97-050

        Petitioner appeals from an impartial hearing officer's decision which upheld the recommendation of respondent's committee on special education (CSE) that her son be classified as emotionally disturbed, and he be educated in respondent's modified instructional services-II (MIS-II) special education program. Petitioner asserts that her son was inappropriately classified. The appeal must be sustained.

        Petitioner's son is 14 years old. At the time of the hearing in this proceeding, he was enrolled in the sixth grade in I.S. 14 in Community School District 22. The child's developmental history was unremarkable. His general health is reported to be excellent, with the exception of an asthma condition which has been treated with a nebulizer. The child entered kindergarten in P.S. 397 in Community School District 17. The child was six years old and in the first grade when his father was killed during a robbery in his house. The child repeated the first grade in P.S. 397, and he attended P.S. 125 in Community School District 17 for the second and most of the third grade. He transferred to P.S. 269 in Community School District 22 when he was in the third grade. Petitioner's son remained in P.S. 269 through the fifth grade. He was enrolled in the sixth grade at I.S. 14 for the 1995-96 school year, and he repeated that grade during the 1996-97 school year.

        In a social history which was taken in early January, 1997, petitioner indicated that her son had acted out some while attending P.S. 269, and that he had been suspended from school five times since enrolling in I.S. 14. However, the record does not reveal the specifics of each of the boy's alleged disciplinary infractions. Petitioner was concerned about her son's behavior, so she referred him to respondent's school based support team, which is the first step in the referral of a child to the CSE in respondent's schools. The boy was evaluated by a school psychologist, who also observed him in two classes. An educational evaluation was also performed in January, 1997. Although the record reveals that petitioner received a request for a physical examination form on January 31, 1997, there is no evidence in the record of a physical examination having been performed (cf. 8 NYCRR 200.4 [b][1][i]).

        On April 13, 1997, the CSE for Community School District 22 met with petitioner to review the results of her son's evaluation. The CSE recommended that the child be classified as emotionally disturbed and be placed in one of respondent's modified instructional services-II (MIS-II) classes in J.H.S. 240 Annex in Brooklyn. The CSE also recommended that the child receive counseling once per week in a group of no more than five students. Petitioner was notified of the CSE's recommendations in a final Notice of Recommendation dated February 20, 1997. On or about March 4, 1997, petitioner returned the Notice of Final Recommendation to respondent with the notation that she did not consent to the provision of the recommended services. Since this child had not previously been identified as a child with a disability and had not received special education services, the recommended services could not be provided without petitioner's consent (8 NYCRR 200.5 [b][3]).

        On April 3, 1997, a hearing was held before an impartial hearing officer at petitioner's request to challenge the CSE' s recommendation. The school psychologist who had evaluated the child for the CSE opined that the death of the child's father in 1989 continued to impact upon the child's performance in school. She also testified that the boy's cumulative record (Exhibit 10) indicated that his personal/social development had been consistently rated as either unsatisfactory or in need of improvement. She further testified that the boy's performance on citywide reading and mathematics tests had declined over the years. The school psychologist also alluded to the deaths of other relatives of the child, and she described him as being very fearful about the future. She testified that the child was unable to think through his feelings prior to acting out, i.e., he was impulsive, and that he needed adult love and affection which he manifested by attention seeking actions in the classroom such as repeatedly raising his hand or leaving his seat. In her report of the evaluation, the school psychologist indicated that the child's verbal IQ skills were in the low average range, and his performance IQ skills were in the average range. She reported that anxiety, stress, tension and frustration interfered with the boy's ability to concentrate. The school psychologist opined that the boy needed more structure, a positive role model, acceptance, nurturance, praise, and regular opportunities to verbalize his needs and concerns.

        At the hearing, respondent also relied upon the results of the child's educational evaluation in January, 1997, when he was mid-way through the sixth grade. The boy achieved grade equivalent (and standard) scores of 7.2 (105) for reading decoding, 4.5 (87) for reading comprehension, 3.9 (73) for mathematical computation, and 4.3 (84) for mathematical applications. He also achieved standard scores of 87 for receptive language and 81 for expressive language. I note that the individualized education program (IEP) which the CSE prepared for the boy indicated that he had achieved a standard score of 82 for spelling, but that information does not appear in the written report of the child's educational evaluation (Exhibit 3). The educational evaluator testified that the boy had acted more like a peer than a student during her evaluation of him.

        The school psychologist testified at the hearing that the boy's academic achievement should have been at about the seventh grade level, in view of his low average cognitive skills and age, and that she opined he had not achieved at a higher level because of his emotional disturbance (Transcript, page 35). Although she was asked whether the discrepancy between the boy's expected and actual achievement could be the result of a neurological impairment or a learning disability, the school psychologist insisted that the child should be classified as emotionally disturbed. I note that a psychologist who evaluated the child at the Brooklyn Mental Health Service on March 15, 1997 reported that the child did not evidence signs of formal mental disorder, delusional thinking, or hallucinations. He described the boy's judgment and insight as fair to poor, while noting a contrast between the child's description of the severity of his behavior and the school's description. The psychologist ruled out a diagnosis of an attention deficit disorder and a conduct disorder, and he suggested a diagnosis of an oppositional defiant disorder.

