Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York
Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Norma Kerlin, Esq., and A. Orli Spanier, Esq., of counsel
Petitioner appeals from a decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) for the placement of petitioner's child in a vocationally oriented special education program during the 1996-97 school year. The appeal must be dismissed.
Respondent asks that I excuse its delay of twelve days in serving its answer to the petition in this appeal. It refers to petitioner's delay in bringing the appeal, and it asserts that petitioner has not been prejudiced by respondent's brief delay in answering the petition. In view of all the circumstances which are explained below, I will excuse respondent's delay, and accept its answer.
At the outset, I will address respondent's contention that this appeal is untimely. Respondent asserts that the hearing officer's decision was mailed to petitioner on October 23, 1996, and that petitioner received the decision on the following day. Petitioner initially attempted to commence this appeal on December 20, 1996, when he faxed a copy of the notice of petition and verified petition to the State Education Department's Office of Counsel. Thereafter, the Office of Counsel advised petitioner of the appropriate method to commence an appeal. Petitioner ultimately served a notice of petition and verified petition upon respondent on February 24, 1997. State regulation requires that a parent seeking review of a hearing officer's decision serve the petition for review within 40 days after the parent has received the hearing officer's decision (8 NYCRR 279.2 [b]). I note that petitioner is appealing pro se, and is unfamiliar with the method of bringing an appeal. While that fact does not excuse him from complying with the timeliness requirement, I find that there is no evidence that petitioner's delay has resulted in detriment to the respondent. I will therefore excuse petitioner's delay.
Respondent also argues that the appeal is moot because petitioner has removed his child from the New York City school system, and placed her in another public school system. Respondent asserts that in preparing its answer to the petition, it learned that on or about November 13, 1996, its CSE received a request from the Greece Central School District, near Rochester, New York, for the child's educational records, and that on March 11, 1997, a representative of that school district orally confirmed that petitioner's daughter was enrolled in the special education program of the Greece Central School District. The State Review Officer is not required to determine issues which are no longer in controversy, or to make a determination which would have no actual effect on the parties (Application of a Child with a Disability, Appeal No. 96-37). However, petitioner's removal of the child from respondent's schools does not per se preclude him from challenging the hearing officer's decision (see Essen v. Board of Education of the Ithaca City School District et al., 24 IDELR 30, [U.S. D.C. N.D. N.Y., 1996]; Hiller v. Brunswick CSD, 687 F. Supp. 735 [N.D. N.Y., 1988]). Petitioner seeks the remedy of compensatory education for three additional school years because of respondent's alleged failure to provide the child with a free appropriate public education during the 1995-96 and 1996-97 school years. I find that the appeal is not moot, and I will consider the issues presented in petitioner's appeal.
Petitioner's daughter, who is 20 years old, was born in the United States. Her speech was reportedly delayed by the age of two. In 1980, she accompanied her parents on a trip to the Country of Greece. For the next twelve years, she lived with her grandparents in Greece, and attended various schools there. While in the second grade, the child was transferred to a special education school. Thereafter, she received private speech lessons and tutoring. While in the special education program, she learned the alphabet, but was unable to read or write. In 1992, the child moved to New York, upon the death of her grandfather.
A neurologist who examined the girl in April, 1993 noted that the child did not speak any English. He reported that she evidenced a marked language delay, with mental retardation, mild bilateral spasticity, which was greater on the left side, bi-facial weakness and a high arched palate. The neurologist was unable to identify the source of the girl's disability, but he suggested that it might be the result of damage to the right hemisphere of her brain.
In the fall of 1993, petitioner referred his daughter to the CSE for a placement in respondent's schools. A school psychologist who evaluated the child in Greek for the CSE reported that she was functioning in the mentally retarded range, and that her perceptual motor functioning was in the deficient range. The girl was described as shy, immature, insecure, fearful, and withdrawn. A bilingual educational evaluator informally assessed the child's academic skills, which were found to be at about the first grade level. She reportedly recognized most letters of the Greek alphabet, and could read simple sentences in Greek very slowly. The evaluator reported that the child's fine motor skills were delayed.
