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Application of a CHILD WITH A HANDICAPPING CONDITION, by his parents, 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


Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Andrea Moss, Esq., of counsel


Petitioners appeal from the determination of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioners' child be classified as emotionally disturbed and that the child be placed in a specialized instructional environment VII (SIE-VII) program in respondent's P.S. 4 for the 1992-93 school year. The appeal must be sustained.

Petitioners' child, who is 15 years old, was initially classified as learning disabled because of hyperactivity and distractibility while in first grade. The child remained in a modified instructional services-I (MIS-I) program with counseling once per week throughout elementary school. In August, 1989, the child was struck by a car, resulting in an impairment of his ability to focus and to balance. His condition was diagnosed as a post concussion syndrome. The child's physician opined, in a letter dated November 6, 1989, that the child would exhibit the symptoms of his condition at varying intervals and for irregular periods.

In September, 1990, the child entered seventh grade in the MIS-I program in J.H.S. 141. The special education site supervisor testified at the hearing that the child's academic performance and behavior deteriorated during the 1990-91 school year. The supervisor also testified that the child had been suspended from school for allegedly biting a child and for allegedly fondling a female child. In April, 1991, the child was referred by his special education teacher to the school based support team for a review.

In a June, 1991, triennial psychological evaluation, the child's cognitive ability was found to be in the low-average range. He reportedly exhibited delays in verbal reasoning, abstract/visual reasoning, and quantitative reasoning. On a test of his perceptual motor skills, the child also reportedly displayed a significant delay, which in the opinion of the evaluator reflected a deterioration in his perceptual motor skills since the time of his previous evaluation in 1988. The evaluator reported that the child fell asleep during the evaluation, and displayed a wide range of behavior including singing, sobbing and using an overly feminine voice. The evaluator further reported that the child's maladaptive behavior in school appeared to date from the time of his accident. The evaluator opined that the child was emotionally reactive with a tendency towards violence, and displayed poor impulse control. In view of the deterioration of the child's visual motor skills respondent's school psychologist recommended that the child be medically examined.

During an educational evaluation completed in June, 1991, the child also fell asleep. The educational evaluator reported that the child exhibited a range of emotion from enthusiasm to apathy. Although the evaluation was conducted during the last month of seventh grade, the child achieved reading decoding and reading comprehension grade equivalent scores of 5.7 and 4.9, respectively. The evaluator reported that the child had a limited receptive vocabulary, and that his comprehension was hindered by his inability to use context clues. The child's math skills were assessed to be at a 4.5 grade equivalent. The evaluator reported that the child had made slight progress in his mathematics achievement since he was last evaluated in 1988. The child's written expression was found to be at the fourth grade level. The evaluator reported that the child had difficulty with his handwriting, which in the evaluator's opinion reflected a delay in the child's perceptual skills.

On June 26, 1991, the CSE recommended that the child's classification be changed from learning disabled to emotionally disturbed/learning disabled and that he be enrolled in a MIS-II program with a child to adult ratio of 12:1+1. The CSE further recommended that the child receive counseling twice per week. On September 23, 1991, petitioners were offered a MIS-II class in J.H.S. 141, the school which the child had attended during the 1990-91 school year. Petitioners did not accept respondent's offer. The child remained in the MIS-I program at J.H.S. 141, where he repeated seventh grade during the 1991-92 school year.

In October, 1991, the child's teacher referred the child to a school based support team because the teacher wished to obtain the services of a crisis management paraprofessional to assist the child in the classroom. In November, 1991, the school psychologist updated the child's June, 1991 psychological evaluation. The school psychologist reported that the child needed intensive emotional support, and reiterated her request that the child be medically evaluated. At the hearing, the school psychologist testified that she had observed the child in his health class and at lunch, and that the child's behavior towards boys was aggressive and his behavior towards girls was sexually provocative. She also alluded to reports by teachers that the child masturbated in class, but testified that she had not witnessed such activity.

On November 21, 1991, the CSE recommended that the child remain classified as emotionally disturbed/learning disabled, but that his program be changed to respondent's SIE-VII, program with a 10:1+1 ratio, and counseling twice per week. Petitioners were offered a class in P.S. 9 which they did not accept. The CSE met on January 24, 1992, to review the child's December, 1991 electroencephalogram (EEG) results which petitioners had obtained. The EEG results were described as normal. The CSE reaffirmed its recommendation for placement in the SIE-VII program, but petitioners did not accept a change in the child's program.

