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Application of a CHILD WITH 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 A. Cardozo, Corporation Counsel, attorney for respondent, Nancy Jane Botta, Esq., of counsel


        Petitioner appeals from an impartial hearing officer's (IHO) decision which upheld respondent's Committee on Special Education's (CSE) classification of her son as learning disabled and found that respondent's CSE had properly recommended placement of her son in a 12:1+1 self-contained special education classroom commencing January 2002. The appeal must be sustained in part.

        Petitioner's son was ten years old and enrolled in a fourth grade regular education class at P.S. 159 in Community School District 26 (Queens) at the commencement of the hearing in February 2002. The student entered this school in September 2000, having previously attended P.S. 83 in Community School District 11 (Bronx) for grade three. At the time of the hearing, the student was repeating the fourth grade.

        The student was initially referred to the District 11 CSE in the fall of 1999, when he was in the third grade. A school psychologist reported at that time that administration of the Wechsler Intelligence Scale for Children - III (WISC-III) yielded a verbal IQ score of 81 (low average), a performance IQ score of 94 (average), and a full scale IQ score of 86, indicating overall cognitive functioning in the low average range (Exhibit 1). The District 11 CSE subsequently classified the student as a student with a disability (Exhibit 2), but the record does not indicate when the student was classified or the specific disability classification. In June 2000, the District 11 CSE reportedly classified petitioner's son as a child with an emotional disturbance and recommended a modified instructional services - II (MIS-II) program (Exhibit 9). By letter written on August 1, 2000, petitioner notified District 11 that she was moving to respondent's Community School District 26 (Exhibit 20). Notwithstanding such notice, on September 18, 2000, the District 11 CSE reclassified the student as learning disabled and recommended a resource room and counseling program that was considered less restrictive than the MIS-II program (Exhibit 9). According to respondent, petitioner's son was receiving resource room and counseling services when he transferred from District 11, although the counseling may have been privately provided (Exhibit 3 p. 3).

        Community School District 26 offered petitioner's son an MIS-II program upon his transfer to P.S. 159 in September 2000, but petitioner declined and requested a CSE meeting. Pending the outcome of the requested meeting, the student received resource room and counseling services at his new school (Exhibit 16; Transcript p. 15).

        Respondent prepared an educational evaluation and a psychology update in October 2000 and a social history in November 2000 prior to the requested CSE meeting (Exhibits 9, 12, 13). A school psychologist readministered three of the WISC-III verbal subtests on which the student had done poorly the year before. He reported that the student's scores on two of those subtests increased, suggesting that the student's abilities were higher than previously reported. He also reported that results on the Bender Visual Motor Gestalt Test were notably below age expectations and suggested a delay of two years in the student's motor development. Additionally, the psychologist indicated that responses to the Conners' Teacher's Rating Scale – Revised submitted by the student's classroom teacher suggested an above average presence of symptoms of hyperactivity. He also reported that projective testing, his interview, and observation suggested that petitioner's son was active, agitated and had behavioral difficulties (Exhibit 13).

        The educational evaluator administered the Kaufman Test of Educational Achievement (KTEA) and reported that the student's scores indicated a severe delay in math concepts and applications (9th percentile); below average performance in decoding (14th percentile), silent reading comprehension (27th percentile), and encoding (27th percentile); and low average performance in math computation (39th percentile) (Exhibit 12).

        The CSE of Community School District 26 met on November 6, 2000, in response to petitioner's request for a meeting. At that time, it determined that the student should remain classified as learning disabled. The CSE further recommended that, pending placement in an MIS-II special class, the student remain enrolled in the school's regular education program pursuant to an interim service plan (ISP) that provided he would receive a 1:1 full time aide to assist with behavior management. The ISP also provided for resource room programming and individual and group counseling, and the CSE recommended that a functional behavioral assessment (FBA) be conducted (Exhibits 16, 19; Transcript pp. 15-16). The student remained in the regular education classroom and received resource room, counseling services, and the assistance of a 1:1 aide pursuant to an ISP for the balance of the school year. Respondent also prepared an FBA (Exhibit 15).

