95-067

         Petitioner appeals from the decision of an impartial hearing officer which upheld a recommendation by respondent's committee on preschool special education (CPSE) for the instructional program of petitioner's son during the 1994-95 school year, and which directed respondent's committee on special education (CSE) to classify the child as speech impaired and provide him with certain services during the 1995-96 school year. The appeal must be sustained in part.

        At the outset, I note that respondent failed to submit an answer to the petition in this appeal. In accordance with the provisions of 8 NYCRR 279.3, the factual statements in the petition have been deemed to be true statements for the purposes of this decision.

        Petitioner's son, who is five years old, was adopted in Brazil, and came to the United States when he was approximately nine months old. At the age of two, the child reportedly began having temper tantrums, and displayed signs of hyperactivity. He has been diagnosed by two neurologists as having an attention deficit hyperactivity disorder (ADHD). He reportedly achieved his developmental milestones within a normal period of time, but there were delays in the development of his speech. At the age of two, the child reportedly participated in a preschool program.

        In November, 1993, when the child was approximately 3-1/2 years old, petitioner brought the child to the Early Learning Center of the Volunteers of America for an evaluation. The intake report indicated that petitioner had concerns about the child's temper tantrums, hyperactivity, physical aggression, and delayed speech. The psychologist who evaluated the child reported that the child achieved standard scores of 86 for verbal reasoning, 77 for abstract/visual reasoning, and 78 for short-term memory, which resulted in a partial composite score of 73 (the quantitative reasoning portion of the test was omitted because of the child's inability to perform any of the required tasks). The psychologist noted that the child's impulsive responses and low frustration tolerance had impaired his performance. In an evaluation of the child's adaptive behavior, the child achieved a composite standard score of 86, which the psychologist reported to be in the average range. The psychologist reported that the child's interpersonal and play skills were reflective of an immature child who was impulsive and had difficulty maintaining social interaction. He opined that the child qualified as a preschool child with a disability who required an educational program with as much structure and consistency as possible in order to function adequately.

        An educational evaluator for the Volunteers of America reported that the child was easily distracted and extremely hyperactive, but that his developmental skills were appropriate for his age. She recommended that the child be placed in a preschool special education program to address his hyperactivity and short attention span, and that the child receive speech/language therapy to improve his speech articulation. The speech pathologist who evaluated the child in November, 1993 reported that his receptive and expressive language skills were within his age-level expectations, although his attention deficit hindered his ability to follow directions and participate in social-communicative interactions. The speech pathologist also reported that the child had difficulty articulating certain sounds, which were either produced in a distorted manner or with substitutions, giving the impression that the child was younger than he was. She recommended that the child receive speech/language therapy once per week, on a 12-month basis. The child was also evaluated by an occupational therapist who reported that the child had exhibited age appropriate sensory, gross, fine and perceptual motor skills, and recommended that the child not receive occupational therapy.

        On June 7, 1994, the CPSE recommended that petitioner's son be identified as a preschool child with a disability. The CPSE further recommended that the child be placed in a center-based, 12-month special education program in the Brooklyn School for Special Children. In the recommended program, the child was to receive one-to-one instruction in pre-academic skills in a special education class of no more than ten children and three adults. In addition, he was to receive individual speech/language therapy twice per week, and small group speech/language therapy once per week. Individual and small group counseling were each to be provided once per week. The child's individualized education program (IEP) included one annual goal to improve the child's cognitive skills by increasing his classification and number concept skills, and four goals relating to the child's expressive and receptive language needs. The IEP also had one annual goal relating to improving the child's ability to tolerate frustration, one goal to improve his ability to pay attention, and one goal to improve his ability to interact with peers. On June 7, 1994, petitioner accepted the CPSE's recommendation, by consenting to her child's placement in the recommended program.

        The CPSE recommended that the child begin receiving special education services in July, 1994. The Principal of the Brooklyn School for Special Children testified at the hearing in this proceeding that the school offered transportation to the child, but the child had not attended school during the Summer of 1994 because of a transportation problem involving petitioner and her other child. In any event, the child entered the Brooklyn School for Special Children in September, 1994. He was brought to school by petitioner in the morning, but rode a school bus home on at least some occasions. The Principal testified that the child was frequently late for school in the morning, and that he was often absent on Tuesdays and Thursdays, when he reportedly attended a regular education preschool program on Staten Island.

