95-004

       Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that the classification and placement of petitioner's child be changed from learning disabled and modified instructional services-I (MIS-I), respectively, to emotionally disturbed and modified instructional services-II (MIS-II), respectively. The appeal must be sustained.

        Petitioner's child, who is nine years old, was initially referred to the CSE by his teacher in February, 1992. However, the child's case was closed the following month because petitioner reportedly did not participate in the referral process. In September, 1992, the child was enrolled by his parents in the private Immaculate Conception School. He was subsequently re-enrolled in the public schools. In December, 1992, petitioner asked that the child's case be re-opened by the CSE, and she submitted evaluations of the child by the Kennedy Child Study Center. The only portion of those evaluations in the record of this proceeding is a psychological evaluation which had been performed in April, 1992. The Kennedy psychologist reported that the child had achieved a verbal IQ score of 75, a performance IQ score of 68, and a full scale IQ score of 68. The child demonstrated relative strength in knowledge of word meanings and general information. The child's adaptive behavior was reported to be at a moderately low level and consistent with his cognitive ability. Personality testing revealed that the child felt vulnerable to aggression and bodily harm. The psychologist also reported that the child was experiencing some stress because he had a new sibling, and recommended that counseling be considered if his behavior in school did not improve.

        In January, 1993, after reviewing the information submitted by petitioner, the CSE recommended that the child not be classified. Two months thereafter, petitioner referred the child to the CSE again. The child was at that point enrolled in a "preventing failure" first grade class, which had a lower enrollment of children than a typical regular education first grade class. Although not classified as a child with a disability, the child received some instruction from a resource room teacher. On March 31, 1993, the CSE recommended that the boy be classified as learning disabled, and that he be placed in the MIS-I program, with the related service of small group counseling, in the Fall of 1993. The record does not reveal the basis for the CSE's recommendation, nor does it include the child's initial individualized education program (IEP). The parents, who were reportedly offered a placement of the child in either P. 178 or P. 78, did not respond to the offers. However, they subsequently agreed to have the child placed in a MIS-I class in P.S. 108 in early October, 1993.

        On December 20, 1993, the child's MIS-I teacher requested that the child be referred to the CSE, because the teacher believed that the child's social and emotional needs were not being met in the MIS-I class, which had a child to adult ratio of 15:1. The MIS-I teacher reported that the child often required 1:1 supervision, and had been removed from class on an almost daily basis by a school counselor or administrator. She described the child as becoming progressively more agitated, and reported that he had threatened to hurt himself in front of the class. He reportedly exhibited inappropriate behavior, such as leaving his seat without permission, calling or singing out of turn, and using obscene gestures. On the day that the teacher requested that the child be referred to the CSE, the child was taken by his father to the psychiatric emergency room of the Bronx Municipal Hospital. At the hospital, the child was found not to be suicidal, but was reported to be depressed and agitated. The child and his father were referred by the hospital staff to the Astor Mental Health Clinic.

        Petitioner provided information for an updated social history, in which she indicated that she and the child's father live apart and have new companions. The child lived with petitioner, but visited his father every other weekend. Petitioner reported that the child was friendly and sharing with others, except his two-year old brother of whom he has always been jealous. According to petitioner, the child got along well with adults and preferred petitioner to his father. However, the child's counselor reported that the child was unhappy because petitioner reportedly would not permit him to visit his father. The counselor reported that the child had expressed anger and jealousy about his younger brother.

        On January 12, 1994, a school psychologist evaluated the child. The school psychologist, who did not administer a complete IQ test, reported that a cognitive screening revealed that the child might have average conceptual ability, but had highly variable attentional skills. The evaluation, which was focused upon the child's emotional development, involved the use of well-recognized projective tests. The school psychologist reported that the child was "over-invested in fantasy", was capable of idiosyncratic interpretations, and was "rather fluid in his thinking". He opined that an emphasis upon animals with large teeth eating other animals in the child's responses to test questions suggested that the child had a sense of vulnerability to attack. He further opined that the child's concern and possible conflicts about his parents' separation could explain, in part, the child's feeling of frustration and tendency to revert to fantasy. He explained that the child was engaged in a struggle with his parents over the issues of receiving attention, separation and independence. With respect to the child's previously expressed self-destructive feelings, the school psychologist reported that the child had indicated that he believed that he had previously not received enough attention, but that he presently was satisfied with the amount of attention he received from petitioner. Nevertheless, the school psychologist cautioned that there was a moderately serious risk of self-harm because of the child's intense need for nurturance, his impulsiveness, and his compromised reality testing. The school psychologist opined that the child displayed signs of an emotional disturbance and that a smaller and more supportive environment in school appeared to be indicated.

