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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 of the Board of Education of the City School District of the City of New York


Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Paul Marks, Esq., and Amy F. Melican, Esq., of counsel


        Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent’s committee on special education (CSE) that her daughter should be transferred from a modified instructional services-II (MIS-II) class in IS 239 to a specialized instructional environment-VII B (SIE-VII B) class at PS 140 which is located in JHS 275. The appeal must be sustained.

        Preliminarily, I note that although petitioner served her petition upon respondent in the fall of 1999, she did not provide proof of service of the petition. The Office of State Review was not made aware of her appeal until February 2000. Petitioner is not represented by an attorney. Her appeal has been accepted because it was commenced in a timely manner by service of the petition upon respondent.

        Petitioner’s daughter is 14 years old. She entered kindergarten at PS 188. The child was referred to the CSE because of poor academic progress when she was in the second grade (Transcript p. 6). In the spring of 1994, the CSE recommended that petitioner’s daughter be classified as learning disabled and receive resource room services at PS 188. She continued to receive resource room services at that school during the third and fourth grades. The child reportedly continued to have academic difficulties and was referred to the CSE again. The CSE recommended that she remain classified as learning disabled, but be transferred to a self-contained modified instructional services-I (MIS-I) class at PS 199, where she also received counseling.

        The girl articulated into IS 239 for the seventh grade during the 1998-99 school year. She began the year in an MIS-I class with a 15:1 child to adult ratio. She reportedly had difficulty in that class. By letter dated October 28, 1998, petitioner requested that her child be re-evaluated "for a more restrictive placement" (Exhibit 12). The child was reportedly placed on a "trial basis" in an MIS-II class with a 12:1+1 ratio at IS 239 (Exhibit 2). The special education site supervisor testified that MIS-II classes are intended for students who have emotional difficulties. Petitioner’s daughter continued to have behavioral difficulty in her new class. On February 12, 1998, petitioner met with the child’s special education teacher and her crisis intervention teacher. As a result of that meeting, the crisis intervention teacher recommended that the child be re-evaluated to support a change in the designation of her disability as well as her educational placement (Exhibit 10).

        The student bolted from her classroom when an educational evaluator arrived to test her on March 31, 1999. The evaluator conducted a flexible educational assessment on April 14, 1999 (Exhibit 8). She noted that the child’s social studies and math teachers had reported that the child was disrespectful to adults and instigated problems with her peers in class. Although her attendance was satisfactory, the child’s academic performance ranged from "needs improvement" to unsatisfactory. The evaluator did not formally assess the child’s academic achievement. The child was reportedly performing at the third grade level in reading and math. An update in the child’s social history did not reveal any significant change at home (Exhibit 5).

        A school psychologist who had been providing counseling to the girl once per week also observed her in the classroom on several occasions. He reported that her behavior vacillated between calm and complacent and disruptive and disrespectful, and that he rarely observed her to be on task or actively participating in the lesson being taught. He described her as a somewhat dispirited and apathetic youngster. The psychologist could not administer an IQ test to the child because she would not cooperate. He noted that her IQ scores were in the low average range, with little discrepancy between verbal and performance abilities, when tested in 1994 and 1995. The child’s teacher provided the data for the Devereux Behavior Rating Scale which is used to provide a measure of problem behavior. The child’s overall score was at the 98th percentile, indicating that she was exhibiting or experiencing significant emotional and behavioral problems in the classroom. The child’s teacher also provided information for use with the Connors’ Teacher Rating Scale, which indicated that the child was exhibiting conduct problems, hyperactivity and inattentiveness in the classroom (Exhibit 6).

