Application of a CHILD SUSPECTED OF HAVING A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Mount Morris Central School District
David W. Lippitt, Esq. attorney for respondent
Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioners' daughter be classified as emotionally disturbed and that she be placed in an 8:1:1 class at the Genesee Valley Board of Cooperative Educational Services (BOCES), with individual, group and family counseling. The appeal must be sustained.
Petitioners' daughter was nine years old and was being home schooled by her mother at the time of the hearing. I note that the record is somewhat confused with respect to the child's educational history. She apparently attended a pre-kindergarten Headstart program in the Camden Central School District during the 1993-94 school year. She entered kindergarten in that district in the fall of 1994, and was first seen by an allergist in October, 1994. In January, 1995, the child was removed from school by her parents because of her allergies and was home schooled. The child apparently began receiving allergy treatments, which were suspended during the summer of 1995. The limited information in the record before me indicates that she was, or still is, allergic to pollen, mold spore, house dust, cotton lint, animal hair, and feathers, among other things (Exhibit 25). She appears to have returned to school in the fall of 1995.
In a November 6, 1995 response to a letter from the Camden Elementary School nurse describing the child's inappropriate behavior at school and questioning whether such behavior could be the result of the child's allergies, the child's physician opined that inappropriate language and aggressive behavior were not behaviors that he would expect with an allergy problem (Exhibit 26). The physician noted that he had reviewed information regarding the chemicals that were present in the school building, and again indicated that he would not expect the type of behavior described to be attributable to a sensitivity to chemicals.
Petitioners removed their child from school sometime during the first grade to be home schooled. The child returned to school for the second half of the second grade during the 1997-98 school year. In May, 1998, the child received grade equivalent scores of 3.4 in total reading and 3.3 in total math on the IOWA Test of Basic Skills (Exhibit A). The child received final grades of F in spelling, B+ in mathematics, S+ (satisfactory) in science and social studies, A in media, and E (Excellent) in Art and Music (Exhibit B). She received grades of S or S- in all areas of work habits including use of independent time and following directions. Teachers comments included that the child generally worked hard and generally behaved well.
The child and her family moved to the Mount Morris school district in July, 1998. She was enrolled in third grade for the 1998-99 school year. By letter dated August 21, 1998, the child's allergist informed the parents of the procedures for management of their daughter's allergies (Exhibit 24). Between September 10 and October 13, 1998, the child was reportedly involved in 13 episodes of inappropriate behavior, including verbal outbursts, refusing to work, kicking, biting, and throwing chairs and erasers (Exhibit 16). Respondent has a Support Center which provides emotional and behavioral support to students who have difficulties in the classroom. The child was referred to the Center (Transcript, page 45).
She was also apparently referred to respondent's CSE. On September 15, 1998, the child's father signed a consent to have the child evaluated by the CSE (Exhibit 14). A psychological evaluation was conducted on September 22, 1998 (Exhibit 15). The school psychologist reported that the child was tense and anxious throughout the testing session, and that her attention and concentration skills fluctuated significantly. He described the child's style of response as deliberate, orderly and self-correcting, and noted that she adapted readily and easily to new tasks and attacked difficult tasks without encouragement. However, he reported that emotional factors appeared to have had a moderately negative effect upon the child's performance, and cautioned that the test results should be considered a rough estimate of her current level of functioning. On the Weschler Intelligence Scale for Children - III (WISC-III), the child achieved a verbal IQ score of 102, a performance IQ score of 112, and a full scale IQ score of 107, placing her in the average range of intellectual functioning. The child's subtests results showed her weaknesses in mental computation on orally presented mathematics problems, short-term memory and attention skills, visual short-term memory and perceptual organization.
On the Peabody Individual Achievement Test-Revised (PIAT-R), the child achieved standard scores of 115 in general information, 110 in mathematics, 90 in spelling, 81 in total reading. The school psychologist indicated that the child had a much lower ability to read words in isolation than to comprehend what she had read, and that she had trouble making sound-symbol translations. He indicated that this suggested the possibility of a language processing difficulty. On the Bender-Gestalt Visual Motor Test the child's results corresponded to a perceptual-motor developmental age between 7-0 and 7-5. At the time of the evaluation, she was nine years old. The school psychologist noted that the child's performance included six errors which have been associated with neurological impairment in children of similar age. The child produced one error which the psychologist reported has been shown to be produced almost exclusively by children who show some degree of organic impairment.
On the self-reporting Revised Children's Manifest Anxiety Scale, the child rated her anxiety higher than 86% of girls her age. She was in the average range for most of the scales, with the exception of worry/oversensitivity. The child's responses on the Roberts Apperception Test for Children indicated that she sought one-to-one attention, was overly focused on her problems and was extremely anxious. The school psychologist reported that projective testing revealed the child's anxiety, as evidenced by tremors and more ragged breathing when she was faced with more difficult tasks. He opined that she might have a fear of being unable to meet the expectations of others, or she might be concerned about her reading difficulty and difficulty in using language. The school psychologist suggested that a third possible source of the girl's anxiety might be her difficulties maintaining attention and inhibiting her impulses. He also opined that the girl was seeking attention.
