92-026

Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioner's child not be classified as a child with a handicapping condition, but which directed respondent to convene a team of individuals to afford the child the opportunity to receive educationally related support services in a regular education program and to consider the child's eligibility to receive services pursuant to Section 504 of the Rehabilitation Act of 1973 (29 USC 794). The appeal must be sustained.

Petitioner's child, who is fifteen years old, entered respondent's school as a sixth grader, in September, 1988. The child completed sixth and seventh grades uneventfully. He ceased attending school on a regular basis during the 1990-91 school year. The parties stipulated that two petitions alleging that the child was a person in need of supervision (PINS) were filed in the Suffolk County Family Court, to compel the child's attendance in school. The parties further stipulated in the transcript of the hearing that the efforts of the district social worker, including the PINS petitions, have been unsuccessful in attaining the child's attendance at the Longwood Central School District.

On December 6, 1990, the child was referred to the CSE by a school social worker, because of the child's absenteeism. On March 14, 1991, an educational evaluation of the child revealed that his reading and mathematics skills were at the twelfth grade level. On the Test of Written Language (TOWL), the child achieved a score at the eighth grade level. The evaluator testified at the hearing that the child's low performance on the TOWL, relative to his high performance on the reading and mathematics tests, was due to the child's relatively poor vocabulary. In a psychological evaluation performed on April 10, 1991, the child achieved a verbal IQ of 107, a performance IQ of 106 and a full-scale IQ of 107. Respondent's school psychologist reported that there was significant intra-test variability, ranging from very superior performance to low-average performance. The child's word recognition, spelling and mathematics skills were found to be at the twelfth grade level, which was consistent with results of the child's educational evaluation. The school psychologist reported that the child exhibited a positive self-image, but projective tests revealed that the child expressed themes of killing and hatred. The school psychologist recommended that the child be evaluated by a psychiatrist.

On April 24, 1991, the CSE recommended that the child be psychiatrically evaluated, and that a medical evaluation of the child be completed. A medical examination was completed by a school physician on May 9, 1991. The child was examined by a psychiatrist on May 14, 1991. The psychiatrist found that there was significant evidence that the child had a poor self-image, and a self-conscious style of relating to others. The psychiatrist further found that the child had a mildly constricted affect. The psychiatrist opined that the child appeared to be suffering from personality traits suggesting narcissistic, oppositional, or passive aggressive and anti-social traits that appeared to be dramatically interfering with his life. Asserting that a diagnosis was not crucial at that time, the psychiatrist stated that:

"... it is extremely important to underline that [the child] is suffering from emotional turmoil that may predate either serious depressive illness, a Dissociative Disorder, or a Mixed Personality Disorder."

The psychiatrist recommended that the child receive intensive psychotherapy, so that the child could begin to understand his feelings of vulnerability and dependency, which appeared to relate to his difficulty in attending school, and that others in the child's family receive counseling. The psychiatrist further recommended that the child receive home tutoring for the remainder of the 1990-91 school year, because emotional factors prevented him from attending school. For the 1991-92 school year, the psychiatrist suggested that school attendance and counseling be conditions of a court order in the PINS proceeding. The psychiatrist also opined that the child should not receive special education, because of the school psychologist's report that the child had no deficit in his ability to learn.

As a result of the psychiatrist's report, respondent began providing home tutoring to the child, in May 1991. The child has not attended school since December, 1990, but has received tutoring at home since May, 1991. The child's report card for the 1990-91 school year reveals that the child received passing grades in social studies, mathematics and science, but failed the remainder of his subjects.

On June 17, 1991, the CSE recommended that the child not be classified as a child with a handicapping condition. The CSE noted the results of the child's psychiatric evaluation which revealed his need for psychotherapy, but concluded that the child did not require special education services because he was above grade level academically.

During the Summer of 1991, the child began to receive counseling from a sexual abuse therapist at the Victims Information Bureau of Suffolk. By letter dated October 16, 1991, the child's therapist recommended to respondent that the child continue to receive home tutoring. On October 22, 1991, petitioner requested that an immediate meeting of the CSE be held to discuss the child's needs.