        On April 21, 1999, a school based support team at IS 239 recommended to the CSE that the child be placed in the SIE-VII program because her behavior had grown progressively more unmanageable (Exhibit 4). The CSE met with petitioner on May 27, 1999. It recommended that the child’s classification be changed to emotionally disturbed, and that she be placed on a 12-month basis in an SIE-VII B class with a 12:1+1 pupil-teacher ratio. The CSE further recommended that she receive 30 minutes of individual counseling and 30 minutes of group counseling per week. The individualized education program (IEP) which the CSE prepared for the child included a behavior intervention plan to assist the child in understanding the consequences of her actions and expressing her feelings in an appropriate manner (Exhibit 3).

        On July 1, 1999, petitioner was offered a placement for her child in PS 140 which is located at PS 275 in Brooklyn (Exhibit 1). Petitioner disagreed with the CSE’s recommendation, and requested an impartial hearing. The hearing was held on July 29, 1999. The school psychologist from IS 239 testified that petitioner’s daughter refused to participate in counseling with him and had become oppositional, defiant, and non-responsive to her teachers. He further testified that she was physically and verbally abusive, and exhibited outbursts of inappropriate behavior. The witness opined that the child was in need of a smaller, highly structured learning environment to address emotional concerns which appeared to have an impact upon her learning (Transcript p. 12). The crisis intervention teacher at the school testified that the child walked out of her class two or three days a week. He further testified that an individual aide had been assigned to the child, but that the child had still been uncontrollable at times (Transcript, p. 22). The school concurred with the school psychologist’s opinion that petitioner’s daughter required a structured and therapeutic environment and explained that IS 239 did not offer a more structured program (Transcript p. 20). The supervisor of special education at IS 239, testified that the MIS-I class and the MIS-II class had been inappropriate for petitioner’s daughter because of her behavioral problems. He testified that the child’s continued placement in the MIS-II program would not only not meet her needs, but would also pose a risk to her safety and that of teachers and other students (Transcript pp. 26-29).

        The Board of Education offered two additional witnesses on behalf of its case. An administrative assistant at PS 140 described the SIE-VII program at that school. Although the child to adult ratio was the same for both the MIS-II and SIE-VII programs, the latter program provided more support because of the availability of a great number of staff, including a psychologist, three counselors, a social worker, two outreach workers, and the school based support team (SBST). She explained that the additional staff could remove a child from class and work directly with him or her. The administrative assistant testified that a "power of choice" behavioral management system was used in the program. The administrative assistant's testimony was supported by the supervisor of school psychologists for Community School District 21. She explained that the SIE-VII program staff were trained in behavior management, and that the availability of support staff in the SIE-VII was important for this child because she required more clinical than academic intervention (Transcript pp. 43-44).

        Petitioner testified that she wanted her daughter to remain in the MIS-II program. She indicated she was getting help for her daughter with private counseling, and was attempting to engage her in community programs. She also indicated that her daughter did not wish to attend the SIE-VII program, and wanted another chance at the MIS-II program (Transcript pp. 45-46).

        In his decision dated August 30, 1999, the hearing officer found that the child's behavior could not be addressed by the staff and teachers in her MIS-I/MIS-II placement at IS 239. He further found that the proposed SISE-VIIB placement would address the child's emotional and academic needs. Consequently, the hearing officer found that the Board of Education had met its burden of proof regarding the child's proposed change of program and placement, and he directed that she be placed in accordance with the May 27, 1999 IEP.

        Petitioner asserts that the impartial due process hearing was flawed because the witness list was inadequate, no information was given about the legal procedure in the case, and an advocate was not provided for her. I will address each of these assertions separately.

        With respect to the witness list and individuals in attendance, petitioner apparently contends that other individuals should have attended the hearing and testified. She does not identify any specific individual whom she believes should have been at the hearing. Each party to a hearing is entitled to present evidence and confront, cross-examine, and compel the attendance of witnesses (34 CFR 300. 509[a][2]). Petitioner failed to raise this issue at the hearing, and does not provide any basis in her petition for me to conclude that she was denied the right to call or confront any witness.

        I find the hearing officer adequately explained the legal proceedings in this matter, specifically addressing the burden of proof, the order in which the parties would go forward, the swearing in and qualification of witnesses, the opportunity for cross-examination, and the right to be represented by an attorney in the proceedings (Transcript p.5).

