95-005

      Petitioner appeals from the decision of an impartial hearing officer which held that respondent had failed to prove, on a timely basis, that its committee on special education (CSE) had recommended an appropriate educational program for petitioner's child, but which also held that petitioner had an obligation to define an appropriate alternative program " ... to be in a position to propose that it be ordered or funded." He also appeals from other portions of the hearing officer's decision which denied petitioner's request to reopen the hearing officer's decision in a prior proceeding about the child's "pendency", or status quo placement (Section 4404 [4] of the Education Law), and petitioner's request that the child be provided with resource room services. The appeal must be sustained in part.

        Respondent has filed the record of the hearing, but has not submitted an answer to the petition, which was served upon it on January 27, 1995. The statements contained in the petition will be deemed to be true for the purposes of this decision (8 NYCRR 279.3).

        Petitioner's daughter, who is seventeen years old, was diagnosed as mentally retarded while in early childhood. The child has been in special education classes since kindergarten. She was instructed in the Kennedy Child Study Center, until she was approximately eleven years old. The child was next enrolled in respondent's modified instructional services-V (MIS-V) program at P.S. 40. At or near the beginning of the 1992-93 school year, the CSE recommended that the child be enrolled in respondent's specialized instructional environment-V (SIE-V) program in its Occupational Training Center (OTC), because the child was no longer considered to be age appropriate for the MIS-V program.

        At petitioner's request, an impartial hearing was held to review the CSE's recommendation. The child remained in her MIS-V program at P.S. 40, which is an elementary school, during the pendency of the proceeding to review the CSE's recommendation for the SIE-V program. On June 14, 1993, the hearing officer in that proceeding held that the child should be evaluated, and afforded petitioner an opportunity to obtain an independent evaluation at respondent's expense. Although either petitioner or respondent could have obtained the child's evaluation during the Summer of 1993, neither party acted because each assumed that the other would obtain an evaluation.

        In the Fall of 1993, respondent initiated a hearing to obtain a ruling by another hearing officer about the "pendency placement" of petitioner's child during the period in which she was to be evaluated pursuant to the first hearing officer's decision. Petitioner wished to have the child remain in the MIS-V program at P.S. 40, notwithstanding the fact that the child was sixteen years old, while respondent sought to have the child placed in the OTC program with more age appropriate peers. At the commencement of the hearing on October 6, 1993, the hearing officer ruled that the child was not entitled to remain in the MIS-V program at P.S. 40 during the hearing, but orally directed respondent to provide the child with instruction at P.S. 40, until a program of home instruction could be instituted. He offered petitioner the option of placing the child in a private school at respondent's expense during the pendency of the hearing. At three subsequent days of hearing, petitioner and the hearing officer engaged in extended colloquy about the child's pendency placement, but the hearing officer rejected petitioner's requests that the child be returned to the MIS-V program at P.S. 40.

        In a decision dated January 21, 1994, the hearing officer found that there was no junior high level MIS-V class available for the child in her community school district, but held that her elementary level MIS-V class was not her pendency placement. The hearing officer further held that, absent the information which the proposed evaluation would provide, he was unable to identify "an acceptable pendency program" for the child. However, the hearing officer held that a program of home instruction which the parties had reportedly agreed upon was the child's pendency placement. At petitioner's request, the hearing officer directed the board of education to provide the child with physical therapy at P.S. 40, and to pay for the child's enrollment in a private dance studio as a means of providing her with physical education.

        The hearing officer wrote a final, rather than an interim, decision about the child's pendency placement, so that petitioner could appeal from the decision. However, petitioner did not initiate a review of the hearing officer's decision by filing a petition for review with the State Education Department (8 NYCRR 279.4). The child continued to receive instruction from one of respondent's teachers in the child's home for the remainder of the 1993-94 school year.

        In January, 1994, the child's independent evaluation was completed at the Center for Learning Disorders (CLD). The child received a verbal IQ score of 46, a performance IQ score of 46, and a full scale IQ score of 40, which placed the child in the moderately retarded range of intellectual functioning. The CLD psychologist, who did not formally assess the child's adaptive behavior, reported that the child was cooperative, but had related to him on a level appropriate for a child under five years of age. He further reported that the child had a short attention span for her age, and that her visual and motor skills were far below expectation for her age. The child was reported to be often perseverative, and her expressive and receptive language skills were described as severely impaired. On an academic screening test, the child was able to recognize the letters of the alphabet, and to read two words in isolation. While she was also able to recognize some one and two-digit numbers, she was unable to complete any addition or subtraction problems. The psychologist described the child as functioning in the moderately retarded range, and exhibiting academic skills at a kindergarten to first grade level which was consistent with her cognitive ability. He opined that the child was brain damaged, and alluded to a neurological report, which is not part of the record of this proceeding. The CLD psychologist urged that the child be placed in an instructional program with other adolescents where she could learn self-help and vocational skills which would enhance her sense of self-worth.

