99-056

        Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's son's classification be changed from learning disabled to emotionally disturbed and that his educational program be changed from resource room services to a specialized instructional environment-VII (SIE-VII). The appeal must be sustained in part.

        Petitioner's son was a seven year old second grade student in the Extended Learning Center (ELC), an alternative to suspension program at P.S. 40, at the time of the hearing. In March, 1998, when the child was in the first grade at P.S. 30, the school's principal, after attempting various behavioral interventions, requested an impartial hearing to obtain authorization for an evaluation of the child without parental consent because the child was reportedly unable to function in a classroom setting because of his inappropriate behavior, which petitioner reportedly was unwilling to acknowledge (Exhibit 17). The child transferred to P.S. 80 in April, 1998, where he completed the first grade (Exhibit 22). The impartial hearing was held on April 28 and May 27, and concluded on June 3, 1998. In a decision dated July 6, 1998, the hearing officer in that proceeding ordered respondent's CSE to evaluate the child and conduct a review to make appropriate recommendations for the child's classification and placement services (Exhibit 16).

        The child continued at P.S. 80 for the second grade during the 1998-99 school year. The child's teacher used behavior modification techniques with the child (March 26, 1999 Transcript page 69). The school based support team (SBST) commenced its evaluation of the child soon after school began because the child was unavailable during the summer. A psychological evaluation was conducted on September 28, 1998 by a school psychologist, who noted that the child worked attentively on tasks presented (Exhibit 8). He further noted that while the child was fidgety, he was able to screen out distractions, and when refocused, he did so without hesitation. On the Weschler Intelligence Scale for Children - III (WISC-III), the child achieved a verbal IQ score of 93, a performance IQ score of 113, and a full scale IQ score of 103, placing him in the average range of intellectual functioning. The school psychologist noted that the 20 point discrepancy between the child's verbal and performance IQ scores was significant. He described the child's scores as variable, noting that they ranged from borderline to high average, which suggested the potential for higher functioning. The child's visual motor integration skills were assessed to be within age norms. The school psychologist opined that the child's behavioral difficulties could be adversely impacting on his acquisition of age expected academic skills. Projective data revealed that the child tended to externalize blame. He appeared to solve his problems impulsively, and his verbal or physical reactions required teacher reprimands. Additionally, the projective data suggested that the child regarded himself as a victim, and that his reactions to classmates were a defense mechanism. The school psychologist reported that the child's behavior at home was at times inappropriate requiring some form of discipline, to which the child would react with tantrums, further exacerbating the situation.

        In an educational evaluation conducted on October 6, 1998, the educational evaluator reported that the child was cooperative and completed all tasks presented (Exhibit 7). On the Kaufman Test of Educational Achievement (KTEA), the child achieved grade equivalent scores of 1.0 in spelling, 1.4 in reading decoding and 1.0 in reading comprehension. The child's listening comprehension was assessed to be on grade level. He achieved below first grade level in both math computation and math concepts on the KTEA. On the Woodcock-Johnson science and social studies subtests, the child's scores were below grade expectancy.

        On October 7, 1998, the child was observed in class by a school psychologist who reported that the child was distracted at times, but he returned to his work when refocused by his teacher (Exhibit 9). She further noted that he actively participated in the lessons. The child's teacher advised the school psychologist that the child wanted to learn. She indicated that the child was distractible and required reengagement.

        By letter dated October 7, 1998, petitioner was advised that an educational planning conference was scheduled for October 14, 1998 (Exhibit 12). The CSE met on that date to develop the child's individualized education program (IEP). It recommended that the child be classified as learning disabled and that he be placed in a supplemental instructional services-I, i.e., resource room, program with counseling as a related service (Exhibit 11). At the end of October, 1998, the child was transferred to another regular education second grade class (March 26, 1999 Transcript page 45). The teacher of that class also incorporated behavior modification techniques in her classroom.

        The child's inappropriate behavior reportedly began to escalate. The CSE held its determination of a suitable program for the child in abeyance until could obtain additional information with respect to the child's behavior (Exhibit 10). By letter dated November 1, 1998, the chairperson of the CSE requested that the child's physician complete a medical documentation form (Exhibit 10). He described the behavior the child exhibited and requested an updated medical form addressing whether any organic or other health reason could explain such behavior.