On November 13, 1991, the CSE again recommended that the child not be classified, upon a finding that he was ineligible to receive special education because he was a child of average intelligence who demonstrated that his academic achievement was above his grade level. The CSE did recommend that a new educational evaluation be performed to ascertain whether the child had regressed in his level of academic performance. The CSE chairperson testified at the hearing that an additional educational evaluation was not performed, because petitioner requested that an impartial hearing be held. Although respondent received petitioner's request for a hearing on November 27, 1991, a hearing was not scheduled because the CSE agreed to meet again with petitioner to discuss the results of a private psychiatric evaluation of the child obtained by petitioner.

The psychiatrist selected by petitioner evaluated the child on November 12, 1991. However, the results of the evaluation were not made available to the CSE until January, 1992. The psychiatrist reported that the child had a long history of separation anxiety, but that the child had not displayed any symptoms of psychosis. However, the psychiatrist further reported that the child displayed intense rage towards a man who had sexually abused him, and expressed the thought that he would kill that man and then himself. The psychiatrist diagnosed the child as having an adjustment disorder with depressed mood, an obsessive compulsive disorder, and school phobia. The psychiatrist recommended hospitalization, with intensive therapy and possible treatment with medication. In the alternative, the psychiatrist recommended that the child be placed in an intensely structured school program, with treatment by therapists and psychiatrists

At the hearing, petitioner testified that the child initially agreed to enter a hospital for treatment, but became terrified on the day of his scheduled admission to the hospital. Petitioner further testified that she had not pursued the alternative of the child's hospitalization, because the child appeared to respond to the therapy provided by the Victims Information Bureau of Suffolk.

On January 27, 1992, the CSE considered the results of the private psychiatric evaluation, as well as brief written reports by the child's home tutors. The CSE again recommended that the child not be classified. The report of the CSE reveals that it based its recommendation upon its perception that the child's emotional difficulties had not interfered with his learning.

On January 29, 1992, petitioner requested that an impartial hearing be held to review the CSE's recommendation. A hearing was held on March 10, 1992. In a decision dated April 24, 1992, the hearing officer found that the CSE had conducted an appropriate evaluation of the child. The hearing officer further found that the child had a mental health problem which had manifested itself to a marked degree and over a long period of time in at least two of the characteristics set forth in state regulation as criteria for determining whether a child should be classified as emotionally disturbed. However, the hearing officer concluded that the child was not eligible for classification as an emotionally disturbed child because he did not have an inability to learn and did not need special education. The hearing officer noted that respondent had an obligation to provide appropriate educationally related support services, such as psychological, social work and counseling services, to a child enrolled in a regular education program (Sections 3602 [32] and 4401-a[6] of the Education Law), and that the child might be eligible to receive appropriate services as a "qualified handicapped person" for purposes of Section 504 of the Rehabilitation Act of 1973. Respondent was directed by the hearing officer to convene an appropriate team of professionals to consider the child's eligibility for services under Section 504.

In her petition, petitioner asserted that respondent has failed to comply with the hearing officer's directive to consider the child's eligibility for services under Section 504. Respondent asserts that it initially refrained from implementing that portion of the hearing officer's decision because of its belief that petitioner would appeal from the decision and that it would be precluded from implementing the decision during the pendency of this appeal (20 USC 1415 [e][3]). However, respondent asserts that, with the agreement of petitioner's attorney, it will forthwith comply with the hearing officer's decision, and that petitioner's complaint about this issue is moot. Upon respondent's representation that it will promptly comply, I find that the issue of respondent's failure to comply with the hearing officer's decision is moot. Respondent must act promptly to determine whether the child is a handicapped child, as that term is defined in 34 CFR 104.3(j)(1), for purposes of Section 504. The definition of a handicapped child for purposes of Section 504 is not identical with the definition of a child with a handicapping condition for purposes of Federal and State education statutes. Nevertheless, a child who is found to be handicapped under Section 504 is entitled to receive an appropriate educational program (Applications of the Board of Education of the Ramapo Central School District and of a Child with a Handicapping Condition, Appeal Nos. 92-5 and 92-6).

Before considering petitioner's assertion that the hearing officer reached the wrong conclusion about the child's eligibility for classification as an emotionally disturbed child under Article 89 of the Education Law, I must first note that the record reveals no justification whatsoever for the CSE's failure to make a timely recommendation about the child's classification. State regulation requires that a CSE make a recommendation to the board of education within either 30 days after its receipt of the parent's consent to a child's evaluation or 40 days after the referral of the child to the CSE, whichever comes first (8 NYCRR 200.4[c]). The CSE's first recommendation in this case was made four months after the child had been referred to the CSE. Moreover, the record reveals that a medical examination of the child, which is a required part of an individual evaluation (8 NYCRR 200.4[b][1][i]) was not completed until five months after the child's referral to the CSE.