The CSE recommended that petitioner's daughter be classified as mentally retarded, and that she be placed in a bilingual specialized instructional environment-V (SIE-V) program in the Queens Occupational Training Center. The child entered that program, and remained in it until January, 1996, when she was removed by her parents. At petitioner's request the child as re-evaluated in the spring of 1996. In a bilingual psychological evaluation, the child achieved a verbal IQ score which was in the upper limits of the mentally deficient range. Her performance IQ score was also in the mentally deficient range. The school psychologist reported that the girl demonstrated relative strength performing verbal tasks, and that her concept formation ability was relatively well developed. She manifested severe deficits in her numerical reasoning ability, short-term memory, and auditory sequencing skills. The child also evidenced significant deficits in her perceptual motor development. Using information provided by the child's parents, the psychologist reported that the girl's adaptive behavior composite score was in the very poor range. She was described as being a sensitive and compliant, yet somewhat withdrawn youngster.
In a bilingual educational evaluation which was performed in April, 1996, the girl was found to have delayed receptive and expressive language skills. Her knowledge of general information was reported to be at the first grade level, as were her reading readiness skills in Greek. The evaluator reported that the child had no reading skills in English. The child's listening comprehension on skills were found to be at a low second grade level. She could count from 1-10 on her fingers, but did not know number concepts, and her mathematical application skills were reported to be at an upper kindergarten level. The evaluator reported that the girl's fine motor and auditory memory skills were delayed, and that her graphomotor and spelling skills were at an upper kindergarten level. She recommended that the girl be educated in a small group setting in order to develop her academic and vocational skills, and that the girl receive speech/language therapy.
On May 15, 1996, the CSE recommended that the child remain classified as mentally retarded, and that she receive bilingual instruction in a 12:1+1 SIE-V program. It also recommended that she receive individual counseling once per week to improve her self-image and her perception of special education services. The CSE also prepared an interim service plan for the child's instruction, which was subsequently modified on May 22, 1996 to provide that she receive instruction at home until August 30, 1996. However, the child did not receive instruction at home, apparently because of a disagreement between the parties about the duration and nature of the instructional services to be provided. She was reportedly provided with speech/language therapy and counseling by a private organization during some portion of the 1995-96 school year and the beginning of the 1996-97 school year.
Petitioner requested that an impartial hearing be held to review the CSE's placement recommendation. He was reportedly dissatisfied with the academic instruction which was provided in the OTC, as well as the CSE's failure to recommend that the girl receive speech/language therapy. The hearing began on June 24, 1996. During the hearing, the parties discussed the possibility of placing the child in the Manhattan Transition Center (MTC), which is a special education program for young adults. Petitioner agreed to look at the MTC program on July 1, 1996. By letter dated July 12, 1996, petitioner advised the hearing officer that he had observed the MTC program, and had concluded that it was not appropriate for his daughter. The hearing officer did not receive petitioner's letter. On July 22, 1996, the hearing officer issued a statement of agreement and order, in which she found that the MTC program would be more appropriate than the OTC program to meet the child's educational, social, and vocational needs. She ordered the CSE to reconvene for the purpose of amending the girl's IEP to provide that she would be enrolled in the MTC program on a twelve-month basis.
On July 26, 1996, the CSE amended the girl's IEP in accordance with the hearing officer's order. Petitioner did not attend the CSE meeting. The amended IEP differed from the May, 1996 IEP in that it did not specify the class size in the recommended MTC program, and it did not specify that the child receive instruction on a twelve-month basis. The May IEP had included annual goals related to improving the girl's Greek speaking, and English listening and reading skills, as well as goals relating to her completion of adapted curricula in Greek for health, science, social studies, art, mathematics, writing and English as a second language. Those goals were not included in the amended IEP, which had new annual goals related to improving the girl's awareness of her personal ability, exploring realistic job opportunities, and managing her time. The amended IEP apparently reflected the different emphasis of the MTC program, which was described at the hearing in this proceeding as a program designed to connect its students with the support agencies which will help the students as adults after they leave the MTC program.
Upon learning that petitioner was dissatisfied with the amended IEP, respondent arranged to have the impartial hearing resume on October 3, 1996. The child apparently remained at home, without having any special education services provided to her by respondent. At the hearing in June, 1996, an administrator who was familiar with the MTC testified that the MTC students did not attend a school. Instead, each MTC student was assigned to a university, hospital, or business in the community, at which the student would receive 90 minutes for functional academic instruction per day. Students spent the remainder of the day working at the site. When the hearing reconvened in October, 1996, a CSE psychologist testified that the child was to have been assigned to work at an IBM site in Manhattan, where she was to have been assisted by an individual aide who spoke Greek. He opined that placing the child in an environment in which the majority of people spoke English would not be harmful to her, and that she would have the opportunity to interact with others while working in the MTC program. The CSE psychologist acknowledged that " ... academics in a formal sense of education would cease" (Transcript, page 41). However, the child would receive instruction in functional academics, e.g., counting and weighing. The psychologist asserted that the girl had made minimal progress while she was enrolled in the more academically oriented OTC program, and that it was important to help her learn how to function in society to the best of her ability.
