University of the State of New York Emblem

The State Education Department
State Review Officer

No. 93-05

 

Application of a CHILD WITH 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

Appearances:

Neal H. Rosenberg, Esq., attorney for petitioner, Michele Kule-Korgood, Esq., of counsel

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Sergio J. Tuero, Esq., of counsel

DECISION

Petitioner appeals from the decision of an impartial hearing officer which held that the proposed transfer of petitioner's child from a specialized instructional environment-I (SIE-I) class in P. 811 to a SIE-I class in P. 168 would provide the child with an appropriate program in a less restrictive setting. The appeal must be sustained.

Petitioner is the foster parent of the child, and has raised the child almost from birth. For purposes of this appeal, petitioner is the child's parent (8 NYCRR 200.1 [ac]). The child will be 13 years old this month. She has cerebral palsy, and has been found to be mildly retarded. The child has hydrocephalus, a disorder of the central nervous system. A shunt relieves the pressure of fluid upon the child's brain. The child is ambulatory, but reportedly requires some assistance walking and/or climbing stairs. The child wears eyeglasses. The child's expressive and receptive language skills are equivalent to those of a four year old child. The child is classified as multiply handicapped, now multiply disabled (8 NYCRR 200.1 [am][8]). Her classification is not disputed.

Since 1986, the child has attended school in P. 811, within I.S. 84, which is located in Community School District 12. All children from the age of 5 through 21 who attend P. 811 are enrolled in SIE-I classes. Respondent has adopted a policy of phasing out the SIE-I classes for older children enrolled in P. 811, and plans to transfer the children to SIE-I classes in schools which do not serve disabled children exclusively and which are nearer to the children's homes.

In October, 1992, petitioner was notified of respondent's intention to transfer the child to a SIE-I class in P. 168. P. 168 is within I.S. 162, which is located in Community School District 7 where the child resides. The school is approximately eight blocks from the child's residence. I.S. 162 provides regular education to children up through the eighth grade, as well as special education to children who are enrolled in the SIE-I program or in respondent's modified instructional services-I (MIS-I) program for less severely disabled children.

After visiting P. 168, petitioner informed respondent that she would not agree to the child's transfer, and requested that an impartial hearing be held. The hearing was held on December 7, 1992. In a decision dated December 29, 1992, the hearing officer held that the proposed transfer was appropriate because the child would receive the same services she is now receiving and because respondent had established that the child would be grouped with children having similar abilities and needs as required by State regulation (8 NYCRR 200.6 [a][3]). The hearing officer further held that the SIE-I program in P. 168 would be the least restrictive environment because of its proximity to the child's home and because regular education classes are taught in the same building.

Petitioner asserts that the child cannot be transferred to another location, absent a finding that the child's program in the present location is inappropriate. As an abstract proposition, petitioner's assertion is untenable (Concerned Parents and Citizens for the Continuing Education at Malcolm X (P.S. 79) et al. v. New York City Board of Education et al., No. 80-7300, [2d Cir., 1980], EHLR 552:147). Indeed, a change in location is not per se a change in program (8 NYCRR 200.1 [e]), or a change in placement (8 NYCRR 200.1 [f]). However, a change of location which involves moving a child's program from a more restrictive setting to a less restrictive setting is a change of placement for purposes of the pendency provisions of Federal and State law (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 92).

In this instance, the child's educational program would not ostensibly be changed by the proposed transfer. However, petitioner has raised serious questions about the manner in which the child's management needs would be met in the proposed site. Petitioner asserts that the child is severely physically disabled and cannot walk more than a short distance. In a written statement in the record and in her testimony, petitioner expressed concern for the child's safety in a school where she might be jostled in the hallways by other children and sustain injury if her shunt became dislodged. In her petition, petitioner asserts that the child in her present school has a restroom in close proximity to her classroom and there are railings in the hallways which the child can use as stabilizing aids. Petitioner further asserts that in the proposed placement the nearest restroom is quite far from the classroom and there are no railings in the hallways. Respondent generally denies petitioner's assertion, but offers nothing to rebut her assertions.

At the hearing, the supervisor of SIE-I classes at P. 168 testified that the child can walk unassisted, but qualified her testimony by stating:

"But I would venture to say that she [the child] still needs assistance in walking in crowds and walking in the hallways and on stairs." (Transcript pp. 23-24)

The witness did not explain what if any assistance would be provided to the child, other than the general statement that children in the SIE-I classes are always accompanied by adults. Remarkably, none of respondent's witnesses had any personal knowledge of the child or her needs. State regulation requires that a child's individualized education program (IEP) include a description of the child's levels of performance and needs in each of four areas, including management needs (8 NYCRR 200.4 [c[[2][i]). Management needs include the nature of, and degree to which, environmental modifications and human or material resources are required to enable the child to benefit from instruction (8 NYCRR 200.1 [ak][2][i][d]). The child's IEP is not part of the record before me. Nor is there any other basis in the record for determining what her needs are and how they would be met in the proposed placement. It is the responsibility of the CSE to consider all of the child's needs in making a placement recommendation. However, there is no evidence in the record to establish that the CSE has even considered the matter.

In view of the rapidly impending end of the 1992-93 school year, there is no purpose in having the CSE recommend a placement for the remainder of the school year. The child will remain in her present placement for the duration of the 1992-93 school year.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled.

 

Dated:             Albany, New York                                     _________________________

                        May 19, 1993                                               HENRY A. FERNANDEZ