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.
Shamila S. Singh, Esq., attorney for petitioner
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Blanche Greenfield, Esq., of counsel
Petitioner appeals from an impartial hearing officer’s determination upholding the recommendation of respondent’s Committee on Special Education (CSE) that her child be classified as a student with an emotional disturbance and placed in a specialized instructional environment-VII (SIE-VII) classroom with counseling as a related service in respondent’s P.S. 224. The appeal must be sustained.
Petitioner’s son was 10 years old and enrolled in a fourth grade general education class at P.S. 65 in Community School District 27 (Queens) at the time of the September 2000 hearing. The student entered this school in January 2000, having previously attended P.S. 68 in Brooklyn. Testimony at the hearing by a guidance counselor of the previous school indicated that on one or more occasions school officials at P.S. 68 had recommended that the child be referred to respondent’s CSE. The school counselor also testified that the child’s mother had not been receptive to this, and the matter had not been pursued.
On February 14, 2000, shortly after the student arrived at P.S. 65, his fourth grade teacher and the school guidance counselor referred him to the CSE (Exhibit 1). The referral form indicated that the student had little self-control, was unable to get along with his peers, engaged in fights and disturbed his classmates on a regular basis, and was easily angered, annoyed and upset. According to the document, the student responded inappropriately to school staff and administration and blamed others to avoid taking responsibility for his own mistakes.
The student was absent from school for 21 days during the third and fourth marking periods of the 1999-2000 school year (Exhibit 22). During the same period of time the student received grades of "U" (unsatisfactory) in getting along with others, carrying out responsibilities, obeying rules and regulations, and showing self-control. Except for library, art, creative writing, and legible writing (graded at satisfactory) the balance of the student’s grades were "N" (needs improvement). The record contains anecdotal examples of the student’s conduct and behavior including, inter alia, incidents relating to the student’s not paying attention in class, inappropriate behavior in class, disruptive conduct in and outside of class, and aggressive behavior in and outside of class (Exhibit 24).
Petitioner consented to an initial evaluation of her son by the CSE on February 29, 2000 (Exhibit 3). On that day, she apparently met with a school social worker, who reported that petitioner "was very upset and did not sit down for a formal interview". However, petitioner apparently provided the social worker with some basic information about her family and her son’s health history. According to the social history report which the social worker compiled, the child’s developmental milestones were within normal limits, he was in good health, and his vision and hearing were normal (Exhibit 2).
An educational evaluation was conducted on March 13, 2000 (Exhibit 9). The child’s dominant language was reported to be English. The evaluator reported that the student displayed weaknesses or relative weaknesses in the areas of spelling, written skills, overall reading skills, and listening comprehension skills. His overall math skills were an area of relative strength. Educational testing using the Woodcock Language Proficiency Battery – Revised (WLPB-R) indicated below grade equivalent results on the picture vocabulary subtest (2.9), the oral vocabulary subtest (2.9), written expression samples (2.0), and spelling (2.3). The WLPB-R also showed below grade equivalent scores in reading subtests for reading vocabulary (2.1), word attack (2.2), letter and word identification (2.1), silent comprehension (2.4) and listening comprehension (2.4). As indicated above, the WLPB-R reported better math scores with grade equivalent scores of 3.8 in computations and 3.6 in math applications. The educational evaluator concluded that the student "would benefit from a remedial program".
According to the psychological evaluation which was also conducted on March 13, 2000, the student "presents as a youngster with significant emotional concerns" and "exhibited intriguing behaviors during the entire evaluation" (Exhibit 8). The psychologist reported that the student "spoke continuously about relevant and irrelevant material" and "went off tangents and laughed out loud constantly". The student also "exhibited emotional difficulties" as he was "constantly in motion", "impulsive during tasks", and in the final subtest "did not bother trying to perform". Reality testing was described as poor. He also reportedly exhibited "aggressive tendencies" during one part of the test, and showed "poor coping mechanisms" by not taking responsibility for his own actions. The evaluator opined that the student "lacked appropriate social skills" which resulted in limited positive peer relations. The evaluator also opined that the student’s "emotional status impacted on performance" and that the test results were "a deflated representation of (the student’s) abilities". Although the school psychologist apparently used at least one projective test, the extent to which projective testing was used is not clear from the record.
As part of the psychological evaluation, the psychologist used the Differential Ability Scale (DAS). The results showed General Conceptual Ability (GCA) in the average range, with below average cluster scores in the verbal area, average scores in the nonverbal reasoning area, and above average scores in the spatial area. There was a significant difference between the verbal and spatial cluster scores. According to the evaluation report, an analysis of the extent of inter item scatter in the child’s subtests showed "evidence of emotional factors influencing performance". The school psychologist did not make any specific recommendation in her report.
In a notice dated March 16, 2000, petitioner was advised that a psychiatric examination was needed to complete her son’s evaluation (Exhibit 10). At the hearing, the school psychologist who had evaluated the student testified that she believed that such an evaluation was necessary to obtain more qualitative data about the student and to help him receive an appropriate placement (Transcript p. 104). Although petitioner reportedly signed an authorization for a psychiatric evaluation, it was never completed because of her objection to it (Transcript pp. 174-175).
