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Application of a CHILD WITH A DISABILITY, by her 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, Georgia Pestana, Esq., of counsel


        Petitioner appeals from the decision of an impartial hearing officer which held that the Board of Education properly classified her child as emotionally disturbed, and properly placed the child in a self-contained class with other similarly classified students. The appeal must be sustained.

        At the time of the hearing, the child was seven years old, and was in the first grade at P.S. 109 in Community School District 22 (Exhibit SD-1). The child started to attend P.S. 109 for pre-school in 1996. She reportedly began to display aggressive behavior in kindergarten after her teacher went on maternity leave. The child reportedly called people names, climbed on the furniture, and acted violently toward teachers and students (Exhibits SD-2, SD-15).

        When the child entered first grade, she began experiencing difficulties almost immediately. She reportedly would cry uncontrollably, and would lie on the floor at times and refuse to get up. On other occasions, she would run out of the classroom. The child reportedly tore up her own class work, and that of other students, and tore down bulletin boards. She reportedly knocked things off the teacher's desk, and off shelves. The child also reportedly pricked other children with push pins, hit and pinched other children, spat at people, and bit and scratched two teachers. When teachers attempted to restrain her, petitioner’s daughter reportedly fought with them (Exhibit SD-15).

        On October 18, 1998, the child was suspended from school for reportedly having struck another child in the mouth, resulting the loss of that child’s tooth. She reportedly behaved in a destructive manner toward the classroom, and scratched two teachers (Exhibit SD-15). The child returned to school on October 27, 1998 with her mother. Petitioner met with the principal and assistant principal of P.S. 109. The child was suspended again on October 27, 1998 for having allegedly behaved violently against a teacher (Exhibit SD-1).

        On November 2, 1998, the child was referred to the committee on special education (CSE) by her teacher. The teacher reported that the child was distractible, had a short attention span, and displayed physical and verbal abusiveness to teachers and peers. She also reported that the girl was destructive toward property, cried frequently, and was self-abusive and self-deprecating. The teacher indicated that the child resisted teacher directives, was non-responsive to classroom activity, and was reluctant to attempt new tasks. The teacher had attempted to modify the child's behavior by changing her seat, developing a behavior management chart, using time-out in class and in other rooms, having the guidance counselor speak with the child, and speaking with the child individually during the teacher's preparation time (Exhibit SD-1).

        At about the time the child was referred to the CSE, she was placed in a class for at-risk youth, which consisted of six to eight students. While in that class, the child reportedly threw a crate at the teacher, who was thereafter absent from school for several days (Transcript p. 36). The teacher of the class for at-risk youth ultimately resigned, and the child returned to her original first grade class (Transcript p. 37).

        The mother consented to having her child evaluated by the CSE (Transcript p. 7). In a social history prepared in December, 1998, petitioner indicated that she did not allow her child to behave at home as she reportedly behaved at school. She asserted that her daughter needed a role model with a similar ethnic background at school. The mother reported that the child's father was absent, which caused the child to suffer both financially and emotionally (Exhibit SD-2). A physical examination revealed no abnormal conditions (Exhibit SD-7).

        An educational evaluation was conducted on December 8, 1998. The evaluator reported that the child happily accompanied the evaluator to the testing room, but she was highly distractible, appeared restless, and she periodically sucked her thumb. The child did not spell her name correctly, and she could not write the entire alphabet. When she did attempt to write the alphabet, some of the letters were reversed (Transcript p. 20). Her reading and math skills appeared to be below grade level to the evaluator, who testified at the hearing that she did not know if the child was able to read (Transcript p. 19). The evaluator opined in her report that the child might have been able to function at a higher level, but her oppositional behavior hindered testing (Exhibit SD-4).

        A psychological evaluation was conducted on December 9, 1998. The psychologist noted that the child had scratches on her face, and bruises and wounds could be seen. Although the child spoke clearly, the psychologist described the child’s speech as marked by "derailments" or loose associations (Transcript p. 12). He reported that the child was defiant and distractible, and had exhibited low frustration tolerance and aggressive tendencies. The psychologist was unable to complete his testing of the girl because she was reportedly unmanageable, notwithstanding the intervention of a guidance counselor. At one point, she climbed on top of a large filing cabinet. The psychologist opined that the child's visual-perceptual/graphomotor functioning was developmentally delayed. The psychologist also opined that the child lacked self- boundaries, and had a poor self-concept. In addition, she tended to be self-abusive, perhaps to compensate for feelings of inadequacy and low self-esteem. He noted the child had a strong need for nurturing and/or maternal dependence (Exhibit SD-3). At the hearing in this proceeding the psychologist opined that the child was emotionally disturbed (Transcript p. 14). The psychologist also observed the child during a reading lesson in her classroom on December 9, 1998. He reported that she was almost consistently off task, and had attempted to leave the classroom. The child exhibited similar behavior when observed by the psychologist for a second time on February 2, 1999 (Exhibit SD-6).

        A psychiatric evaluation was conducted in the child’s classroom on January 11, 1999. The psychiatrist reported that the child refused to talk to him, and manifested a very short attention span, low frustration tolerance, and high impulsivity and distractibility. He stated that it was unclear whether the child's aggressive behaviors were a manifestation of her low frustration tolerance and high level of impulsiveness, or whether tension and anxiety were causing her aggressive behavior. He formally diagnosed the child as having an attention deficit-hyperactivity disorder (ADHD), and he ruled out an anxiety disorder. The psychiatrist opined that the child would be best served in a supportive structured setting, with counseling to help her manage her impulses and anger. He suggested that she would also benefit from psychotherapy and psychiatric treatment outside school (Exhibit SD-5).