The school psychologist concluded that the child had the cognitive ability to do age and grade level appropriate school work, but that her reading and spelling skills were well below expectation. He opined that she met the definition of a learning disabled child (see 8 NYCRR 200.1 [mm]). He recommended that she receive remediation for reading and spelling. He further recommended classroom and behavior management techniques to address the child's behavior. The school psychologist opined that the child's behavior was driven by anxiety and suggested that the classification of emotionally disturbed could be considered. The school psychologist reported that the indicators of a language processing problem, problems with distractibility and neurological concerns pointed to the need for further evaluation, and he suggested that a neurological evaluation might help in understanding the child's attentional and perceptual difficulties. He also suggested that a speech/language evaluation be performed to rule out a language processing problem. I note that there are no other evaluations or reports in the record.
On October 15, 1998, respondent's CSE met with petitioners to review the results of the child's evaluation. The minutes of that meeting (Exhibit 20) indicated that the CSE recommended that the child be classified as emotionally disturbed/other health impaired. However, the girl's individualized education program (IEP) from that meeting indicated that the CSE classified her as emotionally disturbed. The CSE also recommended that the child be placed on a ten-month basis in a 8:1+1 special education class at the BOCES in Warsaw, New York. It further recommended that she receive 30 minutes of individual and 30 minutes of group counseling per week, and 30 minutes of family counseling per month. The CSE agreed to recommend that she be tutored at home until petitioners could visit the program at the BOCES. In a letter dated October 15, 1998, the child's parents advised respondent that they would be removing their daughter from school to home school her (Exhibit 19). They requested the necessary paperwork and information (see 8 NYCRR 100.10).
Petitioners were notified that the CSE would reconvene on November 20, 1998. By letter dated November 19, 1998, the child's father informed the CSE that petitioners could not attend the meeting, and noted that the child was doing well academically and behaviorally while being home schooled. The CSE meeting was held without petitioners. The purpose of the meeting was to review and add a behavioral modification plan to the child's IEP, as well as to add IEP annual goals and objectives for organization, writing and reading (Exhibit 5).
In a letter dated December 1, 1998, the CSE chairperson advised the child's parents of its recommendation that their daughter be placed in a special class at Genesee Valley BOCES with related services of individual, group and family counseling (Exhibit 6). The parents requested an impartial hearing on December 9, 1998 (Exhibit 9). In a letter dated February 24, 1999 (District 13), the parents stated that the purpose of the hearing was to resolve their disagreement with the CSE's recommendation for classification and proposed placement. They indicated that they also disagreed with the recommendation for family counseling, and reiterated their intent to continue to home school their daughter.
The impartial hearing was held on March 10, 1999. The hearing officer rendered her decision on April 6, 1999. She found that the child had social/emotional and management needs which were interfering with her ability to learn. The hearing officer was unable to find from the record that a correlation existed between the child's aggressive behavior and her allergies. Accordingly, she found that the classification of emotionally disturbed was appropriate. Additionally, the hearing officer found that the child needed help to deal with her anger, frustration and other emotional needs and thus required related services of individual, group and family counseling.
Petitioners appeal from the hearing officer's decision. They argue that their daughter should not be classified as emotionally disturbed and that her difficulties stem from her allergies. 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])
In order to sustain a classification of emotionally disturbed, a CSE must demonstrate that the child's inability to learn cannot be explained by intellectual, sensory or health factors (Application of a Child with a Disability, Appeal No. 97-69). This is typically accomplished through evaluation reports and the results of a physical examination. There is no indication in the record, however, that a current physical examination was conducted. Additionally, respondent's own psychologist recommended that a neurological evaluation be conducted to help better understand the child's attention and processing difficulties. Again, there is no indication that a neurological evaluation was ever conducted. Further, while there are brief references in the record to a diagnosis of an attention deficit disorder for which the child reportedly had been taking medication, there is no documentation in the record to support such diagnosis or to explain whether the condition impacted the child's education. I agree with the hearing officer that the record does not support a correlation between the child's behavioral issues and her allergies. However, questions remain with respect to whether other conditions including language processing, neurological and psychological difficulties impact upon the child's education. While I note that the school psychologist concluded that the child met the criteria for classification as learning disabled and as emotionally disturbed, the definitions of learning disabled and emotionally disturbed are mutually exclusive, because a child cannot be classified as emotionally disturbed if her inability to learn can be explained by intellectual, sensory or health factors (Application of a Child with a Disability, Appeal No. 93-2).
Pursuant to the Regulations of the Commissioner of Education, an evaluation of a child suspected of having a disability must include a physical examination, a psychological evaluation, a social history and other appropriate assessments or evaluations as necessary to ascertain the physical, mental and emotional factors which contribute to the suspected disability (8 NYCRR 200.4 [b]). Not only is there no physical examination in the record, there is no social history report, nor is there any evidence of a neurological evaluation or a speech/language evaluation even though they were recommended by the school psychologist. I find that a physical examination, a neurological evaluation, and a speech/language evaluation would have been essential for the CSE to reach an informed decision with respect to the child's educational needs. In view of the child's reported behavior in school, I further find that a psychiatric evaluation is called for in this instance. Accordingly, I find that respondent has not met its burden of proving that it had appropriately classified the child (Application of a Child with a Disability, Appeal No. 93-1; Application of a Child with a Disability, Appeal No. 98-54).
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing officer is annulled, and;
IT IS FURTHER ORDERED that the case is remanded to respondent's CSE to re-evaluate the child, including a physical, a neurological and a psychiatric examination, as well as a speech/language evaluation to clarify the child's educational needs and to determine whether the child should be classified as a child with a disability in accordance with the tenor of this decision.