94-033

        Petitioner's son is five years old. His early developmental history was unremarkable, except that he reportedly did not speak until he was two and one-half years old. The child's speech/language skills were initially evaluated at the Montifiore Hospital, which reportedly found that the child had a moderate to severe delay in his expressive language skills and a moderate delay in his receptive language skills. The child was referred to respondent's preschool committee on special education (CPSE), and thereafter was evaluated at the Shield Institute. The child was classified by the CPSE as speech-impaired. In March, 1993, the child was placed, at respondent's expense, in the Westchester School for Exceptional Children (Westchester School) in Yonkers, New York. He returned to the Westchester School at respondent's expense for the 1993-94 school year, during which he was educated in a preschool special education class of no more than ten children. The child's individualized education plan (IEP) included annual goals to develop his activities of daily living skills, his fine and gross motor skills, and his pre-academic skills.

        A speech/language evaluation of the child was conducted at the Westchester School on January 14, 1994. The child's fluency and vocal quality were described as appropriate, but the intelligibility of his speech was impeded by several articulation errors involving sound substitutions or omissions. He exhibited approximately a two and one-half year delay in his expressive vocabulary skills and a two year delay in his receptive vocabulary skills. Similar delays were reported in the child's expressive communication and auditory comprehension skills.

        On January 27, 1994, the child was evaluated by an occupational therapist, who reported that the child displayed low muscle tone and endurance in both of his upper extremities. The occupational therapist also reported that the child's fine motor skills were within normal limits, except for tasks requiring hand strength. He was described as having poor social skills by the occupational therapist.

        In a psychological evaluation conducted on March 24, 1994, the child achieved a Stanford-Binet IQ score of 65, which is in the moderately retarded range. The Westchester School psychologist reported that the child's test performance was highly affected by his language delays. The psychologist noted that the child exhibited visual perceptual difficulties, and that deficits in the child's hand strength hindered him in performing precise graphomotor activities. In a test of his adaptive behavior, the child reportedly exhibited deficits in vocabulary, syntax, spontaneous speech, comprehension of preschool concepts, and academic readiness skills.

        On April 14, 1994, the CPSE reviewed the child's progress during the 1993-94 school year. Although its jurisdiction over the child had almost ended because of his age, the CPSE recommended that the child's classification be changed to that of a "preschool child with a disability" (8 NYCRR 200.1 [ee]). It further recommended that the child remain in the Westchester School through August, 1994. The CPSE also recommended that the child receive speech/language therapy and occupational therapy, with the latter intended to address his fine motor deficits.

        The child ceased to be eligible for services as a preschool child with a disability at the end of the 1993-94 school year. Consequently, the child came under the jurisdiction of respondent's CSE for Community School District No. 12 for the 1994-1995 school year. On June 3, 1994, the CSE met with the child's parents to prepare the child's IEP for kindergarten during the 1994-95 school year. The CSE recommended that the child be classified as speech-impaired, and that he be instructed in respondent's MIS-IV program in a class of no more than 10 children with a teacher and an aide. The CSE also recommended that the child receive speech/language therapy twice each week in a group of no more than three children. The child's IEP included annual goals to increase his activities of daily living skills, his motor skills and his speech/language skills. He was also expected to follow curricula parallel to those in regular education for social studies, mathematics, science, art, music and health. Respondent offered petitioner a specific MIS-IV class for the child in P.S. 92.

        Petitioner and his wife requested that an impartial hearing be held to review the CSE's recommendation. The hearing began on July 25, 1994, but was adjourned until August 4, 1994, because evidence had not been exchanged between the parties at least five days before the hearing (8 NYCRR 200.5 [c][9]). At the hearing, petitioner, who was not represented by an attorney, acknowledged that the recommended MIS-IV program was appropriate. However, he asserted that he had been led by the CPSE or the CSE to believe that the child could continue to attend the Westchester School for the 1994-95 school year, and that, in any event, the child's academic and social progress could be harmed by a change in his educational placement.

        In his decision, which was rendered on August 30, 1994, the hearing officer found that there was no dispute about the appropriateness of the child's classification as speech-impaired. The hearing officer found that the recommended MIS-IV program would be appropriate for the child, but directed the CSE to amend the child's IEP to provide for one period per week of occupational therapy, as the CPSE had recommended. He asserted that respondent had offered the child placement in the MIS-IV classes at various sites and directed respondent to renew its offer. The hearing officer ordered the parties to reappear before him on September 9, 1994, if they were unable to agree upon a specific class site.

        Respondent argues that the appeal should be dismissed as untimely. State regulation requires that the petition in an appeal to the State Review Officer must be served upon the board of education, the district clerk or the chief school officer within 40 days after the petitioner's receipt of the hearing officer's decision (8 NYCRR 279.2 [a]). The hearing officer's decision was dated August 30, 1994. The petition in this appeal was served upon respondent on October 18, 1994. However, respondent has not offered any evidence of the date of petitioner's receipt of the hearing officer's decision. Respondent bears the burden of proving its affirmative defense that the appeal is untimely (Application of a Child with a Disability, Appeal No. 93-38). In the absence of evidence of when petitioner received the hearing officer's decision, I must find that respondent has failed to meet its burden of proof on the issue of untimeliness (Hyde Park CSD v. Peter C., Sharon C. and the State Review Officer, 93 Civ. 0250, [S.D.N.Y., 1994]; Application of a Child with a Disability, Appeal No. 93-23; Application of a Child with a Disability, Appeal No. 94-30).

