95-001

       Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's child attend kindergarten in respondent's Mary G. Clarkson School, rather than respondent's Fifth Avenue School which is nearer to the child's home. The appeal must be dismissed.

        Petitioner's daughter, who recently became six years old, has been medically diagnosed as having Spina Bifida, a disorder of the spinal cord which has impaired her ability to use her legs for ambulation. The child also has a club foot. She requires the assistance of braces and an anterior walker device for walking, but reportedly relies primarily upon a wheelchair for mobility. She also has hydrocephalus, a condition which involves an accumulation of fluid in the brain, for which she had a shunt implanted to relieve pressure on the brain. In addition, the child has a seizure disorder and is asthmatic. She has had numerous surgeries, and is scheduled to undergo operations upon her foot and her bladder during the 1994-95 school year. The child has been classified as multiply disabled. Her classification is not in dispute.

        In July, 1993, the child entered the preschool program of the Adults and Children with Learning and Developmental Disabilities, Inc. (ACLD), upon the recommendation of respondent's committee on preschool special education. She remained in the ACLD preschool program through the Summer of 1994. At the ACLD, the child was instructed by a teacher and two aides in a class of ten children. She received individual and small group speech/language therapy, individual physical therapy, individual occupational therapy, and individual counseling.

        In the Spring of 1994, the child was evaluated at the ACLD. Those evaluations revealed that the child's cognitive skills were in the average range, while her academic skills were reported to be below average. The child, who was five years old when tested, was found to have gross motor skills in the 9-10 month old range. The ACLD physical therapist reported that the child had exhibited a decrease in her gross motor abilities because of her inability to wear braces subsequent to the surgery upon her spinal cord which was performed on her in January, 1994. However, by late March, 1994, the child began to wear her braces again. The therapist reported that the child tolerated standing for 15 minutes, and was able to ambulate with an anterior walker for approximately 10 feet with minimal assistance. She was described as becoming quickly tired during this activity, and as fearful of being on uneven surfaces. An ACLD occupational therapist reported that the child displayed scattered perceptual/fine motor skills up to the level of a four and one half year old child. She was described as having diminished strength and response speed because of her medical condition. An ACLD educational evaluator reported that the child displayed age appropriate socialization skills, but that she frequently overreacted to change or disappointment and often asked for help when it was not really needed.

        On June 10, 1994, respondent's CSE recommended that the child remain classified as multiply disabled for the 1994-95 school year, and that she be placed in a regular education kindergarten class with the assistance of a full-time aide. In addition, the CSE recommended that the child receive individual and group speech/language therapy, individual physical therapy, individual occupational therapy, individual counseling, and adaptive physical education. The CSE also recommended that the child be transported to and from school in a specially equipped school bus. The kindergarten class recommended by the CSE was in respondent's Clarkson School -- a two story structure with an elevator. The child resides in the attendance zone for another elementary school, respondent's Fifth Avenue School. The Fifth Avenue School, which also has two stories, does not have an elevator. Petitioner accepted the CSE's recommendation for the child's educational program, but sought to have the child attend kindergarten in the Fifth Avenue School. She requested that an impartial hearing officer be appointed to review the CSE's recommendation.

        The hearing in this proceeding began on July 1, 1994. It was almost immediately adjourned, because petitioner did not appear. It was subsequently rescheduled, with petitioner's consent, to be held on August 30, 1994. At the hearing, the chairperson of respondent's CSE testified that respondent was capable of providing the special education services specified in the child's individualized education program (IEP) in eitherthe Clarkson School or the Fifth Avenue School. However, she noted that the library, music room, and art room were located on the second floor of the Fifth Avenue School, and that the Fifth Avenue School does not have a wheelchair accessible elevator. The chairperson testified that the CSE recommended the Clarkson School because it is wheelchair accessible. Petitioner asked the hearing officer to direct respondent to educate the child in the Fifth Avenue School, which other members of the child's family had attended or are currently attending. Petitioner testified that the child could walk with the assistance of a walker device, but acknowledged that she could not climb stairs. Petitioner further testified that she would come to the Fifth Avenue School to carry the child up or down stairs for any activity, and would authorize respondent's staff to carry the child if petitioner were unable to come to school for that purpose.

        In his decision dated September 7, 1994, the hearing officer found that at least some of the kindergarten program activities would be in rooms located in the second floor of the Fifth Avenue School which was accessible only by stairs. He held that respondent could not be reasonably required to relocate the facilities in which those program activities would occur to the first floor of the Fifth Avenue School. He further held that carrying the child up or down the stairs was not appropriate. The hearing officer directed that the child be enrolled in respondent's Clarkson School.

