97-074

        Petitioner appeals from the decision of an impartial hearing officer which found that the special education classroom in which respondent had placed petitioner's daughter was inappropriate, but which rejected petitioner's contention that her daughter's placement in P. 177 violated the Federal and State requirement that the child be placed in the least restrictive environment. She contends that her child has been denied a free appropriate public education, and she asks that respondent be ordered to provide compensatory education to the child. The appeal must be sustained in part.

        The petition in this appeal was served upon respondent on October 22, 1997. Pursuant to 8 NYCRR 279.5, respondent was required to serve its answer within 10 days thereafter. Petitioner agreed to extend respondent's time to answer the petition until November 13, 1997. However, respondent did not serve its answer until January 14, 1997. Respondent asks me to excuse its delay in serving the answer, on the ground that it required additional time to prepare the answer because of the voluminous transcript from fourteen days of hearing in this proceeding. Petitioner objects to respondent's request in her reply to the answer. Given the size of the transcript as well as the fact that respondent's delay has not delayed my decision, I agree with respondent that petitioner has not been harmed by the delay. Therefore, I will excuse respondent's delay, and accept its answer.

        Petitioner's daughter, who is 12 years old, has been classified as autistic. The girl reportedly developed in a normal fashion in the first eighteen months of her life, but she reportedly began to lose speech and comprehension after a choking incident when she was eighteen months old. By the age of three, the girl was diagnosed as having a pervasive developmental disorder. In her last triennial psychological evaluation, which was performed in September, 1995, the girl could not be engaged by the evaluator for a sufficient amount of time to complete formal IQ testing. The evaluator reported that the child did display task-appropriate skills and problem solving skills which were consistent with at least average intelligence when she performed tasks which she enjoyed. However, the child reportedly displayed problematic behavioral tendencies with regard to flexibility and cooperation. In a letter dated June 23, 1995, the child's physician stated that the child had been diagnosed as having a pervasive developmental disorder. In 1996, the child's neurologist reported that she had demonstrated a number of activities which were suggestive of pervasive developmental disorder, including automatism. There is no dispute about the girl's classification as autistic.

        Petitioner's daughter was referred to respondent for education as a preschooler at the age of three and one-half years. She was placed on a twelve-month basis in the TOTS Therapeutic Preschool, where she received speech/language therapy and occupational therapy. The child remained in the TOTS program through the 1989-90 school year. She was eligible because of her age to attend kindergarten during the 1990-91 school year. However, respondent did not have space available for her in its special education program during the summer of 1990. Therefore, the board of education gave petitioner a "Nickerson" letter authorizing her to place the child in an approved private school (see Jose P. et al. v. Ambach et al. [79 C 270, U.S. D.C. E.D. N.Y., 1982]). Petitioner enrolled the girl, at respondent's expense, in the Westchester School for Special Children. Thereafter, respondent offered a placement in its specialized instructional environment - III (SIE-III) for the 1990-91 school year at P. 176. The child enrolled in P. 176 in November, 1990.

        A disagreement about the child's proposed educational program for the 1991-92 school year reportedly led to an impartial hearing. The hearing officer in that matter reportedly affirmed the recommendation by respondent's committee on special education (CSE) that the child remain in respondent's SIE-III program. However, the child was enrolled in the Clearview School for the 1991-92 school year, at respondent's expense, pursuant to another Nickerson letter. The child attended the private school until February, 1992, when she was removed from the school, and was placed on home instruction. During the 1992-93 and 1993-94 school years, petitioner's daughter was enrolled in the Herbert Birch School, which is a private school in Queens. In November, 1994, the child was referred to the CSE because of concerns about the ability of the private school to continue to provide an appropriate educational program for her. The CSE recommended that the girl be enrolled in respondent's SIE-III program in P. 255 at P. 7. The child reportedly began to attend P. 7 in January, 1995.

        At petitioner's request, the CSE concluded a review of the girl's placement in September, 1995. Petitioner was reportedly concerned about having certain of the child's needs met, and she reportedly sought to have the child begin to be mainstreamed with her regular education peers. In a report dated September 19, 1995, the child's teacher reported that petitioner's daughter independently used expressive language sometimes, and that she could speak in full sentences with a little prompting. Her receptive language could also be measured with prompting. The girl reportedly had a very large sight-word vocabulary for reading, and she could add sums to 15, with manipulatives. Nevertheless, the teacher reported that the child's behavior interfered with her learning potential. Specifically, she noted that the child did not share, and was easily turned to aggression against the staff or her peers when rules or tasks were not to her liking. Following the completion of the girl's triennial evaluation in November, 1995, the CSE recommended that the girl remain in the SIE-III program at P. 7. The child to adult ratio in SIE-III classes is 6:1+1. The individualized education program (IEP) which the CSE prepared for the child in November, 1995 indicated that she would receive individual speech/language therapy and individual occupational therapy. The girl's IEP also indicated that a full-time individual crisis management aide would be assigned to her.

