01-039

       Petitioner appeals from the decision of an impartial hearing officer which upheld her son’s classification as a student with an emotional disturbance and affirmed the recommendation by respondent’s Committee on Special Education (CSE) that he be enrolled in a modified instructional services-II (MIS-II) class. The appeal must be sustained.

        There is one preliminary procedural question to be addressed. The Board of Education has not answered the petition even though its time to submit an answer was extended until June 8, 2001, at its request and with petitioner’s consent. 8 NYCRR 279.3 provides that the notice with petition shall advise the respondent that "[I]f an answer is not served and filed in accordance with the provisions of such regulations [of the Commissioner of Education], the statements contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by a State review officer of the State Education Department."

        A decision of the State Review Officer was annulled by the New York State Supreme Court because the decision was based upon an independent review of the record, rather than the recitations in an unanswered petition for review (Matter of Arlington Central School District v. State Review Officer of the New York State Education Department, 185 Misc. 2d 560 [2000]). However, that decision is being appealed, and I must respectfully decline to follow it in this appeal because it would not allow me to fulfill my obligation to examine the entire record (34 CFR 300.510 [b][2][i]), and to make an independent decision (20 USC 1415[g]). The facts alleged in the petition will be deemed to be true unless found to be inconsistent with the evidence in the record.

        At the time of the hearing, petitioner’s thirteen year old son was classified as learning disabled and attending an eighth grade modified instructional services-I (MIS-I) class in a departmental program at respondent’s M.S. 88. Two subjects were taught by one special education teacher, and the other two core subjects were taught by a second special education teacher who was located three doors away on the same floor in the building (Transcript p. 24). The record does not contain any information concerning the student’s educational history prior to the 2000-2001 school year.

        On November 15, 2000, respondent’s CSE recommended that the student’s classification be changed from learning disabled to a student with an emotional disturbance, and that his placement be changed to an MIS-II class. It also recommended that the student receive 30 minutes of counseling in a group of no more than three children once per week (Exhibit 1).

        Petitioner did not agree with the CSE’s recommendation, and requested an impartial hearing on December 14, 2000. The hearing was held on February 16, 2001. Neither party was represented by counsel. Since respondent had failed to comply with the requirements of the five-day disclosure rule (8 NYCRR 200.5[c][9]), the hearing officer entered only two of its proffered documents into evidence, and testimony was taken.

        The hearing officer rendered his decision on February 27, 2001. Noting that petitioner did not appear to be objecting to the change in her son’s classification, the hearing officer in any event found that the evidence seemed to warrant that the student be classified as emotionally disturbed. He also found that petitioner’s son needed a highly structured environment with teachers who were experienced in dealing with emotionally troubled students, and that the student’s needs would best be addressed in an MIS II program.

        Petitioner appeals from the hearing officer’s decision. She asserts that respondent did not sustain its burden of establishing her son’s classification, or that her son’s behavioral difficulties arose from poor emotional controls. She further asserts that no evaluative material was entered into evidence, and that the impartial hearing officer had improperly relied upon anecdotal testimony from respondent’s witnesses. She also contends that respondent did not offer any specific testimony regarding the proposed MIS-II placement. Finally, she asserts that respondent failed to offer evidence that it considered appropriate behavioral interventions, strategies or supports prior to recommending a more restrictive environment for her son.

        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). The record before the hearing officer in this proceeding was extremely limited, containing only the student’s IEP, a behavior intervention plan that apparently was not implemented, and the testimony of witnesses mainly concerning the student’s behavior. As a result of respondent’s failure to comply with the five-day disclosure rule, evidence with regard to the evaluations that may have been performed to support a change of classification was excluded from the record. There is no evidence that links the student’s behavior to an emotional disturbance or rules out other potential causes of the behavior. As such, I find that respondent has failed to meet its burden of establishing the appropriateness of the student’s classification.

        A board of education also bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an individualized education program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9).

        I find that the record is inadequate to decide whether respondent offered an appropriate educational program to petitioner’s son. The student’s proposed IEP indicates that he was reading at approximately the fifth grade level and that his math skills were at approximately the fourth grade level in October 2000. A special education supervisor testified that an MIS-I program is for children who have a learning disability as their primary diagnosis, while MIS-II classes have teachers who are primarily trained to deal with children who can’t meet the emotional demands of their age group (Transcript 16-17). However, the record does not contain the evaluations needed to demonstrate whether the student’s academic deficits are the result a learning disability or an emotional disturbance.

        The record also does not contain information demonstrating that the program would be provided in the least restrictive environment. While it appears that the student has not done well in his current MIS I program, there is inadequate evidence that respondent had attempted strategies to improve his performance. Respondent’s supervisor of education at M.S. 88 testified that the problem with the student’s performance was that his behavior was impulsive and that he failed to attend class or failed to come to class prepared (Transcript 32-33). The record, however, does not address what strategies were employed to improve his performance. Although the record contains a behavior intervention plan dated January 2, 2001, there was no testimony concerning the implementation of that plan.

        I further note that the hearing officer apparently allowed the district representative to read into the record from documents which had not been entered into evidence because the five-day disclosure rule had been violated. Petitioner who was not represented by counsel was thus put in the position of having portions of a hearsay document selectively read into the record by respondent’s witnesses, and it does not even appear that she was given the benefit of viewing the entire document before this testimony was permitted. The introduction of this anecdotal evidence into the record by witnesses with no apparent recollection or personal knowledge was unfair to petitioner.

        It is the hearing officer’s responsibility to ensure that there is an adequate record upon which to premise his or her decision and to permit a meaningful review (Application of a Child with a Disability, Appeal No. 98-66; Application of a Child with a Disability, Appeal No. 00-39). The hearing officer failed to do so in this instance. Accordingly, I must remand the matter to respondent with the direction that it hold another hearing.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that respondent shall schedule a hearing before a new hearing officer to take evidence and make a determination with regard to an appropriate classification and placement for the child.