98-010

        Petitioner, who is the child's maternal grandmother and legal guardian, appeals from the decision of an impartial hearing officer which upheld the recommendation of respondent’s committee on special education (CSE) that petitioner’s granddaughter be classified as emotionally disturbed. Petitioner further appeals from the hearing officer’s decision upholding the CSE’s recommendation that the child be educated in a specialized instructional environment VII (SIE-VII) program pending placement in a private school. The appeal must be sustained in part.

        Preliminarily, I will address a procedural issue raised in this appeal. The petition in this appeal was served upon respondent on or about February 26, 1998. Pursuant to Section 279.5 of the Regulations of the Commissioner of Education, respondent was required to serve its answer within 10 days thereafter. However, respondent did not serve its answer until April 6, 1998. Respondent asks me to excuse its delay in serving the answer. It asserts that it was delayed because of petitioner’s failure to serve notice of her intention to seek review in accordance with the procedures prescribed in Section 279.2 of the Regulations of the Commissioner of Education. Respondent does not raise this issue as an affirmative defense, but rather, as an explanation for its failure to timely file an answer. The trigger for filing an answer, however, is the service of a petition, not service of the notice of intention to seek review. The purpose of the notice of intention to seek review is to ensure that the record is provided to the State Review Officer. Respondent further claims that its failure to file a timely answer was inadvertent, not willful and not in bad faith, and that petitioner was not prejudiced from the delay. While I am not persuaded by respondent’s claim with respect petitioner’s alleged failure to properly serve a notice of intention to seek review, I find that petitioner has not demonstrated that she was prejudiced by the delay. Accordingly, I will excuse respondent’s delay, and accept its answer.

        Petitioner’s granddaughter attended a day care program when she was five years old. She was enrolled in a regular education program at P.S. 36 in Community School District 5 for first and second grade. While the child was attending P.S. 36, she reportedly was sexually molested by a group of boys, who touched her outside her clothes. In April, 1996 as she neared the end of the second grade year, the child was initially referred to the CSE by her teacher. The child’s teacher indicated that the child’s reading abilities and mathematics skills were below grade level, and that she had difficulty working independently. Her behavior was erratic and aggressive. She reported that the child was distractible, and physically and verbally abusive to her teachers and peers. At the time, the child was receiving academic support through small group instruction in the classroom, as well as remedial reading assistance from a Chapter One reading teacher. Additionally, the child was counseled by a guidance counselor twice per week. The child’s teacher indicated that the child appeared despondent in a large group, and she asserted that the child required a small, well supervised classroom setting.

        A social history update was conducted by the district’s social worker on June 16, 1996, based upon an interview with petitioner. The social worker reported that the child was being followed by a pediatrician and taking medication because of chronic asthma. Petitioner advised the social worker that her granddaughter did not like school, had poor study habits and had frequent absences due to asthma. The child’s grandmother attributed the child’s learning difficulties to her tendency to "daydream" in class. She also indicated that her granddaughter was bullied by peers, and had the potential to act aggressively when teased or frustrated by them. Petitioner further advised the social worker that her granddaughter had behavioral problems at home if she had a bad day at school.

        A social worker who apparently worked with the child when she was in the second grade reported that she exhibited difficulty with self-control, and often acted out in an impulsive, immature and inappropriate manner. She noted that the child was disruptive in the classroom, did not respond well to limit setting, and did not take responsibility for her actions. She further noted that the child’s interaction with adults was poor, and that she was disrespectful and had difficulty complying with authority. The child also had poor interaction with peers. The social worker reported that the child had engaged in unprovoked verbally and physically abusive behavior. The child’s motivation to learn and succeed academically was described as being poor to fair. However, in a small group setting of three students, the child was able to listen and behave appropriately most of the time. The social worker reported that the child appeared to have low self-esteem, and she exhibited some underlying emotional problems. She indicated that the child needed to learn to accept authority figures, and to develop and improve her socialization skills. The social worker recommended that the child be placed in a more restrictive environment to better service her needs. She also recommended that the child attend a community counseling program where she would receive therapy and participate in peer activities.

        In a psychological evaluation completed on July 2, 1996, the child achieved a verbal I.Q. score of 80, a performance I.Q. score of 77, and a reported full scale score of 76 on the WISC-III, placing her in the borderline range of intellectual functioning. The psychologist noted that the child had difficulty with concept formation, and opined that she had a language processing problem. The psychologist indicated that the child also evidenced signs of a relatively minor attention deficit. The child’s perceptual organization was judged to be in the borderline range, while her perceptual motor integration was reported to be below age expectation. The psychologist observed that the child was "hyper" in her verbalization and body language, and that her competitive drive was "more available to fantasy than reality". She was described as lacking confidence in herself as a learner. He indicated that the child exhibited an emotional disturbance which exacerbated her learning problems.