At the hearing, petitioner asserted that his daughter had "lost" three years of education by attending the OTC. He asked the hearing officer to order respondent to place the child in a local private school for children with disabilities. In essence, petitioner contended that his daughter needed to learn English, and that respondent had failed to do an adequate job to teaching her to learn English. With respect to his concern for the child's safety, petitioner briefly alluded to the child's alleged beating in the OTC cafeteria in 1994. Petitioner expressed doubt about respondent's ability to guarantee the safety of his child in the MTC.
In her decision which was dated October 23, 1996, the impartial hearing officer found that respondent had demonstrated that the placement of petitioner's daughter in the MTC program, with an individual bilingual aide and individual counseling, would appropriately meet the child's educational needs during the 1996-97 school year. She reasoned that since the child had made only limited progress in the more academically oriented SIE-V program in the OTC, it would be more realistic to concentrate on developing her socialization and work environment skills in the MTC during the brief time before she left the public educational system. With respect to petitioner's contention that his daughter should receive individual counseling more than once per week, as the CSE had recommended, the hearing officer upheld the CSE's recommendation. However, the hearing officer agreed with petitioner that his daughter should receive speech/language therapy, to the extent of finding that she should be given such therapy once per week in the MTC program. She also directed respondent to provide home instruction to the child on an interim basis until her entry into the MTC program.
In this appeal, petitioner does not challenge his daughter's classification as mentally retarded, nor does he directly address the issue of the appropriateness of the MTC program for his daughter during the 1996-97 school year. Instead, he asserts that his daughter was "neglected by her school" because respondent did not provide the girl with speech/language therapy and counseling when asked to do so in 1995, and because respondent reportedly declined to allow the girl to transfer to another high school in January, 1996. He also challenges respondent's alleged failure to provide the child with home instruction, as the CSE had recommended in May, 1996.
I must note that these matters were at best tangentially raised and discussed at the hearing in this proceeding. With regarding to the CSE's failure to recommend that the girl be provided with speech/language therapy, the CSE psychologist testified that the child had been evaluated by an independent speech/language pathologist in March, 1995, and that the evaluator had opined that the child's SIE-V program was adequate to address the girl's speech/language needs. Having reviewed the independent speech/language pathologist's report (Exhibit 5), I find that there is no basis in fact for a determination by me that the girl should have received speech/language therapy in addition to her program at the OTC. Petitioner's reported wish to have his daughter attend respondent's Francis Lewis High School early in 1996 was also briefly discussed at the hearing. The CSE psychologist explained that while there were certain special education programs available in that high school, none of those programs would have been suitable for petitioner's daughter. Petitioner has offered nothing to contradict the psychologist's testimony.
The issue of the failure to provide home instruction in accordance with the CSE's recommendation on May 22, 1996 was also briefly discussed at the hearing. On October 3, 1996, Ms. Diane Zagare the Interim Acting CSE chairperson testified that petitioner had not agreed in writing to accept those services (Transcript, page 8). She further testified that after petitioner had requested a hearing, there was a serious question about the child's "pendency placement" (see 20 USC 1415 [e][A]; Section 4404  of the Education Law), and whether home instruction could be deemed to be the child's pendency placement. I note that at the time of petitioner's hearing request, the parties had agreed that the girl should receive home instruction, but none had been provided. In any event, Ms. Zagare further testified that when she offered to provide home instruction to the child in August, 1996, petitioner rejected her offer (Transcript, page 13). Petitioner did not refute her testimony.
Although he did not directly challenge the MTC program in his petition, I note that petitioner's chief concern about the program appeared to be about his daughter's physical safety while participating in the program. I understand petitioner's concern, but I must find that there is no basis in the record for me to find that her placement in that program would be any less safe than if she were placed in any other public or private school program.
Petitioner's other primary concern about the MTC program appeared to be that his child would not receive sufficient instruction to allow her to learn enough English to function in society as an adult. Having reviewed the child's various evaluations and the testimony by respondent's witnesses about her relatively little academic progress while at the OTC, I am unable to conclude that she did not succeed because of a defect in the academically oriented SIE-V program at the OTC. However, she did make progress in developing her social skills. In view of the nature of her disability and her age, I concur with the hearing officer's determination that the CSE correctly determined to change the focus of the child's educational program to more pragmatic, vocationally oriented instruction.
THE APPEAL IS DISMISSED.