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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 of New York


William A. Gordon, Esq., attorney for petitioner

Hon. Paul A. Crotty, Corporation Counsel of the City of New York, attorney for respondents, John F. Wirenius, Esq. of counsel


      Petitioner appeals from the decision of an impartial hearing officer which upheld a recommendation by respondent’s committee on special education (CSE) that petitioner’s daughter be placed in a bilingual modified instructional services-IV (MIS-IV) program, and receive bilingual related services during the 1996-97 school year. Petitioner contends that her child’s instruction and related services should have been provided to her in English. The appeal must be dismissed.

        Respondent requests that I excuse its delay in serving an answer to the petition in this appeal. Petitioner opposes respondent’s request. An answer must be served within ten days after the respondent is served with petition (8 NYCRR 279.5). Respondent’s attorney asserts that the petition was served upon the board of education on August 1, 1997, and that he unsuccessfully sought to obtain petitioner’s consent to an extension of time in which to answer the petition. Petitioner’s attorney asserts that respondent’s attorney did not seek an extension until after the time to serve the answer had expired. He argues that petitioner would be prejudiced by my acceptance of respondent’s answer, which was served on September 2, 1997, and that respondent’s attorney has failed to offer a good excuse for his delay in serving the answer. Respondent’s attorney has alleged that the petition which it received on August 1, 1997 had three errors in its text, which were not corrected until August 21, 1997. In any event, I am not persuaded that respondent’s brief delay has prejudiced petitioner. Therefore, I will excuse respondent’s delay, and accept its answer.

        Petitioner's daughter, who is six years old, was identified as a preschool child with a disability because her speech was significantly delayed. She began attending a preschool education program at the Herbert G. Birch Early Childhood Center (Birch), in November, 1994. The child remained in that placement through the 1995-96 school year. While in her preschool placement, the girl reportedly received bilingual speech/language therapy and counseling.

        In February, 1996, the child's speech/language skills were re-evaluated by a Birch bilingual speech/language pathologist who tested the child in Spanish. The child, who was 4.7 years old when tested, achieved age equivalent scores of 3.4 for auditory comprehension, and 2.6 for expressive language. The next month, a Birch bilingual psychologist reported that the child had not spoken during her evaluation of the child, except to count by rote in English up to nine. However, the child could point to things in response to questions. Nevertheless, the child's inability to express herself verbally precluded the psychologist from assessing the child's verbal IQ. The child's scores on various portions of the performance IQ test ranged from borderline to very superior, and her overall performance IQ score was in the "bright normal" range. The psychologist reported that the child appeared to prefer Spanish, but had developed some English skills, especially with regard to arithmetic. She recommended that the youngster be placed in a bilingual special education class. A bilingual educational evaluator, who had tested the girl in Spanish, in April, 1996, reported that the child had not spoken during the evaluation, but she opined that the child had adequate receptive language skills. However, the child could not point to a color when asked to do so, and had inadequate visual discrimination skills. The child could count to six by rote, but could not identify the letters of the alphabet. In May, 1996, a physician opined that the child had a developmental disability, and that she possibly had an attention deficit hyperactivity disorder (ADHD).

        On May 21, 1996, respondent's CSE recommended that petitioner's child should be classified as speech impaired. That recommendation is not in dispute. The CSE also recommended a Modified Instructional Services IV (MIS-IV) program with bi-lingual (Spanish/English) instructional services and related services for the child in P.S. 4. Petitioner did not contest the recommendation of a MIS-IV service category, but she contended that the MIS-IV program and related services would not constitute an appropriate educational program, unless they were provided exclusively in English. As a result of disagreement with the CSE's recommendation, petitioner sought an impartial hearing to challenge those recommendations.

        A hearing was held before one hearing officer on four days in October, 1996. It was agreed that the child, who was not attending school when the hearing began, would attend a bilingual special education class P.S. 5, until the hearing officer could resolve the dispute between the parties. On October 21, 1996, respondent's CSE reviewed the results of the child's evaluation by the Kennedy Child Center, which was performed after the CSE had made its recommendations in May, 1996. The CSE adhered to its prior recommendation that the child should receive bilingual special education services.

