00-040

       Petitioner appeals from an impartial hearing officer’s decision limiting respondent’s Committee on Special Education (CSE) on remand to consideration of a placement for her son in either a Modified Instructional Services-I (MIS-I) or a Modified Instructional Services-II (MIS-II) class, as well as the hearing officer’s failure to find that the CSE had violated the parent’s due process rights. Petitioner asserts that the CSE must conduct all evaluations and assessments required by law, including a functional behavioral assessment and a structured observation, before deciding upon her child’s placement. The Board of Education cross-appeals from the hearing officer’s decision, which in part found that the child should be classified as learning disabled. It contends that additional evaluations, including a functional behavioral analysis, should be performed before the CSE recommends a classification or placement for the child. The appeal must be sustained in part. The cross-appeal must be sustained.

        I will first address two procedural issues. In her answer to respondent’s cross-appeal, petitioner has suggested that the cross-appeal is untimely. A cross-appeal that is included in an answer is deemed to be timely if the answer is timely (8 NYCRR 279.4[b]). Respondent’s time to answer the petition was extended upon consent, and was served within such extended time period. Therefore, I find that the cross-appeal is timely. Respondent asks that I not consider petitioner’s third defense to its cross-appeal and certain documents related to that defense and annexed to petitioner’s answer to the cross-appeal because they relate to a subsequent CSE recommendation and stipulation in another due process proceeding about that recommendation. I must agree with respondent that the matters petitioner attempts to raise are beyond the scope of this proceeding.

        Petitioner’s child was a twelve-year old fifth grade student in respondent’s P.S. 16 at the time of the hearing in March 2000. He is bilingual, but has reportedly attended monolingual classes since the first grade (Exhibit 24). The student was referred to the CSE because he was experiencing academic difficulties and reportedly behaving inappropriately at times while enrolled in the third grade at P.S. 19 during the 1996-97 school year (Exhibit 1). On April 30, 1997, he was classified as speech impaired by the CSE, which recommended that he receive speech/language therapy three times per week and counseling once per week (Exhibit 21).

        The student repeated the fourth grade during the 1998-99 school year. In the fall of 1998, the student was referred to the CSE by his teacher, who was concerned about the student’s ability to function at grade level (Exhibit 14). On November 6, 1998, the CSE recommended that the student receive five periods of resource room services per week. At its annual review on March 29, 1999, the CSE recommended that the student’s classification be changed to learning disabled, but that he remain in a regular education class while continuing to receive five periods of resource room services per week, and speech/language therapy and counseling (Exhibit 13).

        The student continued to do poorly academically and behaviorally while in the fifth grade during the 1999-2000 school year. On December 8, 1999, he was again referred to the CSE. The student’s social history was updated on December 22, 1999 (Exhibit 5), and a school psychologist evaluated petitioner’s son on January 4, 2000 (Exhibit 6). The psychologist reported that the student achieved a verbal IQ score of 83, a performance IQ score of 100, and a full scale IQ score of 90. Noting the significant difference in scores in measures of the student’s verbal and nonverbal cognitive skills, the school psychologist indicated that the student appeared to continue to have a language deficit that interfered with his learning. She reported that he displayed a significant weakness on a task measuring his vocabulary. On the Bender Visual Motor Gestalt Test of his visual motor integration skills, the boy achieved a standard score of 72, which was in the borderline range. The school psychologist administered projective tests to assess the boy’s social/emotional functioning. Based upon her assessment, the psychologist described the student as an alert, energetic, sociable, talkative, self-centered and immature male who appeared to be experiencing feelings of confusion, insecurity, inadequacy, and a great deal of anxiety, perhaps due to his limited ability to satisfactorily cope with the academic demands of his grade, sudden separation from his father, and his current living conditions. She also reported that he exhibited signs of an oppositional tendency, attention-seeking behavior, underlying hostility, and poor self-control. The school psychologist recommended that the student continue to receive counseling, and that a behavioral performance contract be prepared for the student.

        An educational evaluation was performed on January 13, 2000 (Exhibit 7). The evaluator reported that the student’s oral receptive and expressive language skills appeared to be below age expectancy. She reported that his overall reading skills were at a 2.4 grade equivalent and his overall math skills were at a 3.1 grade equivalent, while his writing skills were at a 2.6 grade equivalent. The student was also observed in class on January 23, 2000 (Exhibit 8). The observer reported that the student remained on task approximately 75 percent of the time, and appeared to need more individual attention. Two guidance counselors reported on the student’s acting out behavior, and his speech/language therapist noted that the student worked better on a one-to-one basis (Exhibit 9). The student’s teacher described him as being generally inattentive, as well as abusive and defiant (Exhibit 10).

