95-027

Petitioner appeals from the decision of an impartial hearing officer which found that the recommendation by respondent's committee on special education (CSE) that petitioner's son be classified as emotionally disturbed was not supported by the record, but that the child would be appropriately classified as learning disabled. The hearing officer further found that the child could not be successfully educated in a regular education class, even with supplementary instructional aids, and directed the CSE to place the child in an appropriate class. The appeal must be sustained in part.

Petitioner's son is eleven years old. During the 1994-95 school year, the child was enrolled in a regular education fourth grade class in respondent's P.S. 62. In September, 1989, the child entered kindergarten in respondent's P.S. 289 in Brooklyn. He remained in that school until December, 1992, when he transferred to respondent's P.S. 62 in Queens. The child repeated the second grade during the 1992-93 school year because he had poor reading skills. On a standardized test administered to the child in May, 1992, as he was completing the second grade for the first time, the child's reading scores were found to be at the fifth percentile, i.e., below 95% of the children on whose performance the test had been normed.

His cumulative record reveals that the child has had difficulty with his oral language skills since kindergarten. During the 1992-93 school year, when he was repeating the second grade, he was described as needing improvement in all of his subjects, except art, health, and physical education. His work habits were described as unsatisfactory, and his personal-social development skills were reported to be in need of improvement. While in the third grade during the 1993-94 school year, the child was reported to be in need of improvement in each subject except art, and his work habits and personal-social development skills were described as unsatisfactory.

The child was initially referred to the CSE on November 29, 1993, by his teacher, who reported that the child was uncontrollable and that his schoolwork was below grade level. The child's parents consented to his evaluation by the CSE. A school psychologist who examined the child in January, 1994 reported that the child was polite and helpful, but had poor attention and concentration. The child achieved a verbal I.Q. score of 85, a performance I.Q. score of 93, and a full scale I.Q. score of 87. His full scale I.Q. score placed the child in the low average range of cognitive functioning. His performance in subtests of his general knowledge and expressive vocabulary was in the borderline range, i.e., between low average and retarded. Projective testing revealed that the child was a tense, highly insecure youngster with low self-esteem. The school psychologist noted that in a behavioral assessment prepared by the boy's teacher, the child's behavior in the areas of attention span, delinquent behavior, and aggressive behavior were significantly worse than those of other boys his age. The school psychologist opined that petitioner's son was more of an aggressive, under controlled child than a child with a deep emotional problem. She also opined that the child's needs could best be met by placement in a small class and counseling.

An educational evaluation of the child, who was then in the third grade, revealed that his language and spelling skills were at the first grade level, as were his reading skills. The child's mathematic skills were at the mid-second grade level. The child had difficulty on a test of his auditory discrimination skills, and his visual memory skills were reported to be in the below average range. However, his auditory memory skills were an area of strength for the child. The educational evaluator recommended that the child be instructed using the whole language methodology and a structured phonetic program.

On March 1, 1994, the CSE recommended that the child be classified as emotionally disturbed and be placed in a MIS-II class at P.S. 232, with counseling. The child's parents objected to the CSE's recommendation. At the request of the Principal of P.S. 66, a hearing was held on May 5, 1994 to review the CSE's recommendation. The hearing officer remanded the matter to the CSE, on the ground that the CSE had not obtained an adequate physical examination of the child. At the hearing, the parties agreed that petitioner would have the child privately evaluated, and would submit the results of the evaluation to the CSE. The hearing officer directed the CSE to meet after it had obtained the results of the independent evaluation, and to consider whether an alternative to placement in a special education program would be appropriate. Petitioner did not obtain an independent evaluation of the child. The hearing officer also directed that if the child remained in the regular education program, he should be transferred to a different school in his neighborhood, upon his parents' request. Thereafter, the child was transferred to P.S. 62 where he was enrolled in the fourth grade for the 1994-95 school year.

The child reportedly exhibited academic and behavioral problems at P.S. 62. The Principal of P.S. 62 requested that an impartial hearing be held to ascertain whether the prior recommendation of the CSE should be implemented. At a pre-hearing conference held on November 9, 1994, the parties reached an agreement which was entered into the record of the hearing on November 25, 1994, and incorporated in the hearing officer's decision of December 23, 1994. Pursuant to the agreement and hearing officer's decision, the child's parents were to obtain an independent evaluation of the child at public expense, and were to submit the results of such evaluation to the CSE by no later than January 5, 1995. In the event that the CSE did not receive the results of the evaluation by that date, the CSE was authorized to conduct its own evaluation, unless the parties agreed to extend the deadline. In the interim, the child was to be provided with additional assistance in reading one period a day, in a group of no more than five students. The child was also to be provided with individual counseling once per week, and group counseling once per week. He was also to receive crisis intervention services, as needed. The child's teacher was to send to his parents a daily written report of the child's performance in the school. The hearing officer directed the CSE to reconvene on March 6, 1995.

