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APPLICATION OF A CHILD WITH A HANDICAPPING CONDITION, by his parent, for review of a determination of a hearing officer relating to an educational program provided by the Board of Education of the City School District of the City of New York


Neal H. Rosenberg, Esq., attorney for petitioner

Hon. Victor A. Kovner, Corporation Counsel, attorney for respondent, John L. Harrisingh, Esq. of counsel


Petitioner appeals from the determination of an impartial hearing officer which upheld the recommendation of the committee on special education (CSE) of Community School District 4 that petitioner's son be placed in a class for learning disabled pupils at P.S. 87, during the 1989-90 school year. The hearing officer also found that petitioner was not entitled to be reimbursed for the cost of his unilateral placement of the pupil in a private school for the 1989-90 school year. The appeal must be dismissed.

Petitioner's son, who will become 12 years of age later this month, has been classified as learning disabled. He has average intellectual ability. However his written communication is significantly below grade level because his graphomotor skills are deficient. The pupil's handwriting is almost illegible and his spelling skills are significantly below grade level. There is no dispute as to his classification as a learning disabled pupil in this appeal.

The pupil and his parents reside in Community School District 3. During the 1983-84 school year, petitioner's son attended kindergarten at P.S. 87, which is located within Community School District 3. The pupil's parents became dissatisfied with that school because of their son's social and academic experience in kindergarten. They obtained a placement for him as a regular education pupil at the Central Park East School, an alternative education public school which is located in Community School District 4. The pupil was referred to the CSE in January, 1986 by his teacher, because of the poor graphomotor skills he demonstrated and attentional deficits that the teacher perceived. The CSE found that the pupil did not have a handicapping condition, in view of his acceptable academic progress. However, the pupil repeated second grade during the 1986-87 school year, during which he was again referred to the CSE by his teacher. Petitioner's son was classified as learning disabled in May, 1987, when the CSE recommended that he receive resource room services one period per day. The pupil remained in a regular education program with resource room assistance for the 1987-88 and 1988-89 school years at the Central Park East School.

In March, 1989, the pupil's parents requested that the CSE re-evaluate their son. On June 26, 1989, the CSE recommended that the student continue to be placed in a regular education class with the assistance of resource room services during the 1989-90 school year. However, the CSE reconvened on July 6, 1989, at the request of the pupil's mother, at which time the CSE considered additional data from the staff of the pupil's school. The CSE then recommended that the pupil be placed in a Modified Instructional Services I (MIS-I) program at a site to be determined by Community School District 3. On July 14, 1989, the CSE advised petitioner that a placement was available for his son in a MIS-I class at P.S. 87 in Community School District 3.

In September, 1989, petitioner placed his son in the Churchill School, an approved private school for the education of children with handicapping conditions. In November, 1989, the pupil's parents advised respondent that the recommended placement of July 14, 1989 was unsatisfactory, and requested an impartial hearing. In a decision dated July 5, 1990, the hearing officer found that the MIS-I class at P.S. 87 was appropriate for petitioner's son, and denied petitioner's request for reimbursement of his expenditures for tuition at the Churchill School.

Petitioner does not object to the MIS-I program, but he maintains that it was arbitrary for CSE to recommend a MIS-I class at P.S. 87, in view petitioner's opposition to any placement in that school and his son's prior experience in kindergarten at P.S. 87.

Upon the record before me, it is clear that a MIS-I program is appropriate to meet the pupil's needs. The proposed placement would afford petitioner's son the opportunity to receive small group instruction in reading and mathematics, as well as individual handwriting instruction. A resource room devoted exclusively to assistance in handwriting is also available. A supervisor of special education at P.S. 87 testified at the hearing that counseling could be provided, if necessary. The pupil presently receives counseling from a private therapist. In preparing the Phase II IEP, the CSE of Community School District 3 should consider whether counseling is an appropriate related service for this pupil.

Petitioner objects to his son's placement in P.S. 87 because of the size of the school and the bad memories his son has of the school. I have considered the testimony of the pupil's psychologist, as well as that of his present and former teachers as to the pupil's social skills and needs, particularly in unstructured settings such as school recess and lunch. However, I am not persuaded that the pupil cannot successfully function socially with larger groups of students in non-academic activities. Although the pupil had an unhappy experience in a regular kindergarten class at P.S. 87 six years before his proposed return to that school, it does not follow that any subsequent placement in such school is inappropriate.

In essence, petitioner asks me to find that the proposed placement is inappropriate based on speculation that his son will not adjust to the recommended class. However, it is well settled that speculation as to a child's ability to adjust to a new placement is an insufficient basis to conclude that such placement is inappropriate (Application of a Handicapped Child, 18 Ed. Dept. Rep. 597; Application of a Handicapped Child, 21 id. 8; Application of a Child with a Handicapping Condition, 28 id 498; and Application of a Child with a Handicapping Condition, 29 id 240).

Petitioner also maintains that the CSE should have afforded him with a choice of placement options. This contention is without basis in law. The federal regulation, 34 CFR 300.551, upon which petitioner relies, requires each public agency to insure that a continuum of alternative placements is available. It does not require the agency to offer a choice of more than one of the same kind of class or program.

In view of the fact that petitioner was offered an appropriate placement for his son on a timely basis, he is not entitled to reimbursement for his son's tuition at the Churchill School for the 1989-90 school year. A parent is entitled to tuition reimbursement, only if it is established that the placement recommended by the CSE is inappropriate, that the placement selected by the parents is appropriate, and that equitable considerations support the claim for reimbursement (School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359; Application of a Child with a Handicapping Condition, 27 Ed. Dept. Rep. 284). In this instance, respondent has established that the placement offered by its CSE was appropriate.


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