96-055 & 96-066

         The parent of a child with a disability and the Board of Education have separately appealed from the decision of an impartial hearing officer. Their appeals have been consolidated for purposes of this decision, in which the parent will be referred to as the petitioner and the Board of Education will be referred to as the respondent. In his decision, the impartial hearing officer held that respondent had not violated either the Federal Individuals with Disabilities Education Act (IDEA), or Article 89 of the New York State Education Law, by referring petitioner's daughter to the persons in need of supervision (PINS) Diversion Unit of the Erie County Probation Department because of the child's poor attendance in school, or by subsequently initiating a PINS proceeding in the Erie County Family Court pursuant to Article 7 of the Family Court Act when the child's school attendance did not improve. Petitioner contends that respondent's actions were attempts to change the child's educational placement, which were the responsibility of respondent's committee on special education (CSE) to recommend and initiate. Petitioner's appeal must be sustained in part.

        Respondent appeals from the impartial hearing officer's direction to its CSE to review the child's academic performance during the 1995-96 school year, and to consider the continued appropriateness of the child's classification as emotionally disturbed. He further directed the CSE to prepare an appropriate individualized education program (IEP) for the child for the 1996-97 school year. Respondent contends that the hearing officer's directive went beyond the scope of the matter which was before him, and that it was unnecessary because the CSE had already conducted its annual review of the child, and had prepared her IEP for the 1996-97 school year. Respondent's appeal must be sustained.

        Petitioner's daughter is 14 years old. She attended the St. Paul's School in Kenmore, New York, for kindergarten and the first through the fourth grade. Her cumulative record from St. Paul's reveals that the child attended school on a regular basis, and that her academic achievement was satisfactory, through the third grade. I note that she apparently received remedial reading and mathematics instruction while in the second grade. The child's Standardized Achievement Test results in the Spring of 1991 reveal that her language expression and her mathematical application skills were delayed by approximately one year. While she was in the fourth grade during the 1991-92 school year, the child reportedly began to find it difficult to attend school. She was absent from school on 26 days during that school year. Petitioner's daughter nevertheless attained a composite final average of 77.5, and received the grade of B for her conduct. On the Standardized Achievement Test which was administered to her in the Spring of 1992, the child achieved grade equivalent scores of 4.1 in reading, 3.1 in language, and 3.1 in spelling.

        The child's parents decided to enroll her in respondent's Hoover Elementary School for the fifth grade during the 1992-93 school year, because they believed that the girl could receive more remedial assistance in the public schools. The child's mother initiated a referral of the child to respondent's CSE during the Summer of 1992, but agreed to withdraw the referral after discussing her concerns about the child with the building principal. Petitioner's daughter reportedly completed the work of the fifth grade, without any special education assistance. Her attendance was reportedly satisfactory.

        For the 1992-93 school year, the child was enrolled in the sixth grade in respondent's Kenmore Middle School. She reportedly became increasingly resistant to attending school, and she complained of headaches and stomachaches. At the request of the principal, and with the consent of her mother, the child was referred to one of respondent's school psychologists. On November 23, 1993, the school psychologist evaluated the child. She reported that the child had achieved a verbal IQ score of 73, a performance score of 93, and a full scale IQ score of 92. The psychologist indicated that the child exhibited relative strength in conceptual thinking, auditory rote memorization, visual memory, and spatial relationships, and relative weakness in mathematical reasoning, vocabulary, sequencing of pictures, visual perception, and speed of learning. She also observed that the child had some difficulty with the grammatical structure of language, and that she appeared to have difficulty integrating language. On the Wide Range Achievement Test - Revised, the child achieved standard scores of 88 in reading, 93 in spelling, and 73 in mathematics. The psychologist reported that the child appeared to have difficulty with the basic concepts of addition, subtraction, multiplication, and division. She opined that the child also appeared to have difficulty with the organization of visually presented material, and she opined that emotional factors, such as low frustration tolerance, impulsivity, and anxiety, could be interfering with the child's performance. Projective testing revealed that the child was concerned about her academic achievement, good family interaction, a need to socialize, and a fear of loneliness. The school psychologist reported that the child exhibited many of the signs of an attention deficit hyperactivity disorder, and indicated that the child's mother intended to consult a pediatrician about the matter. She recommended that efforts be made to remove pressure from the child, and to provide her with additional assistance. In February, 1994, the child was referred to the CSE by his school building team of educators who noted that the child was struggling to complete assignments, and that she had received a number of failing grades. The team also noted that the child's recent psychological evaluation had revealed that she might have a learning disability. On February 22, 1994, the child's mother consented to having the CSE evaluate the child. The CSE reportedly met in March, 1994, but it deferred making any recommendation about the child's classification of educational program. Thereafter, the parties agreed that the child would have an independent evaluation at respondent's expense.