        On January 20, 1999, the CSE reviewed the results of the child’s evaluations, and recommended that she be classified as emotionally disturbed. Petitioner did not attend the CSE meeting, but she acknowledged that she had received notice of the meeting (Transcript p. 50). The CSE also recommended that the child be placed in a special class with a student-teacher ratio of 6:1:1 in respondent’s specialized instructional environment-VII (SIE-VII) program. The CSE noted as a special alert on the child’s individualized education program (IEP) that the child would attempt to leave the classroom. The CSE also recommended that the girl receive individual counseling for thirty minutes twice per week, and thirty minutes of counseling in a maximum group of three once per week. Testing modifications included extended time limits and five minute breaks after each twenty-minute period of testing. In the IEP description of her management needs, the child was described as requiring a highly individualized, well-supervised and structured small class setting in a total therapeutic environment to address significant behavioral, social and emotional issues that were interfering with her ability to function in school. Intensive counseling was included as a management need (Exhibit SD-8). A final notice of recommendation offering a placement at P.S. 225 was sent to the parent on January 28, 1999 (Exhibit SD-10). Petitioner did not consent to have her daughter placed in the SIE-VII class.

        On January 25, 1999, the CSE developed an interim service plan for the youngster pending the availability of a SIE-VII placement. The CSE recommended that an individual aide be assigned to the child in her regular education classroom. Testing modifications included time extended time and five-minute breaks after each twenty-minute period of testing. The interim service plan included individual counseling once per week for thirty minutes (Exhibit SD-9). Petitioner consented to the implementation of the interim service plan (Exhibit SD-10).

        Petitioner requested an impartial hearing on March 3, 1999 (Exhibit SD-12). The CSE reconvened on March 24, 1999. The mother participated in the meeting by telephone. The CSE continued to recommend that the child be classified emotionally disturbed (Exhibit SD-10). It also adhered to its previous recommendation for placement in the SIE-VII program at P.S. 225. Petitioner did not accept the CSE's recommendation. The impartial hearing took place on April 16, 1999.

        The hearing officer found that the child's emotional condition significantly interfered with her ability to benefit from instruction in a regular classroom. She relied on the child’s psychological and psychiatric evaluations, the school anecdotal information, and the testimony of the child's teacher and guidance counselor in finding that the child had an inability to build or maintain satisfactory relationships with adults and peers. The hearing officer further concluded that the child had exhibited inappropriate behaviors or feelings under normal circumstances. She also found that the child's behavior could not be explained by intellectual, sensory or health factors (see the definition of an emotionally disturbed child in 8 NYCRR 200.1 [mm] [4]). The hearing officer concluded that petitioner’s daughter would be appropriately classified as emotionally disturbed. She noted that the child had received the services of an individual aide and counseling services while in regular education classes, but still had difficulty learning. Accordingly, the hearing officer found that the CSE’s recommendation of a self-contained SIE-VII class was appropriate for the child. She further found that respondent had demonstrated that the child would have been grouped with children having similar needs and abilities in the proposed class at P.S. 225.

        Petitioner challenges the hearing officer’s decision. She asserts that her daughter may have acted inappropriately in school because her child’s teachers failed to intervene when her child was provoked by other students. Respondent bears the burden of establishing the appropriateness of the classification and placement recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-11; Application of a Child with a Handicapping Condition, Appeal No. 92-2). Upon the record which is before me, I find that respondent has not met its burden of proof.

        The record is inadequate to support the child's classification as emotionally disturbed or her placement in a self-contained special education class. Although the CSE attempted on several occasions to evaluate the child, it never completed an evaluation. I recognize that the child was apparently uncooperative during the attempts to evaluate her. However, a CSE is not absolved of its responsibility to adequately evaluate a child who may be difficult to test. The CSE must evaluate a child a sufficient number of times to obtain adequate data to determine the nature of the child's disability and the child’s level of functioning (Matter of a Handicapped Child, 20 Ed. Dept. Rep. 256; Matter of a Handicapped Child, 22 id. 1Matter of a Handicapped Child, 24 id. 133). There is virtually no information in the record about the child’s cognitive ability or her actual educational achievement.

        I must also note that in order to be classified as an emotionally disturbed child pursuant to 8 NYCRR 200.1(mm)(4), it is necessary to establish that the child's learning difficulties cannot be explained by intellectual, sensory or health factors (8 NYCRR 200.1[am][4]). The psychiatrist who evaluated this child diagnosed her as having (ADHD), but did not reveal the objective basis for that diagnosis. In any event, it is not clear from the record whether the child’s difficulties are attributable to health factors. Under the circumstances, the classification of emotionally disturbed cannot be sustained, which also necessarily leads me to conclude that the hearing officer’s decision with regard to the recommended placement must also be annulled.


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

IT IS FURTHER ORDERED that the CSE shall complete an evaluation of petitioner’s daughter in accordance with the tenor of this decision.

Topical Index

CSE ProcessSufficiency of Evaluative Info
IDEA Eligibility
Parent Appeal