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Application of a CHILD SUSPECTED OF HAVING A HANDICAPPING CONDITION, by her parent, for review of a determination of a hearing officer relating to the educational program offered by the Board of Education of the City School District of the City of New York


Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Andrea Moss, Esq., of counsel


Petitioner appeals from the determination of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioner's child be classified as learning disabled and that the child be placed in a modified instructional services I (MIS-I) special education class. The appeal must be dismissed.

Petitioner's child is ten years old. The child attended kindergarten and first grade in Miami, Florida. In the 1989-90 school year, the child entered second grade in respondent's P.S. 11 in Community School District 30, where she received remedial instruction in an "at risk" program. In September, 1990, the child was enrolled for third grade in P.S. 12, which is in Community School District 24, where she received remedial reading instruction. Two weeks after entering third grade, the child was transferred to a bilingual class, at petitioner's request. The child was referred by her teacher to a school based support team, which referred the child to the CSE. On November 14, 1990, the CSE recommended that the child be classified as emotionally disturbed and as learning disabled, and that she be placed in a modified instructional services II special education class.

Petitioner requested a review of the CSE's recommendation. In a decision dated January 12, 1991, a hearing officer upheld the CSE's recommendation for classification and placement. Petitioner appealed from the hearing officer's decision. In Application of a Child with a Handicapping Condition, Appeal No. 91-23, I sustained petitioner's appeal, upon a finding that the CSE was not validly constituted because a parent member was not present when the CSE made its recommendation, and a finding that there was no evidence in the record of a required physical examination of the child. The CSE was directed to work with petitioner to arrange for a prompt neurological examination, and to further assess the child's language comprehension and auditory memory skills. I further ordered the CSE to reconvene for the purpose of considering whether it should recommend that the child be classified and provided with special education.

In September, 1991, the child was placed in a monolingual regular education fourth grade class at P.S. 12. The child was also psychologically evaluated in September, 1991. A school psychologist opined that the child's emotional development was age appropriate, but that the child was tense and anxious because of her significant academic deficits and inability to keep up with her classmates. The school psychologist, who also observed the child in class during a mathematics lesson, reported that the child became inattentive and required re-direction during the evaluation and the mathematics lesson. Another observer of the child during a science lesson reported that the child was only occasionally attentive in class.

An educational evaluation was performed in September, 1991. Although the child was in fourth grade, she demonstrated first grade level reading and spelling skills, and her arithmetic skills were assessed to be at a second grade level. The evaluator reported that the child was English proficient for academic purposes. However, the evaluator noted that the child had not demonstrated any improvement in her reading ability since her previous evaluation in 1990. The evaluator reported that the child exhibited an auditory memory deficit when asked to repeat a sentence with more than fourteen syllables. She displayed deficits in visual motor integration and visual attention span. On October 4, 1991, additional reading tests were administered to the child, while she wore her eye glasses. The evaluator was unable to discern any difference in the child's performance when she wore her glasses.

On September 25, 1991, petitioner was interviewed by a school social worker, who reported that petitioner said that, although the child understands some Spanish, the child refused to speak Spanish at home. Petitioner told the social worker that the child had been evaluated at the Queens County Neuropsychiatric Institute, but petitioner declined to consent to the release of the child's records at the Institute to the CSE. On or about September 26, 1991, the child's physician completed a medical documentation form on which the physician reported the child's diagnosis as mildly hyperactive, but otherwise healthy. The record reveals that the child is receiving medication for hyperactivity and anxiety.

On October 4, 1991, petitioner attended an educational planning conference with the child's teacher and other school personnel. On October 15, 1991, the CSE recommended that the child be classified as learning disabled and be placed in respondent's MIS-I program. The child's teacher did not attend the October 15, 1991 CSE meeting. The record reveals that an educational evaluator qualified to teach learning disabled children did attend the CSE meeting (cf. Application of a Child with a Handicapping Condition, Appeal No. 92-31).

Petitioner did not consent to the proposed placement. On December 10, 1991, the principal of P.S. 12 requested that an impartial hearing be held to obtain authorization to place the child in the recommended program without petitioner's consent. A hearing was scheduled, but postponed twice at petitioner's request, as was a CSE meeting scheduled to be held on April 10, 1992. At an informal meeting with CSE staff on April 14, 1992, petitioner refused to accept the placement recommended by the CSE. At an April 28, 1992 meeting which petitioner did not attend, the CSE reaffirmed its earlier recommendation that the child be classified as learning disabled and placed in the MIS-I program, and added group counseling, once per week, to the child's individualized education program (IEP).

