91-035

Procedural Issues

The first issue to be determined is whether the child's parents, the respondents in this appeal, have been properly served with a copy of the notice and petition in this appeal. State regulations require that a copy of the notice and petition be personally served upon, i.e. physically handed to, each respondent, unless the respondent cannot be located after a diligent search has been made (8 NYCRR 275.8 and 279.1). If the respondent cannot be located after a diligent attempt to do so, the notice and petition may be left with a person of suitable age and discretion at the respondent's home, or may be served as otherwise directed by the State Review Officer (Ibid).

Petitioner offers the affidavits of two individuals who attempted to serve the notice and petition upon respondents at their residence on five different occasions between September 26 and October 3, 1991. On all but one occasion, the process servers assert that they were met at the door by a child, who stated that his parents were not home. On September 27, the second attempt to serve the papers, a person who identified herself as a babysitter answered the door and stated that respondents were not present. Copies of the papers were not left with the individual. Finally, petitioner requested on October 3, 1991 that I authorize it to serve the papers by an alternative method, and petitioner was advised on that date that it could serve the notice and petition by certified mail and a second copy by regular mail, in addition to leaving copies at the door of respondents' house (see Civil Practice Law and Rules Section 308). The affidavit of service shows that the notice and petition were mailed on October 3, 1991 and left at the respondents' door on the same date.

Respondents admit receiving the copies of the notice and petition served upon them through the mail and left at their door. However, they contest the validity of the affidavits by petitioner's process servers, because they deny that they employ babysitters. Nonetheless, they do not deny that petitioner did attempt to serve them or that the process server was met at the door by their teen-age son. The primary purpose of the requirement that the notice and petition be personally served is to assure that the respondent is made aware of the fact that an appeal has been taken. That purpose has been appropriately met. Accordingly, I find that the respondents were properly served with the notice and the petition.

Annexed to respondents' answer is an affidavit of personal service of the answer upon petitioner's attorney. However, now petitioner's attorney has submitted an affidavit contesting service of the answer, and denies that he was personally served with a copy of the answer, or that he was served by any other means. At the request of petitioner's attorney, a copy of the answer was timely sent to him by the Office of State Review. Under the circumstances, I find that petitioner has received a copy of the answer, and I will not reject the answer on the grounds of an alleged failure to serve petitioner.

Respondents assert that the appeal is untimely, because it was commenced in excess of 30 days after the hearing officer rendered his decision. State Regulation requires that an appeal from a hearing officer's decision be commenced within 30 days after receipt of the decision to be reviewed (8 NYCRR 279.2). Petitioner did not allege in its petition when it received the hearing officer's decision, which was dated August 26, 1991. However, petitioner's attorney asserted by affidavit that the hearing officer's decision was received by petitioner on September 3, 1991. Petitioner first attempted personal service of the notice and petition on September 26, 1991 and made substantial diligent efforts to effectuate service. Accordingly, I find that the appeal is timely.

Substantive Issues

The child has received instruction at home since 1988, but he was not referred to the CSE until 1990. Prior to his classification as a child with a handicapping condition, a dispute arose between the child's parents and the school district with regard to whether the child could continue to receive home instruction. At an impartial hearing held on October 10, 1990, the parents were advised of the district's intention to discontinue the child's home instruction, and were further advised that the child would be admitted to school. On October 11, 1990, the child attended school, but collapsed in school and was sent to a local hospital.

Upon his release from the local hospital, the child was sent to the New York Hospital-Cornell Medical Center (Cornell) in New York City, where he underwent testing in Cornell's pediatric endocrinology unit. The Cornell report is not included in the record in this appeal. However, a psychologist affiliated with a local hospital testified at the hearing that in January 1991, a Cornell physician advised him that the child had hypertension and restrictive lung disease, which might be attributed to his obesity, and that Cornell was recommending that the child be evaluated and treated at the Blythedale Childrens Hospital.

On October 15, 1990, petitioners CSE classified the child as other health impaired. Although the exact basis for the CSE's classification of the child is not revealed in the record, the IEP which the CSE prepared for the child refers to possible Cushing's Syndrome, hypertension, lactose intolerance, gastrointestinal problems and difficulty on steps and walking from class to class. Neither party has challenged the child's classification.