        In an educational evaluation completed on January 13, 1994, the child's word recognition, word attack, oral and silent reading skills were reported to be below a 1.4 grade level equivalent, which was a delay of at least two years. However, his listening comprehension skills were found to be at a grade equivalent of 2.8. The grade equivalent scores for the child's mathematics skills ranged from .6 in word problems to 3.0 in measurement. His spelling skills were reported to be below the first grade level. The evaluator opined that the child continued to need a small, structured educational setting to meet his academic needs.

        On January 25, 1994, the child was observed in class by the school psychologist, who reported that the child began to sing about being expelled from school, after his teacher told him to return to his seat. When asked why he thought he would be expelled, the child replied that he was bad and didn't listen to his teacher. He reportedly threatened another child, mocked his teacher, and almost engaged in a fight with another child.

        On February 9, 1994, the CSE met with petitioner to review the results of the updated evaluations. The CSE recommended that the child's classification be changed from learning disabled to emotionally disturbed. It further recommended that his placement be changed from the MIS-I program, with a 15:1 child to adult ratio, to the MIS-II program, with a 12:1+1 child to adult ratio. In addition, the CSE recommended that the child continue to receive counseling once per week, but that such counseling be on an individual, rather than a small group, basis. The child's IEP included annual goals of improving his reading, mathematics and spelling skills, as well as completing parallel curricula for second grade art, music, library, social studies, science and health. It also included two annual goals for the counseling to be provided to the child: to improve his self-image, and to improve his peer relationships.

        At the time of the CSE's recommendation, the child resided with petitioner in respondent's Community School District No. 11. Shortly after the CSE of Community School District No. 11 made its recommendation, respondent was informed that the child had begun to reside with his father in Community School District No. 9. The child was offered a place in a MIS-II class in P. 4, which is in Community School District No. 9. An interim placement in a MIS-I class in P.S. 230 was accepted by the child's father pending a review by the CSE of Community School District No. 9. The child remained in that placement after his father requested that an impartial hearing be held to review the proposed changes in classification and placement.

        The hearing which had been requested by the child's father was not held, for reasons which the record does not disclose. Thereafter, the principal of P.S. 230 requested that a hearing be held. The father did not appear at the hearing which was held on June 29, 1994, although the hearing officer found that the father had received timely notice of the hearing. On July 28, 1994, the hearing officer held that the child met the Federal regulatory criteria for classification as an emotionally disturbed child (34 CFR 300.7 [a][9]). He also held that the MIS-II program was appropriate for the child, notwithstanding the testimony of one of respondent's special education supervisors that the MIS-II program would be harmful to the child. However, the hearing officer ruled that the specific class recommended for the child was inappropriate because the age span of the children enrolled in the class exceeded three years (see 8 NYCRR 200.6 [g][5]). The hearing officer directed respondent to place the child in another class.

        In September, 1994, the child returned to live with his mother in Community School District No. 11. On October 4, 1994, respondent offered to place the child in a MIS-II class in P. 178. However, by letter dated September 27, 1994, petitioner informed the CSE that she did not want the child placed in a MIS-II class, and she requested that an impartial hearing be held. In a subsequent letter to respondent's Impartial Hearing Office, petitioner broadened her request for a hearing to include the proposed change in classification. Although the child was reportedly out of school during the month of September, 1994, he was enrolled the following month in a MIS-I class in P. 68, as a pendency placement.

        The hearing in this proceeding was held on October 26, 1994. Both of the child's parents attended the hearing. Petitioner urged the hearing officer to find that the child should remain classified as learning disabled and enrolled in a MIS-I class. The hearing officer rendered his decision on December 1, 1994. With regard to the decision of the previous hearing officer, the hearing officer in this proceeding accepted petitioner's claim that she had no notice of the earlier hearing and should not be bound by the decision in that proceeding. Nevertheless, the hearing officer found that the child would be more appropriately classified as emotionally disturbed than as learning disabled, because the child exhibited the "emotionally disturbed characteristics" of aggressiveness towards teachers, school personnel and other students, and inappropriate behavior in class, including calling out, being unable to remain seated, and refusing to work. The hearing officer relied upon a description of the MIS-II program in a document which was not in the record, in finding that the MIS-II program was appropriate for the child (cf. Application of a Child with a Handicapping Condition, Appeal No. 92-31). However, he further found that the proposed class was not appropriate for the child because his academic levels were significantly below those of the other children in the class. The hearing officer directed the CSE to recommend another class for the child.