        On or about June 7, 1996, the girl was transferred from one SIE-III class to another SIE-III class in the same school building. The girl's principal testified at the hearing in this proceeding that it was her decision to transfer the child, and that she had done so after the girl had scratched one of her classmates on two occasions in May, 1996. On June 10, 1996, petitioner's attorney requested that an impartial hearing be conducted alleging that the girl's educational program had been changed without petitioner's consent. The hearing began on June 28, 1996. When the hearing reconvened on July 11, 1996, the parties agreed that respondent would pay for independent psychiatric and educational evaluations of the child, and that the CSE would then review the results of those evaluations. They further agreed that if petitioner disagreed with the CSE's recommendation, the hearing would resume later in August, 1996. The hearing officer observed that the child was in yet another class for the summer, and she suggested that petitioner's challenge to the transfer of her child in June had become a moot issue.

        The hearing was adjourned twice more because one of the girl's independent evaluations had not been performed. That evaluation was completed in October, 1996. On October 24, 1996, the CSE met with petitioner and her attorney. It again recommended that the girl continue to be educated in respondent's SIE-III program, and that she receive individual speech/language therapy five times per week and individual occupational therapy three times per week. The CSE also recommended that the child continue to be assisted by a full-time individual crisis management aide.

        The hearing in this matter resumed on October 30, 1996. The hearing officer again expressed the belief that the issue of the child's transfer in June was moot, but she agreed to assume jurisdiction over the issues raised by the CSE's latest recommendations. The parties agreed that there was no dispute about the child's classification, or the appropriateness of the child's related services. Petitioner's attorney indicated that petitioner objected to certain things about the recommended program, including the fact that the child's IEP did not include a schedule for any kind of mainstreaming opportunities for the child. However, petitioner's own expert witness opined that the girl could not function in a regular education classroom (March 10, 1997 Transcript, page 59). The hearing continued for eight additional days, ending on April 7, 1997.

        On December 13, 1996, the parties stipulated that the child's pendency placement would be changed from the SIE-III program in P. 7 to the SIE-III program in P.S. 177. In their stipulation, the parties identified the specific class which the child would attend in P.S. 177 as of the first week in January, 1997, and they agreed that a behavior modification plan would be developed for the girl by a team which included petitioner. The team was to have its initial meeting by no later than the first week of January, 1997. Although petitioner agreed to have the girl moved from P. 7 to P. 177, she continued to object to respondent's placement of her daughter because P.S. 177 did not afford the girl any opportunity for mainstreaming or inclusion. As the term is used here, inclusion means the placement of a child with a disability with the child's age appropriate peers in a regular education class, where the child would receive appropriate special education services. The child would be expected to achieve at a level commensurate with his or her ability, rather than at the level of achievement of the child's non-disabled peers, as would be expected if the child were mainstreamed. On December 30, 1996, the hearing officer issued an interim order incorporating the terms of the parties' stipulation.

        In her final decision which was dated September 5, 1997, the hearing officer declined to rule upon the legality or appropriateness of the girl's transfer from one SIE-III class to another at P. 7 for approximately two weeks because she found that the matter was moot. She dismissed petitioner's contention that respondent had violated the terms of the stipulation which was incorporated in her interim order regarding the development of a behavior modification plan for the girl, which had apparently not been completed as of the last day of the hearing. The hearing officer noted that the team had met during the first week of January, 1997, as was required by the stipulation and interim order, and she found that adequate steps had been taken to implement the plan. The next issue which the hearing officer addressed was whether the child's occupational therapy was being appropriately delivered to her. She found that the child required occupational therapy which used sensory integration techniques to address her sensory deficits, and she ordered respondent to provide such occupational therapy to the girl. The hearing officer found that the girl had not yet demonstrated certain readiness and participation skills which were needed for her inclusion in a mainstream setting. Therefore, she dismissed petitioner's challenge to her daughter's placement on the ground that it did not provide mainstreaming opportunities for the girl. The hearing officer found that the SIE-III program addressed many of the girl's needs, and that the girl had been grouped for instructional purposes with pupils having similar academic, social and management needs. However, she also found that the child's classroom was inappropriate because of its size and noise, and because it was equipped with fluorescent lighting to which petitioner's daughter has an aversion. The hearing officer further found that the behavior modification plan which the girl's teacher had used was inappropriate because it was unsuccessful. She directed respondent to identify an appropriate placement for petitioner's daughter by no later than September 22, 1997, or issue petitioner a Nickerson letter to place the girl in an approved private school for the 1997-98 school year.