        A CLD educational evaluator tested the child in December, 1993. The evaluator reported that the child frequently needed to have questions or instructions simplified or repeated, and had exhibited perseverative responses. She also displayed a limited attention span, and was reportedly distracted by a variety of internal and external stimuli. The evaluator described the child's social interactions as similar to those of a pre-school or kindergarten child. Her performance on visual perceptual tasks were reported to be at a kindergarten level. The child's reading skills were reported to be at a beginning kindergarten level, as were her mathematics skills. The evaluator reported that the child exhibited deficits in both her expressive and receptive language skills. The child's difficulty in following directions were attributed to her deficits in vocabulary and auditory memory. The CLD evaluator recommended that the child be instructed in a group, rather than alone at home, as soon as possible. She opined that it was essential that the child receive instruction and practice in daily living and survival skills, as well as vocational training.

        A meeting of the CSE to review the CLD evaluation reports was scheduled to be held on February 2, 1994. Petitioner and his wife were invited to attend the CSE meeting. They requested that the meeting be postponed to a more convenient date, but the CSE did not grant their request. At the February 2, 1994 CSE meeting, which neither parent attended, the CSE recommended that the child remain classified as mentally retarded, and that she be placed in a SIE-V special education class with a 12:1+1 child/adult ratio, on a 12-month basis, in the OTC. The CSE also recommended that the child receive small group speech/language therapy twice per week. The individualized education program (IEP) which the CSE prepared for the child included annual goals to improve the child's functional reading, writing, and mathematical skills, and her expressive and receptive language skills. Two additional goals were to improve her daily living skills and to acquire "vocational skills parallel to mainstreaming". Petitioner was subsequently advised that unless he requested a hearing to review the CSE's recommendation, the child would be placed in the OTC on April 20, 1994.

        On May 11, 1994, petitioner appeared before the hearing officer in what was variously described as a continuation of the prior hearing, and as a new hearing to challenge the CSE's recommendation of February 2, 1994. The hearing continued on five additional days, the last of which was October 24, 1994. As had happened in the earlier hearing, the new hearing consisted largely of discussions between petitioner and hearing officer about the nature of the child's pendency placement. However, the CLD psychologist and the CLD educational evaluator did testify about their respective evaluations. During the course of the new hearing, petitioner raised various issues, including the propriety of the CSE's refusal to reschedule its February 2, 1994 meeting as petitioner had requested, the appropriateness of the OTC placement recommended by the CSE, the qualifications of the teachers instructing the child in her home, respondent's alleged failure to provide certain related services to the child, and the delay in reaching a final decision in the hearing. On October 27, 1994, the hearing was adjourned to afford petitioner, who was not represented at the hearing by an attorney, an opportunity to have his newly engaged attorney submit written argument to the hearing officer with regard to the child's pendency placement.

        In a decision dated November 14, 1994, the hearing officer ruled that the hearing should not continue, and that he had sufficient basis to reach a determination that respondent had failed to meet its burden in a timely fashion. Noting that it had been almost two years since the CSE had initially recommended the SIE-V class for the child and slightly more than one year since she had been on home instruction, the hearing officer found that the child's right to receive a free appropriate public education required that he direct respondent to pay for the child's education in any approved private school selected by petitioner. The hearing officer further found that, in the event that petitioner placed the child in an unapproved private school, he would be afforded an opportunity to establish the appropriateness of such school for his child in order to obtain tuition reimbursement (School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, U.S. ____, 114 S. Ct. 361 [1993]). With regard to the related services listed in the child's IEP, the hearing officer held that petitioner could obtain such services at respondent's expense if respondent failed to provide them. He rejected petitioner's request for resource room services for the child because there was no evidence in the record to support the need for such services. Once again, the hearing officer ruled that the child was not entitled to receive services in the MIS-V program at P.S. 40 as a pendency placement.

        Petitioner acknowledges that his petition was not filed within 40 days after his receipt of the hearing officer's decision (cf. 8 NYCRR 279.2 [b]), but asserts that he was precluded by ill health from commencing the appeal until approximately 30 days after the deadline. In support of his assertion, petitioner has submitted a statement by his physician. Under the circumstances, I find that the appeal should not be dismissed for laches.