        Petitioner was invited to attend a CSE meeting to be held on January 28, 2000. Her attorney asked to have the meeting rescheduled so that she could accompany petitioner to the meeting (Exhibits A and B). However, the meeting was held as scheduled, and petitioner attended the meeting without her attorney. The CSE recommended that the student’s classification be changed to emotionally disturbed and that he be removed from the regular education program and placed in an MIS-II class with a 12:1+1 child to adult ratio (Exhibit 2). In a description of the student’s current levels of social and emotional performance in his individualized education program (IEP), the CSE indicated that the student appeared to be experiencing feelings of confusion, insecurity, inadequacy, and a great deal of anxiety, and he showed signs of underlying hostility, attention-seeking behavior and poor impulse control (Exhibit 23). The CSE prepared a behavior intervention plan as part of the student’s IEP.

        Petitioner did not accept the CSE’s recommendations. A hearing was held on March 6 and 24, 2000. The hearing officer rendered her decision on May 11, 2000. She found that the Board of Education had not proven that the student’s behavioral difficulties were interfering with his ability to learn. She further found that the student’s language difficulties were interfering with his ability to learn, and that frustration with his learning difficulties had led to his acting out in school. She concluded that petitioner’s son was learning disabled, rather than emotionally disturbed. In addition, the hearing officer found that a regular education program was not appropriate for the student, and she remanded the case to the CSE to ascertain whether placement in a self-contained special education class in respondent’s MIS-I or MIS-II program would be appropriate.

        Petitioner contends that the hearing officer should have addressed her claim that the CSE violated her due process rights by not acceding to her attorney’s request to reschedule the January 28, 2000 CSE meeting (8 NYCRR 200.5[c][2][iii] and [d][1][ii]). She also asserts that she was denied an opportunity to be an equal participant in the CSE meeting because the CSE reportedly ignored her comments at the January 28 meeting. However, the hearing officer annulled the recommendations which were made by the CSE at the January 28, 2000 meeting. Under the circumstances, I find that petitioner’s due process claim is moot.

        Petitioner argues that having correctly determined that her son should not be classified as emotionally disturbed, the hearing officer should have invalidated the student’s entire IEP. She contends that the CSE failed to perform an adequate evaluation of her son to support either a change in his classification or placement. Petitioner asserts that the CSE failed to conduct two structured observations of her son, as required by the Regulations of the Chancellor of the New York City School District A-831 § 3.15, and that it failed to conduct a functional behavioral analysis. In essence, she contends that since the record lacks support for a change of classification to emotionally disturbed, there is no basis for a change in her son’s placement to a self-contained class.

        As noted above, the Board of Education concedes that a functional behavioral analysis was not done and should be done. I note that a copy of the Chancellor’s Regulation upon which petitioner relies is not part of the record, although petitioner’s attorney apparently quoted from it in her pre-hearing brief (Exhibit F). That regulation "urges" assessment teams to conduct more than one structured observation of a student in the student’s primary setting when the "presenting problem" is behavioral. In any event, respondent has not established that its CSE complied with the Chancellor’s Regulation, which casts doubt upon the validity of its evaluation (Application of a Child with a Handicapping Condition, Appeal No. 90-16). The Regulations of the Commissioner of Education require that an evaluation include a functional behavioral analysis for a student whose behavior impedes his or her learning or that of others (8 NYCRR 200.4[b][1][v]).

        I agree with petitioner that it is premature to consider a change of placement for her son before an adequate evaluation is completed. I will therefore sustain her appeal and annul the hearing officer’s determination limiting the CSE to consideration of an MIS-I or MIS-II placement. However, I cannot agree that the evaluation information in the record is adequate to determine her son’s classification, but not his placement. While I express no opinion about an appropriate classification, I must sustain the Board of Education’s cross-appeal and annul the hearing officer’s decision in its entirety. I will direct respondent’s CSE to conduct a full evaluation, including a functional behavioral assessment and two structured observations, before it recommends a classification and placement for petitioner’s son.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that the CSE shall complete an adequate evaluation of petitioner’s son as indicated above within 60 calendar days of the date of this decision.