Application of a CHILD SUSPECTED OF HAVING 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, Laura Corvo, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's son be classified as speech impaired, and that the boy be placed in a self-contained special education first grade class in respondent's modified instructional services-IV (MIS-IV) program during the 1998-99 school year. The appeal must be sustained.
Petitioner's son was seven years old at the time of the hearing in this proceeding. He reportedly did not begin to speak until he was almost three years old (Exhibit 10). The boy entered kindergarten at P.S. 20 in May, 1997. He had not previously attended preschool or regular school. His kindergarten teacher reported that the child was unable to follow directions, and that his speech was unclear. The teacher also reported that the child required constant 1:1 attention, and was unable to function in a group. Petitioner's son was referred by his teacher to the CSE.
In July, 1997, one of respondent's school psychologists evaluated the child (Exhibit 15). The school psychologist noted that the boy spoke softly, and that his speech was at times difficult to understand. On the Stanford-Binet Intelligence Scale, 4th Edition, the child achieved scores of 66 for verbal reasoning, 62 for abstract/visual reasoning, and 67 for short-term memory. While those scores placed the child in the mentally retarded range, the school psychologist cautioned that they appeared to be a minimal estimate of the child's potential because of his language difficulties. On the Vineland Adaptive Behavior Scales, with petitioner providing the relevant information, the child achieved age equivalent scores of 2-0 for communication, 3-3 for daily living, 2-7 for socialization, and 2-10 for motor skills. The school psychologist indicated that the boy's adaptive behavior was consistent with his cognitive skills, which would support his classification as mentally retarded (see 34 CFR 300.7 [a]; 8 NYCRR 200.1 [mm]).
The school psychologist also recommended that a speech/language evaluation be performed. That evaluation was done on July 29, 1997. The evaluator reported that the child's vocal quality, rate of speech, and volume were age appropriate. Although petitioner's son misarticulated certain letter sounds, the evaluator reported that she could understand almost everything the boy said. An informal language assessment revealed that the boy generally spoke in short phrases, but had difficulty responding to questions requiring more than a "yes" or "no" answer. On the Clinical Evaluation of Language Functions – Preschool Edition (CELF), the child's scores were in the first (lowest) percentile in all areas except formulating labels, where his score was in the second percentile. The evaluator noted that the child had responded inconsistently to many stimuli, indicating that he might have the potential for functioning at a higher level. She recommended that he receive speech/language therapy (Exhibit K).
The boy's educational evaluation was completed on July 23, 1997. The evaluator reported that the child would not respond to her unless petitioner was with him. The child was able to match letters, name a few colors, and count a few numbers by rote. On the Brigance Inventory of Early Development: Pre-Readiness – Prekindergarten Level, the boy's communication and cognitive (reading and math readiness) skills were assessed to be at the prekindergarten level. The evaluator also informally assessed the child's motor skills, which she found to be below age expectancy. She recommended that the child be placed in a small, structured classroom, in which behavior management techniques and manipulative instructional materials were used (Exhibit L).
The CSE reportedly recommended that petitioner's son be classified as mentally retarded, and that he be placed in the MIS-IV program. Petitioner disagreed with the CSE's recommendation. Instead of initiating a hearing to obtain authorization to initially place the child in a special education class pursuant to 8 NYCRR 200.5 (b)(3), respondent agreed to allow him to remain in a regular education kindergarten class at P.S. 20 for the 1997-98 school year.
The record does not reveal what, if any, support services were provided to the child during the 1997-98 school year, nor does it reveal how he performed during that school year. At the hearing, a guidance counselor from P.S. 20 testified that the child had learned the "routines and procedures" of kindergarten, but she asserted her belief that he was not functioning at the same level as his peers in kindergarten (Transcript, page 37). She also testified that petitioner's son had been promoted to the first grade in June, 1998 because respondent's policy precluded leaving the boy in kindergarten for a third year (Ibid.).
Respondent's staff did not refer the child to the CSE, nor did respondent initiate a hearing to place the child in the MIS-IV program pursuant to the CSE's previous recommendation. Petitioner did, however, refer her son to the CSE during the summer of 1998. She testified that she referred the child to the CSE for the purpose of removing the mentally retarded classification which the CSE had recommended in 1997 (Transcript, page 74).
