97-032

         Petitioner appeals from the decision of an impartial hearing officer which denied petitioner's request that her son be classified as emotionally disturbed for educational purposes, but which directed respondent's committee on special education (CSE) to re-evaluate the boy, or in the alternative, to refer him to respondent's multi disciplinary team to provide services pursuant to the provisions of Section 504 of the Rehabilitation Act of 1973 (29 USC 794). Petitioner asks that I find that her son should be classified as emotionally disturbed pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq) and its State counterpart, Article 89 of the Education Law. Respondent cross-appeals from the hearing officer's directive to re-evaluate the child, or refer him to respondent's Section 504 committee. The appeal must be sustained. The cross-appeal must be dismissed.

        Petitioner objects to respondent's cross-appeal on the grounds that respondent failed to serve a notice of intention to seek review. 8 NYCRR 279.2 (a) requires that the parent or person in parental relationship to a child with a disability serve a notice of intention to seek review upon a board of education. The regulation does not require that a board of education serve a notice of intention to seek review upon a parent, because the purpose of such notice is to direct the board of education to file the impartial hearing record with the State Education Department. Therefore, I find that petitioner's objection is without merit.

        Petitioner also argues that the cross-appeal should not be considered because it is untimely. She asserts that respondent's cross-appeal was not commenced within thirty days from the "making of a decision or the performance of the act complained of" (see 8 NYCRR 275.16). Petitioner's reliance upon that regulation, which applies to appeals to the Commissioner of Education pursuant to Section 310 of the Education Law, is misplaced. The relevant regulation governing appeals to the State Review Officer is 8 NYCRR 279.2 (b), which provides that a petition for review must be served "within 40 days after receipt of the decision sought to be reviewed". Petitioner has not established when respondent received a copy of the hearing officer's decision, and has therefore not established her affirmative defense of untimeliness (Application of the Board of Education of the Wappingers Central School District, Appeal No. 97-29; Application of a Child with a Disability, Appeal No. 95-1).

        Petitioner contends that a cross appeal is not permitted in a matter of this nature, not withstanding the explicit provisions of 34 CFR 300.510(a) and 8 NYCRR 279.1(a) which allow either a parent or a board of education to appeal from an impartial hearing officer's decision. The provisions of 8 NYCRR 279.6, upon which petitioner relies, do not preclude the inclusion of a cross-appeal in an answer. It has been previously held that a respondent may cross-appeal in its answer to a petition (Application of a Child with a Handicapping Condition, Appeal No. 91-25; Application of a Child with a Handicapping Condition, Appeal No. 95-8). Petitioner's suggestion that permitting cross-appeals unfairly benefits boards of education ignores the fact that either a parent or board of education may cross-appeal (Application of the Board of Education of the Ellenville Central School District, Appeal No. 94-43; Application of a Child with a Disability, Appeal No. 95-8).

        There is one other procedural objection. Respondent asserts that the affidavit of verification which was attached to the copy of the petition which it received was not notarized. However, the affidavit of verification which was filed with the petition which is before me was notarized, and it is acceptable.

        Petitioner's son is thirteen years old. He reportedly achieved his developmental milestones within normal time limits. The boy was enrolled in a Head Start program at the age of three and one-half. Petitioner testified that at the hearing in this proceeding the child's father was an alcoholic who was physically and verbally abusive to her and the child. The father reportedly moved out of the house before the child began kindergarten.

        The child entered kindergarten in respondent's North Coleman Road School. He was then placed by respondent in a non-special education "alternative class" for the first grade in respondent's Stagecoach School, because he had emotional and behavioral problems. During the 1990-91 school year, the child was enrolled in a regular education first grade class in respondent's Hawkins Path School. In March, 1991, petitioner's son was referred to the CSE by his teacher, who reported that the child manifested aggressive behavior towards other children, and that he was not completing his school work.