Petitioner did not accept the CSE's recommendation. On May 18, 1992, the school principal again requested that a hearing be held to implement the CSE's recommendation, notwithstanding petitioner's refusal to consent. A hearing commenced on June 10, 1992 and concluded on June 17, 1992.

In a decision dated July 10, 1992, an impartial hearing officer noted that petitioner had not participated in the April 28, 1992 CSE meeting, but declined to invalidate the CSE's recommendation on that ground. The hearing officer found that respondent had been precluded by petitioner's refusal to cooperate with the CSE from complying with the direction in Appeal No. 91-23 to promptly complete an evaluation of the child. The hearing officer upheld the CSE's recommendation for the child's classification and placement, but directed the CSE to provide an updated profile of the recommended class, because at the time of the hearing only four other children had been assigned to the class for the 1992-93 school year. Respondent has annexed to its answer a copy of a revised profile, which was sent to the hearing officer on or about August 24, 1992.

At the outset, respondent asserts that the appeal should be dismissed as untimely. Respondent's assertion is premised upon its contention that petitioner has not, to date, served a petition which complies with the Regulations of the Commissioner of Education, and that, in any event, the document which petitioner did serve was served well in excess of the 40 days after petitioner received a copy of the hearing officer's decision.

State regulation does not explicitly prescribe a form for a petition in an appeal from the decision of an impartial hearing officer. However, 8 NYCRR 279 incorporates by reference the generic appeal provisions of 8 NYCRR 275 and 276.8 NYCRR 275.10 provides that a petition must be "...sufficiently clear to advise the respondent of the nature of petitioner's claim..." My review of petitioner's letter of November 24, 1992 leads me to conclude that such letter is sufficiently specific to apprise respondent of the nature of petitioner's disagreement with the hearing officer's decision (Application of a Child Alleged to Have a Handicapping Condition, 26 Ed. Dept. Rep. 251). Consequently, I find that the November 24, 1992 letter is a valid petition.

State regulation requires that a petition for a review of a hearing officer's decision be served within 40 days after receipt of the decision (8 NYCRR 279.2[b]). Respondent asserts that a copy of the hearing officer's decision was sent to petitioner on July 11, 1992. On September 1, 1992, petitioner served a notice of intention to seek review upon respondent. Shortly thereafter petitioner filed with the State Education Department copies of a notice of intention to seek review, notice of petition, verification and affidavit of service, but she did not file a petition. By letter dated September 23, 1992, the Office of State Review advised petitioner that she must serve and file her petition. In a second letter dated November 16, 1992, the Office of State Review advised petitioner that her appeal would be deemed abandoned, unless she served her petition on or before November 30, 1992. On November 24, 1992, petitioner served her petition, i.e. her letter of that date, upon respondent.

Respondent has offered no proof of the date when petitioner received the hearing officer's decision (cf. Application of a Child with a Handicapping Condition, Appeal No. 91-19). Furthermore, the petitioner cannot be faulted for deferring action upon her appeal, in view of the uncertainty created by the hearing officer's request for additional information about the children in the recommended class, which information was not supplied until late August, 1992 (Application of a Child with a Handicapping Condition, Appeal No. 91-3). I find that petitioner was timely in initiating the appeal by filing a notice of intention to seek review. Thereafter, petitioner served the petition within the time limit specified by the Office of State Review. Although respondent asserts that it has been prejudiced by petitioner's delay, it offers no explanation for its assertion. I find that petitioner made a good faith effort to comply with the time limits, and that it would be inequitable to dismiss the appeal as untimely, especially since respondent has sought and received two extensions of time in which to serve its answer (Application of a Child with a Handicapping Condition, Appeal No. 91-39).

Petitioner challenges the appropriateness of both the recommended classification and program. She asserts that the child's poor academic performance in the 1991-92 school year resulted from the child's placement in a bilingual fourth grade, and that the child is making satisfactory educational progress during the current school year.

Respondent bears the burden of establishing the appropriateness of the CSE's recommendation for the child's classification and program (Application of a Child with a Handicapping Condition, Appeal No. 92-42; Application of a Child with a Handicapping Condition, Appeal No. 92-20; Application of a Child with a Handicapping Condition, Appeal No. 91-34).

