92-042

Petitioner appeals from the determination of an impartial hearing officer upholding the recommendation by respondent's committee on special education (CSE) that for the 1992-93 school year, petitioner's child remain classified as emotionally disturbed and remain in respondent's modified instructional services-II (MIS-II) program as a seventh grader at J.H.S. 258. Petitioner seeks an order declassifying her child and directing respondent to return the child to regular education. The appeal must be sustained in part.

The child was initially referred to the CSE in January, 1989 by petitioner, who was concerned about the child engaging in fights with other children. At the time of the referral, the child was in third grade at P.S. 93. In a February, 1989 psychological evaluation, the child achieved a verbal IQ score of 85, a performance IQ score of 95 and a full scale IQ score of 89. The school psychologist who performed the evaluation reported that the child exhibited deficits in his perceptual-motor and visual memory skills, and that projective tests revealed the child to be immature, vulnerable and vacillating between timidity and unhappiness. The school psychologist recommended that the child receive counseling. In an educational evaluation completed in March, 1989, the child exhibited a significant delay in his receptive language skills, and his expressive language skills were found to be weak. There was a one year delay in the child's short-term auditory memory and in his writing skills. The evaluator reported that the child's word identification skills were at an upper first grade level, but that his mathematical skills were grade appropriate.

On March 21, 1989, the CSE recommended that the child be classified as learning disabled, that he remain in a regular education program, and that he receive one period per day of resource room services and small group counseling, once per week. Petitioner accepted the CSE's recommendation, which was implemented in May, 1989 at P.S. 93. The child continued to receive resource room assistance and counseling while in the fourth grade during the 1989-90 school year. The record reveals that the child was involved in incidents of fighting, and reportedly was disobedient to his regular class teacher. In January, 1990, a school based support team recommended to the CSE that the child be reassigned to a special education class.

In February, 1990, the child was evaluated by a school psychologist, who described the child as feeling lonely, abandoned and depressed, and as having low self-esteem. The school psychologist reported that the child displayed some signs of having an inclination towards self-abuse. An educational evaluator reported that, as of February, 1990, the child's composite reading score was at a grade equivalent of 2.1, while his composite mathematical score was at a 2.7 grade equivalent.

On March 27, 1990, the CSE recommended that the child remain classified as learning disabled, and that he be enrolled in the MIS-II program in a class in P.S. 287 with a child to adult ratio of not more than 12:1+1. The CSE further recommended that the child receive individual counseling once per week. Petitioner accepted the CSE's recommendation, which was implemented for the 1990-91 school year, when the child was in fifth grade.

By letter dated September 17, 1991, petitioner asked the CSE to re-evaluate the child. Although petitioner's letter does not expressly state a reason for petitioner's request, the CSE was aware that petitioner was seeking to have the child returned to a regular education program by September, 1992. On an IQ test administered in October, 1991, the child achieved a score of 73 for verbal IQ, 72 for performance IQ, and 70 for full scale IQ, which were significantly lower than the IQ scores which the child had achieved in February, 1989. The child continued to display a deficit in his visual motor development. The school psychologist who performed the evaluation opined that the child had a limited capacity to understand his needs in relation to the needs of others, and sought immediate gratification of his own needs. The school psychologist opined that the child required a small, structured setting which emphasized pragmatic academics and provided training in social skills. In an October, 1991, educational evaluation, the child was found to be reading at a 2.7 grade equivalent, while his mathematics skills were at a 4.4 grade equivalent. However, the child's teacher estimated the child's reading skills to be at a fifth grade level and his mathematics skills to be at a third grade level. The teacher reported that the child's work performance was poor and that he was physically and verbally abusive to adults and his peers.

On October 23, 1991, a school based support team recommended to the CSE that the child be enrolled in a specialized instructional environment-VII or VIII program (SIE-VII or VIII), or in the alternative, that the child be provided with the services of a management aide. Petitioner objected to the suggested change of the child's program, but accepted the suggestion of a management aide. On October 31, 1991, the CSE recommended that the child's classification be changed to emotionally disturbed, but that he remain in the MIS-II program. At the hearing, a school social worker testified that the CSE concluded that an SIE-VII or VIII program would have been inappropriate because these programs were intended for children with severe acting out behavior. The CSE further recommended that the child receive small group counseling once per week, in addition to the individual counseling which he was receiving once per week. As a behavior management technique, the CSE recommended that the child enter into a "contract" by which he would agree to make an effort to obey all school rules.

By letter dated April 29, 1992, petitioner requested that the child be returned to regular education by no later than his entrance into junior high school. The CSE treated petitioner's request as a request for a re-evaluation of the child. The school psychologist who evaluated the child in May, 1992, opined that the child was anxious and insecure in new situations, and that stress and anxiety caused the child to act out and be aggressive. The school psychologist also opined that the child would benefit from a small, structured class in which lessons were success oriented and paced according to the child's ability. On two different tests of the child's reading skills in May, 1992, his performance ranged from second to fourth grade level. The child's mathematics skills were assessed to be at a mid-fifth grade level, while his spelling skills were at a beginning third grade level. In a report to the CSE, the child's teacher noted that the child's receptive language skills were deficient and that the child continued to display poor work performance skills. The teacher also reported that the child had engaged in self-abusive behavior.

On June 13, 1992, the CSE recommended that the child remain classified as emotionally disturbed and remain in the MIS-II program for seventh grade during the 1992-93 school year. The CSE also recommended that the child be mainstreamed for instruction in the use of computers, and that he continue to receive individual counseling once per week and group counseling once per week. The child's individualized education program (IEP) prepared by the CSE directed that the child should be refocused when he is off-task and that he be provided with clearly defined and consistently enforced rules and limits.