        A hearing requested by petitioner was held on September 20, 1994. Petitioner did not attend the hearing, but her advocate was present. The advocate and respondent's representative agreed that there was no issue to be determined by the hearing officer, who dismissed the proceeding, without prejudice. Although petitioner contends that she was unable to voice her objections at the hearing, she has not identified the issues which were to have been addressed, nor has she timely appealed from the outcome of that hearing.

        In November, 1994, petitioner met with the child's teacher and therapists in the Brooklyn School for Children to discuss the child's progress. Petitioner expressed her concern that the school was not providing the child with a behavioral management program, while the school staff reportedly had not seen the child manifest behavior which would require such a plan. Petitioner asked that the child's speech/language therapist focus her services upon improving the child's speech articulation skills, and reportedly refused the speech therapist's request to have the therapist informally evaluate the child to determine the need, if any, for modifying the child's IEP speech/language annual goals. At the hearing, the speech/language therapist testified that she had worked on the child's IEP goals, which included improving expressive and receptive language skills, as well as his speech articulation. She further testified that the child had received therapy on only ten days, and had been absent 29 days in the period from September through December, 1994. The child stopped attending the Brooklyn School for Special Children after December 13, 1994. In her petition in this appeal, petitioner asserts that she removed the child from the Brooklyn School for Special Children, and that he attended a regular education nursery school program two days per week.

        In February, 1995 petitioner requested that an impartial hearing be held because she wanted to obtain speech/language and counseling services for her child. The record does not reveal whether petitioner had attempted to have the CPSE revise the child's IEP to provide for such services independently of any educational program, prior to requesting the hearing. On February 10, 1995, petitioner and her advocate had an off-the-record discussion with respondent's representatives and a hearing officer, which resulted in an agreement between the parties. They agreed that the CPSE would have the child re-evaluated, and that the CPSE would review the results of the evaluation on or before March 20, 1995. They further agreed that respondent would reimburse petitioner for her transportation expenses in connection with the child's re-evaluation. It was also agreed that in the interim, the child was to receive one hour of counseling each week, and one and one-half hours of speech/language therapy each week. They also agreed that the CPSE would assist the parent in obtaining eyeglasses for the child at public expense. In an interim order dated February 21, 1995, the hearing officer directed respondent to implement the agreement which had been reached at the February 10, 1995 hearing.

        In a March, 1995, social history update of the child, petitioner indicated that she did not believe that the child required a special education class program, and expressed her preference for having the child receive the related services of counseling and speech/language therapy in his home or in a service provider's office, rather than in school. She also discussed the patch which the child wore over his left eye, which was apparently intended to correct a focusing deficit in his right eye.

        On March 2, 1995, the child was evaluated, by one of respondent's school psychologists, who reported that the child achieved a verbal IQ score of 92, a performance IQ score of 101, and a full scale IQ score of 95. The school psychologist described the child as labile and impulsive, and noted that his eye patch could have negatively affected his performance on tests during the evaluation. She also noted that the child's IQ scores were significantly above those which he had achieved in November, 1993. The school psychologist reported that the child spoke in full sentences, and that his speech articulation was adequate for communication. At the hearing in this proceeding, the school psychologist testified that in her opinion, the only service which the child required was counseling to address his behavior, i.e. his distractibility. She further testified that she had prepared two IEP annual goals relating to behavior modification for the CPSE which met on March 21, 1995.

        An educational evaluator who tested the child on March 3, 1995 reported that the child's readiness skills were intact, but that he exhibited a delay of approximately one year in both his expressive and receptive language skills. At the hearing in this proceeding, the educational evaluator opined that the delay in the child's language skills may have been attributable, in part, to his impulsive behavior. She testified that the child displayed age appropriate general knowledge, and could follow directions. The evaluator opined that he could perform satisfactorily in a regular kindergarten class.