        When evaluated in March, 1991, petitioner's son was found to have a full scale IQ of 120. His reading and spelling skills were at grade level, and his mathematics skills were above grade level. A child study team recommended that the boy be classified as emotionally disturbed, and that he be placed in a 12:1+1 self-contained classroom. It also recommended that the child receive counseling. On May 7, 1991, respondent's CSE deferred making a recommendation because petitioner believed that her son's behavior had greatly improved (Exhibit C). At or about that time, the boy reportedly began receiving psychotherapy outside school.

        There is very little information in the record about the child's performance in school during the next three school years. He remained in respondent's regular education program, and he apparently advanced in grade in the normal fashion. The boy reportedly manifested increasingly oppositional behavior to petitioner, who had the child admitted to the University Hospital of the State University of New York at Stony Brook (Stony Brook) on October 3, 1994. He remained in Stony Brook until November 16, 1994. The boy's discharge summary (Exhibit 33) indicated that he had been admitted because petitioner had complained of her son's chronic oppositional and defiant behavior, increasingly severe temper tantrums, and aggressive destructive acting-out behavior, although he had been doing fairly well in school. While in Stony Brook, the boy reportedly performed well in that facility's school. He was described in the discharge summary as a "model citizen" in school, and as not presenting a serious behavior management problem in the hospital. The discharge summary also indicated that petitioner's son had been medically diagnosed as having an attention deficit hyperactivity disorder (ADHD), an oppositional defiant disorder (ODD) and a conduct disorder. At the time of his discharge, petitioner's son was taking the medicine Ritalin, and he was to be seen on an out-patient basis at the Farmingdale Day Treatment Center. During the period from November 30, 1994 through December 16, 1996, the boy received psychotherapy from the Sagamore Children's Psychiatric Center.

        While he was in Stony Brook, the child was evaluated by a school psychologist employed by the Board of Cooperative Educational Services of the First Supervisory District (BOCES). The BOCES school psychologist reported that the boy had achieved a verbal IQ score of 100, a performance IQ score of 102, and a full scale IQ score of 101. His score for freedom from distractibility was in the high average range. The boy achieved grade equivalent scores of 5.6 for reading decoding, 4.1 for reading comprehension, 4.6 for spelling, 5.9 for mathematical applications, and 4.1 for mathematical computation. At the time of his evaluation in the Fall of 1994, the boy was in the fifth grade. His aural input and written expression were reported to be in the above average range, while his visual input and oral expression were reported to be within the average range. He possessed adequate visual-motor coordination, and auditory discrimination skills. The BOCES psychologist concluded that the child did not have any learning, language, or motor skill disorders. He alluded to a separate psychiatric evaluation of the child, which apparently afforded a basis for the school psychologist to recommend that respondent's CSE consider whether the boy should be classified as emotionally disturbed because his maladaptive behavior allegedly thwarted his ability to function effectively in a regular classroom. In any event, the BOCES psychologist opined that petitioner's son required a highly structured educational program, with a low child to adult ratio, as well as a behavioral management program. I note that the record reveals that in December, 1994 the child's Principal informed respondent's CSE chairperson that the child's behavior had been appropriate and his academic progress was satisfactory, and that he was not aware of any basis for evaluating the child. The boy remained unclassified, and was enrolled in respondent's regular education program for the rest of the fifth grade.

        During the 1995-96 school year, petitioner's son was in a regular education sixth grade program in respondent's Selden Middle School. In November, 1995, he was briefly suspended from school for fighting with another student. The boy's final report card for the 1995-96 school year (Exhibit 30) revealed that the child received mostly C's, D's, and F's throughout the year. His final grades were F in reading and social studies, and D in social studies, mathematics, language arts, and science. He was reportedly absent from school for 30 days, and was tardy on 14 days. The teachers' comments on the child's sixth grade report card indicated that the child did not do well on tests, had a negative attitude or manifested a lack of effort, and needed to study more at home.