The procedure employed by the CSE was also defective, because the record reveals that there was no parent member of the CSE present at the CSE meetings of April 24, 1991 and June 17, 1991. Section 4402 (l)(b)(1) of the Education Law requires each board of education to establish a CSE, composed 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. Although the physician's presence is not mandatory, unless requested by a parent, respondent could not dispense with the attendance of the required parent member of the CSE (Application of a Child with a Handicapping Condition, Appeal No. 92-9; Application of a Child with a Handicapping Condition, No. 91-41; Matter of a Handicapped Child, 22 Ed. Dept. Rep. 262).

Petitioner asserts that the hearing officer erred in finding that the CSE had adequately evaluated the child, because the child was not observed in his current educational setting, as required by State regulation (8 NYCRR 200.4[b][4][vii]). I find that the CSE lacked an adequate basis to make a recommendation about the child's classification, in the absence of an observation of the child (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-20). However, I do not agree with petitioner's assertion that an observation may be made only after the child has been placed in a particular educational program of the Board of Cooperative Educational Services of the Second Supervisory District of Suffolk County which petitioner favors as the ultimate placement for the child. The child's current educational setting is the program of home tutoring which respondent has provided. Although an observation in such a setting will be of relatively little assistance in determining the extent to which the child is capable of interacting with other children, there are serious concerns, raised in the most recent psychiatric evaluation of the child and petitioner's testimony about the child's inability to enter a hospital, as to whether any group setting would be appropriate at this time. An observation in the child's home will provide useful information about the child's learning style, and his need, if any, for special education and/or related services.

Petitioner also asserts that the hearing officer erred in concluding that the child was not emotionally disturbed. Although a conclusive determination of the child's eligibility to be classified must await an observation of the child in his current educational setting, the rationale adopted by the CSE in declining to recommend that the child be classified requires a brief discussion. State regulation 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). In this instance, the child has been unable to receive instruction in a regular education classroom for 18 months because of his emotional condition. Respondent's reliance upon the decision in Application of a Child Suspected of Having a Handicapping Condition, 27 Ed. Dept. Rep. 433, for the proposition that a child with a school phobia is not per se eligible for classification as emotionally disturbed is misplaced. Moreover, at the hearing, respondent's CSE chairperson conceded that the child's emotional difficulties were not limited to school phobia (Transcript, page 20).

The hearing officer found that the child exhibited a generally pervasive mood of unhappiness or depression (8 NYCRR 200.1 [ff] [iii]), in addition to school phobia (8 NYCRR 200.1 [ff] [iv]). However, the hearing officer's distinction between a school phobia and separation anxiety was based upon a book and scholarly journal article. Neither the book nor the journal article was part of the record before the hearing officer. A hearing officer's use of documents outside of the record, no matter how well intended, is improper (Application of a Child with a Handicapping Condition, Appeal No. 92-13; Application of a Child with a Handicapping Condition, Appeal No. 90-16).

For all of the foregoing reasons, I must annul the hearing officer's decision, to the extent that the hearing officer found that the CSE had performed an appropriate evaluation of the child and that the CSE had correctly concluded that the child could not be classified as emotionally disturbed. The CSE must arrange for the observation of the child in his present educational setting, and a properly constituted CSE must then consider whether the child should be classified as a child with a handicapping condition. In making its recommendation, the CSE must examine the child's complete record, not merely any single factor, such as achievement test scores.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that so much of the hearing officer's decision as found that the child had been appropriately evaluated and was ineligible for classification as a child with a handicapping condition within the meaning of 34 CFR 300.5(b)(8) and 8 NYCRR 200.1 (ff)(2) be, and the same hereby is, annulled, and;

IT IS FURTHER ORDERED that within 30 days after the commencement of instruction in respondent's schools in September, 1992, respondent's CSE shall obtain an observation of the child in his present educational setting, and shall recommend to respondent whether the child should be classified as a child with a handicapping condition, consistent with the tenor of this decision.