96-065

         Petitioner appeals from the decision of an impartial hearing officer which found that the classification of petitioner's son should be changed from speech impaired/learning disabled to emotionally disturbed, and that his educational program should be changed from resource room services to a self-contained, specialized instructional environment-VII (SIE-VII) classroom. The appeal must be sustained.

        Respondent contends that this appeal should be dismissed as untimely. Petitioner appeals from a hearing officer's decision which was dated June 13, 1996. The Regulations of the Commissioner of Education which govern appeals to the State Review Officer provide that the parent of a child with a disability must serve a copy of his or her petition to review a hearing officer's decision upon the board of education within 40 days after the parent has received the hearing officer's decision (8 NYCRR 279.2 [b]). The record does not reveal when petitioner received a copy of the hearing officer's decision. However, she attempted to commence this appeal in July, 1996, but failed to serve a copy of her petition upon the board of education. On July 24, 1996, the Office of State Review notified petitioner that her appeal could not be accepted until she served a copy of her petition upon the board of education. On August 27, 1996, a relative of petitioner contacted the Office of State Review to explain that petitioner's ability to express herself in English was limited. The representative was advised that she could assist petitioner in rewriting her petition. Thereafter, a copy of the petition was reportedly served upon one of respondent's community school boards, rather than upon respondent. On October 1, 1996, the Office of State Review sent a copy of the petition to respondent's Office of Legal Services. Respondent has been aware of petitioner's intention to seek review of the hearing officer's decision, since July, 1996. It has offered no evidence that it has been prejudiced by petitioner's delay. Therefore, I will not dismiss the appeal as untimely.

        Respondent also contends that the appeal should be dismissed because petitioner failed to personally serve the petition upon it in the manner prescribed by the Regulations of the Commissioner of Education (see 8 NYCRR 279.2 [b]). Instead, it received a copy of the petition from the Office of State Review. In view of the fact that respondent has received a copy of the petition and has been afforded an opportunity to answer the petition, I find that it would be inequitable to dismiss the appeal on the ground of defective service of the petition (Application of a Child Suspected of Having a Disability, Appeal No. 93-7).

        There is one other procedural issue to be addressed. In a letter dated November 8, 1996, an attorney for Sinergia, Inc., a not-for-profit corporation which provides services to persons with disabilities, asked the Office of State Review for permission to supplement petitioner's pro se petition. The attorney challenged the validity of the recommended SIE-VII placement for the child on the grounds that the committee on special education (CSE) which made the recommendation allegedly lacked one of its required members, and that petitioner's son did not meet respondent's criteria for admission to its SIE-VII program. Respondent opposes the Sinergia attorney's request on the ground that the Regulations of the Commissioner of Education do not permit supplemental petitions or pleadings, with one exception which is not relevant in this case (see 8 NYCRR 279.6). Although I cannot accept the letter in question as a supplemental pleading, I note that the issues raised in the letter are matters which I would in any event consider in determining whether respondent has met its burden of proof with regard to the appropriateness of its CSE's recommendation.

        Petitioner's child is eleven years old. During the 1995-96 school year, the child was enrolled in the fifth grade of P.S. 217, the school which he has attended since entering kindergarten in 1990. The child's cumulative school record reveals that the child received satisfactory grades, and was advanced in grade each year, despite having achieved relatively low standardized achievement test scores. In the Spring of 1994, he achieved scores which were below the Statewide reference point on the New York State Pupil Evaluation Program (PEP) third grade reading and mathematics tests. He has reportedly received the remedial instruction which should have been provided to him because of his scores on the PEP tests (see 8 NYCRR 100.3 [b][3]). Although the child's parents are reportedly more proficient in Spanish than in English, petitioner indicated that she and her son spoke English most of the time, in a questionnaire which she completed before the child entered kindergarten. The child's score on respondent's test of English language proficiency which was given to him in kindergarten was sufficiently high that he was determined not to need bilingual education.