        Petitioner challenges the child's proposed classification as emotionally disturbed. She asserts that her child does not exhibit the characteristics of an emotionally disturbed child, as defined in Federal or State regulation. The board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Handicapping Condition, Appeal No. 91-11; Application of a Child with a Handicapping Condition, Appeal No. 92-37; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 94-16).

            An emotionally disturbed child is defined by State regulation 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 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 students unless it is determined that they are emotionally disturbed." (8 NYCRR 200.1 [mm][4])

        The Federal definition of a child with a "severe emotional disturbance" in 34 CFR 300.7 (a)(9) does not differ materially from the State definition, which will be used in this decision. Although the State definition refers to a student "with an inability to learn," it is well settled that the definition requires only that a child's emotional disturbance have a significant effect upon his or her educational performance (Application of a Child with a Handicapping Condition, Appeal No. 90-9; Application of a Child with a Handicapping Condition, Appeal No. 90-22; Application of Child Suspected of Having a Handicapping Condition, Appeal No. 91-23; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-26). Therefore, I find that petitioner's assertion that child cannot be classified as emotionally disturbed because he has the ability to learn to be without merit.

        Respondent asserts that the child's educational defects are the result of his behavioral and emotional problems, rather than any physical or psychological process disorder. It further asserts that the child has exhibited all four of the characteristics set forth in the State regulatory definition of an emotionally disturbed child, and that he has manifested such characteristics over an extended period of time. However, I find that respondent's position is not adequately supported by the record.

        Respondent premises its position upon the psychological evaluation performed at the Kennedy Child Study Center in April, 1992, the Bronx Municipal Hospital report prepared in December, 1993, and the partial psychological evaluation performed by respondent's school psychologist in January, 1994. In addition, it relies upon approximately 60 pages of anecdotal records which were apparently prepared by the child's MIS-I class teachers in P.S. 108 and P.S. 230 during the 1993-94 school year. The Kennedy evaluator noted that the child felt vulnerable to aggression and feared bodily harm, but noted that such feelings are common for children of the child's age. The evaluator opined that there was "no sign of severe [emotional] disturbance", but acknowledged that there was evidence which suggested that the child's emotional concerns could "at times interfere with his ability to learn and to attend to what is happening in his environment." Most of the Bronx Hospital report is illegible. The report, which was apparently signed by a physician, included a tentative medical diagnosis that the child had an adjustment disorder with depressed mood. However, there is no information about the reason why the child was seen at the emergency room, or how the diagnosed medical condition might affect the child's performance in school. The January, 1994 partial evaluation by respondent's school psychologist dealt almost exclusively with issues raised by the child's relationship with each of his parents. Although the school psychologist opined that the child displayed signs of an emotional disturbance, he did not explain how such disturbance affected the child's educational performance.

        Indeed, there is very little information in the record about the child's educational performance. The child's cumulative educational record and report cards are not part of the record. None of his teachers testified at the hearing. Neither of the witnesses who testified on behalf of respondent had any direct knowledge of the child. Although the educational evaluation performed in January, 1994 revealed that most of the child's academic skills were delayed, those delays were consistent with the expected outcome for a child with the level of cognitive skills and adaptive behavior reported for this child by the Kennedy evaluation in 1992. However, there is a discrepancy between the Kennedy evaluation results and those obtained by respondent's school psychologist in the cognitive screening he performed in January, 1994. The school psychologist described the child as having average conceptual potential, while the Kennedy evaluator found the child's cognitive skills to be in the borderline range. The only cognitive subtest result reported by the school psychologist was a nine on the similarities subtest, which is substantially higher than the four on such subtest reported by the Kennedy evaluator. The record contains no information as to how or whether this difference can be explained. The school psychologist also alluded to "perceptual indicators", in describing the child's performance on a projective test. The results of the child's physical examination, reported on his IEP, indicate that he has "a lazy eye", for which he wears glasses. The record does not reveal whether the child wore his glasses when he was educationally evaluated in January, 1994. During that evaluation, the child's listening comprehension skills were found to be significantly higher than his reading skills. However, there is no evidence that the CSE sought to ascertain a reason for this discrepency.