        Respondent does not challenge the hearing officer's determination that the specific classroom in which the child had been placed in P.S. 177 was inappropriate for her, or that the child's behavior modification plan was inappropriate. Therefore, I will not review either of those portions of the hearing officer's decision (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]).

        Petitioner challenges the hearing officer's decision on procedural and substantive grounds. With regard to the former, petitioner asserts that the hearing officer failed to render her decision in a timely manner. Federal and State regulations require each board of education to ensure that a final decision is rendered in a hearing not later than 45 days after receipt of a request for a hearing (34 CFR 300.572 [a]; 8 NYCRR 200.5 [c][11]), provided that the time may be extended at the request of either party. In this instance, the parties agreed to extend the hearing officer's time until 30 days after the hearing ended. The hearing concluded on April 7, 1997. However, the hearing officer did not render her decision until five months after the hearing had ended. While I agree with petitioner that the decision was untimely, that does not afford a basis for setting the hearing officer's decision aside (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33; Application of a Child with a Disability, Appeal No. 97-62). I will direct respondent to ensure that its hearing officers comply with the timeliness requirement in the future. Petitioner also argues that respondent failed to arrange for the hearing in a timely manner. However, the record reveals that petitioner requested the hearing on June 10, 1996, and the hearing began 18 days later. I find that petitioner's argument is without merit.

        Petitioner also challenges the manner in which the hearing was conducted. She contends that the hearing officer unfairly deprived her attorney of the opportunity to question respondent's witnesses about respondent's general practices, policies and procedures (see e.g. February 3, 1997 Transcript, pages 579-580). An impartial hearing officer may limit irrelevant or unduly repetitious evidence and testimony (Application of a Child with a Disability, Appeal No. 96-51). I have reviewed the transcript, and I find that the hearing officer acted appropriately to focus the hearing upon the child's needs and the action, or inaction, of respondent to meet those needs.

        Petitioner contends that she was denied due process of law because the hearing officer's third interim order, which was intended to reflect the parties' agreement on December 13, 1996 to transfer the girl to the SIE-III program in P.S. 177, did not accurately reflect the stipulation by the parties by failing to indicate that the parties had agreed that a Dr. McGowan from the CSE would train the child's management and bus aides regarding the implementation of the child's behavior modification plan. Petitioner is correct that respondent's attorney at the hearing indicated that such training would be provided (December 13, 1996 Transcript, page 323), and that the hearing officer's third interim order did not explicitly refer to that training. Petitioner contends that she attempted to bring this error to the hearing officer's attention, but the hearing officer nevertheless failed to remedy this omission when she rendered her final decision. Petitioner further contends that they should have allowed her to raise the issue of respondent's alleged failure to implement the child's behavior modification plan which was to be created pursuant to the December 13, 1996 stipulation.

        The record reveals that on January 18, 1997, an assistant principal at P.S. 177 testified that he had met with petitioner and other individuals on January 8, 1997, to begin working on the child's behavior modification plan. The assistant principal further testified that the task was not completed, but that it was being worked upon. On March 10, 1997, the private psychologist who had independently evaluated the girl in October, 1996 testified at the hearing about what she had observed while spending an hour in the child's classroom on March 7, 1997. The psychologist testified that there was no evidence that data on the child's positive and negative behavior was being maintained, and that no behavior modification was going on in the classroom. At the hearing on March 24, 1997, petitioner's attorney raised the issue of respondent's alleged non-compliance with the hearing officer's third interim order because there was no behavior modification plan for the child at P.S. 177. Respondent's attorney indicated that respondent would implement the hearing officer's order (March 24, 1997 Transcript, page 59). In response to a question by the hearing officer on the last day of the hearing, petitioner's attorney indicated that respondent's alleged non-compliance with the hearing officer's interim order was still at issue. The CSE chairperson stated that she had discussed the matter with the assistant principal from P.S. 177 who was on the committee to develop the girl's behavior modification plan. The assistant principal had indicated to the CSE chairperson that the committee had targeted certain of the child's behaviors, and it was working on identifying antecedent behavior and identifying reinforcers which could be used successfully to modify her inappropriate behavior.