        On May 23, 1996, petitioner referred her son to the CSE. She indicated in her referral that her son was not doing his schoolwork, and had "given up". In a physical examination report dated May 31, 1996, the child's physician indicated that the boy had been diagnosed as having an attention deficit disorder (ADD), for which he was taking Ritalin. Educational testing performed on June 14, 1996 indicated that the boy's reading comprehension skills were delayed by approximately one year. His other academic skills were at the appropriate (sixth) grade level. A school psychologist who evaluated the child on June 14, 1996 reported that the boy had achieved a composite IQ score of 105 on the Kaufman Brief Intelligence Test. Projective testing revealed that the child viewed himself as basically a normal child who liked risky or highly stimulating behavior, yet he had an elevated sense of inadequacy. The child reported that he had extremely strained relations with petitioner. The school psychologist reported that the boy did not evidence any sign of weakening of reality testing, psychosis, or depression. She opined that although the boy "...may indeed remain an angry young man, it must be assumed that his excessive absences, tardies, and lack of work effort contribute most to his barely passing level in school" (Exhibit 22). The child was observed in class by his guidance counselor, who testified at the hearing that petitioner's son was unprepared, but attentive in class.

        The CSE did not review the results of the child's evaluation until August 20, 1996. In the interim, a building level child study team (CST) also reviewed the child's evaluation reports. The CST recommended that the child not be classified as a child with a disability, but that he be retained in the sixth grade for the 1996-97 school year. On July 3, 1996, Ms. Dianne Picone, the Assistant Principal of the Selden Middle School, met with petitioner and the boy's father to discuss the CST's recommendation. In lieu of retaining the boy, it was agreed that he would receive private counseling on a regular basis, and that Ms. Picone would consult with the boy's private counselor. The child's absences and tardiness would be monitored by a school social worker, who would initiate a person in need of supervision (PINS) petition in Suffolk County Family Court, if the child's attendance and tardiness did not improve during the 1996-97 school year. A guidance counselor would monitor the boy's academic performance, and the boy's teachers would prepare weekly progress reports. The guidance counselor would maintain biweekly telephone contact with petitioner.

        On August 20, 1996, respondent's CSE, which apparently did not include the required parent member (cf. Section 4402 [1][b][1] of the Education Law), concluded that petitioner's son did not display an educational disability. Petitioner did not immediately challenge the CSE's recommendation that her son not be classified as a child with a disability. The boy was enrolled in regular education seventh grade classes in the Selden Middle School for the 1996-97 school year. The plan which Ms. Picone had developed at her meeting with the child's parents was implemented.

        In mid-October, 1996, the CST met to review the boy's performance. By that time, petitioner's son had reportedly been truant once, and had cut a class. A teachers' progress report for the period from September 4, 1996 through October 9, 1996 indicated that the child's English, mathematics, social studies, and science teachers had concerns about the boy's lack of effort, or failure to complete assignments. It was agreed that the plan which Ms. Picone had developed would be amended to provide that the boy would attend after school detention in Ms. Picone's office for future violations of school rules, and that he would meet with various staff members, such as his guidance counselor and his school social worker, during his lunch period. Petitioner agreed to transport her son to school, and to escort him to the guidance or pupil personnel offices in the morning to ensure that he got to school promptly. During the period between the beginning of school in September, 1996 through October 30, 1996, petitioner's son was reportedly truant or cut classes on three occasions (Exhibit 35).

        On October 30, 1996, petitioner's son was found to have a knife on his person, in violation of respondent's policy regarding weapons on school property. He was initially suspended from school for a five-day period, pending a hearing before the Superintendent of Schools in accordance with Section 3214 (3) of the Education Law. The Superintendent of School determined that petitioner's son would be suspended from school for the remainder of the 1996-97 school year. Petitioner has appealed to the Commissioner of Education from the Superintendent's decision. On March 7, 1997, the Commissioner issued an interim order requiring respondent to return the boy to his regular education classes, unless the parties agreed to an alternate arrangement, during the pendency of petitioner's appeal to the Commissioner.

        At the Superintendent's hearing, petitioner requested that an impartial hearing be held to review the CSE's recommendation on August 20, 1996 that her son not be classified. In lieu of conducting the requested hearing, the parties agreed that the CSE would reconsider the matter of the child's eligibility for classification as a child with a disability.