        A speech/language therapist who evaluated the child for the CPSE on March 3, 1995 reported that the intelligibility of the child's speech was impaired by articulation errors, which she described as "age appropriate", i.e., not uncommon for children of his age. She noted that the child could imitate the correct production of sounds. The speech/language therapist also reported that the child had generally appropriate receptive and expressive language skills, although he had an approximate one year delay in picture and oral vocabulary skills. The evaluator suggested that the child's performance on tests of his picture and oral vocabulary skills may have been impaired by his distractibility. At the hearing, the speech/language therapist opined that the child did not have a lisp, and that he could function successfully in a regular education kindergarten class.

        On March 21, 1995, the CPSE met to review the child's evaluation results, as directed by the hearing officer. The CPSE recommended that the child remain classified as a preschool child with a disability, and that he be provided with counseling and speech/language therapy. However, it did not recommend that he be educated in a special education program. It also recommended that the child receive individual speech/language therapy once per week, speech/language therapy in a group of three once per week, individual counseling once per week, and counseling in a group of three once per week. The CPSE did not identify a specific site at which the child's related services were to be delivered. The record reveals that respondent contracted with a private agency which provides related services to school children in the provider's offices or in the children's homes. At the hearing in this proceeding, the owner of the agency testified that she had offered to provide the child with speech/language therapy in his home at various times during the week, but that she and petitioner had not been able to arrange a mutually convenient time for those services. She further testified that she had offered to have the child's counseling provided by a school psychologist, but that she and petitioner were also unable to agree upon a schedule for the child to receive counseling.

        In May, 1995, petitioner requested that an impartial hearing be held because her child was not receiving counseling or speech/language therapy. The hearing, which began on May 22, 1995, was conducted by the hearing officer who had presided at the February 10, 1995 hearing. Respondent presented evidence with respect to its attempt to provide counseling and speech/language therapy to the child pursuant to the hearing officer's interim order and the CPSE's March 21, 1995 recommendation. It also offered evidence about the availability of transportation for the child to attend the Brooklyn School for Special Children between July and December, 1994. The latter evidence was presented because petitioner had asserted a claim for reimbursement of her expenditures in transporting the child to the Brooklyn School for Special Children at the February 10, 1995 hearing, and had been assured by the hearing officer that the matter would be addressed at the next hearing. The staff who had evaluated the child for the CPSE, in March, 1995, also testified about their findings and recommendations. The hearing continued on May 25, 1995, when the Principal of the Brooklyn School for Special Children testified about the program which had been provided to the child at that school.

        In a decision which he rendered on June 30, 1995, the hearing officer noted that he could not make any ruling with respect to the child's program or placement for the 1995-96 school year because the respondent's CSE had not yet convened to prepare an IEP for such school year. With respect to the 1994-95 school year, the hearing officer found that the child had been appropriately classified as a preschool child with a disability. Perceiving petitioner's position to be that the child required a different amount of related services than had been recommended by the CPSE, the hearing officer found that the record did not support petitioner's position. He further found that the Brooklyn School for Special Children was an appropriate placement for the child, and he decreed that the child should attend that school until the end of the school's 1995 summer session.

        In an amended decision dated July 13, 1995, the hearing officer found that the educational program which the CPSE had recommended for the child on June 7, 1994, (special education class and related services), rather than the program which the CPSE had subsequently recommended for the child on March 21, 1995 (only related services, and one less period per week of individual speech/language therapy), was appropriate for the 1994-95 school year. The hearing officer indicated that " ... I cannot find that related services only would have been appropriate for [the child] from March 1995 to the end of the 1994-95 school year." However, he further found that the program recommended by the CPSE on March 21, 1995 would be appropriate for the child during the 1995-96 school year. The hearing officer ordered that the child resume attendance at the Brooklyn School for Special Children, where he was to receive the services provided for in his IEP of June 7, 1994. He also ordered the CSE to change the child's classification from a preschool child with a disability to speech impaired, upon the child's entry into kindergarten. The hearing officer directed respondent to provide the child in kindergarten with the services that were specified in his IEP of March 21, 1995.

        Petitioner challenges the hearing officer's decision on the ground that he exceeded his jurisdiction in ordering the implementation of the child's June 7, 1994 IEP through August, 1995, because that IEP had been superseded by the IEP which the CPSE had prepared on March 21, 1995. She notes that neither she nor respondent has challenged the appropriateness of the March 21, 1995 IEP. Petitioner also argues that the hearing officer's decision is inconsistent with the recommendations of the evaluators who tested the child in March, 1995, pursuant to the hearing officer's interim order. Petitioner also challenges the authority of the hearing officer to direct the CSE to classify the child as speech impaired, or to prescribe the services to be provided to the child during the 1995-96 school year.

