Application of a CHILD SUSPECTED OF HAVING 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
Advocates for Children of New York, attorney for petitioner, Jimmy Yan, Esq., Bethany R. Berger, Esq., of counsel
Petitioner appeals from an impartial hearing officer’s decision upholding the determination of respondent’s Committee on Preschool Special Education (CPSE) that her foster child not be classified as a preschool student with a disability. The appeal must be sustained.
At the outset, I must address a procedural matter. The Board of Education asks me to excuse its delay in serving its answer to the petition. The petition was served on June 25, 2001, and the answer was due on July 5, 2001. The answer was served on March 11, 2002. Respondent asserts that the matter was promptly assigned to an Assistant Corporation Counsel, who apparently did not complete the assignment before leaving his employment in October 2001. The matter was subsequently reassigned to another attorney in January 2002. While I am aware of the large volume of litigation handled by respondent’s attorneys, I find that respondent has not established good cause for its delay (Application of a Child with a Disability, Appeal No. 01-028), and I will not accept its answer.
Petitioner’s foster child was three years old at the commencement of the hearing in November 2000. She was reportedly enrolled in a half-day Early Intervention Program at Northside Center for Child Development, Inc. (Northside) that she had attended since October 1999. During that period, she also received physical therapy, speech/language therapy, and occupational therapy. The child’s enrollment in Northside followed early intervention evaluations showing a significant delay in cognitive development, a severe delay in receptive language skills, a moderate delay in expressive language skills, and delays in gross motor skills and social/emotional development (Exhibit O). The delays in the child’s motor skills and need for physical therapy were reportedly because one of her legs was 1.25 centimeters longer than the other.
In preparation for the child’s aging out of the Early Intervention program in the summer of 2000, Northside performed a number of evaluations to determine her eligibility for preschool special education services in the fall of that year. Those evaluations indicated that the child had made considerable progress since her entrance into the Early Intervention program in the fall of 1999. On the Bayley Scales of Infant Development – Second Edition, the child’s mental development index score of 84 indicated that she was performing in the mildly delayed range. Testing indicated an age equivalency of 27 months compared to the child’s chronological age of 32 months at the time of the test. The child’s standard score of 81 for adaptive behavior on the Interview Edition of the Vineland Adoptive Behavior Scales was in the moderately low range. The school psychologist recommended that the child be placed in an integrated classroom and be evaluated for speech and language delays (Exhibit G).
A physical therapy evaluation (Exhibit E) in June 2000 indicated a delay of between 4 and 9 months in age appropriate gross motor skills. The child ambulated and transitioned independently, but she displayed mild gravitational insecurity resulting in occasional falls. The evaluator noted that the child had a compromised lumbar spine, in addition to the difference in the length of her legs. The evaluator recommended that the child continue to receive individual physical therapy twice a week for 30 minutes in a center based setting. She also recommended consultation with the child’s pediatrician to rule out possible progressive leg length discrepancy.
Northside also conducted a speech and language evaluation (Exhibit H) in June 2000. The evaluator used the Preschool Language Scales – Third Edition (PLS-3) to measure the child’s receptive and expressive language skills. The PLS-3 showed a "slight delay" in the child’s receptive language skills with a standard score of 83 (13th percentile) and a measured delay of eight months. PLS-3 testing indicated that the child’s expressive language skills were "within normal limits" with a standard score of 98 (45th percentile) and a measured delay of one month. Based on the evaluator’s conclusion that the child responded "inconsistently" to questions regarding remote events and that her production of age appropriate syntactical responses were also inconsistent and emerging, the evaluator concluded that the child’s expressive communication skills were marginal and should be reinforced by continued therapeutic intervention. The evaluator therefore recommended continued speech and language therapy twice weekly in a group of no more than two students. She also recommended an integrated setting for the child.
Northside interviewed petitioner on June 21, 2000 for purposes of preparing a social history (Exhibit D). The child was the 10th of 11 children. Her natural mother reportedly had a history of drug abuse, and the mother’s parental rights had been terminated. Information about the child’s father was not available. The child had resided with petitioner and petitioner’s 12-year-old grandson since December 1998. At the time of the interview, the child’s younger sister also resided with the petitioner, who reportedly was planing to adopt both children. When observed in her current educational program in July 2000, the child interacted appropriately with adults and peers, participated in the class, transitioned appropriately from one activity to another, followed directions, was cooperative, appeared happy, and showed play skills at the 30-month level (Exhibit C).
An educational evaluation was performed by Northside on July 10, 2000 (Exhibit F). Results of an assessment on the Hawaii Early Learning Profile (H.E.L.P.) Checklist indicated the following delays: cognitive (10 months), fine motor (6 months), gross motor (4 months), social/emotional (4 months), language (2 months), and self-help (2 months). The evaluator characterized the test results as evidencing mild delays in most areas of development, with the most significant being in the cognitive domain. Based on these test results and her observation, the evaluator concluded that the child did not present with sufficient delays to warrant placement in a therapeutic center based program. The evaluator recommended that the child be placed in an integrated learning environment to enhance and develop her cognitive and other skills. She also opined that a large student to teacher ratio would not be beneficial to the child.