        The Assistant Principal of I.S. 14 described the child's behavior in school as defiant of school authority, citing numerous examples of the child's loitering in the hallways, upsetting other students, coming to class late, sitting in unassigned seats, harassing other children, taking other children's possessions, wandering into classes to which he had not been assigned, creating disruptions in assemblies, and violating a school rule against wearing hats. The Assistant Principal testified that he had personally spent many hours counseling the child, and that the school was in continuous contact with the child's mother. He also described an opportunity given to the child to participate in one of respondent's alternative programs. That program offered a small class of 15 students, and included counseling services which were designed for students at risk. However, petitioner's son was rejected from this program because he did not follow its attendance and behavior rules. The Assistant Principal also testified that a private counseling program called Better Days had been suggested to petitioner, but she had not followed through on the recommendation. He noted that there were problems with the child's transportation because the school bus driver had requested that the child no longer ride the school bus because of his disruptive behavior.

        A special education supervisor at the Annex of J.H.S. 240 described the proposed class placement. She testified that there were seven students in the class and that their reading abilities ranged from mid-first grade to nearly fifth grade, and their math abilities ranged from the second grade to nearly fifth grade level. The supervisor described the students as being below average in receptive, expressive and written language abilities. All the students in that program received counseling for problems which were described as difficulties with self-concept, peer and adult relationships, and remaining on task. The supervisor described the class, which was located in the sixth grade annex with approximately 400 students, as being highly structured. The students in that class reportedly had an opportunity to be involved in the annex's activities. She opined that the boy would have been appropriately placed in the recommended MIS-II class. Respondent also submitted a profile of the students in the MIS-II class (Exhibit 9).

        Petitioner testified with respect to the child's behavior at home. She testified that she often had to tell the child something twice before he would obey, and she acknowledged that he did not usually do his homework. Although petitioner admitted that her son's version of what had happened at school may not have been completely accurate, she questioned the validity of two of his suspensions from school. Petitioner explained her failure to follow up with the Better Days counseling program, and claimed that it was because she believed that the school guidance counselor was going to actually provide the counseling. She also acknowledged that her son's behavior was affecting his education, and that the boy needed professional assistance in the form of counseling (Transcript, page 79). Petitioner indicated to the hearing officer that she was attempting to obtain private counseling for her son.

        In her decision which was rendered on May 30, 1997, the hearing officer found that petitioner's son had exhibited academic and behavioral difficulties in school for a sustained period of time. She further found that respondent had attempted a number of interventions to improve his behavior and academic performance, but those interventions had been unsuccessful. Therefore, she upheld the CSE's recommendation that the child be classified as emotionally disturbed, and that he be placed in the recommended MIS-II class in J.H.S. 240, with the related service of counseling.

        Petitioner challenges the hearing officer's decision. She asserts that her son is not emotionally disturbed, and that she needs more time to prove that he should not be so classified. Although petitioner alludes to respondent's objection to her request for an adjournment of the hearing which was to have been held on March 24, 1997, I note that the hearing officer on that day granted her request and adjourned the hearing until April 3, 1997, for the purpose of allowing petitioner an opportunity to obtain legal assistance. When the hearing reconvened on April 3, 1997, petitioner indicated that she had been unable to obtain counsel, but she agreed to proceed without an attorney. I also note that when the hearing was held on April 3, 1997, petitioner was able to submit the private psychologist's report of his evaluation of her son, which had not been available on March 24. Under the circumstances, including the fact that petitioner did not request a second adjournment on April 3, 1997, I find that there is no merit to her assertion that she needed more time to prove her case.

        The board of education bears the burden of establishing the appropriateness of the classification being recommended by the 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). 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 characteristic over a long period of time and to a marked degree:

1. Inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
2. inappropriate types of behavior or feelings under normal circumstances;
3. a generally pervasive mood of unhappiness or depression; or
4. 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 they are emotionally disturbed" (8 NYCRR 200.1 [mm][4]).

        In order to be classified as a child with disability under Federal regulation (34 CFR 300.7 [a][1]) or its State counterpart 8 NYCRR 200.1 [mm], a child must not only have a specific physical or mental condition, but such condition must adversely impact upon the child's performance to the extent that he/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. 94-42). The record reveals that petitioner's son is of low average intelligence, and that his academic achievement has not been commensurate with his cognitive ability. Despite being held back a grade on two occasions, the child continues to exhibit academic skills which are two years below his present grade level. The boy's cumulative educational record indicates that from kindergarten through the fifth grade his reading, mathematics, and writing skills were determined to be either unsatisfactory or in need of improvement, with the exception of his writing in the third grade. His work habits and homework were also found to be unsatisfactory or in need of improvement. During the 1995-96 school year when he was enrolled for the first time in the sixth grade, petitioner's son achieved a final average of 59.17. For the 1996-97 school year, which had not ended when the hearing in this proceeding was held, respondent entered school progress reports from the child's teachers into evidence (Exhibit 6). The child's mathematics, social studies, and science teachers reported that the boy was not producing any work for them. Two of those teachers also reported that the child appeared to seek adult attention, while another teacher of an unidentified subject reported that the child continuously walked around in class and was a disruption for the class. The child's social studies and mathematics teachers had requested that he be removed from their respective classes on February 3, 1997 because they could no longer help him and " ... he is robbing the other students of instructional time" (Exhibit 11).