        At petitioner's request, her son again enrolled in grade four at P.S. 159 for the 2001-02 school year. Respondent continued to provide the student with a 1:1 aide, resource room, and counseling services (Exhibit 18). On October 31, 2001, petitioner apparently agreed to reduce the amount of counseling provided to the student (Exhibits Q, 11). In November 2001, P.S. 159 staff recommended a change in placement to a small, self-contained class, and at or about the same time, petitioner requested the removal of the 1:1 aide and the balance of the counseling services (Exhibits 18, G; Transcript p. 16).

        Respondent's CSE met on January 14, 2002 (Exhibit 18). It recommended that the student's classification continue as learning disabled. The CSE also recommended that the services of the 1:1 aide be discontinued and that petitioner's son be placed in a 12:1+1 special education class at P.S. 203 (Exhibits 17, 18). It also recommended individual and group counseling once a week. Petitioner advised respondent by letter dated January 23, 2002 that she was refusing the class and that she wanted her son to remain in his current placement. She also asked that his existing services be terminated (Exhibit I p. 3). Petitioner's letter was received on January 28, 2002, and a hearing officer was appointed on that date (Hearing Decision p. 2).

        The hearing commenced on February 15, 2002, and concluded on February 28, 2002. Respondent argued that the student had a learning disability (Transcript pp. 31-32) and had academic, social, behavioral, and management needs that required a small, self-contained class to provide petitioner's son with one-to-one attention and the assistance he needed (Transcript pp. 34-5, 71, 100, 105, 113, 126, 128, 132-33). It proposed that the student be placed in a self-contained special education class at P.S. 203 for children with socio-emotional deficits and resulting academic difficulties (Exhibit 22; Transcript pp. 63, 164-66). Petitioner, who had worked in the school as an aide, said that she was familiar with the children in the recommended class and objected to the placement as inappropriate for her son because of the behavior of the children in the class (Transcript pp. 45-48, 137-39, 138, 211, 224-25). She proposed that her son remain in the regular education program without counseling and without a 1:1 aide (Transcript pp. 207, 225-26). Petitioner also indicated that she would provide private counseling if that became necessary, that she had no objection to a remedial resource room, and that her son would continue with private computer-based interactive tutoring services (Transcript pp. 226-27). Petitioner advised the hearing officer that she did not believe her son had a learning disability, that she did not want him to have an individualized education program (IEP), and that she would like him to be removed from special education (Transcript pp. 227-230). She also requested an independent evaluation if the hearing officer did not agree with her other requests (Transcript pp. 214, 227, 232-34).

        The hearing officer rendered her decision on March 27, 2002. She concluded that respondent's CSE had acted within its discretion to retain the student's classification as learning disabled, upheld its recommendations that the student attend the 12:1+1 self-contained special education class at P.S. 203 and receive counseling as a related service, and denied petitioner's request for an independent evaluation.

        Petitioner contends that she did not have sufficient time to find an attorney to assist her at the hearing, that the recommended self-contained special education class was not appropriate for her son, that respondent's FBA was inadequate and a structured observation ignored, that her son should remain in his regular education class without the previously assigned special education services, and that any necessary supplemental or related services could be provided privately and/or by the school on a remedial basis without special education classification.

        Petitioner asserted at the hearing that her son did not have a learning disability (Transcript pp. 227-30) and her petition raises the same question. 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. 02-040; Application of a Child with a Disability, Appeal No. 94-16; Application of a Child Suspected of Having a Disability, Appeal No. 94-8). The federal and state definitions of a specific learning disability encompass disorders in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which may manifest themselves in an imperfect ability to listen, think, speak, read, write, spell or to do mathematical calculations. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia (34 C.F.R. § 300.7[c][10]; 8 NYCRR 200.1[zz][6]). In order to be identified as having a specific learning disability, there must additionally be a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematics calculation or mathematics reasoning (34 C.F.R. § 300.541[a][2]). The state definition of a student with a learning disability refers to a 50 percent or more discrepancy between the student's expected achievement and actual achievement (8 NYCRR 200.1[zz][6]), but such standard should be viewed as qualitative, rather than strictly quantitative (Riley v. Ambach, 668 F.2d 635 [2d Cir. 1981]; Application of a Child with a Disability, Appeal No. 01-069; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-15).

