94-016

Petitioner appeals from the determination of an impartial hearing officer which upheld the refusal of respondent's committee on special education (CSE) to change its prior recommendation that petitioner's child be classified as learning disabled and that the child be instructed in a special education class for all but one period per day, during which she was to receive resource room services. The appeal must be sustained.

Petitioner's child is nine years old. At the time of the hearing in this proceeding, the child was not attending school because petitioner had withdrawn the child. The record reveals that the child was initially referred to the CSE when she was in the first grade in respondent's P.S. 27, during the 1990-91 school year. Although the record does not disclose the reason why the child was referred, I note that her cumulative school record reveals that she received a grade of either "needs improvement" or "unsatisfactory" in every subject, except health and physical education, during the first grade. In June, 1991, the CSE recommended that the child be classified as learning disabled, and that she receive resource room services, speech/language therapy and counseling while remaining in a regular education program for the second grade during the 1991-92 school year. Petitioner accepted the CSE's recommendation.

In March, 1992, the child was suspended from school for five days as punishment for an unspecified disciplinary infraction. A school guidance counselor informed petitioner that school staff would re-evaluate the child to ascertain whether the child needs required that she be placed in a self-contained special education class. The child's teacher reported that the child applied herself inconsistently to completing his assignments and that she had been generally unsuccessful in participating in group activities without interruption. The teacher further reported that the child frequently spoke in a negative manner to other children. The school psychologist who re-evaluated the child in April, 1992, reported that the child was distractible and exhibited immature behavior during the evaluation. The child's IQ scores were in the low average range. She exhibited relative weakness in her expressive language and fund of general knowledge. The school psychologist reported that the child displayed deficits while performing tasks requiring visual organization and sequencing, and opined that her impulsivity and emotional problems had exacerbated her difficulty in performing certain tasks. In a test of her visual motor integration skills, the child exhibited a delay of one and one-half to two years. While expressing the opinion that the child harbored aggressive feelings and fears about harm to herself, the school psychologist recommended that the child's emotional needs be addressed by counseling, rather than placement in a special education class for emotionally disturbed children.

In an educational evaluation which was also performed in April, 1992, when the child was in the eighth month of the second grade, the child achieved grade equivalent scores of 1.2 in reading decoding, 1.0 in reading comprehension, 1.2 in spelling, 2.7 in mathematical computation and 2.2 in mathematical applications. The evaluator reported that the child could write a simple sentence, but was unable to compose a simple story of two or more sentences. The child's speech/language therapist and her special education guidance counselor each reported that the child exhibited immature behavior. Her resource room teacher also reported that the child's performance in the resource room had been hindered by her immature behavior, and recommended that the child be placed in a self-contained special education class.

On May 14, 1992, the CSE recommended that the child's classification be changed to emotionally disturbed, and that the child be enrolled in a self-contained modified instructional services-I (MIS-I) class for instruction in all subjects during the 1992-93 school year. The CSE further recommended that the child receive counseling in a small group once per week and speech/language therapy in a small group twice per week. Petitioner accepted the CSE's recommendation.

The child was enrolled in a MIS-I class in respondent's P.S. 58 in September, 1992. The record does not reveal how the child performed in the special education class during the 1992-93 school year, nor does it include the CSE's recommendation for the child's educational program for the 1993-94 school year. However, a letter by petitioner to the CSE, dated September 28, 1993, in which petitioner requested that the child be re-evaluated, reveals that the child remained in her MIS-I class in P.S. 58. In an update of the child's social history, petitioner explained that she sought to have the child re-evaluated because she believed that the child's academic performance and behavior in school had improved, and that the child's classification and special class placement were no longer necessary.

A school psychologist, who re-evaluated the child on November 3, 1993, reported that the child achieved scores of 89 for verbal IQ, 82 for performance IQ, and 84 for full scale IQ. Those scores and the variability of the child's subtest scores were similar to the scores and variability reported for the child in previous evaluations. The school psychologist described the child as fearful, vulnerable and anxious, and opined that the child's anxiety impaired her ability to function cognitively. The psychologist also reported that the child's impulsivity interfered with her ability to listen to directions or comprehend tasks which had been demonstrated to her during the evaluation. The child was found to have difficulty attending to details while performing tasks, and she continued to exhibit delays in her perceptual motor skills. The child's ability to use language expansively to express herself was reported to be limited.