Petitioner did not accept the CSE's recommendation, and requested that an impartial hearing be held to review the recommendation. A hearing was held on July 23, 1992. At the hearing, petitioner challenged the child's classification as emotionally disturbed and his continued placement in a special education program. However, she did request that the child attend remedial reading classes. By decision dated August 21, 1992, the hearing officer found that the MIS-II program had been ineffective in meeting the child's needs, because none of the annual goals set forth in the child's IEP prepared at the October 31, 1991 CSE meeting had been achieved. Nevertheless, the hearing officer found that neither the regular education program favored by petitioner nor a more restrictive special education program than the MIS-II program would be appropriate for the child. Instead, the hearing officer directed that the child's IEP as prepared by the CSE be amended to provide the child with one period per day of resource room services to improve the child's reading skills, in addition to the recommended MIS-II program with counseling.

At the outset, respondent concedes that the CSE's recommendation was flawed, because the child's teacher did not participate in the June 13, 1992 CSE meeting. For a number of years, Federal and State regulations have required that a child's teacher be present for a CSE meeting at which the child's IEP is prepared (34 CFR 300.344 [a][2]; 8 NYCRR 200.4 [c][3]). Indeed, section 4402 (1)(b) of the New York State Education Law was amended in 1991 to provide that the child's teacher must be a member of the CSE. The absence of the child's teacher from the June 13, 1992 CSE meeting requires the annulment of the CSE's recommendation (Application of a Child with a Handicapping Condition, Appeal No. 92-41; Application of a Child with a Handicapping Condition, Appeal No. 92-24; Application of a Child with a Handicapping Condition, Appeal No. 92-9; Application of a Child with a Handicapping Condition, Appeal No. 91-39; Application of a Child with a Handicapping Condition, Appeal No. 90-22).

Notwithstanding the failure of the teacher to participate in the June 13, 1992 CSE meeting, respondent asserts that the CSE's recommendation was supported by substantial evidence at the hearing. I disagree. Respondent bears the burden of establishing the appropriateness of the CSE's recommendation for the child's classification and placement (Application of a Child with a Handicapping Condition, Appeal No. 92-20, Application of a Child with a Handicapping Condition, Appeal No. 91-34). Upon the record before me, I am constrained to find that respondent has not demonstrated that the child is appropriately classified as emotionally disturbed as that term is defined in the State regulation (8 NYCRR 200.1 [ff][2]):

"(2) Emotionally disturbed. A pupil 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; or

(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."

In 1989 and 1992 psychological evaluations, the child was found to have poor visual motor skills. Indeed, the child's performance on visual motor tasks had declined in 1992 from level reported in the 1989 evaluation. The evaluations also revealed that the child had a deficit in his visual memory skills, which had not improved by 1992. The child's sensory motor deficiencies are directly relevant to understanding his educational needs in such areas as word attack skills and spelling, and in developing an appropriate educational program to address the child's learning disability. The emotionally disturbed classification appears to be premised upon various incidents of misbehavior by the child, rather than any direct nexus between his behavior and his learning difficulties. Although respondent's classification of the child as emotionally disturbed is not supported by the record, I cannot agree with petitioner's request that the child should be declassified. The record amply demonstrates that the child has sensory deficits and concomitant educational deficits resulting in academic performance well below the level of his ability. The CSE should reconsider the appropriateness of the classification of learning disabled for the child.

I further find that respondent has failed to demonstrate the appropriateness of the recommended MIS-II program. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's needs, and establishes annual goals and short-term objectives which are related to the child's educational deficits (Application of a Child with a Handicapping Condition, Appeal No. 92-27). In this instance, respondent adequately evaluated the child and identified the educational needs related to his learning disability. However, the child's IEP developed at the June 13, 1992 CSE meeting does not reflect the results of the child's evaluations with sufficient information concerning his visual motor, visual memory, and work attack skills to prepare an individualized program for the child. Notwithstanding respondent's concern for the child's emotional difficulties, the child's IEP does not identify any services which would address his behavioral problems in the classroom. Indeed, the only type of behavior modification employed in the MIS-II program described at the hearing was that a classroom aide held the child during the child's emotional outbursts.

In addition to the defects in the child's IEP, respondent failed to present sufficient information at the hearing about the efficacy of the MIS-II program in meeting the child's needs. Virtually no information about the MIS-II program at J.H.S. 258 was presented by respondent's witnesses until the hearing officer asked the witnesses to describe the curriculum. There was no testimony about the provision of special education to a child having this child's needs. Although this child had already been in the MIS-II program for two years prior to petitioner's challenge to the program, it was incumbent upon respondent to demonstrate the appropriateness of the program. The hearing officer repeatedly asked respondent's witnesses to demonstrate the appropriateness of the MIS-II program, in light of the witnesses' concessions that the program had not significantly improved either the child's reading skills or his behavior in school. Upon the witnesses' failure to provide a compelling justification for retaining the child in the MIS-II program, the hearing officer felt obliged to add one period of resource room services to the child's IEP. I disagree, and will remand this matter to the CSE with the direction to carefully review the results of the child's evaluations and to recommend an appropriate program to address the child's needs.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is annulled, and;

IT IS FURTHER ORDERED that within 30 days after the date of this decision, respondent's committee on special education shall recommend an appropriate classification and an appropriate program for the child, in accordance with the tenor of this decision.