In a report dated April 28, 1992, the child's counselor stated that the child's behavior had worsened despite counseling, and recommended that the CSE consider placing the child in a more therapeutic setting and continue counseling services. In April, 1992, petitioners were informed that the child would be transferred to the SIE-VII program. They requested that an impartial hearing be held to review the CSE's recommendation. Petitioners met with the CSE on May 8, 1992, but they were unable to resolve their differences. The hearing convened on May 14, 1992, but was adjourned by the hearing officer upon a finding that the CSE did not have the results of a current medical examination available when it made its recommendation, and because the child's teacher had not attended the CSE meeting. Indeed, the CSE minutes in the record reveal that neither the child's teacher nor the required parent member of the CSE attended the CSE meetings of September 30, 1991, November 21, 1991, January 24, 1992 and May 8, 1992 (cf. Application of a Child with a Handicapping Condition, Appeal No. 92-42; Application of a Child with a Handicapping Condition, Appeal No. 92-31). It was agreed that petitioners would have the child examined by their physician, and that the CSE would consider the results of such examination in preparing a new recommendation.

On June 10, 1992, the child was examined by petitioner's physician, who opined that there was no medical reason for the child's behavioral problems. The physician reported that the child had been referred to a psychologist. On June 22, 1992, a validly composed CSE recommended that the child be classified as emotionally disturbed and that he be placed in a SIE-VII program, with counseling twice per week. The child was removed from school by his parents and has been receiving instruction at home.

At petitioners' request, the resumption of the hearing was postponed in order for them to obtain a private evaluation of the child. However, they did not obtain an evaluation. On October 8, 1992, the hearing resumed and was completed. In a decision dated November 2, 1992, the hearing officer upheld the child's classification as emotionally disturbed, upon findings that the child exhibited an inability to build satisfactory relationships with peers and adults and that his behavioral difficulties had interfered with his ability to function in school. The hearing officer also upheld the CSE's recommendation for placement in a SIE-VII program at respondent's Ridgewood Adolescent Center, but held that since respondent had stipulated that the specific class offered to the child was inappropriate, the matter should be remanded to the CSE to recommend an appropriate class for the child.

Petitioners disagree with the child's classification as emotionally disturbed and object to the recommended placement. Respondent urges that the hearing officer's determination concerning the child's classification and placement be upheld, but asserts that the matter should be remanded to the CSE in order to obtain and review updated evaluations and to recommend an appropriate class for the child.

Respondent bears the burden of establishing the appropriateness of the CSE's recommendation for the child's classification and program (Application of a Child with a Handicapping Condition, Appeal No. 92-42; Application of a Child with a Handicapping Condition, Appeal No. 92-20; Application of a Child with a Handicapping Condition, Appeal No. 91-34).

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 [am][4]

The regulatory definition of an emotionally disturbed child requires that, not only must a child exhibit certain specified characteristics to a marked degree over a long period of time, but that the child's inability to learn cannot be explained by intellectual, sensory or health factors. Respondent has documented the child's exhibition of the characteristics of an inability to build or maintain satisfactory interpersonal relationships with peers and of inappropriate types of behavior or feelings under normal circumstances. However, I find that respondent has not adequately demonstrated that health factors are not responsible for the child's behavior.

The record includes a thoughtful review of the child's medical and educational records by the CSE's physician, who reported that the child's behavior had markedly deteriorated since the 1989 auto accident. The physician opined that the symptoms of the child's pre-existing condition of attention deficit hyperactivity disorder probably were aggravated by the auto accident, and had resulted in a traumatic brain injury situation, the effects of which continued to exist. The physician noted that elements of Tourette Syndrome were also presented by the child's condition. The physician further opined that the child's extensive growth spurt and the possibility of a traumatic brain injury could be related to the child's poor sexual controls. The CSE's physician recommended that the child be evaluated for narcolepsy at a sleep clinic and be evaluated at the traumatic brain injury clinic of a local hospital. The suggestion that the results of further medical evaluations might not be as useful as respondent's psychological evaluations in order to plan the child's educational program is not persuasive, given the physician's assessments. It is clear that an appropriate program for a child with a traumatic brain injury or with Tourette Syndrome would differ significantly from that of an emotionally disturbed child. It is axiomatic that the nature of the child's disability must be accurately identified in order to first classify the child and second to provide the child with an appropriate program. Moreover, an updated educational evaluation is required because the child has received instruction at home since early June, 1992. The brief note from his teacher at home which is attached to the petition is inadequate to ascertain the child's present levels of performance. Accordingly, I find that the child must be further evaluated, and the CSE must reconsider the child's classification.

Consideration of an appropriate program is clearly premature. Moreover, the record of the hearing fails to adequately support the conclusion that the recommended program would have met the child's needs. Indeed, the record shows that the hearing officer repeatedly urged the respondent's witnesses to explain how the proposed program would address the child's needs, without success.


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

IT IS FURTHER ORDERED that within 40 days after the date of this decision, respondent's CSE shall obtain medical evaluations of the child for narcolepsy, traumatic brain injury and Tourette Syndrome as recommended by the CSE's physician (Exhibit 8-2 through 6), and shall recommend an appropriate classification and program for the child, in accordance with the tenor of this decision.