        On November 19, 1998, the child was suspended from school for five days for refusing to stay in his class, leaving the school building, and endangering the safety of himself and others (Exhibit 18). He was suspended again on December 2, 1998, for allegedly attacking a teacher in an after school program and destroying school property (Exhibit 18). There is no information in the record with respect to the duration of the December 2, 1998 suspension.

        At the end of the first marking period, the child received "needs improvement" in reading and oral language, "unsatisfactory" in mathematics, and "satisfactory" in written language, social studies, science, and art on his report card (Exhibit 22). His work habits and personal development were rated "unsatisfactory," writing development was rated "needs improvement," and computer and cluster science were rated "satisfactory." The report card included teacher's comments which indicated that the child disrupted the class with poor behavior, that he interrupted the teacher by getting out of his seat, and that he had been disrespectful toward the teacher.

        A paraprofessional assigned to the child reported that on December 14, 1998, the child used inappropriate language (Exhibit 9). She indicated that the child ran out of the classroom several times, and that she had to bring him to the principal's office after she found him. The assistant principal reported that he and a paraprofessional shared the responsibility of supervising the child. He indicated that the child would not stay in the classroom, and had run out of the building on several occasions. The assistant principal asserted that he was spending a majority of his time taking care of or looking for the child due to the child’s unpredictable behavior.

        The CSE reconvened on December 21, 1998 to reconsider its previous recommendation. It recommended that the child's classification be changed to emotionally disturbed, and that he be placed in an SIE-VII program at P.S. 26. It also recommended that the child receive group and individual counseling (Exhibit 4). The minutes from that meeting indicate that the child exhibited severe behavioral problems which prevented him from achieving his full potential and which have had an adverse impact on the other students in the class. On December 23, 1998, the child was suspended from school for five days for inappropriate behavior.

        Petitioner requested an impartial hearing on January 15, 1999. On January 19, 1999, the child was placed on an administrative suspension for allegedly hitting, scratching and punching a paraprofessional. There is no information in the record with respect to the duration of that suspension. On February 1, 1999, the child was placed in the ELC at P.S. 40.

        On February 5, 1999, the first day of the hearing, petitioner's attorney submitted a motion raising several legal issues including respondent's failure to conduct a functional behavioral assessment (February 5, 1999 Transcript). Additionally, the parties agreed and the hearing officer ordered that before the next hearing date a speech evaluation of the child be conducted, that the parent would arrange for a psychiatric evaluation and a physical examination, and that the CSE would prepare a behavior modification plan. Further, petitioner agreed that her son would continue in his interim placement until the next hearing date, with the understanding that she could contact the hearing officer if the circumstances changed. The hearing was adjourned to March 26, 1999.

        A speech/language evaluation was conducted on February 9, 1999 (Exhibit 32). The speech/language evaluator noted that the child initially presented as a friendly, cooperative, and hard-working boy, who became inattentive as the session progressed. She further noted that she was unable to motivate the child to improve his behavior. The speech/language evaluator reported that the child's overall skills were in the average range and that he did not require speech/language therapy.

        In a classroom observation conducted on March 2, 1999 while the child was at the ELC, the school psychologist noted that the child was relatively impulsive and fidgety, requiring much prompting and direct instruction from the teacher (Exhibit 29). The school psychologist further noted that the child was the most playful of the students. While the child was quick to finish his work, his teacher's comments suggested that the child's work was incomplete. The school psychologist noted that though the child remained relatively on task with the support of teacher imposed structure, he was nevertheless impulsive and demonstrated little self-control. On March 8, 1999, a second classroom observation was completed by a school psychologist, who reported that the child exhibited off-task and rude behavior throughout the observation (Exhibit 28). She noted that the child was seated for only two minutes of the 45 minute observation, that he tried to distract the other student in the class, that he strolled around the room humming for approximately 20 minutes, and that he was touching items on the teacher's desk.

        A medical form dated February 19, 1999 completed by the child's physician shows a diagnosis of "well child" (Exhibit 30). Under the general appearances section of the form, there is a notation that the child was well-behaved.

        The CSE convened on March 22, 1999 and recommended that the child be classified as emotionally disturbed. The IEP included a behavior intervention plan which described the behavior of the child which interfered with his learning, expected behavioral changes, and strategies and supports used to change his behavior. The minutes from that meeting indicate that the CSE concluded that placement in the SIE-VII program appeared to be appropriate. The minutes further indicate that the child's classroom performance was poor in terms of behavior and learning, and that the child's behavior interfered with better performance.