        Petitioner does not challenge the hearing officer's holding that respondent had failed to demonstrate on a timely basis the appropriateness of the CSE's recommendation that the child be placed in the SIE-V program in the OTC. Although that portion of the hearing officer's decision is therefore final (34 CFR 300.509), I nevertheless note that the CSE's recommendation could not have been upheld by the hearing officer if he had reached the issue of its appropriateness. State regulation requires that an assessment of a child who is 12 years of age or older shall include a review of school records and teacher assessments and parent and student interviews to determine the child's vocational skills, aptitude and interests (8 NYCRR 200.4 [b][4][vii]). Although the child's IEP of February 2, 1993 included a vocational annual goal, there is no evidence in the record that the CSE obtained a vocational assessment either at the CLD or elsewhere.

        State regulation also requires that the IEP of a 15 year old child, or younger if appropriate, include a statement of the needed transition services for the child (8 NYCRR 200.4 [c][2][v]). This child's IEP did not include such a statement. Transition services are defined by Federal regulation as:

"(a) ... a coordinated set of activities for a student, designed with an outcome-oriented process, that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.

(b) The coordinated set of activities described in paragraph (a) of this section must...

(1) Be based on the individual student's needs, taking into account the student's preferences and interests; and,

(2) Include needed activities in the areas of:

(i) Instruction;

(ii) Community experience;

(iii) The development of employment and other post-school adult living objectives; and

(iv) If appropriate, acquisition of daily living skills and functional vocational evaluation." (34 CFR 300.18 [a]+[b])

        I must further note that the record does not demonstrate that the child's IEP was approved by a validly composed CSE. Federal and State regulations require that a CSE must include a representative of the school district who is qualified to provide or supervise the provision of special education, in addition to the child's teacher (34 CFR 300.344 [a][1]; 8 NYCRR 200.3 [c][3][ii]). Although an individual identified as an educational evaluator participated in the CSE meeting, there is no evidence of the individual's license or certificate in the record (cf. Application of a Child with a Handicapping Condition, Appeal No. 92-31; Application of a Child Suspected of Having a Disability, Appeal No. 94-41). In view of the fact that respondent has not established that its CSE was validly composed, it is not necessary to reach the issue raised by petitioner with regard to the CSE's refusal to reschedule the February 2, 1993 meeting.

        Petitioner challenges a portion of the hearing officer's decision which indicated that:

"Accordingly, the simple conclusion is that the CSE has failed to meet its burden in timely fashion and as a result the father prevails in his objection to the CSE's recommendation. The ball is now in the father's court. He must either accept the proposed site, identify an alternative approved site, or demonstrate the propriety of a non-approved site pursuant to Burlington/Carter."

        Petitioner contends that the hearing officer erred by relieving the respondent of its obligation to provide the child with a free appropriate public education. I do not agree with petitioner's contention. Although the hearing officer should have directed the CSE to review its prior recommendation of February 2, 1993 and to make a recommendation for the remainder of the 1994-95 school year, he did offer petitioner two remedies for the CSE's failure to demonstrate on a timely basis the appropriateness of its recommendation. The first remedy was a so-called "Nickerson letter", which allows a parent to place a child with a disability in an approved private school at respondent's expense in accordance with the decision in Jose P. et al. v. Ambach et al., ([ED, NY 1982] EHLR 553:298). The second remedy offered by the hearing officer was the opportunity to place the child in an unapproved private school, in which case petitioner would have the burden of proving that such placement was appropriate in order to obtain tuition reimbursement (Application of a Child With a Disability, Appeal No. 94-6). Neither remedy relieves respondent of its obligation to provide an appropriate education for the child. Each remedy simply affords a parent the opportunity to unilaterally place the child in a private school, rather than wait for the CSE to offer an appropriate program. I shall direct the CSE to expeditiously complete its evaluation of the child by assessing her vocational needs and abilities, and to promptly recommend an appropriate educational program for her.

        Petitioner asserts that the hearing officer erred by not directing that the child be maintained in the MIS-V program or a substantially equivalent program, in accordance with the Federal and State "pendency" requirements. Petitioner's failure to appeal from the hearing officer's "final" decision of January 21, 1994 with regard to the child's pendency placement would normally preclude a subsequent review of that decision in this proceeding to review the hearing officer's decision of November 14, 1994. However, I find that it would be inequitable to preclude review of the earlier decision of the hearing officer in view of the fact that he permitted petitioner, in effect, to reargue the merits of the pendency issue in the hearing which was conducted after the hearing officer had rendered his pendency decision.

        Section 4404 (4) of the New York Education Law provides that:

"During the pendency of any proceedings conducted pursuant to this section and during the initial identification, evaluation and placement procedure pursuant to this section and during the initial identification, evaluation and placement procedure pursuant to section forty-four hundred two of this article, unless the local school district and the parents or persons in parental relationship otherwise agree, the child shall remain in the then current educational placement of such child, or, if applying for initial admission to a public school, shall be placed in the public school program until all such proceedings have been completed."