State regulation defines a learning disabled child as:

"A pupil with a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual handicaps, brain injury, neurological impairment, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include children who have learning problems which are primarily the result of visual, hearing or motor handicaps, of mental retardation, of emotional disturbance or of environmental, cultural or economic disadvantage. A child who exhibits a discrepancy of 50 percent or more between expected achievement and actual achievement determined on an individual basis shall be deemed to have a learning disability". (8 NYCRR 200.1 [ff][3])

In my decision in Appeal 91-23, I found that the CSE had not performed a complete evaluation of the child, because there was no evidence of a physical examination and it was reported that a private psychologist had recommended that the child should have a neurological evaluation. The child has since been medically evaluated. Petitioner referred to the private psychologist's alleged recommendation in an initial social history, but she denied that the private psychologist had recommended such an evaluation when she was reinterviewed by a social worker in September, 1991. At the hearing, the chairperson of the CSE testified that the CSE had offered petitioner an opportunity to have a neurological examination of the child performed by a bilingual neurologist at respondent's expense. The chairperson further testified that petitioner did not accept the CSE's offer, but ultimately agreed to have the child evaluated at the Elmhurst Hospital. The results of that evaluation are not part of the record, because petitioner allegedly would not agree to release the records to the CSE. The CSE chairperson testified that she had a telephone conversation on March 30, 1992 with a physician of the Elmhurst Hospital, who advised the chairperson that the child had not been neurologically evaluated because a medical examination had revealed no medical basis for a neurological evaluation.

In a psychological evaluation performed in September 1991, the child's verbal IQ was found to be at the border between average and retarded, while her performance IQ was found to be in the low average range. The psychologist further found that the child's visual motor skills were delayed by approximately three years. Despite the child's significant educational deficits, the psychologist opined that the child had the ability to function much better academically if she were to receive significant academic intervention. An educational evaluator who assessed the child's academic skills in September, 1991, reported that the child displayed deficiencies in visual motor integration, visual attention span and auditory memory for sentences. At the hearing, another educational evaluator testified that, in view of her ability, the child should have been performing at the third grade level. However, the child's academic skills were at first and second grade levels. Although petitioner attributes the child's academic problems in fourth grade to the alleged placement of the child in a bilingual fourth grade class, the record reveals that the child's fourth grade class was monolingual, and that the child has received remedial assistance, but nevertheless has significant educational deficits. The educational evaluator testified that the child's educational deficits were not related to her bilingualism. Upon the record before me, I find that the child has been adequately evaluated, and would be appropriately classified as learning disabled.

To meet its burden of proving the appropriateness of the recommended program, respondent must demonstrate that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSE v. Rowley, 458 U.S. 176), 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 has been prepared in accordance with the requirements of Federal and State regulations. Federal and State regulations require that a child's parents be afforded the opportunity to attend all CSE meetings at which the child's IEP is prepared or amended (34 CFR 300.345[a]; 8 NYCRR 200.4[c][3]). Parents are expected to be equal participants along with school personnel in the preparation of a child's IEP (34 CFR 300, Appendix C, Question 26). However, a CSE may prepare a child's IEP in the absence of the parents, provided that the CSE makes a record of its attempts to arrange a meeting with the parents and documents its attempts to use alternative means for parental participation, such as telephone conference calls (34 CFR 300.345[d]; 8 NYCRR 200.4[c][3]).

It is undisputed that petitioner did not attend the April 28, 1992 CSE meeting at which the child's IEP, which had been prepared in October, 1991, was reviewed and amended by the addition of counseling services. Respondent's social worker testified at the hearing that petitioner called the CSE just as the meeting was scheduled to begin, and informed the CSE that she could not be present because something had arisen. The social worker further testified that petitioner did not request that the CSE meeting be rescheduled. In determining whether it was unreasonable for the CSE to proceed with the preparation of the child's IEP, rather than to adjourn its April 28, 1992 meeting in response to petitioner's telephone call, I have considered the respondent's extended effort to interact with petitioner. After the petitioner refused to consent to the CSE's October, 1991 recommendation, respondent scheduled an impartial hearing in accordance with 8 NYCRR 200.5 (b)(2). The hearing was canceled at petitioner's request on two occasions, to allow her an opportunity to have the child evaluated at the Elmhurst Hospital. However, petitioner refused to release the results of the evaluation to the CSE. A meeting of the CSE was scheduled to be held on April 10, 1992, but was canceled at petitioner's request. On April 14, 1992, petitioner discussed the proposed IEP with the CSE's staff. In view of the protracted delays in this matter, I find that it was not unreasonable for the CSE to proceed in petitioner's absence on April 28, 1992. While Federal and State laws and regulations accord the parents of disabled children with significant substantive and procedural rights in the classification and placement of their children, parents have a concomitant obligation to reasonably cooperate with school staff and refrain from attempting to thwart prescribed procedures (Tucker v. Bayshore Union Free School, 873 F.2d563 [2d Cir., 1989]).

