91-039

Petitioner's child has not previously been classified as a child with a handicapping condition. In September, 1986, the child entered kindergarten at respondent's P.S. 94. Although Spanish was spoken in the child's home, the child performed well enough on an English as a second language assessment that respondent determined that the child did not require bilingual instruction. The child was promoted to first grade for the 1987-88 school year. The decision of a hearing officer in a prior hearing reveals that the child received counseling during the 1987-88 school year, and that he was transferred twice from one first grade class to another on October 29, 1987 and February 11, 1988. Although the child received satisfactory grades in some subjects, his cumulative record reveals that his personal and social development skills were each found to be unsatisfactory during the 1987-88 and the next two school years.

The child was promoted to second grade for the 1988-89 school year, during which he was placed in a small class in order to provide individual assistance. In June, 1989, the child was recommended for a summer tutorial program and he was retained in second grade. In November, 1989, the child was referred by his teacher to the CSE because of educational and behavioral difficulties. He was suspended from school in November, 1989, for assaulting another child, and in June, 1990, for tripping a teacher. The CSE did not evaluate the child, because his parent declined to give consent to an evaluation. The child was enrolled in third grade for the 1990-91 school year. In October, 1990, the child was referred to the CSE because of his short attention span in class and behavioral difficulties with peers. When his parent refused to consent to an evaluation, respondent initiated an impartial hearing to obtain authorization to conduct an evaluation without petitioner's consent. In a decision dated December 26, 1990, a hearing officer ordered that the child be evaluated, before the child was transferred to another school as requested by petitioner.

In January 1991, the child was transferred at his parent's request to P.S. 124. An educational evaluation was completed on February 6, 1991, and a psychological evaluation was completed on February 8, 1991. A social history was prepared on February 19, 1991. Classroom observations of the child were made on February 8 and 19, 1991, as well as in March, 1991.

On March 2, 1991, the CSE recommended that the child be classified as emotionally disturbed, and that he be placed in an MIS-II class with counseling in a group of not more than 5 children for 30 minutes each week. Petitioner did not consent to have the child placed in a special class. On May 21, 1991, the principal of P.S. 134 requested that an impartial hearing be held to obtain authorization to place the child in an MIS-II class without petitioner's consent.

A hearing was held on June 14, 1991. In a decision dated July 10, 1991, a hearing officer found that respondent had sustained its burden of proving the appropriateness of the recommended classification and placement. The hearing officer found that the child's poor educational performance, including scores of 3 percent and 9 percent on a city-wide test of reading and mathematics, respectively, was attributable to his internal conflicts and anxiety as revealed in his psychological evaluation. The hearing officer further found that the child had demonstrated sufficient facility in English that bilingual evaluations were unnecessary. Noting that petitioner had expressed a desire to obtain an independent evaluation, the hearing officer stated that petitioner had already had an adequate opportunity to obtain such an evaluation, but had not done so. The hearing officer directed that the child be placed in the MIS-II program at P.S. 38 and that he receive counseling as a related service.

Petitioner challenges the decision of the hearing officer, on the ground that there is insufficient clinical evidence to support the hearing officer's findings, and asserts that the psychological evaluation upon which the hearing officer relied was flawed and conclusory. Petitioner also asserts that she was denied due process of law at the hearing because the hearing officer did not ask her if she had any questions for each witness.

Respondent asserts that the appeal should be dismissed as untimely, because the petition was not served upon respondent until 111 days after petitioner received a copy of the hearing officer's decision. Respondent disputes petitioner's assertion that she was not afforded an opportunity to question each witness. Finally, respondent asserts that the decision of the hearing officer is supported by substantial evidence.

The record reveals that the hearing officer rendered her decision on July 10, 1991. Respondent asserts that petitioner acknowledged receipt of the hearing officer's decision on July 16, 1991. A notice of intention to appeal from the hearing officer's decision was served upon respondent on July 31, 1991. The notice of intention was in Spanish. A copy of the petition was served upon respondent on September 12, 1991. On September 18, 1991, the Education Department's Office of Counsel advised petitioner that the appeal could not be accepted because she had not submitted a copy of the notice with petition (8 NYCRR 279.3) and had not submitted proof of service of the notice with petition and petition upon respondent. The Office of Counsel further advised petitioner to re-serve the petition within two weeks. By letter dated October 3, 1991, the Office of State Review informed petitioner that the petition must be re-served immediately, in accordance with the September 18 letter from the Office of Counsel. On October 8, petitioner informed the Office of State Review that she had not received the September 18 letter from the Office of Counsel. The Office of State Review subsequently provided petitioner with the necessary forms for her to perfect this appeal. On November 7, 1991, petitioner re-served the petition upon respondent.

The Regulations of the Commissioner of Education provide that a copy of the petition of the parent of a child with a handicapping condition to review the decision of a hearing officer must be served upon the board of education within 40 days after receipt of the decision (8 NYCRR 279.2 [b]). Delays have been excused in filing petitions of this nature, pursuant to 8 NYCRR 275.6, for good cause and for the educational interests of the child (Application of a Child Suspected of Having a Handicapping Condition, 29 Ed. Dept. Rep. 100; Application of a Child Suspected of Having a Handicapping Condition, 29 id. 124). Under the circumstances of this case, including petitioner's good faith prior attempt to initiate this appeal pro se, respondent's request for additional time to respond to the petition, and the clear need to resolve the matter of the appropriate program and services to be provided to the child, I find petitioner's delay in serving the petition to be excused.

With regard to petitioner's assertion that she was denied the right to cross-examine each witness presented by the CSE at the hearing, the transcript of the hearing reveals that petitioner who appeared pro se was assisted at the hearing by a translator provided by respondent (8 NYCRR 200.5 [c][3]), as well as a private translator/advocate. At the outset of the hearing, the hearing officer stated:

" We'll be swearing in all witnesses and where appropriate enquire into their professional qualifications. The parent will then have the right and the opportunity to cross-examine each of the Board's witnesses". (Transcript, page 9)

The transcript further reveals that after the direct examination of five of the six witnesses presented by the CSE, the hearing officer asked whether the parent had any questions. The final witness presented by the CSE was an administrator, who described the proposed class for the child in the recommended MIS-II program. The hearing officer first asked the witness a series of questions about the class, but then asked petitioner whether she had any questions. Petitioner has not challenged the role of the translator. I find that petitioner was not denied the opportunity to question any witness at the hearing.

There is a significant procedural issue which I must address. The record before me includes the child's individualized education program (IEP) which was prepared at a March 21, 1991 meeting of the CSE. It sets forth names and positions of all of the participants in the meeting. The record and the IEP do not include the participation of the child's teacher. Both Federal and State regulations require that a child's teacher shall be a participant in a meeting at which the child's IEP is prepared (34 CFR 300.344 [a][2]; 8 NYCRR 200.4 [c][3]). The teacher's absence from such a meeting deprives the other participants of the opportunity to obtain accurate information about the child's academic and social needs, and requires invalidating the CSE's recommendation (Matter of a Handicapped Child, 25 Ed. Dept. Rep. 112; Matter of a Child Alleged to Have a Handicapping Condition, 26 id. 251). I am therefore constrained to invalidate the CSE's recommendation, without reaching the issue of the appropriateness of the recommendation as to the handicapping condition, if any, and program for the child. The CSE may reconvene to consider whether to make a recommendation with respect to the child, after which the parent must be afforded an opportunity to review the recommendation at an impartial hearing.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer be, and the same hereby is, annulled.