        Upon review of the portion of the transcript in which the terms of the stipulation were described, as well as the hearing officer's interim order, I agree with the hearing officer that her order did not provide that a behavior modification plan would be in effect by a certain date. Nevertheless, I am troubled by the fact that there does not appear to have been a plan in effect some three months after the child began her placement at P.S. 177. Both parties agreed that a behavior modification plan was an important component of the child's educational program. I find that respondent's delay was unacceptable, and I shall direct respondent's CSE to include a behavior modification plan in the child's IEP which shall clearly identify the behavior to be modified and the specific techniques which will be used to change her behavior.

        Notwithstanding the hearing officer's determination that the issue of the child's transfer from one SIE-III class at P. 7 to another SIE-III class in the same building in June, 1996 was moot, petitioner agues that respondent's actions were illegal, and that they exacerbated her child's problems. In essence, she contends that the child's transfer, without petitioner's consent or involvement, constituted a change in the child's placement. However, I find that the transfer was not a change in placement, as that term is used in State regulation (8 NYCRR 200.1 [f]), and that the record does not support petitioner's contention that the child was harmed by the transfer.

        In her decision, the hearing officer found that the child's classroom in P.S. 177 was inappropriate because it was a large room subdivided into three areas where various activities occurred, which provided a noisy and distracting environment for the child. She credited the testimony of Dr. Sudhalter, the private psychologist who had independently evaluated the child, that petitioner's daughter could not learn in that environment. Dr. Sudhalter testified that the girl required a very quiet and structured environment in which to learn. She indicated that petitioner's daughter could be educated in a group of no more than six children, provided that the girl received 1:1 or 2:1 instruction. Dr. Sudhalter recommended that the child's teacher determine how long the girl could remain focused, as well as the type of language which the girl understood. She also recommended that the child's sensory integration needs be addressed to make her more accustomed to noises and other distractions. Dr. Sudhalter gave some suggestions for helping the child to make transitions. She also expressed her belief that the type of environment and program which this child required were not available in the public schools. The hearing officer recognized that possibility by directing respondent to issue a Nickerson letter to petitioner if it could not offer an appropriate placement to the child by no later than September 22, 1997. However, she afforded respondent the opportunity to identify an appropriate placement within its own schools, which is entirely consistent with the provisions of Section 4402 (2)(b)(1) of the Education Law.

        Petitioner contends that the record demonstrates that respondent has denied her daughter the free appropriate public education which she was entitled to receive. She asks me to order that her daughter be placed in an appropriate setting, and to further order respondent to provide compensatory education to her daughter, who has reportedly regressed as a result of respondent's failure to provide appropriate educational services to the child.

        In essence, petitioner disagrees with the relief which the hearing officer granted to her. The hearing officer found that respondent had failed to meet is burden of proof with regard to the appropriateness of the placement which it had provided to the child in P.S. 177. Although I have considered Dr Sudhalter's testimony that she was unaware of any public school which could meet the child's needs, I cannot conclude on the basis of that statement that there is no appropriate public school placement for the child. Many of the things which Dr. Sudhalter described in her testimony, such as a 2:1 instructional ratio in a class of no more than 6 children could be provided in a program like respondent's SIE-III, if an individual aide was assigned to the child. However, I do agree with petitioner that respondent has an obligation to do more than simply hand her a Nickerson letter. It has the obligation to arrange for a placement which can provide the physical environment described by Dr. Sudhalter, in either a public or private school.

        I have considered petitioner's request for an order directing respondent to provide compensatory education. Compensatory education is a permissible remedy when a child has been excluded from school, or denied appropriate educational services for an extended period of time (Burr by Burr v. Ambach, 863 F. 2d 1071 [2d Cir., 1988]; Mrs. C. v. Wheaton, 916 F. 2d 69 [2d Cir., 1990]; Lester H. v. Gilhool, 916 F. 2d 865 [3d Cir., 1990]; Miener v. State of Missouri, 800 F. 2d 749 [8^th Cir., 1986]). I find that those circumstances are not present in this proceeding.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent's board of education provide petitioner's child with an educational placement which is consistent with the terms of this decision, and its CSE shall forthwith amend the child's IEP to include a behavior modification plan.