The child's parents did not submit any independent evaluation results to the CSE. The CSE obtained its own evaluation of the child. A physician reported that the child's vision and hearing were within normal limits, and that the child had no special health related needs. On January 18, 1995, the child was observed in his classroom, where the children were taking a test. Petitioner's child played with an object, and attempted to engage other children in conversation during part of the test, but worked on the test after being redirected by his teacher. The observer noted other instances of the child's off-task behavior in the class. The child was also evaluated by a school psychologist, who reported that the boy achieved a composite I.Q. score of 81. The child exhibited significant delays when performing perceptual motor tasks. The school psychologist further reported that child demonstrated delays in most cognitive areas, and that his poor attention skills and lack of interest interfered with his performance on the test. According to the psychologist's report, projective testing revealed that the boy was an immature youngster, who demonstrated a pervasive pattern of grandiosity and entitlement, with a lack of empathy toward others. She also described the child as an aggressive youngster with poor impulse control and oppositional tendencies toward adult authority figures. The school psychologist opined that the child would benefit from a small, highly structured school environment, with counseling. In an educational evaluation administered to the child in January, 1995, he achieved grade equivalent scores of 2.3 in oral language, 2.0 in written language, 2.0 in reading, and 3.1 in mathematics. When tested, the child was mid-way through the fourth grade. The evaluator reported that the child did not use reading decoding skills, but relied completely upon his sight vocabulary, which was limited. The evaluator opined that the child's poor language skills and delays in visual discrimination and visual memory affected his academic performance.

On March 13, 1995, the CSE recommended that the child be classified as emotionally disturbed and be placed in a MIS-II class at P.S. 232. His parents withheld their consent to the boy's initial placement in a special education class. As a result, respondent initiated an impartial hearing, which was held on March 23, 1995.

At the hearing, the Principal of P.S. 62 testified that the child had been suspended from school on two occasions for insubordination and endangering the welfare of another child, respectively. He further testified that the child's fourth grade class had been changed in December, 1994 and again in March, 1995, after the child had reportedly struck the teachers of the first and second fourth grade classes in which he had been enrolled. The teacher who was assigned to provide the child with extra assistance in reading testified that the child would not do his work, unless she sat next to him and compelled him to work. The teacher also described instances of the child's misbehavior. The guidance counselor who was counseling the child testified that the child did not accept responsibility for his actions and denied that he was involved in various behavioral incidents. The counselor testified that there had been no improvement in the child's behavior, since he began to receive counseling. The school psychologist who evaluated the child in January, 1995 testified that the child had perceptual weaknesses which made it difficult for him to look at and organize things, which affected his ability to read and write. She further testified that the child had very poor impulse control and very low frustration tolerance. While agreeing with the child's proposed classification as emotionally disturbed, the school psychologist opined that the child was significantly learning disabled and frustrated as a result of his learning disability. In response to a question from the hearing officer, the school psychologist further opined that the child was socially maladjusted. The educational evaluator who tested the child in January, 1995 testified that the child was an auditory learner, who had a very difficult time writing because of his poor writing mechanics skills. She also testified that the child's scores on tests in which he was required to recall information from curriculum areas indicated that it was very difficult for the child to recall information.

In her decision, which was dated April 24, 1995, the hearing officer annulled the CSE's recommendation that the child be classified as emotionally disturbed because the evidence presented at the hearing demonstrated that the child had a learning disability. The hearing officer noted that the definition of an emotionally disturbed child in State regulation (8 NYCRR 200.1 [mm] [4]) excludes children whose inability to learn can be explained by intellectual, sensory or health factors. (See also Application of a Child with a Disability, Appeal No. 93-20). The hearing officer also noted that there was evidence in the record that the child had an attention deficit disorder. She found that the record established that the child's misbehavior, although severe, was largely the result of his frustration because of his inability to learn. The hearing officer found that the appropriate classification for the child would be as learning disabled. The hearing officer also found that a regular education class, even with supplementary instructional aids, would not meet the child's educational, social and emotional needs. She remanded the matter to the CSE with the direction that the CSE reconsider its proposed classification of the child in accordance with the tenor of her decision. She also directed the CSE to develop a new individualized education program (IEP) for the child with annual goals which address the child's learning deficits, and directed the CSE to place the child in an appropriate class.

Petitioner asserts that her child is not emotionally disturbed, while respondent argues in its answer that the child meets the definition of an emotionally disturbed child. Since the hearing officer agreed with petitioner that her child should not be classified as emotionally disturbed, I find that petitioner is not aggrieved by that portion of the hearing officer's decision. However, she is aggrieved by the hearing officer's decision to the extent that it found that the child would be appropriately classified as learning disabled and that the CSE could place the child in a special education class, since petitioner opposes the child's placement in a special education program. I further find that respondent, which has neither appealed nor cross-appealed from the hearing officer's decision, is precluded from arguing that the child should be classified as emotionally disturbed (Application of a Child with a Disability, Appeal No. 95-8; Application of a Child with a Disability, Appeal No. 95-30).