On April 3, 2000, a school psychologist observed the student in his regular education class. The student’s regular teacher was not present and a substitute teacher taught the class. The school psychologist noted that the student was seated alone toward the back of the room and was separated from the rest of the class. She also noted that the student spent time talking to characters on Pokemon cards. The teacher approached the student and talked him out of that activity, but he would resume the behavior in two or three minutes. The observer also reported unsuccessful attempts by the teacher to involve the student in class activities. Although the student made eye contact and carried on limited conversation with the observer, he reportedly appeared preoccupied with his own thoughts and seemed to be talking to himself (Exhibit 13).
On April 17, 2000, a school social worker observed the student during a science class (Exhibit 15). The teacher asked questions of the students, who sat in a semi-circle around the teacher. The observer reported that the student did not sit as did the other students but knelt, laid down, or squatted. As the class progressed, the student became more restless. He did not raise his hand with an answer, but rather would "scream" responses to the teacher’s questions. When the student was asked to raise his hand and wait to be called on, he reportedly began looking for distractions. The observation report characterized the student as "very restless and distractible" during the entire observation period.
Respondent’s CSE convened on April 19, 2000 to review the results of the child’s evaluation. Petitioner, who had been notified of the meeting (Exhibit 14), did not attend. The CSE determined that the student should be classified as a student with an emotional disturbance. The CSE recommended that he be placed in a 12:1:1 specialized instructional environment-VII special class (SIE-VII). It also recommended that he receive two 30-minute individual counseling sessions a week. The CSE indicated that the student required a remedial program to address academic delays, with structure and therapeutic support to address his social and emotional needs (Exhibit 18).
In a final notice of recommendation dated May 12, 2000, petitioner was advised that her son would be placed in an SIE-VII class located in P.S. 224 at P.S.186 (Exhibit 19). Petitioner did not give her consent to the CSE’s recommendation that her son be classified or to its placement recommendation. Pursuant to 8 NYCRR 200.5(b)(ii)(b), the Board of Education initiated the impartial hearing process to determine if the recommended placement should be implemented without the parent’s consent.
The impartial hearing was initially scheduled for July 17, 2000, but was adjourned at petitioner’s request to enable her to obtain legal representation. Subsequently, the petitioner obtained legal counsel. The hearing commenced on September 11, 2000, and continued on September 25, 2000. The hearing officer issued his decision on October 20, 2000. He held that respondent had met its burden of proof to show that the student was appropriately classified as emotionally disturbed and would have been appropriately placed in an SIE-VII class, with individual counseling.
Petitioner asserts that on October 24, 2000, she received a notice that the student would be assigned to P.S. 75 instead of P.S. 224. Respondent does not dispute the reassignment of the student.
Petitioner challenges the hearing officer’s finding that the student should be classified as emotionally disturbed. A board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 92-37; Application of a Child with a Handicapping Condition, Appeal No. 91-11).
Pursuant to the applicable New York State regulations, a student with an emotional disturbance may be classified as a student with a disability. In particular, emotional disturbance means:
[A] condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student's educational performance:
(i) an inability to learn that cannot be explained by intellectual, sensory, or health factors;
(ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
(iii) inappropriate types of behavior or feelings under normal circumstances;
(iv) a generally pervasive mood of unhappiness or depression; or
(v) a tendency to develop physical symptoms or fears associated with personal or school problems.
The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance.
(8 NYCRR 200.1[zz]).
The applicable regulations require that the condition which underlies the emotional disturbance have a temporal element such that its relevant characteristic(s) extend "over a long period of time" and a substantive component such that it adversely affect(s) a student’s educational performance". With respect to the latter, prior to classification, a respondent is required to demonstrate a nexus between the child’s behavior and the child’s educational performance (Application of a Child Suspected of Having a Disability, Appeal No. 97-50, Application of a Child Suspected of Having a Disability, Appeal No. 97-32), and the child’s emotional condition must have a significant effect upon the child’s educational performance (Application of a Child with a Disability, Appeal No. 99-18, Application of a Child with a Disability, Appeal No. 99-16.
The exhibits and testimony contain information relevant to the student’s conduct, relationships, behavior, and expressed feelings during the time he was in first through fourth grade, a long period of time. Additionally, as indicated above, the record contains fourth grade testing information as well as student report card information for those years.
It is premature, however, to evaluate and review this information because I find that respondent did not properly complete an individual evaluation of the student as required under the applicable state regulation (8 NYCRR 200.4[b]). Individual student evaluations are to include at a minimum (1) a physical examination, (2) an individual psychological examination (except when appropriately determined to be unnecessary), (3) a social history, (4) an observation of the student in the current educational placement, and (5) other appropriate assessments or evaluations, including a functional behavioral assessment for a student whose behavior impedes his or her learning or that of others.