        A child's then current placement is the child's placement at the time his or her parents presented a complaint to the school district regarding the child's evaluation, classification or placement (Monahan v. State of Nebraska, 491 F. Supp. 1074 [D.Neb, 1980] afd. in part, vac. in part, 645 F. 2d 598 [8th Cir., 1981]). Thereafter, the pendency placement continues in effect until the complaint is fully adjudicated (Zvi D. v. Ambach, 694 F.2d 904 [2nd Cir., 1982]). Notwithstanding the fact that there were ten days of hearings in which the child's pendency placement was discussed, there is virtually no information in the record about the nature of the child's program at the time of petitioner's challenge to the proposed SIE-V program. The most significant omission from the record is a copy of the child's last agreed upon IEP. Although respondent was not required to maintain the child's placement in the MIS-V class in P.S. 40 under all circumstances (Application of a Child with a Handicapping Condition, 32 Ed. Dept. Rep. 45), it nevertheless was required to provide her with an educational program in which each of the required components of her last agreed upon IEP were furnished (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 92; Appeals of Students with Disabilities, 33 id. 271).

        The record is also devoid of information about any program in which the child's last agreed upon IEP could have been implemented during the pendency of this proceeding. The lack of information about possible programs reflects the minimal degree to which the CSE's representative participated in this proceeding. What little information that the CSE's representative did provide was that children in the MIS-V program "age out" of the program at the age of 14.9 years if they are instructed in an elementary school. However, the fact that the child's then current placement was becoming inappropriate because of her age was not dispositive of her right to remain in such placement (Application of Handicapped Child, 22 Ed. Dept. Rep. 80), nor was the concern expressed by the hearing officer about the age range of children in her class dispositive. The then current placement must be maintained, absent some showing of immediate danger to the child's health and welfare(Matter of Bd. of Ed. City School District City of New York, 22 Ed. Dept. Rep. 103).

        In his decision dated January 21, 1994, the hearing officer found that the parties had agreed to have the child receive instruction at home as the child's pendency placement, after he had orally held that the MIS-V class in P.S. 40 was not an appropriate pendency placement. The transcript of the hearing held on October 27, 1993 appears to support the hearing officer's finding. However, petitioner's only other option at that point was to accept respondent's offer of a pendency placement in the OTC, to which he had objected. Under the circumstances, I find that home instruction, which both parties appear to agree does not provide the child with the socialization she needs, was not the child's pendency placement. The absence of information in the record precludes me from directing respondent to place the child in a specific program. Nevertheless, I will direct respondent to place her in a program with other children, and in which she can be provided with the required components of her last agreed upon IEP.

        Petitioner asserts that the hearing officer denied him the opportunity to submit relevant information about the child and to present evidence with respect to various issues he had raised during the hearing, by terminating the hearing and issuing his decision. The record reveals that petitioner misperceived the purpose of the hearing, notwithstanding the hearing officer's repeated explanation of the need to address the CSE's recommendation of February 2, 1994, and the adequacy of the CLD evaluation upon which such recommendation was based. On October 27, 1994, after five days of hearings, petitioner identified approximately 10 issues he wished the hearing officer to address. Most of the issues related to the child's pendency program of home instruction, rather than the CSE's recommendation. The hearing officer addressed the most significant of these issues, which was respondent's alleged failure to provide the child with her IEP mandated related services, by finding that she was entitled to such services and ordering respondent to pay for private speech/language therapy and counseling if the CSE failed to provide them. I find that any further delay in the proceedings to address each issue raised by petitioner would have been completely unwarranted, in view of the pressing need to determine whether the CSE's recommended program was appropriate. Petitioner and the CSE must both share responsibility for the protracted and unproductive proceeding in this matter. The failure of the CSE's representative to present the CSE's case, i.e., to demonstrate the adequacy of the evaluation and the appropriateness of the CSE's recommendation is inexplicable. Petitioner's inability or unwillingness to focus upon the central issues of the hearing precluded the development of an adequate record to afford the hearing officer a basis to determine what would be an appropriate program for the child. In the event that petitioner wishes to challenge the recommendation to be made by the CSE in accordance with the terms of this decision, I urge him to seek assistance from an advocate or an attorney.

        I have considered petitioner's other assertions, which I find to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer with respect to the child's pendency placement is annulled, and;

IT IS FURTHER ORDERED that within 10 days after the date of this decision the CSE shall arrange for a new pendency placement for the child in accordance with the tenor of this decision, and;

IT IS FURTHER ORDERED that within 20 days after the date of this decision the CSE shall complete a vocational assessment of the child, and within 10 days thereafter shall recommend an appropriate placement for the child.