        The child was referred to the CSE in March, 1994, when he was in the third grade. However, the record does not reveal the outcome of that referral. He was again referred to the CSE by his fourth grade teacher, because the boy's academic skills were delayed, and he allegedly could not remain on task without intervention by his teacher. In addition, the child reportedly had difficulty pronouncing words correctly. The educational evaluator who tested the child for the CSE in March, 1995, reported that the boy was cooperative yet distractible, and that he moved about the room constantly. She described his speech as adequate and intelligible for conversation, but the evaluator acknowledged that the boy had difficulty articulating words. The evaluator reported that the child's expressive language skills were delayed by approximately one year. On one reading test, the child's reading skills were found to be at the beginning third grade level. However, he achieved grade equivalent skills scores ranging from 3.5 to 4.5 on another reading test. In mathematics, he achieved grade equivalent scores of 2.2 in basic concepts, 3.2 in operations, and 2.9 in applications. The educational evaluator reported that the child's graphomotor (handwriting) skills were delayed, and that there were spelling, punctuation, and grammatical errors in his writing. When tested again in May, 1995, the child's reading skills were reported to be at the twenty-third percentile on the DRP, while his mathematical skills were reported to be at the twelfth percentile on the California Achievement Test (CAT).

        In May, 1995, respondent's CSE recommended that the child be classified as speech impaired. It also recommended that he receive resource room services five times per week and speech/language therapy twice per week. Petitioner reportedly accepted the CSE's recommendations. In September, 1995, the child was referred to the CSE by his resource room teacher, who was reportedly concerned about the child's behavior in various settings. On October 27, 1995, the CSE recommended that the child's individualized education program (IEP) be amended to provide that the child receive counseling in a group of no more than five children once per week.

        On November 16, 1995, the CSE recommended that the child's classification be changed to learning disabled/speech impaired. The IEP which was reportedly prepared for the child at that meeting indicated that he would continue to receive resource room services and speech/language therapy. However, it did not include the related service of counseling. Four days later, the child's resource room teacher again referred the child to the CSE because she believed that he needed to be educated in a more restrictive environment. The teacher reported that the child was constantly disrupting his regular education class, and that he required 1:1 assistance to function in the resource room. She further reported that the boy had engaged in fights with other students during lunch time. The resource room teacher and the child's regular education teacher reportedly advised the CSE that the child's general level of academic achievement was far below that of other children in his class, and that he was working much below his intellectual potential.

        On January 4, 1996, the child was re-evaluated by an educational evaluator, who reported that the boy had achieved grade equivalent scores of 4.4 in letter identification, 4.6 in passage comprehension and 4.5 in composite reading skills. The evaluator indicated that the child had tried to sound out words, but exhibited deficits in vowel usage and syllabication techniques. In mathematics, the child achieved grade equivalent scores of 5.0 in calculation, and 4.4 in math applications. The evaluator reported that the child relied upon concrete aids, e.g., his fingers and number lines, to help him perform mathematical operations. While he could perform addition and subtraction tasks requiring regrouping, the child reportedly had difficulty with multi-digit multiplication and division. The evaluator noted that the child had not fully memorized the multiplication tables, and that he had difficulty with fractions and measurement. The evaluator also informally assessed the child's writing skills. She reported that the child's gross and fine motor skills were good, but that he needed to improve his cursive penmanship. While the child reportedly behaved in an appropriate manner for her, the educational evaluator indicated that the child was fidgety when not engaged in a structured task. The evaluator also observed the child in his fifth grade mathematics class on January 4, 1996. She reported that the child left his seat, and walked around his seat as if looking for something, during the teacher's lesson. At the hearing in this proceeding, the evaluator testified that the teacher's lesson was a review of fractions, which the child did not understand.

        A school psychologist re-evaluated the child on January 5, 1996. She reported that the boy's speech impediment was evident, and that he became restless at times, although he was cooperative with her. The school psychologist reviewed the results of the child's prior evaluation, and did not re-test the boy's cognitive skills, which she described as being in the average range. The child did not display any significant level of depression. On the basis of information supplied by his teacher for the Connor's Rating Scales, the child was found to manifest a high level of attentional problems. The school psychologist described the child as an immature youngster who was restless and attention-seeking. Projective tests revealed that the child had a desire to reach out to others, albeit in a negative way. The school psychologist opined that the child's restless and distractible behavior tended to somewhat explain his learning difficulties. She reported that the boy believed that he was misunderstood by people in authority, and that he lacked the strategies to control his inappropriate behavior. The school psychologist observed the child during a period of reading instruction in his classroom. She reported that the child had to be directed twice to return to his seat, and that he squirmed and tapped a pencil when he was seated.