With regard to the hearing officer's finding that petitioner's son would be appropriately classified as learning disabled, a learning disabled child is defined in State regulation 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 comparable Federal regulatory criteria for finding that a child has a learning disability are set forth in 34 CFR 300.541, which requires that there be a severe discrepancy between a child's achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematics calculation or mathematics reasoning. Although the State regulatory definition expressly refers to a 50 percent discrepancy between expected and actual achievement, it is well established that the State's 50 percent standard is the functional equivalent of the Federal severe discrepancy standard, and should be viewed as a qualitative, rather than a strictly quantitative standard (Riley v. Ambach, 668 F. 2d 635 [2nd Cir., 1981]; Application of Bd. of Ed. Connetquot CSD, 27 Ed. Dept. Rep. 272; Application of a Child with a Handicapping Condition, Appeal No. 91-15). In order to be classified as learning disabled, a child must exhibit a significant discrepancy between his or her ability and achievement (Application of a Child with a Handicapping Condition, Appeal No. 91-34; Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 94-16).

In this instance, the child manifests some signs of an emotional disturbance, in his aggressive behavior towards his peers and unsatisfactory relationships with his various teachers. However, the record does not support a finding that the child's learning difficulties are primarily the result of an emotional disturbance. While the child's misbehavior in school is completely unacceptable, there is ample evidence that the child is frustrated by his inability to keep up with his peers academically. The evaluations and testimony of the school psychologist and the educational evaluator established that the child has significant perceptual difficulties which are manifested in his imperfect ability to read and write. The results of his educational evaluation in January, 1995 reveal that the child has significant deficits in his reading and writing skills. Given the child's cognitive skills in the low average range, his performance in the areas of reading and writing is significantly discrepant from his expected achievement in those areas. The disparity between his expected and actual achievement with regard to concepts, knowledge, attitudes and skills in various curriculum areas, such as social studies, science and the humanities, is slightly greater than that of his reading and writing skills. The educational evaluator opined that the child's difficulty in the curricular areas was caused by a deficit in the child's ability to recall information. Upon the record before me, I concur with the hearing officer's finding that the child would be appropriately classified as learning disabled. Therefore, petitioner's appeal from that part of the hearing officer's decision must be dismissed. The remaining issue involves the special education services to be provided to the child.

Respondent has annexed to its answer a copy of the child's IEP which was reportedly prepared by the CSE on May 11, 1995, in response to the hearing officer's decision. That IEP indicates that the CSE recommended that the child be classified as learning disabled and be placed in respondent's MIS-II program, with 1:1 and small group counseling. The IEP of May 11, 1995 is facially defective because only three individuals were listed as being in attendance at the CSE meeting of that date: a school psychologist, an educational evaluator and a school social worker. There is no evidence that a parent member of the CSE attended the CSE meeting held on May 11, 1995. Neither the Education Law nor the Regulations of the Commissioner of Education authorizes a CSE to prepare a child's IEP in the absence of a parent member of the CSE (Application of a Child with a Disability, Appeal No. 94-5; Application of a Child with a Disability, Appeal No. 95-8). There is also no evidence that either of the child's parents attended the CSE meeting on May 11, 1995. Federal regulation encourages, but does not require, parental attendance at CSE meetings. However, when a parent does not attend a CSE meeting, the CSE must have a record of its attempts to arrange a mutually agreed upon time and place (34 CFR 300.346 [d]). There is no evidence in the record before me that the CSE attempted to arrange a mutually agreed upon time and place for the meeting held on May 11, 1995. In addition, the CSE did not include the child's teacher, as required by Federal regulation (34 CFR 300.344 [a] [2]) and New York State Education Law Section 4402 (1)(b)(1). In view of the fact that the CSE which met on May 11, 1995 lacked the requisite members, I must find that the IEP which the CSE prepared is a nullity (Application of a Child with a Disability, Appeal No. 95-14).

There is no educational program or placement recommendation by the CSE to be reviewed because the CSE's prior recommendation that the child be placed in respondent's MIS-II program was premised upon its recommendation that the child be classified as emotionally disturbed, which has been annulled by the hearing officer, while its subsequent recommendation on May 11, 1995 is a nullity. Consequently, I do not reach the question of what special education services should be provided to the child. The matter must be remanded to the CSE for a new recommendation. After the CSE has made its recommendation pursuant to this decision, petitioner must be afforded the opportunity to seek review of that recommendation by requesting that an impartial hearing be held.

Petitioner asks that she be afforded more time to obtain her own evaluation of the child. She has a right to obtain an independent evaluation. However, the record reveals that she has been given that opportunity on prior occasions. In view of the extensive delay in resolving this matter, I will not direct the CSE to further delay making a new recommendation for the child's educational program.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the portion of the hearing officer's decision which found that the child could not be successfully educated in a regular education class and directed the CSE to place the child in an appropriate class is annulled; and

IT IS FURTHER ORDERED that within 30 days after the date of this decision, respondent shall hold a properly constituted CSE meeting to prepare the child's IEP for the 1995-96 school year.