00-017

       Petitioner appeals from an impartial hearing officer's decision which annulled a recommendation of respondent's committee on special education (CSE) that petitioner's son attend regular education classes with the assistance of an individual aide and resource room services during the 1999-2000 school year. Petitioner contends that the hearing officer lacked the jurisdiction to annul the CSE's recommendation because she had not challenged the recommendation, and had requested the hearing for the purpose of requiring respondent to implement the CSE's recommendation. The appeal must be sustained.

        At the outset, I note that respondent requested and received an extension of time for answering the petition until April 3, 2000. However, it did not serve its answer until April 19, 2000. Respondent asks me to accept its late answer. Petitioner asserts that I have no authority under Part 279 of the Regulations of the Commissioner of Education to accept a late answer. I disagree with petitioner (see 8 NYCRR 279.1; 8 NYCRR 276.3; Application of a Child with a Disability, Appeal No. 98-44). Petitioner further asserts that respondent has failed to establish or even allege good cause for its delay in serving the answer, and that any additional delay will prejudice her son. I find that respondent has not established good cause for its delay, and I will not excuse its delay (Application of a Child with a Disability, Appeal No. 94-15).

        From the limited record which is before me, it appears that petitioner's son is 14 years old, and has been on "home instruction", i.e., has received instruction from one or more of respondent's teachers, since January, 1999. The boy reportedly attended P.S. 175 for kindergarten, and was home schooled, i.e., taught at home by his parent, for the first, second, and third grades. He was reportedly enrolled in a regular education class for fourth grade, and an inclusion model MIS-I1 class for fifth grade. The child apparently received home instruction for the sixth grade, and at least part of seventh grade.

        At the hearing in this proceeding, the CSE chairperson for Community School District 3 testified that the child had been placed on home instruction while he was under the jurisdiction of the CSE of Community School District 4. After his case was transferred to the CSE of Community School District 3, petitioner approached her during the summer of 1999 to obtain a placement for her son.

        On September 27, 1999, the CSE of Community School District 3 reportedly prepared an individualized education program (IEP) for petitioner's son. The IEP is not part of the record of this proceeding. The CSE recommended that the boy be classified as learning disabled, and that he be enrolled in regular education classes, while receiving resource room services, group counseling, and the assistance of a full-time aide. Petitioner accepted the CSE's recommendation.

        The child was offered what the CSE chairperson described as an "interim" placement in respondent's Unified Collaborative School, where he remained for a few days, and then in its Crossroads School, an alternative public school with a diverse student body. Petitioner's son reportedly attended the Crossroads School for four and one-half days at the beginning of October, 1999. Petitioner alleges that her son did not receive any of the related services which the CSE had recommended for him. The Principal of the Crossroads School testified at the hearing in this proceeding that the child could not focus upon his work, left his seat continuously to socialize with other students, and had difficulty following classroom rules. She further testified that the boy had trouble finishing his work, even with one-on-one attention from an adult. The Principal stated that the boy had difficulty picking up social cues, and had argued constantly with others. The Crossroads School staff concluded that the boy should not remain in that school. By letter dated October 12, 1999, the Principal notified petitioner that the boy could not return to the Crossroads School, and that " … you must take him back to CSE for placement" (Exhibit F to the petition).

        Two days later, petitioner requested that an impartial hearing be held. Although her request is not included in the record, petitioner asserts that she sought an order requiring respondent to implement the CSE's recommendation for a regular education placement for her son. The hearing began on October 27, 1999. The parties and the hearing officer agreed to adjourn the matter until November 29, 1999 to afford respondent more time to find a placement consistent with the boy's IEP.