        The discrepancy between the student's verbal scale IQ score of 81 and his performance scale IQ score of 94 is evidence of a possible learning disability. The initial psychological testing also indicated significant subtest deficiencies in general information, similarities, and picture arrangement (Exhibit 1). The student's current regular education and resource room teachers both explained that petitioner's son had considerable difficulty with math word problems and that problems with reading affected his ability to think critically and make inferences (Transcript pp. 75-76, 82, 117-18). Additionally, although his full scale IQ score of 86 is in the low average range, the student's October 2000 percentile scores on the KTEA showed achievement in the severely delayed range (9th percentile) in math concepts and applications and in the below average range (14th percentile) in decoding. Finally, in January 2002, when petitioner's son was repeating the fourth grade, his regular education teacher estimated that, based on his work, his level of reading comprehension, reading decoding, and math concepts was only at the second grade level (Exhibit 8; Transcript pp. 74-76). I do note, as did the hearing officer, that the student's behavior is and has been inappropriate in class and that it has adversely affected his educational performance (Exhibits 1, 2, 4, 5, 6, 7, 9, 12, 15, 16, 18, 19; Transcript pp. 106, 108, 109, 128, 135).

        A student may fit the regulatory classification for more than one disability and a CSE may determine a primary one (Application of a Child with a Disability, Appeal No. 99-086). Based on the record, including the information from the student's teachers that his behavior results at least in part from the frustration and difficulty that he faces in learning (Exhibits 8, 18; Transcript pp. 74, 132, 133), the CSE had sufficient information to continue the student's classification as learning disabled at its January 14, 2002 meeting.

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. ex rel. S.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having 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 (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an 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 the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 02-008; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        In order to make an appropriate recommendation, it is necessary to have appropriate evaluative information (Application of the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 02-008). A board of education must assess a student in all areas related to a suspected disability, and the evaluation must be sufficiently comprehensive to identify all of the student's special education needs (8 NYCRR 200.4[b][6][vii] and [ix]). The evaluative information must be sufficient to ascertain the physical, mental, behavioral, and emotional factors which contribute to the suspected disabilities (8 NYCRR 200.4[b][1][v]), and it should provide information related to enabling the student to participate and progress in the general education curriculum (8 NYCRR 200.4[b][1]). A CSE may direct that additional evaluations or assessments be conducted to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]). Importantly, without an appropriate evaluation of a student's special education needs, it is not possible to formulate an IEP to address those needs by providing the individually designed instruction and services necessary for the student to receive educational benefit as required by the Individuals with Disabilities Education Act (IDEA) (Monterey Peninsula Unified Sch. Dist. v. Giammanco, 1995 WL 476610 [N.D. Cal. 1995]; Flowers v. Martinez Unified Sch. Dist., 19 IDELR 898 [N.D. Cal. 1993]).

        I have reviewed the evaluative information regarding petitioner's son available at the time of the January 14, 2002 CSE meeting. I find that such information was not adequate to support the CSE's recommendation to change the student's placement (See Application of a Child with a Disability, Appeal No. 01-035; Application of a Child with a Disability, Appeal No. 00-033). In particular, as explained below, the existing evaluative information did not assess all relevant areas, was not sufficiently comprehensive to identify all of the student's special education needs, and was insufficient to ascertain the physical, mental, behavioral, and emotional factors contributing to the student's disability. The CSE needed additional information regarding the nature and extent of the student's disability to identify and assess his special education needs and to develop an appropriate IEP to meet those needs in the LRE.

        Respondent's initial psychological evaluation concluded that the student appeared to have problems in the area of auditory processing (Exhibit 1). Additionally, the reports provided by petitioner's private speech-language provider and relevant correspondence indicated that one purpose of the student's private speech-language therapy was to address the student's auditory processing needs (Exhibits D, E, G). Further, the anecdotal information prepared by the student's regular education teacher (Exhibit 6) also suggested an auditory processing deficit, as it showed that the student had difficulty following verbal directions, that at times his oral responses to such directions were fragmented and not relevant, and that he frequently needed verbal repetition. In light of the evidence indicating an auditory processing deficit, and consistent with its obligation to consider the student's communication needs in accordance with 8 NYCRR 200.4(d)(3)(iv), the CSE needed to obtain and review the results of a central auditory processing evaluation of the student.