        The child's parents had the child's speech/language skills evaluated in the Children's Hospital of Buffalo, at their expense in April, 1994. The child's expressive and receptive language skills were found to be at or above her chronological age level, except her ability to identify word classes of opposites or with things with spatial relationships, and her ability to assemble certain kinds of sentences. However, her deficits in these skills were described as mild, and no therapeutic intervention was recommended for her.

        The child's independent neuropsychological evaluation was performed by Dr. Mark Schachter during the period between June and August, 1994. Dr. Schachter noted that the girl was being treated for school phobia by another psychologist. He reported that she had obtained standard scores of 102 in basic reading, 97 in reading comprehension, 87 in mathematical reasoning, and 83 in numerical operations on the Wechsler Individual Achievement Test. He described the child's performance as being slightly below expectation for a child of her intelligence. The child's performance on tests of her visual motor integration and tactile-spatial motor integration skills was in the normal range, as was her performance on tests measuring her visual memory skills. Although the child exhibited some difficulty with regard to non-verbal memory Dr. Schachter opined that the difficulty appeared to be the child's inattention. He noted that the child showed signs of severe anxiety, as manifested in various somatic complaints and her pattern of school avoidance. He indicated that the child's difficulty with tasks requiring long-term memory or sustained attention could be attributed to her high level of anxiety or could be the result of ADHD. Dr. Schachter opined that the child's educational difficulties were secondary to the extreme degree of anxiety which she was suffering, and he recommended that she be classified as emotionally disturbed. He further recommended that she receive supportive educational services through the school resource room and in-school counseling. In addition, he suggested that the child should receive intensive psychotherapy to address her anxiety, and suggested that a psychiatrist be consulted about her.

        In a letter dated September 2, 1994, the child's treating psychologist, Dr. Robert Demerath, advised the CSE that the child's emotional difficulties were related to both family and school concerns. He concurred with Dr. Schachter's finding that the child had both learning and emotional difficulties, and he opined that she could be classified as either learning disabled or emotionally disturbed. He recommended that the child be educated in a seventh grade self-contained special education class located in a school in which her chronological peers were enrolled. However, he opined that she was not a candidate for any mainstreamed instruction. Dr. Demerath urged that the child's rate of instruction be adjusted to reflect her functional pace.

        At the beginning of the 1994-95 school year, the child was temporarily enrolled by the CSE in a 15:1 self-contained class in respondent's Benjamin Franklin Middle School. The CSE reviewed the child's placement at a meeting held on October 26, 1994. It noted that the child's school phobia had apparently diminished while in her temporary placement. The CSE recommended that petitioner's daughter be classified as emotionally disturbed, and that she remain in the 15:1 self-contained class for the rest of the 1994-95 school year. It further recommended that a guidance counselor make contact with the child once per week. The child's IEP indicated that she would be mainstreamed for seventh grade science and social studies classes. The IEP and the record before me includes a handwritten annual goal related to improving the child's school attendance.

        The child's seventh grade report card reveals that she was absent for a total of 47 days during the 1994-95 school year. In November, 1994, the child's special education teacher reported that the child was disruptive in class, and that she was belligerent. In March, 1995, the teacher questioned the appropriateness of the child's placement. Late in the Spring of 1995, the parties agreed that the child would attend school on a one-half time basis for the remainder of the school year. Thereafter, her attendance reportedly improved. In any event, the child's academic performance was generally unsatisfactory throughout the school year. She received a final grade of F in each of her academic subjects, and most of her special subjects. The teacher comments on her report card referred to the child's lack of effort.

        On June 14, 1995, the CSE conducted its annual review of the child. The IEP which the CSE prepared for the 1995-96 school year revealed that the child had achieved grade equivalent scores of 5.2 in reading, and 5.6 in mathematics, in March, 1995. The CSE recommended that the child remain classified as emotionally disturbed, but that her placement be changed to a 12:1+1 class in respondent's Kenmore Middle School. It further recommended that she be mainstreamed for eighth grade special subject classes as well as "homebased activities." The child's IEP annual goals related to improving her mathematics, social studies, science, reading, writing, spelling, study, and organizational skills. One other goal indicated that the student would develop an appropriate response to authority. The IEP did not explicitly address the child's school attendance problems. The child's parents accepted the CSE's recommendations.