        At the impartial hearing, petitioner testified that the child spoke more in English than she did in Spanish. She asserted that although her daughter did not speak in complete sentences in either English or Spanish, the child had more interaction in English, both at home and in her neighborhood. Petitioner admitted that she spoke Spanish primarily, but emphasized that her daughter was born in the United States, and had more general involvement with English. She also argued that it would be more difficult for her daughter to overcome her speech/language deficits if she was instructed in both languages, because the girl would be confused. The hearing was closed by the hearing officer, who for reasons which the record does not disclose, failed to render a written decision.

        The hearing began anew before a second hearing officer on May 9, 1997. The child's teacher testified that the child appeared to understand English, but that she responded to her teacher's questions in Spanish. The teacher further testified that the child answered more completely when questioned in Spanish. She also testified that the child spoke to her peers in Spanish. The child's bilingual speech and language therapist testified that petitioner's daughter was severely speech impaired, and was receiving assistance with respect to her expressive, receptive, and pragmatic language skills. She testified that the child required verbal prompting, and she opined that the child's dominant language was Spanish. She also testified that the child appeared to have a lack of focus, when spoken to in English.

        On May 9, 1997, petitioner repeated her prior testimony, her attorney challenged the validity of the evaluations which had been performed by the Birch staff, and urged the hearing officer to rely upon the reports which had been prepared by the staff of the Kennedy Child Study Center. In a bilingual speech/language evaluation which was conducted in that facility on April 24, 1996, the child achieved an age equivalent score of 3 years and 3 months for auditory comprehension. The evaluator noted that the child spoke very little during the evaluation, but she did speak some short sentences, almost all of which were in English. In an expressive one-word picture vocabulary test, the child identified 7 out of 25 pictures in English and 6 out of 25 in Spanish. The child also was able to correctly name 70% of body parts in both English and Spanish. The evaluator opined that the child, who exhibited a severe speech/language impairment, was bilingual in English and Spanish but appeared to be stronger in English. He recommended that she receive speech/language therapy twice per week to improve her communication skills in English.

        In May, 1996, a Kennedy Child Study Center psychiatrist diagnosed the child as having ADHD, and a communication disorder. The psychiatrist reported that the child spoke in short phrases in both English and Spanish, and that her speech was understandable in either language. A Kennedy psychiatrist, who had also evaluated the child in May, 1996, reported that the girl’s verbal, performance, and full-scale IQ scores were all in the borderline range. He noted that the child correctly answered some questions in one language, but not the other, and he opined that bilingualism appeared to be a factor in her intellectual functioning. The psychologist diagnosed the child as having an oppositional defiant disorder, and ADHD. The girl’s bilingual educational evaluation took place at the Kennedy Child Study Center in July, 1996. She did not use any expressive language during her educational evaluation. The evaluator, who reported that the child had evidenced deficits in problem solving skills, number recognition, visual memory and visual motor skills, cautioned that the test results might not accurately reflect the child’s actual academic readiness skills.

        In a decision dated June 19, 1997, the impartial hearing officer held that the child would not be adequately served if her educational services were provided solely in English, because Spanish was her dominant language. She determined that the child should attend a MIS-IV bilingual program, and receive speech and language therapy and counseling with related services bilingually in Spanish and English.

        Petitioner does not dispute the appropriateness of a MIS-IV program for her daughter, nor does she challenge the appropriateness of the related services of speech/language therapy and counseling which the CSE recommended. I note that the amount of speech/language therapy was to have been increased to three times per week, pursuant to a stipulation by the parties at the hearing on May 9, 1997. However, petitioner contends that the CSE’s recommendation that her child’s instructional and related services be provided bilingually was inappropriate, and was inconsistent with the Federal and State requirement that each child with a disability be educated in the least restrictive environment (see 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]). In addition, she asserts that respondent’s evaluation of her child did not comply with the State regulatory requirement that the results of a test which is administered to a child with impaired speaking skills accurately reflect the child’s aptitude or achievement level, or whatever factor the test purports to measure, rather than reflect the child’s impaired speaking skills, unless the test purports to measure the child’s speaking skills (8 NYCRR 200.4 [b][4][iii]). Petitioner also challenges the validity of the CSE’s recommendation on the ground that the CSE team lacked some of it mandated members on both May 21, 1996, and October 21, 1996.

