93-045

Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's 15 year old child be classified as emotionally disturbed, and that she be placed in a modified instructional services-II (MIS-II) class in respondent's J.H.S. 281. The appeal must be sustained.

During the 1990-91 school year, the child was enrolled in the sixth grade in I.S. 96. In October, 1990, the child was administratively transferred to J.H.S. 43, upon being suspended from school because of misbehavior for the third time in less than 2 months. In J.H.S. 43, the child failed 7 of the 9 courses in which she was enrolled for the second marking period. The child reportedly struck a school staff member, for which she was suspended and transferred back to I.S. 96, in April 1991. She continued to have behavioral difficulties and was suspended from I.S. 96 in April and again in May, 1991. The child was thereafter transferred to J.H.S. 228, from which she was suspended on 2 occasions for fighting and allegedly having a razor or knife blade in school prior to the end of the 1990-91 school year.

The child repeated the sixth grade in J.H.S. 228 during the 1991-92 school year. In November, 1991, the child was suspended from school for fighting. She was absent from school for 63 days during the first semester, and received failing grades in almost all of her subjects during the first marking period. The child was referred to the CSE, but petitioner declined to consent to an evaluation of the child by the CSE. The principal of J.H.S. 228 requested that an impartial hearing be held in accordance with 8 NYCRR 200.4 (a)(8) to determine whether the child should be evaluated notwithstanding petitioner's refusal to consent to such evaluation. Petitioner did not attend the hearing, which was held on March 2, 1992. In a decision dated March 16, 1992, the hearing officer held that the CSE had presented sufficient information about the child and her problems in school to warrant conducting a complete evaluation of the child. Petitioner did not appeal from the hearing officer's decision. Therefore, the CSE was authorized to obtain each of the required components of an individual evaluation, including a physical examination, a psychological evaluation if appropriate, and a social history (8 NYCRR 200.4 [b][1]).

In March, 1992, two private psychologists evaluated the child. They reported that the child achieved a verbal IQ score of 87, a performance IQ score of 93, and a full scale IQ score of 89. Although the child's scores were within the upper limits of the low average range of cognitive skills, the two psychologists opined that the child had exhibited some signs of having a higher potential. In achievement tests, the child's reading skills were reported to be at the late sixth grade level and her mathematical skills were found to be at the beginning fifth grade level. Projective tests revealed that the child was pre-occupied with adolescent concerns, but was capable of relating closely to others. However, the child was described as in need of help to learn how to express her anger in a socially appropriate manner. The psychologists recommended that the child be further evaluated to ascertain if the child had a learning disability, and that she be provided with resource room or tutoring services, as well as counseling. In May, 1992, a school psychologist who interviewed the child, reported that the child had stated that she had no friends in school, and only a few friends in her neighborhood. The school psychologist opined that the child limited her interactions with others because she realized that she could not control herself. The school psychologist subsequently testified in a hearing in this proceeding that the child did not exhibit any severe deficit which would be suggestive of a learning disability.

An educational evaluation of the child also completed in March, 1992 revealed that the child's reading decoding skills were at a grade equivalent of 9.2, while her reading comprehension skills were at a 4.8 grade equivalent. Although she exhibited little difficulty with literal comprehension, the child reportedly had difficulty responding to questions requiring inferential comprehension. The child's mathematical computation skills were reported to be at a grade equivalent of 6.2, and her mathematical application skills were found to be at a 5.9 grade equivalent. The evaluator reported that the child's writing and communication skills were found to be at or above the sixth grade level. In her writing sample, the child reportedly exhibited grade appropriate syntax, usage and grammar.

The child was observed in her social studies class on April 8, 1992. The observer reported that the child attended to the lesson and answered questions appropriately. Although the child reportedly called out an answer occasionally and spoke to another child during class, the observer reported that the child was not disruptive.

The CSE sought petitioner's permission to have the child physically examined, notwithstanding the hearing officer's decision of March 16, 1992 authorizing it to evaluate the child. Petitioner did not respond to the CSE's request for such permission, and no examination was obtained. In May, 1992, a social history of the child was attempted, but could not be completed by a school social worker who was unable to interview petitioner. On May 22, 1992, the CSE met to review the results of the child's evaluations and to make its recommendation. Petitioner was invited to the CSE meeting, but did not attend the meeting. Notwithstanding the absence of a physical examination, the CSE recommended that the child be classified as emotionally disturbed. The CSE also recommended that the child be removed from the regular education program and be placed in a MIS-II class with a child to adult ratio of 12:1 + 1, because the child's behavior reportedly had a significant impact upon her ability to benefit from regular education. The CSE further recommended that the child receive individual and group counseling once per week.

Petitioner did not consent to her child's placement in a special education program. On October 27, 1992, a hearing was held at the request of the principal of J.H.S. 228 to obtain authorization to place the child in the program recommended by the CSE. Petitioner was notified that the hearing would be held, but did not attend the hearing.

In a decision dated November 24, 1992, a hearing officer held that the child would be appropriately classified as emotionally disturbed, despite the absence of a physical examination. The hearing officer found that the CSE had made a good faith attempt to obtain a physical examination of the child by mailing a form requesting permission to examine the child to petitioner, and further found that there was no basis in the record for believing that health factors were responsible for the child's difficulties in the regular education program. Nevertheless, the hearing officer ordered the CSE to send another copy of its physical examination form to petitioner, and to reconvene after the child had been physically examined. The hearing officer further found that the child had exhibited a persistent inability to get along with other children and with teachers, and that her conduct in school reflected an emotional disturbance. With regard to the child's proposed placement in a MIS-II class in J.H.S. 281, the hearing officer found that the recommended special education class would enable the child to receive more individualized education than she could obtain in the regular education program, and that she would be appropriately placed with children having similar needs.