When a required component of the student’s evaluation has not been done prior to the CSE’s classification decision, the classification decision may not be upheld (Application of a Child Suspected of Having a Disability, Appeal No. 00-002; Application of a Child Suspected of Having a Disability, Appeal No. 99-32; Application of the Board of Education of the Taconic Hills Central School District, Appeal No. 99-12; Application of a Child with a Disability, Appeal No. 99-18; Application of a Child with a Disability, Appeal No. 98-54; Application of a Child Suspected of Having a Disability, Appeal No. 97-50; Application of a Child Suspected of Having a Disability, Appeal No. 97-55; Application of a Child Suspected of Having a Disability, Appeal No. 93-45; Application of a Child with a Handicapping Condition, Appeal No. 91-10; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-20).
A review of the record of this case shows that respondent’s CSE classified petitioner’s son as a student with an emotional disturbance without the benefit of the required physical evaluation. Respondent’s answer claims that the CSE "looked to" two documents dated June 8, 2000, which were submitted to the school by the petitioner to secure the student’s reentry into school after he was removed for threatening to throw himself out a window. The referenced documents are part of the record in this proceeding and appear as Parent’s Exhibits A and B.
Respondent’s argument has no merit. In the first place, since the documents in question were not created until approximately two months after the CSE approved the child’s classification and recommended his IEP, they could not have been reviewed and considered by the CSE at the time of its decision. Nor would it make a difference if the documents were before the CSE at the time of its review. Parent’s Exhibit A relates to the student’s mental health and has nothing to do with his physical health. Exhibit B is a handwritten note dated June 8, 2000 from Dr. Caesar Villarica, clearing the student to return to school. The letter notes that "(a) neurological exam for head injury did not reveal any abnormalities (because of ‘headbanging’ report in school)". The note also states that the student’s "P.E. was unremarkable". The report contains no information about the extent of the physical examination and, for example, gives no indication whether it included an evaluation of the student’s vision or hearing. A physical examination of the child might also give a perspective on the presence or absence of an attention deficit hyperactivity disorder (ADHD). Information about vision and hearing and other possible medical conditions is important and necessary in order to make sure that the deficiencies in a student’s educational performance are based on emotional rather than sensory or other medical factors (Application of a Child Suspected of Having a Disability, Appeal No. 00-002; Application of a Child Suspected of Having a Disability, Appeal No. 99-32; Application of a Child with a Disability, Appeal No. 99-18; Application of a Child Suspected of Having a Disability, Appeal No. 93-45; Application of a Child with a Disability, Appeal No. 93-36).
I further find that respondent did not obtain a complete social history prior to its classification decision. As indicated above, the record contains a "social history cover sheet" with a two page handwritten document attached (Exhibit 2). The document, however, is not a social history. The applicable regulations at 8 NYCRR 200.1(tt) define social history as "a report of information gathered and prepared by qualified school district personnel pertaining to the interpersonal, familial, and environmental variables which influence a student’s general adaptation to school, including but not limited to data on family composition, family history, developmental history of the student, health of the student, family interaction and school adjustment". A review of the document reveals that it contains no information at all regarding either the family history or the family interaction of the student. This is not surprising, as the document itself explains that during the relevant discussion with the parent, she "was very upset, and …did not sit down for a formal interview".
As indicated above, respondent’s staff – including the school psychologist who had evaluated the student -- believed that a psychiatric evaluation was appropriate for a full evaluation and appropriate placement. The evaluation was not done, although it had been requested. Respondent did not pursue the matter in accordance with 8 NYCRR 200.5(b)(1)(i)(c). In light of the student’s reportedly aggressive conduct, respondent’s appropriate concern for the maintenance of a safe environment for its students, the need to make sure that socially maladjusted children are not erroneously classified as emotionally disturbed, and the importance of ensuring that management needs of a properly classified student are addressed in an appropriate fashion, I find that a psychiatric evaluation was appropriate (Application of a Child with a Disability, Appeal No. 99-18).
In addition, the CSE failed to conduct a functional behavioral assessment as part of its evaluation of the student. Respondent must show that the student’s emotional condition adversely affects the student’s educational performance (8 NYCRR 200.1[zz]). In such circumstances - where the student’s behavior impedes the student’s learning – a functional behavioral assessment is a required element of the individual evaluation (8 NYCRR 200.4[b][v]). The absence of the functional behavioral assessment in this case thus renders respondent’s student evaluation incomplete.
For the reasons set out above, I find that the respondent failed to carry out a full and proper initial evaluation of the student and that the classification decision based on that incomplete and improper initial evaluation may not stand. I further find, as indicated above, that a further evaluation of the student for special education services should include a proper physical examination, a complete social history, a psychiatric evaluation, and a functional behavioral assessment.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer’s decision is hereby annulled; and
IT IS FURTHER ORDERED that respondent’s CSE shall conduct a complete evaluation of the student as indicated above by no later than August 31, 2001.