The State Education Department
State Review Officer

No. 99-60

 

 

 

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

 

Appearances:
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, William S. Plache, Esq., of counsel

DECISION

        Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent’s committee on special education (CSE) that Margaret Chapman School (MCS), a private school in Hawthorne, New York, was an appropriate placement for her grandson. The appeal must be sustained.

        Preliminarily, I will address a procedural issue raised in this appeal. Respondent asks that I accept its answer, which was not served within the prescribed time frame (cf. 8 NYCRR 279.5). The record shows that petitioner consented to several requests by respondent to extend its time to file an answer, ultimately agreeing to an extension until June 16, 2000. Respondent filed its answer on June 2, 2000. I will accept respondent’s answer as it was filed within the agreed upon time frame.

        Petitioner is the grandmother and legal guardian of the boy, who was 19 years old and a residential student at MCS at the time of the hearing. MCS is approved by the New York State Education Department to provide education to children with disabilities. The record is unclear with respect to the boy’s early history with the CSE. He apparently began receiving early intervention services at the age of three (Exhibit 42). Upon entering the public schools in 1985, he was classified as mentally retarded and was placed in various specialized instructional environment programs within the district (Exhibits 42, 48, 49). On December 2, 1992, the CSE amended the boy’s individualized education program (IEP) to provide that he be classified as mentally retarded/autistic. The CSE recommended that the child be placed in a residential setting with related services because of his severe behavioral and academic needs (Exhibit 42). The boy was placed at MCS by respondent in February, 1993 (Exhibit 7). He remained at MCS through the impartial hearing.

        The record shows that petitioner has made various complaints about her grandson’s education and care throughout his six years at MCS. On March 15, 1999, she requested an impartial hearing because her grandson had reportedly not been receiving speech/language therapy and other related services while at MCS. She also claimed that the CSE never observed her grandson at MCS, and that it failed to follow-up on her complaints. Further, petitioner claimed that officials at MCS refused to provide progress reports, and refused to participate in her grandson’s CSE meetings (Parent’s Exhibit I).

        The impartial hearing was held on April 16 and 29, 1999. I must note that the boy’s IEP for the 1998-99 school year was not introduced into evidence. The CSE representative indicated that the boy was being re-evaluated. The hearing officer agreed to adjourn the hearing to allow time for the parties to exchange information, and to complete certain evaluations. He also directed that the CSE complete its review of the new evaluation data by no later than May 7, 1999.

        The hearing resumed on April 29, 1999. The boy’s IEP reportedly provided that the boy would receive 30 minutes of speech/language therapy twice per week. The MCS Director of Education testified at the hearing that MCS was unable to provide speech/language therapy to the boy during the 1998-99 school year because of a staff shortage. She further testified that she had notified respondent of that fact in a letter dated October 14, 1998 (Exhibit 12). Respondent’s representative at the hearing acknowledged that she had become aware of petitioner’s concerns about her grandson’s lack of speech/language therapy. She testified that petitioner had been offered an authorization to obtain speech/language therapy from an approved provider, at respondent’s expense, and that it was up to petitioner to obtain that service (Transcript p. 126). The representative indicated that the CSE had obtained new evaluations of the boy, and that it was willing to work with petitioner to obtain a new placement for her grandson. The boy’s teacher at MCS and the MCS Director of Quality Assurance testified about the services which had been provided to the boy. The latter also testified about the outcome of the investigations conducted by the Commission on Quality Care with regard to complaints which petitioner had filed against MCS.

        The hearing officer rendered his decision on June 3, 1999. He did not refer to the recently completed evaluations, or to the CSE’s review of them pursuant to his interim order. The hearing officer found that respondent had met its burden of demonstrating that the boy’s placement at MCS was appropriate.

        Petitioner appeals from the hearing officer’s decision. She claims that her grandson was not provided with an appropriate education while at MCS, and that he didn’t receive all of the services set forth on his IEP. Additionally, she challenges the validity of the boy’s evaluations, and the most recent CSE meeting, which occurred on May 13, 1999, after the impartial hearing was completed.

        I must first note that my jurisdiction is limited to reviewing matters which have been presented first to a hearing officer. While I may accept documentary evidence which was not available at the time of the hearing, petitioner’s objections to those evaluations and to the CSE meeting must first be considered by an impartial hearing officer. I must further note that while petitioner appears to be challenging the educational program provided to her son by MCS over the course of a number of school years, there is no evidence that she ever requested a hearing to review her grandson’s IEPs prior to the 1998-99 school year. Consequently, I will not address her challenges to programs provided prior to the 1998-99 school year. However, as noted above, the boy’s IEP for the 1998-99 school year was not introduced into evidence.

        The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 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 child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). As there is no IEP in the record for the 1998-99 school year, I am compelled to find that respondent has not meet its burden of proving the appropriateness of the recommended program. In addition, I must find that petitioner’s claim of failure to implement the boy’s IEP must be sustained, in light of the acknowledged failure of either respondent or MCS to provide the speech/language therapy the boy was supposed to receive during the 1998-99 school year.

        I have reviewed petitioner’s other claims which I find to be without merit. I must note that allegations of physical abuse are beyond the jurisdiction of this office, and are appropriately addressed to the Commission on Quality Care. Additionally, I do not review issues which were not raised at the impartial hearing (Application of a Child with a Disability, Appeal No. 98-14). I urge the parties to work together to arrive at a mutually satisfactory placement determination.

 

        THE APPEAL IS SUSTAINED.

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

        IT IS FURTHER ORDERED that the case is remanded to respondent to have its CSE reconvene to review the boy’s current educational needs, and to recommend an appropriate educational program and placement for him. In doing so, the CSE should consider how to make-up for the speech/language therapy which the boy did not receive during the 1998-99 school year.

 

 

 

 

Dated: Albany, New York __________________________
September 1, 2000 JOSEPH P. FREY