        Respondent argues that petitioner is precluded from raising the issue of the CSE’s composition in this appeal, because she failed to raise the issue at the hearing in this proceeding. It further argues that petitioner’s claim with respect to the composition of the CSE on May 21, 1996 is moot because the CSE reconvened on October 21, 1996. I agree with respondent that the CSE’s recommendation on May 21, 1996 has been superseded by its subsequent, albeit, same recommendation on October 21, 1996. Therefore, the composition of the CSE on the first date is no longer an issue to be reviewed (Application of a Child with a Disability, Appeal No. 96-78). With respect to the CSE’s composition on October 21, 1996, I find that there is no evidence that petitioner, who was represented by an attorney at the hearing on May 9, 1997, raised the issue. When an issue has not been raised at a hearing, and there is no evidentiary basis in the record on appeal to resolve the issue, the State Review Officer will not render a decision with regard to that issue (Application of a Child with a Disability, Appeal No. 93-36; Application of a Child with a Disability, Appeal No. 95-23). In this instance, the record which was before the hearing officer and is now before me includes the child's individualized education program (IEP), which reflects the CSE's recommendation on October 21, 1996 (Exhibit 1, May 9, 1997 hearing). The participants at the October 21, 1996 CSE meeting, except for petitioner, who reportedly attended, but declined to sign the IEP, signed the second page of the IEP. I have considered petitioner's contention that neither the child's teacher, nor a representative of the district, other than the teacher, who was qualified to provide special education (see 34 CFR 300.344[a]) attended the meeting, as well as respondent's explanation of the qualifications of the individuals who attended the meeting (Paragraphs 122 and 123 of the answer). I note that since the child was a new entrant into respondent's schools, and was not attending any of its schools at the time of the CSE meeting, respondent was free to designate an individual to serve as the teacher member of the CSE, as it apparently did. Petitioner has not challenged the qualifications of either the individual who served as the teacher member, Ms. Ortiz, or the individual who served as the representative of the district, Ms. Roman. Therefore, I find that petitioner's contention is without merit.

        I have also considered petitioner's arguments about the adequacy and validity of the child's evaluations by the CSE. Petitioner contends that the test results may not be a true indicator of her child's abilities and needs because her child spoke very little during her evaluations, and had difficulty maintaining her concentration because of her ADHD. I must note that the evaluations to which petitioner refers were performed by the staff of the preschool program in which the child had been enrolled. Her evaluators were clearly aware of her distractibility and her very limited speech/language skills. The results of those evaluations are consistent with the results of the child's subsequent evaluation at the Kennedy Child Study Center.

        In essence petitioner's argument appears to be less with the validity of the testing procedures than with the conclusions which the evaluators reached. However, both the Birch evaluators and the Kennedy evaluators found that petitioner's daughter had significant deficits in her receptive and expressive language skills, and that she was bilingual. Although the parties disagree about whether English or Spanish is the child's predominant language, I find that the resolution of that issue would not necessarily be dispositive. As noted above, the Kennedy Child Study Center psychologist reported that the child used both languages to respond to questions, and was able to answer some in Spanish, but not English, and could answer others in English, but not Spanish. That conclusion was clearly supported by the testimony of the child's MIS-IV teacher and her speech/language therapist for the 1996-97 school year who had provided instruction to the child in both languages.

        The academic development of petitioner's child has been impaired by the youngster's significantly delayed speech/language skills, as well as other possible learning impediments such as her ADHD. The educational program which the CSE recommended was intended to provide the girl with dual language instruction to enable her to use whatever skills she had in either English or Spanish to acquire knowledge and academic skills to the best of her ability. Whether she will continue to need to acquire her academic skills in two languages, is a matter which the CSE must carefully consider in planning the child's future educational programs. However, I find that on the record which is before me the CSE met its obligation to recommend an appropriate educational program for the child during the 1996-97 school year (see Board of Education Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]).

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


Topical Index

CSE ProcessCSE Composition
CSE ProcessSufficiency of Evaluative Info
Least Restrictive Environment (LRE)
Parent Appeal
Preliminary MattersMootness
Preliminary MattersRes Judicata/Collateral Estoppel
Preliminary MattersResponse to Due Process Complaint Notice
Preliminary MattersScope of Review
Special FactorsLimited English Proficiency