        The child was initially successful in her new placement for the 1995-96 school year. On October 27, 1995, her special education teacher reported to the CSE that petitioner's daughter was passing all of her subjects with a grade of A, and was completing all homework assignments. He further reported that the child had missed six days of school, for a variety of reasons, but that she had made up all of the work which she had missed. The teacher indicated the child behaved herself in his class, and opined that she was benefiting from her placement in the class. On November 1, 1995, the CSE reviewed the child's educational program. It noted that the child's mother was pleased with the child's performance, which the mother confirmed in her testimony at the hearing in the proceeding. She also testified that she and the child's private psychologist had agreed that the child no longer needed to be seen by the psychologist for counseling. The CSE did not recommend that any change be made in the child's educational program.

        The child's mother testified that the child began to develop somatic symptoms and became resistant to going to school, shortly after the CSE meeting was held. Her report card for the first marking period, which ended shortly after the CSE meeting revealed that she had been absent for a total of 10 days. She received grades of A and B in each of her academic subjects. However, she received a grade of incomplete in home and careers, and a grade of F in music.

        The child's attendance did not improve during the second marking period. She was absent on 14 days. The girl received an A- in mathematics, B's in English and reading, a C in science, and F's in social studies and music. On her report card, the child's teachers noted that she had failed to complete projects and assignments.

        On December 21, 1995, the child's parents met with her special education teacher, her guidance counselor, the school district attendance counselor, and an officer of the Kenmore Police Department to discuss the child's poor attendance in school. The PINS Diversion program, which reportedly provides various forms of assistance to children and their families so that the children do not have to be referred to the Family Court, was described to the child's parents by the attendance counselor and the police officer. The police officer attended the meeting as an acquaintance of the child's mother. Petitioner and his wife declined to initiate a referral of the child to the PINS Diversion Unit of the Erie County Probation Department. However, they indicated that they would support the school district's referral of the child. On January 8, 1996, the school district's attendance counselor, Ms. Mary Ann Haefner, referred the child to the PINS Division program. She explained that the child did not have disciplinary problems while in school, but that she needed to be motivated to come to school. Ms. Haefner noted that the child continued to have difficulty coming to school, despite having received private psychological counseling for possible school phobia.

        On January 24, 1996, the child and her parents met with a representative of the PINS Diversion program. The child signed a statement agreeing to abide by certain conditions, such as complying with school time and attendance rules, to avoid being referred to the Family Court in a PINS proceeding. Her mother signed a statement, in which she agreed to cooperate with school personnel, and to comply with the requirements of the PINS Diversion program. One of the requirements of that program was that the child's caseworker interview the child's parents, as part of an assessment. The child's caseworker reportedly wrote to the child's parents in late January, 1996 to schedule an interview with them. At the hearing in this proceeding, the caseworker testified that he did not receive a response to his letter, and that he eventually contacted the child's mother by telephone on March 18, 1996. The caseworker and the child's parents were apparently unable to schedule an interview. The caseworker informed Ms. Haefner that the parents had not cooperated with him.

        In a mid-year summary dated February 27, 1996, the child's special education teacher indicated that the child had made many friends, and that she was a good role model for other students. He noted that the child's academic progress had been hindered by her absences from school, and he suggested that she needed to become more responsible and self-motivated for independent study work. Nevertheless the child had progressed in developing her reading comprehension skills. At the hearing in this proceeding, the teacher testified that the child had achieved grade equivalent scores of 8.3 in reading and 6.1 in mathematics when tested in March, 1996. Those scores indicated that her reading skills had improved by almost three years, and her mathematics skills had improved by one-half year, since March, 1995. The child was reportedly absent for nine days during the third marking period of the school year. She received either an A or a B in each of her academic subjects, and the grade of F in Art.

        On March 28, 1996, Ms. Haefner, as respondent's authorized representative, initiated a PINS proceeding in the Erie County Family Court. The PINS petition indicated that the child had been illegally absent from school on 31 days during the 1995-96 school year, and that efforts to use the PINS Diversion program had been futile. A Family Court hearing was scheduled to be held on April 16, 1996. By letter dated April 12, 1996, petitioner's attorney initiated this proceeding by asking respondent to provide an impartial hearing to review the legality of respondent's initiation of a PINS proceeding. On April 16, 1996, the Family Court judge reportedly admonished the child that she must attend school on a regular basis. The judge directed that the child receive alternative home services, which apparently involved assigning a probation department employee to monitor the child's school attendance pending the court's disposition of the matter. The child's attendance was reportedly satisfactory for the remainder of the 1995-96 school.