The child also received an educational re-evaluation in November, 1993, which was fifteen months of instruction after her prior educational re-evaluation on April 2, 1992. Her grade equivalent scores of 1.6 in reading decoding and 1.3 in reading comprehension were improvements of four and three months, respectively, in each skill since the April 2, 1992 re-evaluation. The child's spelling skills were reported to be at a 2.0 grade equivalent, an improvement of eight months since the prior re-evaluation. In mathematical applications, the child's grade equivalent score of 4.1 was a significant improvement over the 2.2 grade equivalent score reported in the April 2, 1992 re-evaluation. Her mathematical computation skills were found to be at the grade equivalent of 3.3, which was an improvement of six months over the results of the prior re-evaluation. The evaluator estimated that the child's listening comprehension skills were equivalent to those of children nearing the end of the third grade, but reported that the child's language skills were delayed. The child's writing skills were reported to be deficient in the use of capital letters, punctuation, verb tenses and sentence structure.

The child's speech/language therapist reported that the child had made limited progress in achieving her individualized education program (IEP) goals, and often exhibited a poor attitude about learning. The therapist described the child's spontaneous speech as involving brief sentences, limited vocabulary and under-developed grammar.

For the first quarter of the 1993-94 school year, the child's ability to listen carefully,and her reading and writing skills were described in her report card as in need of improvement. Her skill in solving computational problems was reported to be satisfactory, while her skill in solving verbal mathematical problems and knowledge of mathematical concepts were reported to be in need of improvement. The child's performance in social studies and science was also reported to be in need of improvement. In a brief written report to the CSE, the child's teacher described the child's relationship with her peers as unsatisfactory, and reported that the child had difficulty responding appropriately to authority and was inconsistent in completing her homework.

On December 10, 1993, the CSE recommended that the child's classification be changed from emotionally disturbed to learning disabled. The CSE also recommended that the child remain in her MIS-I class and continue to receive speech/language therapy and counseling. Noting the minimal progress which the child had made in reading since entering the MISS-I class, the CSE recommended that the child receive supplemental instruction for reading in a resource room for one period per day.

Petitioner did not accept the CSE's recommendation, but did not request that an impartial hearing be held to review the recommendation. Instead, petitioner enrolled the child in the fourth grade of a local parochial school, in January, 1994. The child was withdrawn from the parochial school by petitioner, in February, 1994. In a letter to the CSE, the principal of the parochial school reported that the child's fourth grade teacher had attempted to instruct the child in reading with the use of a second grade level reading textbook, but that the child had difficulty with reading even at that level. The principal further reported that the child made excessive demands upon her teacher's attention, by refusing to work without the teacher's attention. The principal opined that the child needed to be provided with specialized instruction in a small class.

In a letter dated March 4, 1994, the child's father asked the CSE to re-evaluate the child, and asserted that the child no longer needed special education because she could read. The CSE did not conduct new evaluations, but reviewed its recent re-evaluation of the child. Although invited to attend, neither petitioner nor her husband attended a CSE meeting on March 17, 1994, when the CSE conducted its review. The CSE adhered to its recommendation of December 10, 1993 that the child be classified as learning disabled and be instructed in her former MISS-I class with daily resource room services for reading, speech/language therapy and counseling.

On the same day that the CSE conducted its review, petitioner requested that an impartial hearing be held to review the CSE's recommendation. A hearing was held on April 5, 1994. In a decision dated April 15, 1994, the hearing officer held that the child would be appropriately classified as learning disabled because of the delayed development of her reading skills. The hearing officer further held that the child required a self-contained class to adequately address her educational needs, with the possible exception of instruction in mathematics. Nevertheless, the hearing officer did not direct the CSE to revise the child's IEP to provide for any regular education for the child. The hearing officer expressed the belief that respondent should take appropriate action to ensure that the child attends school, but did not direct it to enforce the compulsory attendance law.

Petitioner challenges the CSE's recommendation that the child be classified as learning disabled, as well as its recommendation that the child receive special education and related services. She asserts that no physician has ever described the child as emotionally disturbed or as disabled. She further asserts that her child should not be expected to have achieved at the same rate as her chronological peers, because the child was given first and second grade level instruction when she was in respondent's MIS-I program.

Respondent bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-11; Application of a Child with a Disability, Appeal No. 93-20). With regard to petitioner's reference to the classification of emotionally disturbed, I must note that the appropriateness of such classification, to which petitioner had previously acquiesced, is not at issue in this appeal. Rather, the issue is whether the child may be appropriately classified as learning disabled. State regulation defines a child with a learning disability as:

"a student with a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual handicaps, brain injury, neurological impairment, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include students who have learning problems which are primarily the result of visual, hearing or motor handicaps, of mental retardation, of emotional disturbance, or of environmental, cultural or economic disadvantage. A student who exhibits a discrepancy of 50 percent or more between expected achievement and actual achievement determined on an individual basis shall be deemed to have a learning disability." (8 NYCRR 200.1 [mm][6]). 