        The hearing reconvened on March 26, 1999. At the end of the hearing, the hearing officer noted that the parties agreed to continue the child's placement at the ELC until a decision was rendered. The hearing officer rendered his decision on June 4, 1999. He found that the child met the definition of emotionally disturbed. He further found that respondent failed to conduct a functional behavioral assessment, and to implement a behavioral intervention in accordance with section 1415(k) of the Individuals with Disabilities Education Act (20 USC 1400 et seq., hereinafter referred to as IDEA). Additionally, he found that the CSE failed to conduct a manifestation determination review. However, the hearing officer determined that despite such failures, the board had substantially complied with the requirements of the law and regulations. The hearing officer also found that the child's latest IEP and the child's classification were appropriate. He ordered the CSE to reconvene and formally develop a behavior intervention plan in accordance with requirements and identify behavior strategies that could be implemented in the SIE-VII program, the setting recommended in the child's latest IEP. He further ordered that the CSE consider the child's need for additional counseling and psychological services.

        Petitioner appeals from the hearing officer's decision. Initially, she argues that the recommended classification of emotionally disturbed is improper. 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 has been interpreted to mean that a child's emotional condition has a significant effect upon the child's emotional performance (Application of a Child with a Disability, Appeal No. 95-11). 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 he exhibits inappropriate types of behavior or feelings under normal circumstances over a long period of time to a marked degree. The record includes over 80 pages of anecdotal and other reports describing the child's inappropriate and dangerous behavior over an extended period (Exhibits 19, 20, 21, 23, 31 and 32). The child's teachers testified about the child's disruptive behavior. They also testified that the child did not interact with the other students and that he had no friends (March 26, 1999 Transcript p. 46 and 68). The record further shows that the child was functioning in the average range of intellectual ability. While the child's teachers testified that they were unable to assess him academically because of his behavior, standardized testing shows that his educational achievement was below grade level, which is also the grade level he should be at, given his cognitive skills. I find that there is a nexus between the child's emotional problems and his performance in school, and that he requires special education and related services. Accordingly, I find that he meets the criteria for classification as emotionally disturbed.

        The hearing officer found that the child's March 22, 1999 IEP, which provided for an SIE-VII placement, was appropriate. Although the IEP included a behavior intervention plan, the hearing officer nonetheless granted petitioner's request to order the CSE to reconvene to more formally develop a behavior intervention plan and identify behavior intervention strategies and supports that could be implemented in the SIE-VII placement. I need not address petitioner's claim that respondent failed to develop a behavior intervention plan because the hearing officer ordered the CSE to reconvene to do so and respondent has not appealed from that order. Additionally, I note respondent's acknowledgement of its responsibility to comply with the hearing officer's order to prepare a formal behavior intervention plan in its answer (Verified Answer paragraph 70). However, the hearing officer's order regarding the behavior intervention plan impacts upon his decision with respect to the appropriateness of the recommended placement.

        An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). A behavior intervention plan is a component of the child's IEP and must be considered in determining an appropriate placement in which to implement the child's entire IEP. Having ordered the CSE to reconvene to develop one, the hearing officer should not have ruled on the appropriateness of the recommended placement. Under the circumstances, I find that a determination as to the appropriateness of the SIE-VI placement is premature.

        Petitioner further argues that the CSE failed to comply with Section 1414 (d) of the IDEA which requires that an IEP include a statement of the program modifications or supports for school personnel that will be provided for the child to participate in extracurricular and other nonacademic activities, and an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and extracurricular activities. I agree that the IEP is deficient in this regard and order the CSE to revise the child's IEP to include such information. Finally, I agree with the hearing officer that the CSE failed to conduct a manifestation determination review pursuant to 1415 (k)(4) of the IDEA, with regard to disciplinary measures.

        I have considered petitioner's other claims, which I find to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's finding that the child's IEP is appropriate is hereby annulled, and;

IT IS FURTHER ORDERED that respondent's CSE shall reconvene to consider the behavioral intervention plan in making its recommendation for an appropriate placement for the child and to include in the child's IEP a statement in compliance with 1414 (d) of the IDEA.