        The hearing in this proceeding began on May 30, 1996. Petitioner's attorney stipulated that there was no dispute about the appropriateness of the child's classification as emotionally disturbed, or the educational program which the CSE had recommended that she receive during the 1995-96 school year. The attorney identified the issue to be whether respondent violated State and Federal laws regarding the provision of a free appropriate public education to the child by referring her to the PINS Diversion program, or by subsequently initiating a PINS proceeding against the child (Transcript, page 19). The hearing continued on June 4, 1996, and concluded on June 7, 1996.

        The hearing officer rendered his decision in this matter on June 29, 1996. He noted that the child had missed 174 days of school between her entry into the fifth grade in 1992, and the approximate end of eighth grade in May, 1996. He further noted that the child had been reported to be a "classical case of school phobic/resistance" by Dr. Demerath in 1994. However, the hearing officer rejected petitioner's contention that respondent's referral of the child to the PINS Diversion program, or its initiation of a PINS proceeding, instituted a change in the child's placement, which should have been recommended by respondent's CSE under Federal and State law. He noted that the child had not in fact been removed from the educational program prescribed for her by the CSE, and found that respondent had properly referred the child to the PINS Diversion program. By dismissing petitioner's complaint, the hearing officer implicitly reached the same conclusion with regard to respondent's initiation of a PINS proceeding.

        Petitioner contends that the hearing officer's decision included numerous factual errors. He further contends that the hearing officer mischaracterized petitioner's arguments, and that the hearing officer went beyond the record which was before him in reaching his decision. Respondent contends that the hearing officer's decision, while "inartfully written," nevertheless accurately reflected the record which was before him. I have reviewed the ten alleged inaccuracies in the hearing officer's decision which petitioner has cited in his petition. While he is undoubtedly correct with regard to some of the hearing officer's statements, such as the alleged initiation of the PINS proceeding by the PINS Diversion program, the date upon which petitioner allegedly requested an impartial hearing, and a reference to the child's 15:1 special education class as a resource room, I am not persuaded that those factual errors forward a basis for annulling the hearing officer's decision. I further find that the hearing officer did not seriously mistake petitioner's arguments.

        The hearing officer's alleged reliance upon information outside the record is a more troublesome matter. It is well established that an impartial hearing officer may not base his or her decision on factual information which is not part of the hearing record, because the parties do not have an opportunity to challenge the accuracy of that information, and there is no way in which the information can be reviewed in an appeal from the hearing officer's decision (Application of a Child with a Handicapping Condition, Appeal No. 90-16; Application of a Child with a Handicapping Condition, Appeal No. 92-31; Application of a Child Suspected of Having a Disability, Appeal No. 95-52). During the testimony of respondent's attendance counselor, the hearing officer stated that he had asked the superintendent of schools of the school district in which the hearing officer had been formerly employed whether children with disabilities in that school district were treated differently than those without disabilities with regard to school attendance. He did not reveal the superintendent's response to him. In a second incident, the hearing officer allowed respondent's attorney to briefly quote from a book which had not been introduced into evidence with regard to the appropriate technique to be used to treat children with school phobia or school resistance. Although I do not condone the hearing officer's action in either instance, I must note that the central issue raised by petitioner is legal in nature, and is not determined by either the practices of another school district, or the advice of the American Academy of Pediatrics which allegedly published the book in question.

        Petitioner contends that the hearing officer erred in finding that respondent was not obligated to convene its CSE before referring the child to the PINS Diversion program, or initiating a PINS proceeding. His contention is premised upon his belief that the referral of the child to the PINS Diversion program or the initiation of a PINS proceeding constituted a change in his daughter's educational placement (see Morgan v. Chris L., 21 IDELR 783 [U.S. D.C. Ed. Tenn., 1984]). While I have considered the Morgan decision, I must note that the U.S. Department of Education's Office of Special Education Programs has opined that a change of placement involves a substantial or material alteration of a child's educational program (21 IDELR 992; see also Concerned Parents and Citizens for the Continuing Education at Malcolm X v. New York City Board of Education, EHLR 552; 147 [2d Cir., 1980]). In this instance, there was no change in the child's educational program, nor is there any indication that the Family Court intended to change any aspect of the child's educational program without consulting respondent's CSE. It should be noted that Section 4005 (1)(a) of the Education Law requires that before a Family Court places a child in a child care institution pursuant to Section 756 of the Family Court Act, the Court or the probation department must request that the CSE of the school district in which the child resides evaluate the child and make written recommendations for appropriate educational services for the child. Under the circumstances, I am not persuaded that either action taken by respondent constituted a change in the child's placement.