        The child was reportedly classified as learning disabled by the CSE in July, 1996. The CSE apparently recommended that the child be placed in a modified instructional service-I (MIS-I) class in P.S. 125, with counseling, for the 1996-97 school year. However, the child was initially enrolled in a regular education class at P.S. 125.

        Three weeks into the 1996-97 school year, the child was placed in a MIS-I class with a student to teacher ratio of 15:1. On October 22, 1996, the child was referred to the CSE by her MIS-I teacher because of inappropriate behavior. The teacher indicated that the child was a management problem in the classroom and needed a more restrictive environment. In December 1996, the child was transferred to a second MIS-I class. While in that class, the child was assigned a crisis paraprofessional. She also received counseling and a behavior management program was implemented by her teacher and paraprofessional. In May, 1997, the child’s MIS-I teacher recommended a change in the child’s placement because of the child’s impulsive behavior. The teacher indicated that the child was disruptive in class and provoked fights with boys. The teacher also indicated that the child had no regard for authority figures. She recommended a more restrictive setting for the child.

        On May 23, 1997, the child was evaluated at the Child Psychiatry Department of St. Luke’s Hospital. The results of the evaluation revealed that the child had an attention deficit hyperactivity disorder, a conduct disorder, a post-traumatic stress disorder and a separation anxiety disorder. It was recommended that the child receive individual and group therapy, which was scheduled to begin in July, 1997. The director of the clinic stated that the child would do better in a school environment that could provide more safety for her.

        In a report completed on June 4, 1997, the child's teacher estimated that the child’s reading was at a second grade level, and noted that the child had difficulty comprehending and processing information. The child’s grade level in mathematics was estimated to be 1.8, based upon a California Achievement Test administered in the spring of 1997. The teacher commented that the child had difficulty solving word problems. The child’s written expression was estimated to be at the first grade level, while her receptive and expressive language skills were estimated to be at the second grade level. The teacher reported that the child was able to write short sentences, but that she had a limited vocabulary. The child’s grade level in social studies was estimated to be 1.5 and her grade level in science was estimated to be 1.4. The teacher noted that the child exhibited a short attention span even with one-to-one assistance. The teacher also indicated that the child was verbally and physically aggressive, and needed a more restrictive environment to protect her and to protect others from her. A classroom observation was conducted by an educational evaluator on June 6, 1997, who observed that the child was on task five times and off task six times during the 30 minute observation.

        A social history update was conducted by the district’s educational evaluator on June 9, 1997, based upon an interview with petitioner. Petitioner reportedly advised the educational evaluator that the child was the best reader in the class, but that she did not like mathematics. The educational evaluator also reported that petitioner believed that the current program was positive for her granddaughter.

        A second classroom observation was conducted by the district’s psychologist on June 11, 1997. The psychologist reported that the child’s teacher had indicated that the child could not work alone. During the 30 minute observation, the psychologist noted that the child’s paraprofessional sat with the child during the first half of the lesson and the child’s teacher sat next to the child for the remainder of the lesson. The child’s teacher advised the district’s psychologist that if she or the paraprofessional did not sit next to the child, the child would have been disruptive.

        In a counseling report dated June 18, 1997, the child’s counselor indicated that the child continually spoke of fights and aggressive behavior, expressed much hostility and appeared to be preoccupied during counseling sessions. Her impulse control was very poor, and she had little insight into the consequences of her actions. The counselor opined that the child’s current placement was not meeting her needs. The counselor noted that very little progress had been made during the counseling sessions to improve the child’s physical and verbal aggression. She recommended that the child's family receive private therapy.

        In a psychiatric evaluation conducted on June 24, 1997, the psychiatrist reported that the child’s mood was mildly depressed, but that she was responsive when engaged. She indicated that the child had difficulty following the interview because she would "go off on tangents." The child told the psychiatrist that she was sad and mad frequently, and that others bothered her. The child did not believe that she was ever responsible for initiating aggressive interactions. The psychiatrist concluded that the child’s lower than average I.Q. and her "concreteness" of thinking interfered with her ability to learn. The psychiatrist further indicated that the child’s tendency to become fixated on a topic and "drift off" would require a great deal of redirection. The psychiatrist recommended that for the child’s safety and the safety of others, the child needed a small, therapeutic environment where behavioral issues could be adequately addressed. She also recommended services for petitioner. The psychiatrist opined that petitioner’s inability to be objective about her granddaughter’s behavior had an adverse affect on the child’s judgment of her own behavior.