        Petitioner does not challenge the appropriateness of the child's classification as speech-impaired or the general appropriateness of the MIS-IV program. Instead, he contends that respondent cannot guarantee that his son would receive occupational therapy at P.S. 92. At the hearing, he also expressed other reservations about the recommended site for the child's MIS-IV class, and in his petition, he challenges the hearing officer's directive that the hearing be reopened if the parties were unable to agree upon a specific MIS-IV class for the child.

        Petitioner's acceptance of the CSE's recommendation with regard to the child's classification and program would normally preclude further review of either portion of the CSE's recommendation (Hiller et al. v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]; Application of a Child with a Disability, Appeal No. 93-43). Although I do not reach the merits of the child's classification or the MIS-IV program, I must nevertheless address the issue of the CSE's procedure in making its recommendation.

        Section 4402 (1)(b)(1) of the Education Law and 34 CFR 300.344 (a)(2) require that a child's teacher participate in CSE meetings at which the child's IEP is prepared. A board of education may not dispense with the attendance of the child's teacher at a CSE meeting (Application of a Child with a Disability, Appeal No. 93-17; Application of the Bd. of the City School District of the City of New York, Appeal No. 94-11). At the hearing in this proceeding, respondent introduced into evidence a list of the CSE members who attended the CSE meeting of June 3, 1994, at which the child's IEP was prepared, and the child's IEP, which also listed the participants in the CSE meeting. Both documents reveal that the CSE consisted of a school psychologist, an educational evaluator and a parent member. The record does not reveal the qualifications of the educational evaluator who attended the meeting. In any event, that individual was presumably present as the required representative of respondent who was qualified to provide special education, but is not the child's teacher (34 CFR 300.344 [a][1]). Therefore, I must find that the child's IEP is invalid because his teacher, as that term is defined in Federal and State regulations, did not attend the CSE meeting at which the IEP was prepared (Application of a Child with a Handicapping Condition, Appeal No. 92-31).

        There is an additional reason why this appeal must be sustained. The appropriateness of the specific MIS-IV class in P.S. 92 which had been recommended for the child was raised as an issue at the hearing by petitioner. The hearing officer questioned the Community School District No. 12's placement officer about the proposed class. However, the placement officer provided scant information about the recommended class. The placement officer testified that the recommended MIS-IV class was one of two monolingual and one bilingual MIS-IV class which were to be formed in P.S. 92. He was unaware of the identity or qualifications of the teacher, and testified that petitioner's child was one of twelve children to be assigned to the two monolingual MIS-IV classes. The placement director further testified that the class might not be located in P.S. 92 if there were insufficient students to establish the class. No evidence was offered by respondent with respect to the similarity of the needs of the other children in the recommended special education class (cf. 8 NYCRR 200.6 [a][3]; Application of a Child Suspected of Having a Disability, Appeal No. 94-37). Accordingly, I must find that respondent failed to meet its burden of proof with respect to establishing the appropriateness of the special education class recommended for the child by the CSE.

        In its answer, respondent asserts that because the child is no longer eligible because of his age to receive preschool special education pursuant to Section 4410 of the Education Law, he cannot remain in the Westchester School at respondent's expense during the pendency of this proceeding because that school has not been approved by the State Education Department to provide special education to school-age children, i.e., those between 5 and 21 years of age. Respondent relies upon the provisions of 8 NYCRR 200.16 (g)(ii) which read, in material part, as follows:

" Nothing in this subparagraph shall require that a student with a disability remain in the preschool program for which he or she is no longer eligible pursuant to Section 4410 of the Education Law during the pendency of any proceeding brought pursuant to this Part;"

        Respondent asserts that the Westchester School has not been approved by the State Education Department for the education of school-aged children who are speech-impaired for the purposes of State reimbursement to school districts for the cost of tuition. This issue was not raised at the hearing in the proceeding, and there is no information in the record about the Westchester School's program for school-age children (cf. Application of a Child with a Handicapping Condition, Appeal No. 91-25). In any event, the decision in Appeal No. 92-25, upon which respondent relies, was not premised upon the private school's status as an approved school. The regulatory provision upon which respondent relies relates to the contents of the notice of due process rights which a CPSE must provide to a parent. In this instance, petitioner does not challenge any action of the CPSE. He challenges the CSE's recommendation. Both Federal and State statutes require that a child remain in his or her then current placement, unless the child's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the child (20 USC 1415 [e][3]; Education Law Section 4404 [4]). I find respondent's assertion to be without merit.

THE APPEAL IS SUSTAINED.

IT IS ORDERED hat the decision of the hearing officer is annulled, and;

IT IS FURTHER ORDERED that within 30 days after the date of this decision, respondent's CSE shall meet and make its recommendation with respect to petitioner's child for the 1994-95 school year.