        In this instance, there are two concerns. The first involves the child's inability to perform academically at a level which is commensurate with his cognitive ability. The second concern involves the child's behavior in the classroom which has reportedly affected his classmates' ability to benefit from the instruction which their teachers were trying to provide. With respect to the second concern, I note that two of the child's teachers reported that it was no longer possible for them to teach while petitioner's son was in their classes (Exhibit 11). At the hearing, the CSE representative referred to the boy in the following way:

" ... we're not really describing a student who is affecting his own ability to learn, but it's more global, it affects other students around him" (Transcript, page 53).

        The Assistant Principal of I.S. 14 acknowledged that the parents of other students had complained about petitioner's son. Respondent clearly has an obligation to provide a safe classroom environment which is conducive to learning for all of its students. I must note that, however inappropriate the child's behavior in class may have been, respondent is nevertheless required to demonstrate a nexus between the child's behavior and the deficits in his educational performance in order to classify the child as emotionally disturbed (Application of a Child with a Disability, Appeal No. 93-20; Application of a Child with a Disability, Appeal No. 96-65).

        Although petitioner's son has been diagnosed as having an oppositional defiant disorder, a medical diagnosis of a conduct disorder does not per seafford a basis for finding that the child is eligible for classification as a child with a disability for educational purposes (A.E. by Evans v. Independent School District No. 25 of Adair County, Oklahoma, 936 F. 2d 422 [10th Cir., 1991]). The critical issue is whether there was a correlation, or nexus, between the boy's emotional concerns and his poor performance in school (Application of a Child Suspected of Having a Disability, Appeal No. 97-32). While this child undoubtedly has emotional problems, as respondent's school psychologist discussed in her evaluation report and her testimony at the hearing, I am nevertheless constrained to find that respondent did not meet its burden of proof with regard to the child's proposed classification as emotionally disturbed.

        The Federal definition of "serious emotional disturbance" in 34 CFR 300.7 (a)(9), and its State counterpart for "emotionally disturbed" in 8 NYCRR 200.1 (mm)(4) require that health factors be excluded as a possible cause of a child's inability to learn because of an emotional disturbance. As noted above, State regulation requires that an initial evaluation by a CSE include a physical examination, which was apparently not done in this instance. I have reviewed the child's cumulative health record which would not satisfy this requirement, and have examined the IEP description of the child's physical development which would typically refer to the results of the child's physical exam, but does not do so. As respondent well knows, a CSE's failure to conduct a physical examination of a child suspected of having a disability affords a basis for annulling the CSE's determination that the child be classified as a child with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 93-32; Application of a Child Suspected of Having a Disability, Appeal No. 93-45; Application of a Child Suspected of Having a Disability, Appeal No. 97-55). I find that the CSE's recommendation must be set aside because of its failure to conduct a physical examination of petitioner's son, and I will order it to have such an examination performed.

        In addition to considering the results of the child's physical examination, the CSE should also consider the extent to which the child's excessive absences from school have impaired his academic performance. His cumulative record reveals that his absences in elementary school ranged from a low of 19 days to a high of 40 days. During the 1995-96 school year, the boy's first year in I.S. 14, he was absent for 52 days, which is almost one-third of the school year. The record does not reveal the number of days he was absent during the 1996-97 school year. A student who does not attend school on a regular basis is not likely to master the curriculum for his or her grade.

        Since petitioner, rather than respondent's staff, had referred the child to the CSE, respondent was not required to describe the attempts which had been made to remediate the child's performance prior to his referral to the CSE (8 NYCRR 200.4 [a][2][ii]). Nevertheless, respondent, through the testimony of the Assistant Principal of I.S. 14, attempted to demonstrate at the hearing that it had tried to remediate the boy's performance. Although a misunderstanding between petitioner and a guidance counselor apparently prevented the boy from obtaining private counseling, respondent has not provided any counseling to the child, which could be provided as an educationally related support service (see 8 NYCRR 100.2 [v]) to the child as an alternative to referring him to the CSE. The record is also limited with respect to respondent's attempts to provide academic remediation. Additional evidence of the steps which respondent has taken to remediate the child's performance would have buttressed the CSE's recommendation.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that respondent's CSE shall promptly obtain the results of a physical examination of this child, and shall reconsider its recommendation that the child be classified as emotionally disturbed, in accordance with the tenor of this decision.