        On January 26, 1996, the CSE reconvened to review the results of the child's re-evaluations. Petitioner was invited to attend the CSE meeting. However, her name does not appear on the list of CSE participants which is part of the IEP prepared by the CSE on that date. I note that the child's resource room teacher participated in the CSE meeting as the child's teacher member, which is permissible (34 CFR 300.346, Note 1). The CSE recommended that the child's classification be changed to emotionally disturbed. It further recommended that he be enrolled in a SIE-VII class with a child to adult ratio of 12:1+1, because the CSE believed that the boy needed small, highly structured environment to address his management needs. To meet the child's emotional needs, the CSE also recommended that he receive counseling in a group of no more than three children once per week. It recommended that the child continue to receive speech/language therapy twice per week, the IEP which was prepared by the CSE on January 26, 1996 included two annual goals for reading, two goals for mathematics, two goals for expressive language, and three goals which were related to the counseling which he was to receive.

        By letter dated January 30, 1996, petitioner was offered a placement for her son in a SIE-VII class in P. 771 in Brooklyn. On February 16, 1996, petitioner requested that an impartial hearing be held to review the CSE's recommendations. The CSE prepared an interim service plan on February 26, 1996, pursuant to which the child was to receive the assistance of an individual aide pending the outcome of the hearing. On March 12, 1996, petitioner reportedly withdrew her request for a hearing. However, she renewed her request for a hearing on March 19, 1996, when the CSE was preparing to implement its recommendation that the child be placed in a SIE-VII class.

        A hearing was scheduled to be held on April 3, 1996. Petitioner did not attend the hearing. The hearing officer was advised by a representative of respondent that petitioner intended to ask the hearing officer to postpone the hearing. The hearing officer initially dismissed the proceeding without prejudice. However, he spoke with petitioner shortly thereafter, and granted her request that the hearing be adjourned for approximately three weeks to afford her an opportunity to prepare for the hearing.

        The hearing resumed on April 26, 1996. Petitioner was assisted at the hearing by the child's aunt, who has a better grasp of English. Respondent provided a translator who translated the remarks which were made into Spanish for petitioner. At the hearing, petitioner suggested that her son's academic delays might be attributed to his extensive absences from school. The record reveals that he was absent 30 days in the second grade, eleven days in the third grade, and 34 days in the fourth grade. Although the child's report card for the first two of the three marking periods indicates that he had been absent for 24 days while in the fifth grade, the boy's teacher indicated that he was not often absent on an information form which was dated November 24, 1995. In any event, petitioner asserted that her son did not require a self-contained special education class to address his deficits in reading and mathematics. She acknowledged that her son had emotional difficulties, but she asserted that he was receiving private therapy at the Brooklyn Center for Families in Crisis, Inc. Petitioner contended that her child's needs could be met with the private therapy, speech/language therapy, and tutoring in reading and mathematics.

        In his decision which was rendered on June 13, 1996, the hearing officer found that the CSE's recommendation that the boy be classified as emotionally disturbed was supported by the record. He noted that the child's academic achievement was significantly delayed, and was not commensurate with his ability. The hearing officer found that the child's academic deficits resulted more from his inappropriate behavior than from his absences from school. He also found that the child required more adult supervision and attention then could be provided in a regular education program with resource room services, and that the SIE-VII program was the least restrictive environment for him. With regard to the specific class which respondent had offered the child, the hearing officer found that the child would be suitably grouped for instructional purposes. Therefore, he upheld each of the CSE's recommendations.

