The State Education Department
State Review Officer

No. 01-023

 

 

 

 

 

Application of a CHILD WITH A DISABILITY, by his parents, 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 Rochester

 

Appearances:
Michael J. Looby, Esq. attorney for respondent, Donald T. Schmitt, Esq., of counsel

 

DECISION

        Petitioners appeal from an impartial hearing officer’s decision which upheld the recommendation of respondent’s combined Committee on Preschool Special Education (CPSE) and Committee on Special Education (CSE) that their son be placed in a half-day general education kindergarten class within the district during the 2000-01 school year. The appeal must be sustained in part.

        Petitioners' son was initially referred to the CPSE in 1998 because of suspected speech/language needs (Exhibit 13). The child was evaluated in December 1998 at the Rochester Hearing and Speech Center. The evaluator reported that petitioners’ son exhibited a severe delay in pragmatic language, a delay in syntax, and a moderate delay in speech articulation (Exhibit 15). On January 22, 1999, the child was classified by the CPSE as a pre-school student with a disability. The CPSE recommended that the child be placed in an integrated preschool special education class, and that he receive speech/language therapy three times per week for 30 minutes per session, for the balance of the 1998-99 school year (Transcript p. 5). It made the same recommendation for the 1999-2000 school year because of the severity of his expressive language and social/emotional needs (Transcript p. 5). During that school year, he was enrolled in a half-day integrated preschool special education class at the East Irondequoit Early Childhood Center operated by the local BOCES.

        On June 7, 2000, a combined CPSE/CSE meeting was held to review the child's program during the 1999-2000 school year, and to plan a program for him as a school-aged child during the 2000-01 school year. The CPSE recommended the continuation of the child’s current program for the remainder of the 1999-2000 school year. The CSE recommended that the child be classified as other health impaired, and be placed in respondent’s general education kindergarten program. It also recommended that he receive 60 minutes of consultant teacher services twice a week, 30 minutes of speech/language therapy three times per week, and that he have the services of a full time one-to-one aide (Exhibit 10). The child was assigned to respondent’s School No. 23, his neighborhood school, which has a morning and afternoon half-day kindergarten program.

        The child's parents requested an impartial hearing on July 19, 2000 because they did not agree with the placement recommended by the CSE. The parents believed that the child should remain in his existing placement in a pre-kindergarten class at the East Irondequoit Early Childhood Center. An impartial hearing officer was appointed on August 21, 2000 (Exhibit 6). At the end of September, the child’s parents requested a delay in the scheduling of the hearing in order to pursue mediation. Since both parties agreed to mediation, the commencement of the requested hearing was deferred, pending the outcome of mediation. The hearing officer retained jurisdiction (Exhibit 5).

        On November 9, 2000, respondent informed the hearing officer that the attempt to mediate the matter had been unsuccessful. On November 10, 2000 the child's parents requested an additional delay in the scheduling of a hearing in order to obtain counsel in this matter. The parents were given until the end of November to find counsel. On December 1, 2000 the hearing officer was advised that the parents had secured the services of an attorney. The parties agreed to a January 19th hearing date. On December 21, 2000, the hearing officer received a letter from the parent advising him that the attorney they had hired was withdrawing from the case.

        Although there was a discussion about postponing the hearing, the parents agreed to represent themselves at the hearing. The hearing was held on January 19, 2001. The District presented three witnesses and offered 19 exhibits into evidence. The child's parent presented one witness. The hearing officer rendered his decision on February 17, 2001. He found that the educational program that respondent’s CSE had recommended for petitioners’ child would have been appropriate to meet this child’s needs during the 2000-01 school year.

        Petitioners object to the way in which the CSE chairperson conducted the June 7, 2000 meeting. They assert that the chairperson’s handling of the meeting deprived them of the opportunity to meaningfully participate in the meeting. In addition, petitioners contend that the CSE’s recommended program is contrary to the recommendations of the child’s special education teacher and his speech/language therapist during the 1999-2000 school year, as well as that by a physician who had examined the boy in April 2000. They brought this appeal in March 2001, with the request that their son be allowed to stay in the BOCES preschool program for the remainder of the 2000-01 school year.

        The initial question which I must address is whether the central issue in this appeal, i.e. the appropriateness of the educational program recommended by the CSE for the 2000-01 school year has become moot by the passage of time. The school year in question was virtually over before this appeal was commenced in March 2001. The relief that petitioners seek is available to them as a matter of law because of the pendency provisions of federal and state law (20 U.S.C. §1415 [j]; New York Education Law § 4404[4]). The pendency provisions apply even when a child is transitioning from preschool to a school-age program (Application of a Child with a Disability, Appeal No. 96-48; Application of a Child with a Disability, Appeal No. 00-037; Application of a Disability, Appeal No. 01-003). Pendency protects against a unilateral change in a child’s placement, such as a material alteration of a student’s educational program. It does not mean that a child must remain in a particular site or location (Application of the Board of Educ., Appeal No. 99-90), or at a particular grade level (Application of a Child with a Disability, Appeal No. 95-16). Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F. 2d at 904 [2d Cir. 1982]; Drinker v. Colonial School District, 78 F. 3d 859 [3d Cir. 1996]).

        Respondent was required to maintain this child’s pendency placement, i.e., last agreed upon placement as of the time when petitioners commenced this proceeding by requesting an impartial hearing to review the CSE’s recommendations. Its obligation to do so has continued through the pendency of this appeal. I find that no useful purpose would be served by reviewing the appropriateness of the program that the CSE had recommended for the 2000-01 school year (Application of a Child with a Disability, Appeal No. 00-037).

 

         THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

        IT IS ORDERED that respondent shall pay for the student’s education during the 2000-01 school year, in accordance with the tenor of this decision.

 

 

Dated:

Albany, New York

 

__________________________

 

January 22, 2002

 

ROBERT G. BENTLEY