Petitioner's son was evaluated by a school psychologist on July 21, 1998. The school psychologist noted that the child easily separated from his mother, but he interacted in a shy and timid manner during the evaluation. The child was reportedly unable to maintain eye contact for more than a few seconds. The school psychologist reported that the child spoke in short, clipped sentences, and evidenced limited language skills. Petitioner's son also exhibited difficulty comprehending questions, and he easily tired and became distracted during the evaluation. On the Wechsler Intelligence Scale for Children-III the child achieved a verbal IQ score of 60, a performance IQ score of 68, and a full scale IQ score of 61, placing him in the mentally deficient range. The school psychologist noted that there was some scatter in the boy's performance IQ subtest scores, suggesting that he might be capable of functioning with the borderline range. On the Bender Visual Motor Gestalt Test, the boy evidenced a significant delay in his visual motor integration skills. Projective testing suggested that the child was immature, dependent, and insecure. The school psychologist opined that deficits in the boy's expressive and receptive language skills coupled with delays in his visual perceptual functioning and social/emotional relatedness were hindering his academic progress. He suggested that the child might benefit from a special class learning environment (Exhibit 12).
An educational evaluation was also performed on July 21, 1998. The educational evaluator reported that the boy almost constantly dialogued with himself as if he were speaking to an imaginary friend, with much tangential discourse. Petitioner's son was able to follow most basic directions and to express basic ideas. He could identify almost all of the letters of the alphabet, but could print only upper case letters. The child could state his age and birth date, but not his address or telephone number. He correctly identified most initial word sounds, but could not read consonant-vowel-consonant words, and he barely achieved the pre-primer level on the word recognition portion of the Brigance Comprehensive Inventory. The child was unable to correctly spell any words on the Kaufman Test of Educational Achievement. He could count with 1:1 correspondence to 24, but had difficulty accurately identifying two-digit numbers. He was unable to add or subtract single-digit numbers. The educational evaluator concluded that the boy had reading and mathematics readiness skills, and was on the verge of reading. The child's graphomotor (handwriting) and visual perceptual skills were inconsistent, as were his listening skills. The evaluator reported that the child's overall academic skills were at the lower kindergarten level (Exhibit 13).
On August 4, 1998, the child was evaluated by a speech/language therapist for the CSE. The boy achieved an age equivalent score of 3-6 on the language sample from the CELF. His chronological age when tested was 6-8. The evaluator reported that the boy had significant delays in all aspects of language, although he had shown some minimal growth since his previous evaluation in July, 1997. She noted that he spoke in phrases and simple sentences, in which there were grammatical and syntactical errors. The evaluator reported that the boy had extreme difficulty recalling the content of age appropriate orally presented information. The child had not mastered an understanding of basic age appropriate spatial, temporal, and quantitative concepts. She opined that the child's speech/language skills were adversely affecting his academic performance and social skills. The evaluator recommended that placement in a classroom providing language stimulation across all curriculum areas should be considered, and that the child receive speech/language therapy in a group of no more than three children three times per week (Exhibit 9).
A CSE review team met on August 28, 1998. Petitioner did not attend the meeting. She had reportedly advised the CSE that she would not attend the meeting. The CSE review team, which was apparently a subcommittee of the CSE, recommended that petitioner's son be classified as speech impaired, and that he be enrolled in a "First Grade Plus MIS-IV" class. It also recommended that he receive speech/language therapy in a group of three students three times per week (Exhibit 8). By letter dated September 2, 1998, petitioner was offered a placement for her child in P.S. 79 (Exhibit 7).
Petitioner did not accept the subcommittee's recommendation. She was invited to attend a CSE meeting to be held on October 15, 1998. Her son was placed in a regular education first grade class in P.S. 20. Sometime after the beginning of school, he began to receive speech/language therapy in a group once per week, which was provided as an educationally related support service (see Section 3602  of the Education Law). Petitioner informed the CSE that she would not attend the October 15, 1998 meeting, and that she did not want her son to have any classification (Exhibit 4).