        The student received speech-language services at P.S. 84 in Community School District 11 prior to his transfer to respondent's school (Exhibit 3). Although the minutes of the November 2000 CSE meeting set forth that speech services were not necessary (Exhibit 16), the licensed speech-language therapist providing services to petitioner's son indicated in August 2001 that he had a moderate expressive and receptive language disorder (Exhibit D). Although a subsequent report from the therapist states that the student had made progress and characterized his speech-language delay as minimal to moderate (Exhibit E), there is no speech-language evaluation in the record. Additional information regarding the extent of the student's current speech-language needs is necessary to determine how the student's language skills and auditory processing abilities affect his academic performance and behaviors in the classroom. Respondent should provide the student with a comprehensive speech-language evaluation, including a review of the relationship between his speech-language and auditory processing difficulties and his reading skills.

        The November 2000 psychological update reported that the student's motor development was delayed two years. The report noted that his graphomotor functioning was notably below age expectations and that he had distortion errors and poor organizational skills (Exhibit 13). Although a reference to this was included in the IEP resulting from the January 2002 CSE meeting, the minutes of that meeting did not indicate whether the CSE discussed the student's deficits in this area or considered an occupational therapy evaluation (Exhibits 18, 17). In light of this significant delay, respondent must provide the student with a complete occupational therapy evaluation in order to have sufficient information to make a recommendation regarding necessary services for him.

        There is considerable evidence in the record of this student's high level of activity in school. The student has been described as distractible, impulsive, fidgety, inappropriately moving about the class, hyperkinetic, and needing redirection on a regular basis (Exhibits 1, 3, 6, 10, 12, 13). Petitioner has submitted conclusory statements and the results of incomplete examinations relating to whether the student is hyperactive and has an attention deficit hyperactivity disorder (ADHD) (Exhibits H, K, O, P), and the record indicates that the student was reportedly diagnosed with a possible mild attention deficit disorder (ADD) in the second grade (Exhibit 21). The record does not contain a complete evaluation of the student with respect to these matters. Given the student's level of activity over a sustained period of time, respondent needs to refer the student to an appropriately licensed individual to evaluate the extent and meaning of the student's attentional deficits and level of activity and to provide relevant information about the student's needs in this area.

        This is also a student whose behavior impedes his learning and also that of other children (Exhibits 1, 2, 4, 5, 6, 7, 9, 12, 13, 15, 16, 18, 19; Transcript pp. 83, 89, 106, 108, 109, 128, 135, 141). A proper evaluation of such a child is required to include an FBA (8 NYCRR 200.4[b][1][v]; Application of a Child with a Disability, Appeal No. 01-101; Application of a Child with a Disability, Appeal No. 00-040). The most recent FBA is dated November 6, 2000, and there is no information to suggest that another was subsequently produced (Exhibit 15). The purpose of such an assessment is to determine why a student engages in behavior that impedes learning and how the student's behavior relates to the environment (8 NYCRR 200.1[r]). An FBA is required to identify the problem behavior, to identify the contextual factors that contribute to that behavior, and to formulate a hypothesis with regard to the general conditions under which the behavior usually occurs and the probable consequences that serve to maintain it (8 NYCRR 200.1[r]).

        The FBA prepared for the student (Exhibit 15) is incomplete and inadequate. The FBA, as completed, fails both to identify the specific conditions under which the student does well and to describe important aspects of the baseline levels of prioritized targeted behaviors. Additionally, the targeted behavior "annoying other students", is overbroad and subjective. Finally, the FBA does not formulate a hypothesis regarding the conditions under which the student's problem behaviors occur and the likely reasons why the behavior is maintained in school. Respondent should conduct an appropriate FBA of petitioner's son for the CSE to review in developing a recommended placement and program for the student. Based on the results of that document, and as part of its obligation to take into account special factors, respondent should also prepare and include in the student's IEP appropriate strategies, including positive behavioral interventions, and supports to address the student's behavior (8 NYCRR 200.4[d][3][i]; Application of a Child with a Disability, Appeal No. 99-50; Application of a Child with a Disability, Appeal No. 97-26). The IEP resulting from the January 2002 CSE meeting did not contain such strategies, which should have been developed as part of the IEP development process (8 NYCRR 200.4[d][3][i]; Application of a Child with a Disability, Appeal No. 99-56) so as to insure that the recommended program is not unduly restrictive.