In accordance with the hearing officer's decision, the CSE mailed a copy of its physical examination form to petitioner with the instruction to have the child's personal physician complete the form and return it to the CSE. Respondent asserts in its answer that the CSE did not receive the form which had been sent to petitioner. Petitioner did not appeal from the hearing officer's decision of November 24, 1992. On December 8, 1992, the child entered the recommended class in J.H.S. 281, and reportedly became involved in an altercation with another child. She returned to the class for one day in January, 1993 and attended school for two more days in February, 1993.

On March 2, 1993, a brief hearing was conducted at petitioner's request. The hearing officer, who had not conducted the previous hearing, orally opined that he was not authorized to set aside the findings made by the prior hearing officer and that respondent was not required to introduce any of the exhibits or testimony from the previous hearing. The hearing officer directed respondent's only witness, a site supervisor in J.H.S. 281, to testify solely about matters which had occurred subsequent to the prior hearing and which were germane to the child's classification and placement. The hearing was closed after a brief statement by petitioner, who described a visit she had made to the child's special education class, and asserted that the child should not have been placed in any special education class.

In a decision dated March 23, 1993, the hearing officer noted that petitioner had not appealed from the hearing officer's decision in the prior hearing, but explained that he had afforded petitioner an opportunity to present her position, in the interest of justice. The hearing officer held that nothing in the record of the hearing held on March 2, 1993 afforded a basis for setting aside the prior hearing officer's decision, a copy of which the hearing officer affixed to his decision. Notwithstanding the hearing officer's attempt to limit the scope of the hearing held on March 2, 1993, I find that the March hearing was a reopening of the hearing held on October 27, 1992, and will consider the records in both hearings.

On or about September 23, 1993, petitioner served a document which is captioned as a notice of intention to seek review upon respondent. The document does not contain the requisite notice specified in 8 NYCRR 279.2 (a). However, the document describes the basis for petitioner's disagreement with the hearing officer's decision. Although it appears to be a petition, there is no notice of petition as required by 8 NYCRR 279.3. Nevertheless, respondent has filed the record of the hearings held on October 27, 1992 and March 2, 1993 and has also filed an answer, as if the document in question were a petition. Upon the record before me, I find that respondent was clearly on notice of petitioner's appeal, and I will not dismiss the appeal on the ground that petitioner failed to serve the requisite notices, since a dismissal on those grounds would simply postpone the resolution of the dispute between petitioner and respondent, to the child's detriment.

Respondent asserts that this appeal is untimely because it was commenced more than 40 days after petitioner received the hearing officer's decision. State regulation provides that a petition for review of a hearing officer's decision must be served within 40 days after receipt of the decision (8 NYCRR 279.2 [b]). Respondent has annexed to its answer a copy of a letter transmitting the hearing officer's decision to petitioner by certified mail together with a mail receipt dated March 24, 1993. Petitioner has not offered any explanation for her failure to institute this appeal until approximately six months after she received the hearing officer's decision.

Although I would normally be constrained to find that the appeal is un timely, there was unique circumstances which require that the appeal be considered. Despite its assertion that the appeal is untimely, respondent concedes that the CSE's recommendation that the child be classified as emotionally disturbed is flawed by the CSE's failure to obtain a physical examination of the child, and requests that the matter be remanded. State regulation requires that when a child suspected of having a disability is referred to a CSE, an evaluation of the child, including a physical examination, must be conducted by the CSE (8 NYCRR 200.4 [b][1][i]). For educational purposes, an emotionally disturbed child is defined as:

"A student 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 intterpersonal 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 students unless it is determined that they are emotionally disturbed." (8 NYCRR 200.1 [am][4])

A classification of emotionally disturbed cannot be sustained in the absence of evidence of a physical examination, because there would be no basis for excluding health factors as a source of the child's academic difficulties (Application of a Child with a Disability, Appeal No. 93-36; Application of a Child with a Disability, Appeal No. 93-11; Application of a Child with a Handicapping Condition, Appeal No. 91-23). Although a CSE may rely upon the results of a privately obtained physical examination, it cannot be relieved of its obligation to have a physical examination performed by merely mailing a form to a parent with the instruction to have the child's physician provide the required information. At the hearing held on October 27, 1992, a representative of the CSE implied that a physical examination could not be conducted in school because the CSE did not have the services of a physician. However, a site supervisor in J.H.S. 281 testified that arrangements could be made to have the child examined in school. I find that the matter must be remanded to the CSE to obtain a physical examination.

After it has the results of the child's physical examination, the CSE must consider whether the child could be appropriately classified as emotionally disturbed pursuant to State regulation. The CSE should review the results of the child's educational evaluation, and the testimony of the educational evaluator, who testified that the child was at or near grade level except for her silent passage comprehension skills. The CSE should also consider the effect the child's extensive absences from school have had upon her academic performance. A crisis intervention teacher in J.H.S. 228 testified in the hearing that the child had been absent from school for 105 days during the 1991-92 school year. The record suggests that the child's attendance record for the 1992-93 school year was even worse than for the preceding school year. She was referred to a school attendance teacher because of her truancy. The child must attend school (Section 3204 [2] of the Education Law). I urge the child's parent to cooperate with respondent in ensuring the child's attendance in school. If respondent cannot obtain petitioner's cooperation, it has an obligation to secure the assistance of the Family Court (Application of a Child with a Handicapping Condition, Appeal No. 91-11).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer decisions dated November 24, 1992 and March 23, 1993 are annulled; and

IT IS FURTHER ORDERED that within 30 days after the date of the decision, the CSE shall obtain the results of a physical examination of the child and shall make a new recommendation as to classification and placement.