        Petitioner argues that even if respondent's actions did not constitute a change of the child's placement, the CSE should nevertheless have reviewed the child's educational program. Although his attorney stipulated at the outset of the hearing that petitioner did not challenge the CSE's recommendation of June 14, 1995 on either procedural or substantive grounds, he asserts that the child's placement was inappropriate at the time when the child was referred to the PINS Diversion program, and the PINS proceeding was thereafter initiated. However, the record suggests that the child did make educational progress in her educational program for the 1995-96 school year. I note that petitioner has not refuted the testimony of the child's teacher that the child had achieved all of her IEP goals.

        The fact remains that truancy is an academic problem which is not properly addressed by disciplinary action, such as a suspension from school (Appeal of Achert, 30 Ed. Dept. Rep. 31). Although school districts are authorized to initiate PINS proceedings against students who are habitually truant, the Commissioner of Education has indicated that where a child's absences may be attributable to a disability, a school district's first obligation is to refer the child to its CSE to determine whether the child requires special education services (Application of a Child with a Disability, 31 Ed. Dept. Rep. 542). Respondent contends that the Commissioner's decision is inapposite because the child in that case had not previously been considered by the CSE. Although the decision indicates that the child was classified as other health impaired by the CSE, after his principal thought about but did not initiate a PINS proceeding for truancy, it does not follow that the import of the decision is limited to children who have not been classified as having disabilities. Indeed, if as in this instance, the child's classification as emotionally disturbed is based upon the child's alleged school phobia or school resistance, it is incumbent upon the CSE to first attempt to resolve the child's truancy by a review of the child's program. If after a review by the CSE, the school district believes that it has offered the child an appropriate placement, it may proceed with a PINS proceeding (Matter of Shelly M., 115 Misc. 2d 19 [Monroe County Family Court, 1982]). Although some of respondent's witnesses opined at the hearing that there was no purpose in having the CSE review the child's program, Federal and State law clearly provide that determinations about the appropriateness of a child's educational program are to be made by a multi-disciplinary team, i.e., the CSE. Upon the record before me, I find that respondent's CSE should have reviewed the child's program before respondent initiated the PINS proceeding. I do not make that finding with respect to the referral of the child to the PINS Diversion program, which the child's parents supported, and which is a voluntary program. Parents and school districts are free to try alternative programs by agreement.

        As petitioner recognizes, neither a hearing officer nor I have the power to interfere with the Family Court's adjudication of the PINS proceeding. The record does not reveal whether the Court has made a final determination, or whether the Court's jurisdiction will continue. Under the circumstances, I will not order respondent to attempt to withdraw its petition. Since the 1995-96 school year has concluded, I will not direct the CSE to meet for the purpose of considering modifications to the child's IEP for that school year.

        Respondent's appeal from the hearing officer's decision is challenged by petitioner as untimely. State regulation requires that a board of education commence its appeal from the decision of an impartial hearing officer within 30 days after its receipt of the hearing officer's decision (8 NYCRR 279.2 [b], and 279.4). The hearing officer's decision was reportedly mailed to respondent on or about June 29, 1996. However, respondent asserts that the copy of the decision which it received did not include the last page, which is the portion of the decision which respondent seeks to have reviewed. It alleges that it did not receive a copy of the last page of the decision until August 27, 1996. Respondent's appeal was commenced on September 24, 1996. Petitioner concedes that he does not know when respondent received the last page of the hearing officer's decision. I find that the affirmative defense of untimeliness has not been proven.

        Respondent contends that the hearing officer's directive that respondent's CSE review the child's eighth grade record, and develop the child's IEP for the 1996-97 school year (ninth grade) is arbitrary and capricious. It asserts that the hearing officer's directive was also unnecessary, because the CSE had conducted its annual review of the child on May 16, 1996, and had prepared her 1996-1997 IEP. In essence, respondent argues that the hearing officer's jurisdiction was limited to determining whether respondent had violated Federal or State law by referring the child to the PINS Diversion program, or by initiating a PINS proceeding. While I agree that the issues as framed by the parties were narrow, I must note that the hearing officer's directive merely required respondent to do what it was legally obligated to do, i.e., conduct an annual review. The fact that an annual review had been conducted was briefly alluded to at the hearing. However, the hearing officer's decision does not indicate any reason for requiring the CSE to conduct yet another review. I will sustain respondent's appeal by not requiring it to conduct another annual review. Petitioner retains the right to challenge the IEP developed for the 1996-97 school year.

PETITIONER'S APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

RESPONDENT'S APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer, to the extent that it found that respondent's CSE need not have reviewed the child's program prior to initiating a PINS proceeding, and it directed the CSE to meet to prepare the child's IEP for the 1996-97 school year, is hereby annulled.