The child's IEP provided for 1:1 instruction at the child's home, with individual reading improvement service to be provided five times per week. The IEP also provided for the waiver of time limits on testing. The child's mother consented to the implementation of the IEP. However, she also requested that an impartial hearing be held to determine whether the IEP should be amended to include the provision of a word processor to assist the child with his written assignments.

The hearing commenced on December 4, 1990, with additional days of hearing on January 18 and 30 and February 14, 1991. The parties agreed to a lengthy delay in the submission of closing written arguments. In a decision dated August 26, 1991, the impartial hearing officer held that the child's IEP should be amended to include a word processor as specialized equipment, based upon the testimony of four of the child's teachers. The hearing officer rejected petitioner's suggestion that the child use his mother's typewriter, because the hearing officer concluded that a word processor would be a better tool in the learning and expressive process.

Petitioner asserts that the hearing officer's decision is arbitrary, because it includes erroneous facts, suggesting that the hearing officer may have considered evidence adduced in other hearings involving the child's siblings. Specifically, petitioner relies upon a misstatement by the hearing officer that the hearing was conducted on March 8, 1991. I find that petitioner's assertion is merely conjecture, and does not offer a basis for concluding that the hearing officer relied upon evidence outside of the record in rendering his decision.

Petitioner next asserts that the parents' case was premised upon an assertion that the child had a medical need which required that he use a word processor, but that the parents failed to adduce any evidence of such medical need. With regard to an educational basis for the use of a word processor, petitioner relies upon the testimony of its acting CSE chairperson, who is a school psychologist, that the child's coordination and visual motor skills were above normal. The acting chairperson testified that a word processor would normally be provided only if a child was not able to write or to manipulate his hands. Another school psychologist, who evaluated the child in July, 1990, testified that the child had an above-average IQ and had scored at average or above on all subtests, except that for coding, i.e. a timed visual motor copying task. The school psychologist testified that the child had scored poorly on a test of his auditory attention, and also demonstrated internal distractibility and difficulty processing information. Both psychologists opined that the child did not require the use of a word processor. Although the psychologist who had evaluated the child noted in his report that the child had a deficit in written expression, the psychologist testified at the hearing that he had not formally tested the child's written expression. The acting CSE chairperson testified that the child had passed the New York State Preliminary Competency Test in writing, while he was in the eighth grade during the 1989-90 school year.

Four teachers who had or were providing home instruction to the child testified on behalf of the parents. The child's mathematics teacher for the 1988-89 and 1989-90 school years testified that the child was proficient in mathematics, and that his hand writing was messy, but not unusually so. The child's teacher for social studies in the 1989-90 school year testified that the child had good verbal skills, but that his writing skills were less well developed. The teacher stated that the child took longer than most children to write his notes. The child's English teacher for the 1988-89 and 1989-90 school years testified that she had provided the child with a modified curriculum in the 1988-89 school year, because he lacked some basic English skills. The teacher further testified that, although the child's handwriting was always clear, he had difficulty in writing, and that he required a great deal of time in formulating his answers. The child's social studies teacher for the 1990-91 school year testified that he had taken notes for the child since the October, 1990 incident where the child collapsed in school, because the child appeared to function at a lower level than he had prior to that incident. Although the child had initially kept up with the requirements of his course, the teacher testified that he had fallen behind since the October incident. The teacher opined that a word processor would be educationally beneficial to the child.

Although not referred to by the hearing officer in his decision, I note that the record also includes a January 25, 1991 letter from the child's English teacher for the 1990-91 school year to the child's guidance counselor. The English teacher reported that the child could no longer accomplish the ninth grade curriculum in English. Attached to the teacher's letter was a sample of the child's September, 1990 writing, which the teacher assessed as being at the ninth grade level. Also attached to the letter were two of the child's writing samples completed in November, 1990 and January, 1991, which were representative of his work since the October, 1990 incident. The teacher stated, in part that:

"He does not have the ability to write in long hand the words and phrases necessary. His compositions in addition to his handwriting problem are extremely short, lack depth of thought and understanding, and barely meet the goal of the assignment. Again one of the problems seems to be just writing a simple paragraph requires intensive effort."

In the absence of any formal evaluation of the child's expressive ability, as well as the testimony of the child's teachers, about his difficulty with written expression and the samples of the child's written work, I find that the hearing officer's decision is supported by substantial evidence. The child exhibits a need for assistance in his written expression. The use of a word processor is an appropriate form of assistance.

THE APPEAL IS DISMISSED.