On October 15, 1998, the CSE recommended that petitioner's son be classified as speech impaired. Its minutes indicate that the CSE concluded that the boy had pervasive delays in his cognitive functioning, speech/language skills, and social skills, and that an integrated first grade/MIS-IV class appeared to be the most appropriate placement for him (Exhibit 3). On the boy's individualized education program (IEP), the CSE specified that the recommended placement have a 10:1+1 child to adult ratio. The CSE also recommended that the boy receive 30 minutes of speech/language therapy in a group of no more than three students three times per week, and that the time limits on his tests in school be doubled (Exhibit 2). Petitioner was again offered a placement for the boy in P.S. 79 (Exhibit 1).
An impartial hearing was held at petitioner's request on November 5, 1998. Petitioner indicated to the hearing officer that she challenged her son's recommended classification as speech impaired, but that she did not object to him receiving speech/language therapy, provided that the boy remained in the regular educational program. The CSE representative presented evidence supporting both the recommended classification and special class placement.
In his decision which was rendered on December 22, 1998, the hearing officer rejected petitioner's assertion that the classification of speech impaired was inappropriate because the child did not stutter and he could produce sounds. The hearing officer noted that the State regulatory definition of the term speech impaired was broader than petitioner's limited definition. He found that there was substantial evidence of an impairment affecting the boy's receptive and expressive language skills, and that the boy would be appropriately classified as speech impaired (see 8 NYCRR 200.1 [mm]). The hearing officer further found that the recommended First Grade Plus MIS-IV class in P.S. 79 would be an appropriate placement for the child, and that placement in that class was consistent with the Federal and State requirement that each child with a disability be placed in the least restrictive environment.
On a procedural note, it appears that petitioner promptly commenced this proceeding by serving copies of her appeal papers upon respondent in January, 1999. However, the State Education Department did not receive a copy of the petition from petitioner. In January, 2000, the Office of State Review learned of the appeal from a representative of the school district who had called to inquire about the status of the appeal. The Office of State Review obtained a copy of the petition from respondent, and scheduled this appeal for decision.
Petitioner challenges the hearing officer's decision upholding the CSE's recommendation that her son be classified as speech impaired. 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). The starting point for any CSE recommendation is an adequate evaluation of a child in accordance with the requirements of the Regulations of the Commissioner of Education.
When a child suspected of having a disability is referred to a CSE, it must ensure that an individual evaluation of the referred student is performed. An individual evaluation must include a physical examination in accordance with the provisions of Sections 903, 904 and 905 of the Education Law, an individual psychological evaluation, a social history, and other appropriate assessments or evaluations to ascertain the physical, mental and emotional factors which contribute to the suspected disability (8 NYCRR 200.4 [b]).
Respondent did not offer evidence that its CSE had obtained and considered the results of a physical examination. Although petitioner submitted a report of a physical examination by the child's physician which was performed on August 15, 1997 (Exhibit N), it is not clear from the record whether the CSE has ever reviewed that report. The physician's report indicated that the child's vision was normal and that no problems had been found. I note that neither the physician's report nor respondent's health screening form indicated that the child's hearing had been tested. Although the speech/language evaluator informally assessed the boy's hearing in August, 1998, I am concerned by the absence of a formal assessment in view of the fact that some of the child's evaluators reported that they had to repeat directions or instructions to the child.
Even if I were to assume that the CSE had considered the physician's report and had adequate information about the child's hearing, I must also note that there is no evidence of an observation by the CSE. The Regulations of the Commissioner of Education require that the evaluation of a child initially referred to the CSE include an observation of the child in the child's current educational setting (8 NYCRR 200.4 [b][viii]).
Upon the record which is before me, I am constrained to find that respondent has not met its burden of establishing the appropriateness of the classification which its CSE recommended for petitioner's son (Application of a Child with a Disability, Appeal No. 93-1; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child with a Disability, Appeal No. 96-1). Absent an appropriate basis for classifying the child, the CSE's recommendation for a special class placement must also be annulled. I must note, however, that there does appear to be some evidence that the child may require some form of specialized assistance. I will therefore direct the CSE to fully evaluate the child in accordance with the tenor of this decision within 30 days after the date of this decision.
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, the CSE shall evaluate petitioner's son in accordance with the tenor of this decision.