation was invalid because the record reveals that there was no parent member of the CSE present at the CSE meeting when the IEP was developed (Application of a Child with a Handicapping Condition, Appeal No. 91-23; Application of a Child with a Handicapping Condition, Appeal No. 91-41). However, a parent member of the CSE of Community School District 18 attended the February 11, 1992 CSE meeting at which a new IEP was developed for the child. Nonetheless, there remains a substantial procedural flaw in the actions of both CSEs. 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 case of a child who is being considered for placement in special education, i.e., a child who is not already in special education, Comment 1 (b) to 34 CFR 300.344 suggests that:

"... the teacher could be the child's regular teacher, or a teacher qualified to provide education in the type of program in which the child may be placed, or both."

The record reveals that the participants at the May 13, 1991 meeting of the Community School District CSE were a social worker, a school psychologist, an "educational evaluator" and a social work student from a local college. Neither the child's regular teacher nor a teacher qualified to provide education in the type of program in which the child may be placed is listed as in attendance at the meeting. The record does not disclose the qualifications of the person identified as an "educational evaluator", and the burden is on the respondent to show that a teacher was present who was qualified to provide the child with special education in the program recommended by the CSE. In addition to the parent member, the participants at the February 11, 1992 Community School District 18 CSE meeting were the chairperson (school psychologist), a social worker, a school psychologist, a guidance counselor, and an "educational evaluator". Again neither the child's teacher nor a teacher qualified to provide education in the type of program in which the child may be placed was present. Nor does the record reveal the qualifications of the "educational evaluator" who attended the February 11 meeting. Consequently, I find that respondent has not demonstrated that the child's "teacher", as that term is used in Federal and State regulation, was present at either CSE meeting, and that the action taken at each meeting must be annulled.

Lastly, I find that the hearing officer erred in finding, on the record before her, that petitioner had been properly notified of the hearing initiated by respondent. Adequate notice of hearings is an essential element of due process of law in administrative proceedings (Alvarado v. State, 110 Ad 2d 583; Application of Child with a Handicapping Condition, 29 Ed. Dept. Rep. 432). The record does not disclose what, if any, notice of the hearing was initially sent to petitioner. Indeed, the only evidence in the record of the notice given to petitioner is a copy of a brief letter from the Impartial Hearing Office dated February 3, 1992, addressed to the principal of P.S. 244, and mailed to petitioner. The letter informs the principal that the hearing for the child had been rescheduled to March 4, 1992 at the request of a guidance counselor, but does not reveal the purpose of the hearing. Moreover, Federal and State regulations require that parents be notified prior to any hearing that they may be able to obtain free or low-cost legal or other relevant services (34 CFR 300.506 [c][2]; 8 NYCRR 200.5 [c]).

Adequate notice of the purpose of the hearing was essential in this case, because petitioner did not request the hearing. The hearing was requested by the principal of P.S. 244. In addition, petitioner was notified by respondent at various times of actions which were inconsistent with the purpose of the March 4, 1992 hearing. In June, 1991, petitioner received written notice of the May, 1991 recommendation of the Community School District 22 CSE. In September, 1991, petitioner was notified in writing that respondent's offer of a special education class to implement the Community School District 22 CSE's recommendation would be withdrawn. In effect, petitioner was told that the CSE recommendation would not be implemented. However, the principal of P.S. 244 requested that a hearing be held to authorize respondent to implement that recommendation. At almost the same time when he would have received a copy of the February 3, 1992 letter concerning the rescheduling of the hearing, petitioner also should have received written notice that the CSE of Community School District 18 would meet on February 11, 1992 to discuss the child's classification and placement (8 NYCRR 200.5 [a][1]). Petitioner could reasonably conclude that the recommendation of the Community School District 18 CSE would supersede the recommendation of the Community District 22 CSE, which was to be the subject of the March 4, 1992 hearing. Under the circumstances, it was incumbent upon respondent to carefully explain to petitioner the nature and purpose of the hearing. It was also incumbent upon the hearing officer to insist upon evidence of respondent's compliance with the requirement of adequate notice, before concluding that the parents had waived their right to attend the hearing and allowing the hearing to proceed in the absence of the child's parents.

THE APPEAL IS SUSTAINED.

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