        Petitioner's son was evaluated by a second school psychologist on November 14, 1996. The school psychologist reported that the child wanted to return to school. The boy achieved a verbal IQ score of 102, a performance IQ score of 95, and a full scale IQ score of 99. it should be noted that various witnesses at the hearing testified that the discrepancy between the child's IQ scores in 1991 and 1996 could be attributed to the fact that different tests were used and that scores on the newer test tended to be lower then those on the test which was used in 1991. The boy's verbal comprehension, perceptual organization, and freedom from distractibility were all reported to be within the average range. On the Behavior Assessment System for Children - Self Report, which uses information provided by the child, the boy revealed that he saw himself as a sensation seeking youngster, who disliked school. He also perceived himself as somewhat inadequate, according to the school psychologist, who noted that these perceptions by the child were within the "at-risk range." At the hearing in this proceeding, the school psychologist explained that matters in the "at-risk range" were of concern, but they did not require intervention. Petitioner completed the Behavior Assessment System for Children - Parent Rating Scale. While she perceived the child as having significant difficulty externalizing and internalizing problems, and as having a behavior disorder, the scores which were generated by petitioner's responses were still in the "at-risk range." The school psychologist reported that the child demonstrated no sign of overt psychopathology, but that he did not appear to recognize the underlying motivation of others. He concluded that the child did not appear to have a disability, but recommended that petitioner and her son continue to receive psychotherapy.

        In an educational evaluation which was also performed in November, 1996, petitioner's son achieved grade equivalent scores of 9.7 for letter/word identification, 11.0 for passage comprehension, 6.7 for mathematical calculation, 7.4 for mathematical application and 5.2 for spelling. His writing skills were reported to be in the average range.

        On December 3, 1996, the building level CST recommended that petitioner's son not be classified as a child with a disability, and that he be educated in regular education classes. Two days later, respondent's CSE also recommended that the boy not be classified as a child with a disability. On January 7, 1997, petitioner's attorney requested that an impartial hearing be held to review the CSE's recommendation. On January 9, 1997, petitioner reportedly met with respondent's Section 504 committee. However, the record does not reveal the results of that meeting.

        The hearing in this proceeding began on February 26, 1997. It concluded on March 17, 1997. In his decision which was rendered on March 27, 1997, the hearing officer noted that 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 hearing officer found that petitioner's son had not exhibited any of the aforementioned characteristics either constantly, or over a long period time, as is required by the State regulation, and its Federal counterpart (see 34 CFR 300.7 [b][9]). Nevertheless, the hearing officer found that the child, while not meeting the regulatory definition of an emotionally disturbed child, had an emotional problem. He further found that the child's emotional problem was interfering with his ability to succeed in school. He directed respondent to have its CSE re-evaluate the child, suggesting that such an evaluation might include a psychiatric evaluation. In the alternative, the hearing officer indicated that respondent could refer the child to its Section 504 committee.

        Petitioner asserts that the central issue in this appeal is whether the hearing officer's legal conclusion that the child could not be classified as emotionally disturbed in accordance with the State regulatory definition (8 NYCRR 200.1 [mm][4]) was inconsistent with the hearing officer's factual finding that her son had an emotional problem which was interfering with his ability to succeed in school. She argues that the hearing officer was obligated to order that her son be classified as emotionally disturbed, given his finding that "It is clear that his failure is due to an emotional problem." Petitioner further argues that I am precluded from reviewing the hearing officer's factual findings by the "finality" provisions of Federal and State regulations (34 CFR 300.509; 8 NYCRR 200.5 [c][11]). She also relies upon the decision in Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]).

        I disagree with petitioner's argument that my review is so narrowly circumscribed. In Hiller, neither party challenged the child's classification. However, the sole issue in this proceeding is whether the child should be classified. It is my responsibility, as it was that of the hearing officer, to determine whether petitioner's son is eligible for classification as a child with a disability in accordance with the Federal and State criteria for classification. To fulfill that responsibility, I must review the record to determine whether the child meets the criteria for classification. In doing so, I note that the board of education bears the burden of establishing the appropriateness of the CSE's recommendation that a child not be classified as a child with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 93-18; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-42).