There is no evidence in the record of a physical examination of the child by or for Northside or the CPSE in connection with the former’s referral of the child to the latter for a determination of her eligibility for classification as a preschool child with a disability. There is no information, apart from that previously noted, about the child’s medical status or physical condition in Northside’s evaluations. Northside did prepare a preschool student evaluation summary report on July 13, 2000 that discussed the child’s abilities in the cognitive, social/emotional, motor, language, and adaptive/functional behavior areas (Exhibit I).
Respondent’s CPSE met on August 15, 2000 to review the child’s evaluations. The CPSE concluded that the child did not meet the criteria of a preschool student with a disability pursuant to the provisions of 8 NYCRR 200.1(mm)(1), and did not recommend the provision of any services (Exhibit A; Transcript of January 10, 2001 proceedings at 17-19). The CPSE did not include either a regular education teacher, a parent member, or a representative of the child’s municipality of residence (Exhibit A; Transcript of January 10, 2001 proceedings at 36-38).
Subsequent to the August CPSE meeting, petitioner contacted Advocates for Children (AFC). On October 30, 2000, AFC requested an impartial hearing with respect to the decision not to classify the child. The hearing commenced on November 8, 2000, but was adjourned to December 20, 2000. The CPSE met again on November 20, 2000 to discuss the child. It again determined that the child did not meet the criteria for classification as a preschool student with a disability (Exhibit B; Transcript of December 20, 2000 proceedings at 20; Transcript of January 10, 2001 proceedings at 77-78). The CPSE meeting included a parent member and a general education teacher member, but not a representative of the child’s municipality (Exhibit B). However, the municipal representative’s presence is not required at a CPSE meeting (N.Y. Educ Law § 4410[a]).
The hearing on December 20, 2000 was devoted to petitioner’s request for certain documents, which the hearing officer ordered be produced for her. After a discussion of pendency issues when the hearing resumed on January 10, 2001, respondent agreed to provide the child with a two and one-half hour self-contained preschool special education program and the related services previously received by the child. I note that the hearing officer addressed a subsequent dispute about pendency services in two interim orders that are not reviewed in this appeal.
On January 10, 2001, the hearing officer also began hearing testimony regarding the CPSE’s determination that the child did not meet the criteria for classification as a preschool student with a disability. The hearing ended on March 15, 2001. On May 8, 2001, the hearing officer issued his decision regarding the child’s classification. He determined that although the child had developmental delays, petitioner had not proven that the delays met the standards set forth at 8 NYCRR 200.1(mm)(1)(i) for classification as a preschool student with a disability.
Petitioner challenges the hearing officer’s determination. Petitioner argues that the hearing officer’s decision solely and improperly relied on the quantitative criteria set out at 8 NYCRR 200.1(mm)(1)(i) to define a preschool student with a disability; that the child met such quantitative criteria in any event; and that even if the child did not meet the criteria for being developmentally delayed, the child still qualified for special education services under IDEA for a speech and language impairment.
Initially, I must note that the hearing officer appears to have impermissibly shifted the burden of proof from respondent to petitioner. Contrary to the suggestion in the hearing officer’s decision, the Board of Education bears the burden of establishing the appropriateness of a CPSE or Committee on Special Education’s (CSE) determination that a child not be classified as a (preschool) student with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-18).
In order to meet its burden of proof, the Board of Education must first show that its CPSE adequately evaluated the child, as required by 8 NYCRR 200.16(c)(1). That regulation requires that the child be individually evaluated in accordance with 8 NYCRR 200.4(b). Pursuant to that regulation, an individual evaluation must include a physical examination, an individual psychological examination (except when appropriately determined to be unnecessary), a social history, an observation of the student in the current educational placement, and other appropriate assessments or evaluations, including a functional behavioral assessment for a student whose behavior impedes his or her learning or that of others (8 NYCRR 200.4[b]). When a required component of a student’s evaluation has not been completed prior to a classification decision, the classification decision may be annulled (Application of a Child Suspected of Having a Disability, Appeal No. 00-089; 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 Suspected of Having a Handicapping Condition, Appeal No. 91-20).
In the absence of evidence that a physical examination has been conducted, I must find that the CPSE did not comply with the Regulations of the Commissioner of Education in evaluating the child prior to its determination that she did not meet the criteria for classification as a preschool child with a disability. Accordingly, I must also find that the CPSE’s determination must be nullified (Application of a Child Suspected of Having a Disability, Appeal No. 00-002; Application of a Child Suspected of Having a Disability, Appeal No. 97-55; Application of a Child Suspected of Having a Disability, Appeal No. 97-50; Application of a Child Suspected of Having a Disability, Appeal No. 93-45). I do not reach the issues raised by petitioner on appeal that her child is eligible for classification, but I will remand the matter to the CPSE to re-evaluate the child and make a new recommendation within 30 days after the date of this decision. I will also direct the CPSE to refer the child to respondent’s CSE for an evaluation pursuant to 8 NYCRR 200.4(b)(1) to determine whether the child is in need of special education services during kindergarten in the 2002-03 school year. The CSE may rely upon current evaluations obtained by the CPSE.
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 from the date of this decision, the CPSE shall re-evaluate the child and meet to make a new recommendation as to the child’s eligibility for classification as a preschool child with a disability, and shall refer the child to the CSE.