        Petitioner contends that she was not afforded a fair opportunity to present her case because of her inability to speak and read English. She requests that I annul the hearing officer's decision, and direct that she be given an opportunity to obtain legal assistance. The record reveals that in a scheduling notice which was dated March 20, 1996, petitioner was informed of her right to request an interpreter. Although that notice was in English, a more lengthy notice of her rights as a parent was addressed to petitioner in Spanish (Hearing Officer Exhibit 1). The latter notice informed petitioner of her right to obtain the assistance of a lay advocate or an attorney. On April 3, 1996, the hearing officer granted petitioner's request for an adjournment. When the hearing resumed on April 26, 1996, petitioner did not indicate on the record that she was not ready to proceed, or that she needed additional time to obtain assistance. As noted above, an official translator translated the proceedings into Spanish for petitioner, and petitioner was also assisted by the child's aunt, who questioned respondent's witnesses on petitioner's behalf. Although the aunt's questions were brief, she was not precluded from questioning respondent's witnesses. Petitioner asserts that she was not permitted to respond to each of respondent's witnesses as he or she finished testifying. However, she was afforded the opportunity to present her case after the CSE had rested its case, which was perfectly proper. Petitioner chose to present her case primarily in the form of a brief statement which the child's aunt made on her behalf. Upon the record before me, I find that there is no basis for annulling the hearing officer's decision on the ground that petitioner was not afforded a fair opportunity to present her case.

        She appears to challenge the CSE's recommendation that her child continue to be classified as a child with a disability. Petitioner notes that she asked respondent's educational evaluator at the hearing if the evaluator could ascertain whether the child's learning delays were caused by his absences from school. The educational evaluator responded that she had no way to answer petitioner's question. Petitioner further notes that the school psychologist who testified at the hearing failed to address the issue of the effect the child's absences had on his educational performance.

        Federal regulation defines the term "children with disabilities" as those children with certain disabilities or impairments, who because of those impairments need special education and related services (34 CFR 300.7 [a][1]). The relevant portion of the New York State Education Law provides that a child with a handicapping condition is one who can only receive appropriate educational opportunities from a program of special education (Section 4401 [1] of the Education Law). In view of the fact that this child was not achieving educationally at the same level as his chronological peers, despite having received remedial instruction as required by 8 NYCRR 100.3 (b)(3), I find that he could appropriately be found to have a disability for educational purposes.

        Petitioner does not appear to dispute that the child has speech/language deficits for which he should receive speech/language therapy. However, she does appear to challenge the CSE's recommendation that the boy be classified as an emotionally disturbed child. 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])

        To be classified as emotionally disturbed, a child's emotional condition must significantly interfere with the child's ability to benefit from instruction in a regular education classroom (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-26; Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 435). Since the child's teachers did not testify at the hearing in this proceeding, the record before me has very limited information about how the child actually functions in the classroom. I have reviewed the child's anecdotal record (Exhibit 12), which reveals that the child has threatened to harm a classmate at lunch time on more than one occasion, and that he has been insubordinate to respondent's staff on various occasions. He reportedly believes that he can do as he wishes in school, and that petitioner will support him no matter what he does. The child's misbehavior is reprehensible, but respondent's burden of proof on the issue of classification requires that it demonstrate a nexus between the child's behavior and the deficits in his educational performance (Application of a Child with a Handicapping Condition, Appeal No. 92-42; Application of a Child with a Disability, Appeal No. 93-20). I find that respondent has not sufficiently linked the child's behavior to his educational deficits to afford a basis for concluding that the child is emotionally disturbed.

        Petitioner's son has not performed at a level which is commensurate with his reported ability. As noted above, a complete psychological evaluation was not performed in January, 1996, and the child's prior evaluation is not part of the record before me. However, the information which is in the record before me suggests that the child may have a significant attention deficit. The CSE should have the child observed in class for a more extended period to document the extent of his apparent inability to remain on task, and the efficacy of various behavior management techniques in helping the child to remain on task. After the CSE has done so, it would then be in a position to determine an appropriate classification and an appropriate educational program for the boy. The educational program must be tailored to address the child's educational needs, and respondent be prepared to demonstrate how the program meets his needs, if there is another hearing involving this child. Although I find that this matter must be remanded to the CSE to more accurately determine the nature of the child's disability, I must note that I would have been constrained to annul the hearing officer's decision with regard to the proposed SIE-VII placement because respondent did not demonstrate how it would have met the child's educational needs, or that it was the least restrictive environment for him.

THE APPEAL IS SUSTAINED.

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