        In order to be classified as a child with a disability under Federal regulation (34 CFR 300.7 [a][1]), or its State counterpart (8 NYCRR 200.1 [mm]), a child must have a specific physical or mental condition which adversely impacts upon the child's educational performance to the extent that he or she requires special education and/or related services (Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 95-11). The fact that this child may have been medically diagnosed as having a conduct disorder would not per se afford a basis for finding that he was eligible for classification as a child with a disability (A. E. by Evans v. Independent School District No. 25 of Adair County, Oklahoma, 936 F. 2d 422 [10th Cir., 1991]).

        In this instance, there appears to be little doubt that petitioner's son has some emotional problems. No one has challenged the statement by Dr. Debra Handel, respondent's school psychologist, who reported that the boy had made an unsuccessful transition to the middle school, yet he was capable of doing grade level work. Dr. Handel indicated that the boy might well be angry because of the strained and stressful relationship which he had with petitioner. There is also no dispute with her findings that the boy appeared to prefer risky or highly stimulating behavior, and that he had an "elevated sense of inadequacy". The critical issue is whether there was a correlation, or nexus, between the boy's emotional concerns and his poor performance in school.

        At the hearing, Dr. Handel testified that the child appeared to be able to "leave his problems at the door", i.e., that his anger, sensation seeking, and sense of inadequacy did not manifest themselves in school. Petitioner's expert witness, Dr. Marlene Zamari, testified that a child with emotional problems brings those problems to school. She opined that the child's anger, strained relations with petitioner, and sense of inadequacy could contribute to his truancy, tardiness and lack of work effort (failure to complete homework assignments). While testifying that the boy was not emotionally disabled because he continued to achieve academically at the appropriate grade level, Dr. Handel agreed that the child's anger at home interfered with:

" ... his ability to practice in homework what he has already learned in school. So he is not demonstrating the learning by doing homework. If his anger at his mother causes him not to come to school on time and he misses that class then, yes, indirectly that's caused him to miss a learning opportunity because he wasn't there." (Transcript, page 473)

        Respondent's witnesses, including Dr. Handel, attributed the child's poor academic performance to this failure to complete his homework assignments and his poor attendance and tardiness during the 1995-96 school year. As respondent has noted, a child's failure to perform because of a lack of motivation in school, or absence from school, does not afford a basis to suspect the existence of an educational disability (Application of a Child Suspected of Having a Handicapping Condition, 91-33). However, I find that the record in this proceeding demonstrates that the child's low performance is not merely the result of his lack of motivation. Dr. Handel's testimony and that of Dr. Zamari support a finding that, notwithstanding the child's professed desire to do better in school, he is genuinely unable to do so because of his emotional disability. That inability may be manifested by his truancy as a way of getting back at petitioner, as well as his inability to do his homework. The fact that he has passed most of his courses is not dispositive of the issue of whether he is emotionally disturbed within the meaning of Federal and State educational regulations (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-20).

        The hearing officer in this proceeding found that the child did not meet the regulatory criteria for classification as emotionally disturbed because he had not manifested any of the four characteristics described in the regulatory definition, i.e., an inability to build or maintain satisfactory interpersonal relationships, inappropriate types of behavior or feelings under normal circumstances, a generally pervasive mood of unhappiness or depression, or a tendency to develop physical symptoms or fears associated with personal or school problems. While I agree that there is little or no evidence demonstrating that the boy manifested these characteristics in school over an extended period of time, I find that the child's behavior in relation to petitioner was clearly inappropriate under normal circumstances. That behavior has persisted over an extended period of time. Since that behavior has also impacted upon the child's ability to perform in school at a level which is consistent with his ability, I am satisfied that petitioner's son meets the regulatory criteria for classification. Accordingly, I will reverse the hearing officer's decision.

        In view of my conclusion that the child would be appropriately classified as emotionally disturbed, I find that respondent's cross-appeal must be dismissed.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

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

IT IS FURTHER ORDERED that within 20 days after the date of this decision respondent's CSE shall recommend to respondent that petitioner's son be classified as emotionally disturbed.