        Notes from the November 6, 2000 CSE meeting reported that the student's mother and teacher noticed that he had begun to report that he smelled odors that were not present, and that this was due to anxiety. At the time of that meeting, the condition was escalating and the CSE concluded that a medical evaluation was needed (Exhibit 16). The student's anxiety continued and petitioner testified that a psychologist saw the student for a period in 2001 (Exhibit 12 p. 2, Exhibit 18). Petitioner stated at the January 14, 2002 CSE meeting that the psychologist said there was nothing wrong with the student, but she testified at the hearing that the psychologist was willing to see the student again (Exhibit 18; Transcript p. 214). The record includes a letter from the private psychologist (Exhibit H), which addressed only whether the student was impulsive or hyperactive during counseling sessions. The letter was not a psychological evaluation of the student and did not address the student's emotional condition, level of anxiety, or reports that he smelled things. Respondent has previously reported the student as oppositional, disruptive, and defiant (Exhibits 4, 9, 13). Under the circumstances, respondent must provide the student with a psychological evaluation to identify his needs in this area and to determine the basis for ongoing inappropriate behavior.

        At times, petitioner's son was unresponsive, presenting a blank stare, verbal nonsequitors, thumb sucking, and puckering of the lips (Exhibit 1). Additionally, petitioner advised those at the January 2002 CSE meeting that her son was having headaches, and these were continuing, albeit at a reduced level, at the time of the hearing (Exhibit 18; Transcript p. 224). Petitioner testified that she had consulted the student's physician and a neurologist and that a change in diet had been recommended. She also reported that an MRI had been done, which was negative (Exhibit L), and that the student's physicians advised her that the headaches might be caused by the student's school situation (Transcript p. 223). A letter petitioner provided from the neurologist mentioned, in relevant part, only that he saw the student for headaches. It contained no information about the physician's findings or conclusions in that regard (Exhibit P). Other than the negative MRI report, the record contains no information from a neurological evaluation, and it is not clear whether one was done. Nor does the record indicate whether petitioner advised the neurologist of the odors experienced by the student and whether that physician therefore had the opportunity to consider whether that might be a symptom of an underlying neurological condition which could affect his educational performance. Given the student's auditory processing deficits and his reported symptoms, respondent must provide the student with a neurological evaluation (SeeApplication of a Child with a Disability, Appeal No. 99-24).

        At the time of the hearing the student was ten years old and repeating the fourth grade. He had received resource room services and related services in the past, and the CSE had recommended that he be placed in a special class for all subject areas. However, as explained above, the existing evaluative information is inadequate and incomplete. It did not assess all relevant areas, was not sufficiently comprehensive to identify all of the student's special education needs, was insufficient to ascertain the physical, mental, behavioral, and emotional factors contributing to his disability and therefore did not provide the CSE with the information that it needed to develop an appropriate IEP to meet the student's needs in the LRE. I therefore find that the committee's recommendation that petitioner's son be placed in a self-contained special education class should be annulled (Application of a Child with a Disability, Appeal No. 01-035; Application of a Child with a Disability, Appeal No. 00-040; Application of a Child with a Disability, Appeal No. 00-033; Application of a Child with a Disability, Appeal No. 99-041), and that the circumstances of this case warrant a comprehensive reevaluation of the student as set forth above (See 8 NYCRR 200.4[b][4]).

        In light of my remand of this matter for further evaluations, I need not consider the other issues raised in this appeal.


IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent indicated; and

IT IS FURTHER ORDERED that this matter is remanded to respondent's CSE in order to conduct an FBA; to prepare and include in the student's IEP appropriate strategies, including positive behavioral interventions, and supports to address the behavior identified in the FBA; and to obtain a comprehensive reevaluation of the student as set forth herein.

Topical Index

CSE ProcessSufficiency of Evaluative Info
Educational PlacementSpecial Class12:1+1
IDEA EligibilityDisability Category/Classification
Least Restrictive Environment (LRE)
Parent Appeal
ReliefCSE Reconvene
ReliefDistrict Evaluation
Special FactorsInterfering Behaviors (FBA/BIP)