        One of the documents considered by the CSE in recommending that the child be classified as emotionally disturbed was a "School Report" (Exhibit 2), in which the child's inability to attend to task was described as the factor which inhibited the child's academic achievement. The child's distractibility was noted by the Kennedy evaluator and by respondent's school psychologist, in their respective reports. Indeed, the latter reported that the child's freedom from distractibility was in the deficient range. The child's behavior which the school psychologist described in his subsequent classroom observation report was similar to that of a child with an attention deficit disorder. The Bronx Municipal Hospital report also referred to the possible use of medication to control the child's hyperactivity. The child's anecdotal records refer to various forms of misbehavior, but much of the reported misbehavior involved talking out of turn, not staying in his seat, and rolling on the floor or rug. In other words, behavior which would be consistent with an attention deficit hyperactivity disorder. However, there is no evidence that the CSE sought to ascertain the extent to which the child's distractibility or hyperactivity may be hindering his educational performance. In addition, the record does not reveal what, if any, behavioral modification techniques were used to address the child's restlessness, which would have provided a basis for determining the extent of the child's management needs. Merely recording incidents of a child's misbehavior is insufficient to afford a basis for classifying the child as emotionally disturbed (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-20; Application of a Child with a Handicapping Condition, Appeal No. 91-23; Application of a Child with a Handicapping Condition, Appeal No. 91-34; Application of a Child with a Handicapping Condition, Appeal No. 92-1; Application of a Child with a Handicapping Condition, Appeal No. 92-42).

        Upon the record before me, I find that respondent's CSE has not yet demonstrated that the child's learning difficulties cannot be explained by intellectual, sensory or health factors, which is a prerequisite for classification as emotionally disturbed (8 NYCRR 200.1 [mm][4]; Application of a Child with a Disability, Appeal No. 93-11).

        There is an additional reason why the CSE's recommendation must be set aside. Federal and State regulations require that a CSE must include a representative of the school district who is qualified to provide or supervise the provision of special education, in addition to the child's teacher (34 CFR 300.344 [a][1]; 8 NYCRR 200.3 [c][3][ii]). The child's IEP which lists the participants at the CSE meeting on February 9, 1994 indicates that the child's teacher, a school psychologist, school social worker, guidance counselor and educational evaluator were at the meeting, in addition to the petitioner and the required parent member of the CSE. Although the educational evaluator may well have had the requisite teaching or administrative license, the record does not reveal the individual's qualifications. Respondent was apprised two and one-half years ago of the need to document in the record an educational evaluator's credentials, if such individual was to serve as the required teacher or supervisor of special education member of a CSE (Application of a Child with a Handicapping Condition, Appeal No. 92-31). Its continued failure to do so substantially weakens respondent's case (Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child with a Disability, Appeal No. 95-5).

        Respondent asserts that the recommended placement in a MIS-II class should be upheld, even if the recommended classification of emotionally disturbed is annulled. Even if the CSE recommendation with regard to placement was not flawed by respondent's failure to show that the CSE was validly composed, I could not uphold the proposed placement. The unanswered questions about the nature of the child's needs and the complete absence of any provision in the child's IEP to deal with his behavioral management would preclude my concurrence with the CSE's recommendation (Application of a Child with a Handicapping Condition, Appeal No. 91-34; Application of a Child with a Handicapping Condition, Appeal No. 90-16).

        The record in this proceeding demonstrates that the child has been having difficulty while in the program prescribed by his last agreed upon IEP. To the extent that the child's primary behavioral needs have been identified with a possible attention deficit disorder, the CSE should have the child examined by a physician. If such evaluation provides a basis for concluding that the child has an attention deficit disorder, the CSE should consider the classification of other health impaired for the child (see 8 NYCRR 200.1 [mm][10]). It should also attempt to resolve the unanswered questions discussed in this decision before it makes a recommendation for the child's classification. After obtaining the necessary information about the child's cognitive abilities, possible perceptual or processing problems and his management needs, the CSE should prepare an IEP which will address all of his special education needs. 

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled.