Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Robert Katz, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision upholding an October 8, 1998 recommendation by respondent's committee on special education (CSE) that petitioner's son continue to be classified as emotionally disturbed, and that his placement be changed from regular education classes to respondent's specialized instructional environment-VII (SIE-VII). The appeal must sustained.
Petitioner's son is 12 years old. He reportedly had behavioral problems in the early elementary grades while attending P.S. 154. The boy was reassigned to P.S. 43. While in the fourth grade during the 1995-96 school year, petitioner's son was referred to the CSE. An educational evaluator reported that the boy's language skills were above his grade level, but his writing skills were weak. The boy's reading and spelling skills were reported to be well above grade level. His math skills were found to be slightly below grade level. The educational evaluator suggested that the boy should receive part-time special education instruction in math, as well as counseling to address his poor peer relationships and lack of motivation (Exhibit 5).
The CSE recommended that the boy be classified as emotionally disturbed and receive resource room services and counseling. Petitioner reportedly did not challenge the CSE's recommendations. The boy remained at P.S. 43 for the fifth grade. In September, 1997, he came to I.S. 151 for the sixth grade. He reportedly continued to receive resource room services and counseling.
Shortly after the 1997-98 school year began, the boy was reportedly discovered choking a female student. There were a number of other incidents in which he allegedly assaulted other students, or disrupted his classroom. In December, 1997, petitioner's son received a one-day suspension from school for allegedly possessing a box cutter in school. He was suspended again on two occasions in January, 1998 for allegedly disrupting classes. His resource room teacher reported that the boy refused to come to the resource room. The boy allegedly threw a chair at another student in February, 1998.
On February 5, 1998, petitioner was interviewed by a school social worker, who described petitioner as concerned about her son but not knowing what was wrong with him. Petitioner's son was evaluated by a school psychologist on the same day. In her report (Exhibit 4), the school psychologist noted that the child had been referred for a re-evaluation by school staff because of his behavior. The school psychologist interviewed the boy, and administered projective tests. She also observed him in a resource room where he was on task and doing the assigned lesson. She reported that he appeared to be a creative, imaginative youngster, who was able to concentrate and apply himself when he wanted to make the effort. The school psychologist also reported that there was no evidence of idiosyncratic thinking or psychotic thought processes. She noted that when the boy became angry or frustrated, his judgment deteriorated, and she indicated that he had difficulty taking responsibility for his actions. She indicated that he was quick to blame others for what he ultimately did. The school psychologist also reported that the child had little control over his impulses as he became frustrated. She noted that interpersonal relationships were a constant source of conflict for him. The school psychologist recommended that the boy have a psychiatric evaluation to assess the extent of his anger and aggressive feelings, and she recommended that psychotherapy be considered for the boy and his family. She also recommended that a more restrictive therapeutic setting be considered for him.
Three of the boy's teachers reported that he showed little interest in academic success and made no effort to do his work, despite his potential for completing work. They indicated that he delighted in causing chaos and disruption in the classroom, and expressed their concern about his aggressive behavior towards his peers and school staff (Exhibit 6).
On March 18, 1998, the CSE of Community School District 7 recommended that the boy remain classified as emotionally disturbed, and that he be placed in a SIE-VII class with a 12:1+1 child to adult ratio (Exhibit 1). The CSE further recommended that petitioner's son receive 30 minutes of individual counseling per week, and 30 minutes of small group counseling per week. The individualized education program (IEP) which the CSE prepared for the boy indicated that the CSE had considered continuing his placement in regular education classes, as well as placing him in respondent's modified instructional services-II (MIS-II) program, but it had concluded that the boy's "severe aggressive tendencies and social concerns" warranted his placement in the more restrictive SIE-VII program.
Since there was apparently no room for the boy in the SIE-VII program at that time, the CSE also prepared an interim service plan which provided that he should have the services of a full-time aide, and receive individual and small group counseling pending his placement in the SIE-VII program (Exhibit 2).
By letter dated July 15, 1998, petitioner was offered a SIE-VII placement for her son at P.S. 188 in I.S. 120 in the Bronx (Exhibit 9). Petitioner did not accept the proposed placement, and her son returned to I.S. 151 in the fall of 1998. On September 8, 1998, petitioner was offered another SIE-VII placement for the boy at P.S. 754 in the Bronx, which she did not accept. A CSE review was held on September 29, 1998, at which the CSE reportedly determined that the boy should be transferred to a SIE-VII class. The record does not reveal whether petitioner attended that review. At her request, a new review was scheduled to take place on October 8, 1998. On that date, the CSE reaffirmed its previous recommendation that petitioner's son be placed in a SIE-VII class, and receive individual and small group counseling.
At petitioner's request, an impartial hearing was held on November 4, 1998. One of the boy's teachers during the 1997-98 school year testified that petitioner's son had been involved in more than 50 disciplinary incidents during that school year. He opined that the boy gave the appearance of not wanting to be in I.S. 151. The teacher testified that the school had attempted to address the boy's behavioral difficulties by changing his classes, having counselors talk to him, and assigning individual aides to work with him. He further testified that these measures had been unsuccessful, and that the boy had been involved in a number of disciplinary incidents in the 1998-99 school year. The school psychologist who had evaluated the boy in February 1998 noted that the psychiatric examination which she had recommended had not been performed because petitioner preferred to have a private evaluation. The school psychologist opined that that the child required a therapeutic environment, such as that of the SIE-VII program. The special education administrator for I.S. 151 acknowledged that there was no real concern about the boy's academic achievement, and that the primary concern was his aggressive behavior. Although he briefly described the services which the boy could receive in a SIE-VII program at P.S. 754, I note that no one from that school testified at the hearing. Petitioner challenged her son's classification as emotionally disturbed, and requested that he be placed either in a regular education program, or in the Devereux School, a private school located in Connecticut.
In her decision which was dated September 10, 1998, the impartial hearing officer found that petitioner's son had emotional and behavioral problems which interfered with his ability to learn, and she upheld his classification as emotionally disturbed. She noted that the school's attempts to deal with him had been unsuccessful, and concluded that the recommended SIE-VII program would be appropriate for the boy because it would address his needs by providing individualized attention, close supervision, and intensive support.
Petitioner asserts that she has never seen the anecdotal records of her son which were entered into evidence at the hearing as Exhibits 10 and 11. However, I note that the first page of Exhibit 11 is a letter to her from the principal transmitting the boy's anecdotal records for the 1998-99 school year on October 27, 1998. In any event, petitioner should have been afforded an opportunity to object to any documentary evidence before it was accepted by the hearing officer. The hearing transcript does not show that petitioner was afforded that opportunity.
There are additional reasons why the hearing officer's decision cannot be sustained. 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). In order to be classified as a child with a disability under Federal regulation (34 CFR 300.7[a]), 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 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. 94-42).
The most recent evidence of the boy's academic performance in the record which is before me appears on his IEP. Accordingly to the IEP, certain standardized tests were administered to the boy in November, 1997. His spelling and word recognition skills were reported to be two years above his grade level. Although his reading skills were described as variable, the child reportedly worked and responded well at the seventh grade level, or one year above his actual grade level. The boy's mathematics skills were recorded to be at a 5.0 grade equivalent on the Brigance Inventory of Basic Skills. That score, while approximately one year below the boy's actual grade level, was nevertheless more than one year above the result which he had achieved when tested in March, 1996.
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]).
The regulatory definition has long been interpreted to mean that a child's emotional condition has a significant effect upon the child's educational performance (Matter of a Handicapped Child, 24 Ed. Dept. Rep. 77; Application of a Child with a Handicapping Condition, 28 id. 95; Application of a Child with a Handicapping Condition, Appeal No. 90-22). In this instance neither I nor the hearing officer have been presented with evidence as to the boy's cognitive potential, so that we would have a basis for determining what the boy's anticipated rate of progress should be. Neither his cumulative record nor his recent report cards were included in the hearing record. As noted above, the boy's standardized test results do not suggest that he has significant deficits in his academic skills. In the absence of a physical examination, I cannot conclude that a physical condition, such as an attention deficit hyperactivity disorder, isn't responsible for his alleged inability to learn. I must also note that the CSE failed to have a psychiatric evaluation performed, notwithstanding its psychologist's recommendation that the boy be evaluated by a psychiatrist. Although the CSE could have accepted the report of a private psychiatric evaluation in lieu of doing its own psychiatric evaluation, it did not have the results of either a private evaluation or its own evaluation when it recommended that the boy remain classified as emotionally disturbed.
It is apparent from the testimony of respondent's witnesses that the CSE was primarily concerned about the boy's aggressive conduct toward others. The behavior which is described in this boy's anecdotal record is totally unacceptable. Respondent is rightly concerned about maintaining a safe environment for its students and staff. However, it must take care to insure that socially maladjusted children are not erroneously classified as emotionally disturbed, and that their management needs are dealt with in an appropriate manner in accordance with the provisions of 8 NYCRR 100.2 (l). While I am compelled to set aside the hearing officer's decision because of the inadequate record in the proceeding, I am concerned about this boy's educational future. I will direct the CSE to re-evaluate the boy, to include a psychiatric evaluation and a review of his educational performance.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing officer is hereby annulled; and
IT IS FURTHER ORDERED that within 30 days after the date of this decision, respondent's CSE shall re-evaluate petitioner's son in accordance with the terms of this decision.