The record establishes a basis for the removal of this child from a regular education class and her placement in a special education class. The child's distractibility was noted by each of the CSE evaluators in their respective reports. At the hearing, the child's fourth grade teacher testified that the child was easily distracted by others, and often played with objects on her desk or walked around the class. The teacher further testified that the child had not made any progress in reading, despite receiving "corrective" reading remedial assistance twice per day, as well as one-to-one reading instruction by the teacher. The teacher testified that the child printed, rather than wrote, and would not copy notes from the blackboard unless specifically directed to do so. The notes which the child did take were described by the teacher as illegible, as well as inaccurate. The teacher further testified that the child was not functioning on the same level as any other child in the class, and was often emotionally upset.

The psychologist who evaluated the child opined that the child required a great deal of structure and firmness in order to respond academically and emotionally. The educational evaluator who evaluated the child in the Fall of 1991 recommended a small, well-structured class for the child, so that she could receive continuous individualized attention to address her academic and perceptual deficits. The recommended MIS-I program would provide a small class of not more than 15 children. The special education site supervisor at P.S. 49 testified that the recommended MIS-I program presented the same curriculum used in regular education, but that the MIS-I teacher presents information in small, progressive steps, using a variety of techniques. The supervisor testified that there is less note taking in the MIS-I class, and the homework is more closely geared to each child's functional level. The supervisor opined that the MIS-I program would be appropriate to meet the child's educational needs. I find that respondent has met its burden of establishing the appropriateness of the MIS-I program.

State regulation requires that children in special education classes be appropriately grouped, using the criteria of levels of academic achievement and learning characteristics, levels of social development, levels of physical development, and the management needs of the children (8 NYCRR 200.6 [a][3]). The similarity of abilities and needs may be demonstrated through the use of a profile of the children in the proposed class, together with the testimony of a witness who is familiar with the proposed class (Application of a Child with a Handicapping Condition, Appeal No. 91-26; Application of a Child with a Handicapping Condition, Appeal No. 91-28). In this instance, respondent placed in evidence a class profile of petitioner's child and the four children assigned to the proposed class for the 1992-93 school year, as of the date of the hearing. A special education site supervisor for P.S. 49 testified that as many as 10 other children would be assigned to the proposed class by September, 1992, but that the age range and functional levels of the children would be preserved.

The hearing officer found that petitioner's child would be appropriately grouped with the children whose abilities and needs were set forth in the profile introduced into evidence at the hearing, but unnecessarily directed respondent to submit an updated class profile to the hearing officer before the beginning of school in September. Although respondent has submitted the updated profile with its answer, I have not considered the updated profile, because the profile was prepared after the hearing officer had rendered her decision, it was unnecessary for a resolution of the issue, and because respondent has not established that petitioner was afforded an opportunity to challenge the accuracy of the profile (Application of a Child with a Handicapping Condition, Appeal No. 92-43).

Federal and state regulations require the prompt disposition of issues raised in impartial hearings in order to assure that each child receives a free appropriate public education on a timely basis (34 CFR 300.512[a]; 8 NYCRR 200.5[c][10]). Although the hearing officer's desire to review the class profile after additional children had been assigned to the proposed class is understandable, it is inconsistent with the requirement that the hearing officer complete the hearing by rendering a decision within 45 days after a request for the hearing is received (supra). It is obvious that the composition of any class may change, as children enter or leave a school district or are re-assigned to other classes. However, a hearing officer must decide, on the evidence before him or her, whether a proposed class consists of children with comparable abilities and needs. The record before the hearing officer at the close of the hearing established that petitioner's child would be placed in a class with children having similar abilities and needs.

While it is true that as many as 10 other children could have been added to the class after the hearing officer rendered her decision, respondent is constrained to insure that each child who is subsequently enrolled in the class must have similar abilities and needs (8 NYCRR 200.6[a][3]). On this record, there is no basis to conclude that respondent would not comply with the requirement to group children by ability and need. In any event, petitioner has the right to challenge the subsequent composition of the class, by requesting a new impartial hearing (34 CFR 300.506[a]).

I find that respondent met its burden of establishing the appropriateness of the proposed MIS-I class at P.S. 49.