        Respondent has raised a procedural objection to petitioner's appeal. It asserts 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 receipt of the hearing officer's decision (8 NYCRR 279.2 [a]). The hearing officer's decision is dated September 7, 1994. In its answer, respondent asserted that the hearing officer's decision was delivered to the respective parties on or about September 7, 1994, but offered no proof of its assertion. This appeal was commenced on December 22, 1994. Since respondent raised the procedural defense of untimeliness, petitioner was entitled to file a reply to such defense (8 NYCRR 279.6). The petitioner, who is not represented by an attorney, attempted to do so. Her reply, however, was almost exclusively devoted to the substantive issues of this appeal. Her brief response to respondent's defense was a reiteration of assertions which she made in her petition concerning her attempts to commence this appeal. Therefore, her reply was not accepted. In her petition, petitioner alleged that she had attempted to appeal from the hearing officer's decision by writing a letter " ... to Albany". She did not identify the entity or address to which she sent her letter. She further asserted that she had difficulty obtaining information about bringing an appeal from either respondent's staff or the hearing officer (cf 8 NYCRR 200.5 [a][viii]), and that she and her child had each been hospitalized during the Fall of 1994.

        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; Application of a Child Suspected of Having a Disability, Appeal No. 94-39). In the absence of evidence of when the 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).

        Although petitioner has alluded to the treatment which the child allegedly received from respondent's staff while the child was in the ACLD preschool program, and after the child began attending kindergarten in the Fifth Avenue School in September, 1994, I find that such alleged treatment is not germane to the central issue of this appeal, which is the appropriateness of the CSE's recommendation. Respondent bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, respondent must show 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 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]). In this instance, petitioner does not challenge the appropriateness of the recommended program, but asserts that it would not be provided in the least restrictive environment.

        Both Federal and State regulations, in defining the least restrictive environment, require school districts to place children with disabilities in schools which are as close to their homes as possible (34 CFR 300.552 [a][3]; 8 NYCRR 200.1 [x][3]). Although the record does not disclose the exact distances between the child's home and the two elementary schools, petitioner testified at the hearing that she lives "right around the corner" from the Fifth Avenue School. It should be noted that the child requires transportation, regardless of the school she attends, because of the nature of her disability. Nevertheless, the fact that she requires transportation would not alter the requirement that she be placed in a school in accordance with the Federal and State regulatory criteria for the least restrictive environment. The proximity between a child's residence and the school which he or she will attend is an important consideration, but not the sole criterion, in determining the child's placement (Schuldt v. Mankato Independent School District, 937 F. 2d 1357 [8th Cir., 1991]; Matter of a Handicapped Child, 24 Ed. Dept. Rep. 360). The placement must be appropriate in terms of the child's needs (Matter of the Bd. of Ed. City School District City of Rochester, 24 Ed. Dept. Rep. 263).

        The Federal regulation also has a related requirement that:

"Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled." (34 CFR 300.552 [c])

        The parties agree that the child would attend the Fifth Avenue School, but for her disability, because the child resides in the attendance zone of that school. However, the determinative issue is whether the child's educational program can be fully implemented in the Fifth Avenue School (Schuldt v. Mankato Independent School District, supra). The CSE chairperson testified that the child's special education services, i.e. speech/language therapy, physical therapy, occupational therapy and counseling, could be provided in both elementary schools. The remainder of the child's educational program consists of instruction in a regular education kindergarten class, which exists in both the Fifth Avenue School and the Mary G. Clarkson School. However, the regular education kindergarten program does not take place exclusively in the kindergarten classroom. The record reveals that the kindergarten children go the school library twice per week. They also receive instruction in music and art, although the record does not disclose the frequency of such instruction. In the Fifth Avenue School, the library, music and art rooms are located on the second floor. In order for petitioner's child to fully participate in the regular education kindergarten program, she will have to be with her classmates for library, art, and music on the second floor of the Fifth Avenue School, which does not have a wheelchair accessible elevator. The record reveals that the child is learning to walk with the assistance of braces and an anterior walker. Her IEP annual goal is to "utilize ambulation as her main means of mobility." There is nothing in the record which suggests that the child could ascend or descend stairs, even with braces and a walker, and petitioner conceded at the hearing that the child could not climb stairs. Petitioner's offer to carry the child on the stairs is not appropriate under Federal and State policy (Shawano-Gresham School District, 16 EHLR 41; Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 30), nor would it be so if respondent's staff carried the child (Ibid). In view of the child's physical needs, I find that her program could not be fully implemented at the Fifth Avenue School, and that placement in that school would therefore be inappropriate. Consequently, the CSE's recommendation that the child attend kindergarten in the Mary G. Clarkson School is consistent with the least restrictive environment requirement.

        Petitioner also asserts that respondent has discriminated against her daughter on the basis of her daughter's disability. Section 504 of the Rehabilitation Act of 1973 (29 USC 794) provides that no otherwise qualified individual with a disability shall, solely by reason of his or her disability, be denied the benefits of, or be subjected to discrimination under any program receiving Federal financial assistance. Although one of the regulations implementing Section 504 also requires a board of education to consider the proximity of a child's home to the academic setting selected for the child (34 CFR 104.34 [a]), neither Section 504 nor that regulation compels respondent to educate the child in its Fifth Avenue School (Urban v. Jefferson County School District, 21 IDELR 985 [U.S.D.C. Col., 1994]).

THE APPEAL IS DISMISSED.