        The CSE met on June 24, 1997. In addition to various evaluation reports, the CSE also considered the child's anecdotal record. It recommended that the child be classified as emotionally disturbed and placed in a private school. The child’s individualized education program (IEP) indicated that her management needs required a small, structured, therapeutic environment, and that she should receive individual counseling three times per week. In an addendum to the case conference summary, the CSE indicated that the child’s academic, social emotional and behavioral needs were not being met in a MIS-I class. The CSE determined that respondent's MIS-I and SIE-VII programs were not appropriate because they did not provide the low student to teacher ratio, intensive instruction and supervision which the child required.

        Respondent attempted to locate a private school placement for the child throughout the summer, but was unable to find a placement for her. On August 9, 1997, the CSE developed an Interim Service Plan, recommending that the child be placed in a SIE-VII class with a student to staff ratio of 12:1:1.

        On September 5, 1997, petitioner requested an impartial hearing because she did not agree with the CSE’s recommended classification, or its recommended interim and permanent placements. The impartial hearing was held on September 29, October 22 and November 18, 1997. The hearing officer rendered her decision on December 24, 1997. She found that respondent had established that the child met the criteria for classification as emotionally disturbed, and that she was not benefiting from placement in a MIS-I class. The hearing officer upheld the CSE's recommendation that the child be placed in a private school. She also found that respondent had established that a SIE-VII program was an appropriate interim placement until a private school placement became available. The hearing officer ordered that the child be classified as emotionally disturbed, and placed in a SIE-VII class at P. 811M at P.S. 101 until a private placement was available. She further ordered respondent to continue to seek private school placements until one was found, or the child no longer required services.

        Petitioner appeals from the hearing officer’s decision on several grounds. She claims that the hearing officer erred in her findings that the child’s classification is appropriate and that SIE-VII placement is appropriate. She contends that the hearing officer erred by finding that the child's reading and mathematics skills were about two years below grade level, and that in any event, the child's low academic achievement is attributable to her asthma and the inappropriate behavior of other children in her classroom. She also contends that her granddaughter no longer fights with her classmates, and she should be returned to the regular education program.

        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]).

        The definition of emotionally disturbed as set forth in the Regulations of the Commissioner of Education has been interpreted to mean that a child’s emotional condition has a significant effect upon the child’s educational performance (Application of a Child Suspected of Having a Disability, Appeal No. 95-11). The record shows that the child had difficulty focusing on her school work, and was only able to concentrate when working one on one with the teacher or a paraprofessional. The child’s paraprofessional testified that the child engaged in disruptive behavior in the classroom where she would exhibit erratic, unprovoked, violent behavior, leave her seat, crawl on the floor and snicker at students who struggled to read. Although the child was functioning in the borderline to low average range of intelligence, her educational achievement was estimated to be only between the first and second grade as she was completing the third grade. I agree with the hearing officer that the record demonstrates that the child has an inability to build or maintain satisfactory interpersonal relationships with peers and teachers, and that she exhibits inappropriate types of behavior or feelings under normal circumstances. I find that there is a nexus between the child’s emotional problems and her performance in school, and that she requires special education and related services. Accordingly, I find that she is eligible for classification as emotionally disturbed.

        Petitioner also objects to her granddaughter's recommended placement in a special education program. She believes that her daughter should be placed in a regular education program. The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). In this instance, the CSE did not recommend a specific placement at its meeting on June 24, 1997. Since no specific placement was identified, neither the hearing officer nor I could address the question of whether the CSE had recommended an appropriate placement for the child. Therefore, I must annul the hearing officer's determination upholding the CSE's recommendation that the child be placed in a private school. I must also remind the CSE that a placement recommendation which cannot be implemented, as was apparently the case here, is not an appropriate placement (Application of a Child with a Handicapping Condition, Appeal No. 92-33).

        Since respondent was unable to place the child in a private school prior to the beginning of the 1997-98 school year, the CSE recommended on August 9, 1997 that the child be placed on an interim basis in a SIE-III class with a 12:1+1 pupil to adult ratio, with individual counseling three times per week, at P. 811M in P.S. 101, notwithstanding the fact that the CSE had previously determined that a SIE-VII was not appropriate. That placement was intended to be temporary during a school year which has ended. Respondent’s CSE was required by law to conduct an annual review of the child and recommend a placement for the current, i.e., 1998-99, school year. If petitioner is dissatisfied with that recommendation, she may have it reviewed by an impartial hearing officer. Under the circumstances, I find that the matter is moot. Consequently, I will not review the appropriateness of the proposed SIE-VII placement which was not implemented because of the pendency provisions of Federal and State law.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer’s decision, except for her finding that the child would be appropriately classified as emotionally disturbed, is hereby annulled.