92-031

Petitioners appeal from a decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioners' child be classified as emotionally disturbed and be enrolled in a modified instructional services-II (MIS-II) program, with counseling. The appeal must be sustained.

The child is nine years old. On April 17, 1991, the child's mother referred the child to the CSE for an evaluation, because of behavioral difficulties. An assistant principal of P.S. 191 testified at the hearing that the child was enrolled in two third grade classes taught by teachers with different management styles during the 1990-91 school year, but that both teachers had difficulty controlling the child. Subsequently, on April 10, 1992, a psychiatrist diagnosed the child as having an attention deficit disorder with hyperactivity.

In a psychological evaluation in May, 1991, the child was found to be functioning within the normal range of intelligence, with a full-scale IQ of 100. The evaluator reported that the child had strengths in visual-motor analysis, visual alertness and his fund of general knowledge, but that he had a severe deficit in basic arithmetic skills and weaknesses in concentration and attention span. The evaluator further reported that the child's graphomotor ability was delayed by up to two years, because of emotional factors. On the basis of projective testing, the evaluator opined that the child was immature, with weak controls, and that he failed to assume sufficient responsibility for his actions. At the hearing, the child's evaluator testified that the child acted as if he didn't care, as a way of hiding intense feelings which the child did not wish to reveal because it would make him feel more anxious and vulnerable. Finding that the child displayed aggression as the result of punishment at home, the evaluator recommended that the child receive counseling.

An educational evaluation of the child in May, 1991, when the child had almost completed third grade, revealed that his language skills were at a beginning third grade level, while his reading decoding skills were at a 3.6 grade level equivalent and his reading comprehension skills were at a 4.2 grade level equivalent. However, the child's mathematic computation skills were at a 2.5 grade level equivalent and his applied mathematics skills were at a 1.6 grade level equivalent. The evaluator reported that the child's written language skills, including punctuation and spelling were at a 1.7 grade level equivalent, and his sentence writing ability was at a 1.4 grade level equivalent. The educational evaluator testified that he had re-evaluated the child in April, 1992, and that the child had made little or no improvement in either reading or mathematics since his May, 1991 evaluation.

On June 12, 1991, without the benefit of a classroom observation,the CSE recommended that the child be classified as emotionally disturbed and be enrolled in the MIS-II program with counseling (cf. 8 NYCRR 200.4 [b][4][vii]). A classroom observation of the child was made 5 days later on June 17, 1991. The observer reported that the child left his seat in class, but sat down at the request of his teacher.

Petitioners did not accept the CSE's recommendation. However, they agreed to seek private counseling for the child, which commenced at the Interfaith Brooklyn Jewish Hospital in June, 1991. For the 1991-92 school year, the child continued in regular education for fourth grade. The assistant principal testified that the child had been placed with four fourth grade teachers during the 1991-92 school year, but that the child's behavior had not improved in any of the classes in which he was placed. In February, 1992, petitioners met with a school based support team which urged them to accept the CSE recommendation. Petitioners requested that they and their pastor be afforded a two month period to work with the child, before respondent acted to change the child's program. On March 4, 1992, the CSE reconvened, and again recommended that the child be classified as emotionally disturbed and placed in the MIS-II program with individual counseling for 30 minutes each week. On March 20, 1992, petitioners were offered a specific placement for the child at P.S. 221.

On March 23, 1992, petitioners requested that an impartial hearing be held to review the CSE's recommendation. The hearing was held on May 12, 1992. By decision dated June 23, 1992, the hearing officer held that the child would be appropriately classified as emotionally disturbed, because the child was unable to build or maintain satisfactory personal relationships with peers and teachers and had exhibited inappropriate behavior under normal circumstances. The hearing officer further held that the MIS-II program was appropriate and that the child would have been appropriately placed with children having similar needs in the MIS-II class at P.S. 221.

Petitioners dispute the child's proposed classification. They assert that the child is hyperactive, but not emotionally disturbed. Petitioners rely upon the advice of the child's private therapist that the child's behavior will change in time. They assert that the hearing officer disregarded their efforts to assist the child with counseling and medication to control his hyperactivity, and that the child is attending summer school to remediate his educational deficiencies. With regard to the proposed MIS-II class, petitioners assert that the class profile offered in evidence by respondent establishes that their child would be at or near the top of the class academically, and that as a consequence, he would be bored and likely to misbehave in that class.

Respondent asserts that the decision of the hearing officer with respect to the child's classification and placement is amply supported by the record. However, respondent also asserts that it is premature for me to consider the appeal on its merits because of the acknowledged fatal flaw in the composition of the CSE at its June 12, 1991 meeting.

Section 4402 (1)(b)(1) of the Education Law requires each board of eduction to establish a CSE composed of at least a school psychologist, a teacher or administrator of special education, a school physician and a parent of a child with a handicapping condition. The presence of the physician member of the CSE is not mandatory, unless requested by a child's parents. However a board of education may not dispense with the attendance of the other members of a CSE. Respondent concedes that there was no parent member of the CSE at the June 12, 1991 meeting. Although that defect could have been cured by a properly composed CSE at the subsequent March 4, 1992 meeting, I find that no parent member attended that meeting, either, as established by the list of participants which appears on the child's individualized education program (IEP). In the absence of a validly composed CSE, I must invalidate the child's IEP prepared by the CSE (Application of a Child with a Handicapping Condition, Appeal No. 92-26; Application of a Child with a Handicapping Condition, Appeal No. 92-9; Application of a Child with a Handicapping Condition, Appeal No. 92-41).

Even if a parent member of the CSE had been present at the March 4, 1992 meeting, respondent has failed to demonstrate that it complied with the requirement of Federal and State regulations that the child's teacher also be present at the CSE meeting (34 CFR 300.344 [a][2]; 8 NYCRR 200.4 [c][3]). In the case of a child not previously classified as having a handicapping condition, either the child's regular teacher or a teacher qualified to provide instruction in the area of the child's suspected disability must be present at the CSE meeting (34 CFR Part 300, Appendix C, Question 15). The child's IEP reveals that his regular education fourth grade teacher did not attend the March 4, 1992 CSE meeting. The individual who performed the educational evaluation of the child and who testified at the hearing that he was licensed to teach special education did participate in the March 4, 1992 meeting. However, I note that there are various certificates and licenses for teaching children with different kinds of disabilities, and there is no proof in this record that the evaluator was qualified to teach emotionally disturbed children. If respondent wishes to meet the requirement of the child's teacher's presence at the CSE meeting with an evaluator, the burden is on the respondent to show that the evaluator was specifically qualified to teach the child with the disability in question.

Lastly, I note that the hearing officer referred in his decision to a description of the MIS-II program apparently published by respondent, in finding that such program would be appropriate for the child. However, neither the document nor the portion thereof quoted by the hearing officer is part of the record. A hearing officer's use of documents which are not part of the record, no matter how well intended, is improper (Application of a Child with a Handicapping Condition, Appeal No. 92-26; Application of a Child with a 2Handicapping Condition, Appeal No. 92-13; Application of a Child with a Handicapping Condition, Appeal No. 90-16).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer be, and the same hereby is, annulled.