        The boy's case was reportedly reviewed by the CSE, which again recommended that he be educated in regular education classes, with related services (Transcript, page 11). In a final notice of recommendation dated November 3, 1999 (Exhibit B), petitioner was advised that a placement was available for her son in respondent's Computer School, also known as I. 245 on West 77^thStreet in Manhattan. I note that in the hearing transcript the Computer School is also referred to as I.S. 44. When petitioner visited the school, its Principal had not received any information about the boy from the CSE. The Principal subsequently contacted the CSE chairperson and the Community Superintendent about the alleged inappropriateness of placing the boy in that school (Transcript, page 11). The Community District's placement officer informed petitioner that her son could not attend the Computer School until an individual aide could be employed for the boy (Exhibit D). In any event, the child did not attend the Computer School. Instead, he remained on home instruction.

        The hearing resumed on November 29, 1999. The CSE representative introduced a written report by the Principal of the Crossroads, and elicited testimony from the CSE chairperson and the Principal. The CSE chairperson testified that the CSE was attempting to locate a private school for children with disabilities as a placement for petitioner's son. The CSE representative suggested that the CSE should reconvene to determine if the boy required additional evaluation. Petitioner opposed the CSE representative's suggestion. She asserted that her son should be given a chance to succeed in a regular education with appropriate supports, and expressed her preference for the Computer School, which the boy's brother attends.

        The hearing officer rendered her decision on January 10, 2000. She identified the issue to be determined as whether the Board of Education had met its burden of proving that the educational program and placement which the CSE had recommended for petitioner's son was appropriate. The hearing officer found that the " … evidence shows the profile of a student with significant academic delays as well as behavioral problems." She noted that the boy had been absent from the normal school routine for some time, and she opined that he might require a period of gradual adjustment. The hearing officer ordered the CSE to reconvene within two weeks after its receipt of her decision for the purpose of reconsidering the boy's educational placement program. She indicated that the CSE should consider whether to conduct additional evaluations. The hearing officer also ruled that the boy's pendency placement was home instruction.

        Petitioner challenges the hearing officer's decision on various grounds. She contends that the hearing officer lacked jurisdiction to consider the appropriateness of the CSE's recommendations for her son's educational placement since she had not challenged those recommendations. Petitioner further contends that even if the hearing officer had jurisdiction, she lacked an adequate record upon which to determine the appropriateness of the recommended placement. Petitioner argues that the hearing officer also lacked jurisdiction to determine the boy's pendency placement because that issue had not been raised. She asserts that the hearing officer's pendency determination was not based upon an adequate record, and it was inconsistent with Federal and State law.

        I agree with petitioner that the issue of the appropriateness of the CSE's recommendation that her son be placed in regular education classes and receive supportive services was not before the hearing officer. Petitioner did not challenge the CSE's recommendation. Instead, she challenged respondent's alleged failure to implement the recommendation. Section 200.5(c) of the Regulations of the Commissioner of Education provides that a parent may request an impartial hearing if the board of education fails to effectuate a CSE's recommendation within 30 days after the receipt of such recommendation. It was for that purpose that this proceeding was commenced. Although a CSE may review its recommendation at any time, a review would not relieve the board of education from its obligation to implement that recommendation, unless the parent agreed to keep the child in his or her prior placement while the CSE conducted its review. Petitioner has not agreed to defer the implementation of the CSE's September 27, 1999 recommendation. She asks that the recommendation be implemented. Under those circumstances, I find that the hearing officer had no jurisdiction to consider the appropriateness of the CSE's recommendation (Application of a Child with a Disability, Appeal No. 96-88).

        I will direct respondent to immediately implement the CSE's recommendation, which shall become the boy's pendency placement because it is the last mutually agreed upon placement, pending any further proceedings which may result from the CSE's review, if any, of its recommendation. I am not unmindful of the concerns expressed by the Principal of the Crossroads School. However, I must point out that the Individuals with Disabilities Education Act (20 USC 1400 et seq.) prescribes the procedure to be followed if a child is to be removed from his then current placement.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's decision is hereby annulled; and

IT IS FURTHER ORDERED that within 10 school days after the date of this decision, respondent shall place petitioner's son in a regular education program with the supportive services which the CSE recommended.