        This proceeding was initiated by the petitioner to obtain speech/language therapy and counseling for her child. Those services had been recommended by the CPSE at its meeting held on March 21, 1995. The IEP which was prepared at that CPSE meeting (Exhibit 13) specifically indicated that those services would be initiated in March, 1995. I find that the appropriateness of the services which the CPSE had recommended on March 21, 1995 was not an issue to be determined by the hearing officer, because neither petitioner nor respondent had raised that issue. Instead, the issue to be determined by the hearing officer was why respondent had not provided the recommended services to the child, and the remedy, if any, to be provided to petitioner. The hearing officer did not, in fact, address that issue. Having considered the testimony by petitioner and the owner of the agency which was to furnish speech/language therapy and counseling to the child, I find that respondent made a good faith effort to provide the services at times and locations which were convenient to petitioner. Petitioner was offered an extensive choice of time periods during which speech/language therapy could have been provided to the child at the agency's office. The agency's owner even offered to approach another client about switching time periods, but did not pursue the matter when petitioner indicated that she was not interested. With regard to counseling, the agency's owner testified that petitioner did not wish to be involved in the child's counseling because petitioner perceived the counseling to involve psychotherapy, rather than behavior modification. Petitioner did not seriously challenge the witness's account of their conversation.

        With regard to the child's classification and educational program during the 1995-96 school year, I find that the hearing officer's amended decision fails to distinguish between the responsibilities of the CPSE for preschool children and those of the CSE for school-age children. The CPSE's recommendation was necessarily limited to the 1994-95 school year, because the child became five years old in May, 1995, and was therefore eligible to attend school as a kindergarten student in the 1995-96 school year under the jurisdiction of the CSE. I find that the hearing officer's amended decision must be annulled because it usurps the authority of the CSE to determine whether the child should be classified, and if so, what services should be provided to him during the 1995-96 school year. In her petition, petitioner refers to a meeting of the CSE on July 31, 1995. That matter is not part of this proceeding. If petitioner wishes to challenge any recommendation of the CSE, she may do so by requesting that an impartial hearing be held to review the CSE's recommendation.

        Although the hearing officer's decision must be annulled, I find that there is no basis in fact or law for petitioner's request for an order requiring respondent to expunge the child's name from any records which the CPSE or CSE may have of the child. The CPSE's recommendation that the child be classified as a preschool child with a disability is supported by the record in this proceeding. As noted above, the actions of the CSE are not part of this proceeding.

        Petitioner asks that she be allowed to contact private agencies to arrange for appropriate speech/language therapy and counseling services to be provided to her child, at respondent's expense, until the child's problems are resolved. If the child requires those services during the 1995-96 school year, it is respondent's responsibility to provide them pursuant to a recommendation by its CSE. There is no basis in the record before me for finding that respondent could not provide the child with services. To the extent that petitioner has requested such services to compensate the child for the related services which he did not receive during the 1994-95 school year, I find that her claim is without merit. Petitioner unilaterally removed her child from the previously agreed upon placement in the Brooklyn School for Special Services, at which he had been receiving speech/language therapy and counseling. After the parties reached their agreement on February 10, 1995, respondent made a good faith effort to provide those services to the child either in his home or in the offices of the service providers.

        Finally, petitioner asks that she be reimbursed in the amount of $18 for her transportation expenditures in connection with three evaluations which were performed for the CPSE pursuant to the hearing officer's interim order, in March, 1995. In his interim order, the hearing officer directed respondent to reimburse petitioner in the amount of $6 for her transportation expenses for each day on which evaluations were performed. The record before me indicates that the child's social history was updated, and the psychological evaluation was performed on March 2, 1995. On March 3, 1995, the educational and speech/language evaluations were performed. Petitioner has not identified a third day on which an evaluation was performed. I find that she is entitled to be paid $12 by respondent.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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

IT IS FURTHER ORDERED that respondent shall pay the sum of $12 to petitioner, as reimbursement for her transportation expenditures on March 2 and 3, 1995.