The State regulatory definition of a child with a learning disability is comparable to the Federal regulatory definition of the term "specific learning disability" set forth in 34 CFR 300.7 (b)(10). In order to establish that a child would be appropriately classified as learning disabled, there must be evidence of a significant disparity between expected and actual achievement which is manifested in any one of the basic psychological processes enumerated in the regulatory definition, as well as evidence that such discrepancy is not primarily the result of certain physical, mental, emotional, environmental, cultural or economic conditions.

The information set forth in the child's evaluations establishes that the child has significant deficits in her reading, spelling and writing skills, and that her slow rate of progress in acquiring proficiency in these skills is not commensurate with her cognitive ability. In addition, the child exhibits certain characteristics, such as the variability between the results on various IQ subtests, short attention span and distractibility, which are consistent with the existence of a learning disability. Nevertheless, I am constrained to find that respondent has not met its burden of proof, because it has failed to demonstrate that the discrepancy between the child's expected and actual achievement is not the result of a physical condition (Application of a Child with a Handicapping Condition, Appeal No. 91-23; Application of a Child Suspected of Having a Disability, Appeal No. 93-32). At the hearing in this proceeding, the CSE representative conceded that there was no report of a physical examination in the record. The record reveals that on November 3, 1993, the CSE's social worker gave petitioner a physical examination form to be completed by the child's physician, and that by letter dated March 22, 1994, the CSE representative requested that petitioner have the child's physician complete such form. The CSE representative also advised petitioner that respondent would pay for the cost of the child's physical examination. Although respondent's CSE may rely upon the results of a private physical examination, it cannot be relieved of its obligation to have a physical examination performed by merely mailing a form to a parent with a request that the child's physician provide the required information (Application of a Child Suspected of Having a Disability, Appeal No. 93-45). Federal regulation requires that a multidisciplinary team, i.e., CSE, which determines that a child has a learning disability must document the educationally relevant medical findings, if any, in its determination (34 CFR 300.543 [b][5]). Absent a report of a physical examination, the CSE could not comply with the regulatory requirement.

There is an additional reason why this appeal must be sustained. Federal regulation (34 CFR 300.344 [a][2]) and State statute (Section 4402 [1][b][1] of the Education Law) require that a child's teacher participate in CSE meetings in which the child's IEP is prepared or reviewed. The record reveals that the teacher of the MIS-I class in which the child had previously been enrolled was not present at the March 17, 1994 CSE meeting. Although the CSE did not change the IEP which had been prepared in the CSE meeting of December 10, 1993 which the child's teacher did attend, I find that the CSE could not conduct its review of the IEP on March 17, 1994 without the child's teacher, as defined in Federal regulation. When the CSE met on March 17, 1994, the child was reportedly not attending respondent's schools. In such circumstances, Federal regulation authorizes respondent to assign an individual who is qualified to teach in the area of the child's disability to function as the child's teacher at the CSE meeting (34 CFR 300.344, Note 1). An educational evaluator did attend the CSE meeting on March 17, 1994. Such an individual could qualify as the child's teacher under the Federal regulatory definition. However, the record does not reveal the teaching license or certificate which the evaluator holds, and I must find that respondent has not met is burden of proof with regard to that issue (Application of a Child with a Handicapping Condition, Appeal No. 92-31). If the evaluator had qualified as the child's teacher under the Federal regulatory definition, the CSE would still not be validly composed under State statute which requires that a CSE also include a school district representative who is qualified to provide or supervise the provision of special education. Upon the facts in the record before me, I must find that the CSE's recommendation of March 17, 1994, when it adhered to its prior recommendation of December 10, 1993, is a nullity (Application of a Child with a Handicapping Condition, Appeal No. 92-41; Application of the Board of Education of the City School District of the City of New York, Appeal No. 94-11).

Although no purpose would be served in requiring respondent's CSE to make a new recommendation with respect to the child's classification and placement for the 1993-94 school year, which is now concluded, I will direct the CSE to promptly make a recommendation for the 1994-95 school year. Petitioner must make the child available for a physician designated by respondent, which could be the child's own physician. In view of the child's behavioral inconsistencies, the CSE must require the physician who examines the child to recommend whether the child should be examined by a psychiatrist. If such an examination is recommended, the CSE must ensure that the child receives the examination. When it makes its recommendation with respect to the child's classification, if any, the CSE must consider the extent to which the child's absence from school during the latter half of the 1993-94 school year has contributed to the discrepancy between her expected and actual achievement. In the event that the CSE recommends that the child be classified as learning disabled, the CSE must identify the special education instruction and related services which will address the child's specific disabilities and prepare annual goals which are relevant to those disabilities. The CSE must also consider the requirement that each child be instructed in the least restrictive environment (34 CFR 300.550 [b]), when it recommends the services to be provided to the child.

THE APPEAL IS SUSTAINED.

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 CSE shall meet and make its recommendation with respect to petitioner's child for the 1994-95 school year in accordance with the tenor of this decision.