        With respect to petitioner’s assertion that she was not provided an advocate at the hearing, I must point out that there is no legal requirement under statute or regulation for an advocate to be provided to a parent. The parent of a child who has or is suspected of having a disability is entitled to be accompanied at an impartial hearing by legal counsel or individuals with special knowledge or training concerning the problems of students with disabilities (34 C.F.R. 300.509 [a][1]; 8 NYCRR 200.5[c][5]). However, a board of education is not the guarantor that free or low cost legal services are available to any parent (Application of a Child with a Disability, Appeal No. 97-85). I find that the same holds true for the providing of an advocate for a parent.

        The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487 March 11, 1983). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 C.F.R. § 300.550[b]; 8 NYCRR § 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, establishes annual goals and short-term instructional objectives which are related to the child's educational deficits, and provides for the use of appropriate special education services to address the child's special education needs (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9).

        Petitioner has not specifically challenged her child’s IEP, except with regard to the proposed change of program and placement. I have nevertheless examined the IEP because it is critical to respondent’s case. One of the central requirements for an IEP is that the IEP accurately report the child’s present levels of performance with respect to academic achievement and learning characteristics, social development, physical development, and management needs (8 NYCRR 200.4[c][2][i]). This information is used to ascertain the nature and extent of the child’s disability, the appropriateness of his or her annual goals, and the kinds of special education services the child requires, as well as to afford a basis for determining whether the child would be suitably grouped for instructional purposes with any particular class of students. This child’s last complete psychological assessment was apparently performed in 1995. Although the school psychologist attempted to perform IQ testing, he reported that it could not be done because the student would not cooperate. That does not, however, provide a basis for failing to complete an evaluation (Application of a Child with a Disability, Appeal No. 99-70).

        The child’s IEP indicated that her reading and math skills were at the beginning third grade level, as determined by her teacher’s informal assessment. As noted above, the educational evaluator who evaluated the child in April 1999 did not attempt to assess current levels of academic performance. I find that the CSE lacked sufficient information about the child’s cognitive skills and current levels of performance to reach a reasoned conclusion about how to address her special education needs.

        There are other reasons why I must reverse the hearing officer’s decision. A board of education must offer evidence of a specific placement at a hearing (Application of a Child with aDisability, Appeal No. 99-26). Respondent’s single witness who was familiar with the SIE-VII program at PS 140 testified that the program was located in more than one building. When asked by the hearing officer to identify the SIE-VII class to which petitioner’s daughter would be assigned, the administrative assistant testified that she had no idea (Transcript p.37). As part of its burden of proof, respondent must show that a child would be suitably grouped for instructional purposes with children having similar individual needs (8 NYCRR 200.6[g][3]; Application of a Child with a Disability, Appeal No. 98-32; Application of a Child with a Disability, Appeal No. 99-34). This may be done by offering a class profile, or by having a witness testify about the needs of the children in the proposed class. Even where it may not be possible to provide complete data because the class is still being formed, a board of education should explain the criteria it will use to place children in the class (Application of a Child with a Disability, Appeal No. 97-67; Application of a Child with a Disability, Appeal No. 99-3). Respondent failed to do so at the hearing in this proceeding. I am compelled to find that respondent failed to meet its burden of proof regarding the appropriateness of the proposed SIE-VIIB placement at PS 140.


IT IS ORDERED that the hearing officer’s decision is hereby annulled.

Topical Index

CSE ProcessSufficiency of Evaluative Info
Educational PlacementSpecial Class12:1+1
Implementation/Assigned SchoolGroupingFunctional
Implementation/Assigned SchoolTimeliness of School Assignment/FNR
Parent Appeal
Preliminary MattersConduct of Impartial Hearing
Preliminary MattersPleadingsTimeliness of Petition
Present Levels of Performance