00-019

       Petitioners appeal from an impartial hearing officer's decision which ordered that their son be placed on an interim basis in respondent's modified instructional services– V (MIS-V) program pending the availability of a placement in a private school. They seek an order nullifying the interim service plan which respondent’s committee on special education (CSE) prepared for their son, and requiring respondent to return their child to what they assert was his last agreed upon placement. The appeal must be sustained in part.

        Petitioners request that respondent’s answer be rejected because it was served on May 18, 2000, six days after two previously agreed upon extensions of respondent’s time to answer the petition. One of petitioners’ attorneys indicates in petitioners’ reply that she was engaged in settlement discussions with respondent’s attorney prior to the service of the answer. In view of the relatively brief delay in serving the answer which did not delay this decision, I will exercise my discretion and accept the answer.

        Respondent objects to my consideration of certain exhibits annexed to the petition because they were not part of the record before the hearing officer (Exhibits I, J, K, L, M, and N), and because one exhibit allegedly violates 8 NYCRR 276.5 (Exhibit 10). It is well settled that documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 93-20; Application of a Child with a Disability, Appeal No. 95-41; Application of a Child with a Disability, Appeal No. 98-55). Exhibits I, J, K, L and M were available when the hearing in this proceeding was held on October 14, 1999. However, I find that Exhibits K, L and M are necessary to complete the record with regard to one of the issues in this appeal, the boy's pendency placement. Exhibit N is a copy of the hearing officer's decision, which is already in the record of the appeal. Exhibit 10 is an affirmation by one of petitioners' attorneys about a conversation he had in March 1999 with one of the witnesses at the hearing in October 1999. The attorney was not at the hearing to question the witness. Nevertheless, I am concerned about the attorney, in effect, testifying on behalf of his clients (Application of a Child with a Handicapping Condition, Appeal No. 92-27). I will not consider Exhibits I, J, and 10 to the petition.

        Petitioners’ son is seven years old. He was born in America, but went to live with his grandparents in China when he was six months old. The boy returned to his parents in New York City in May 1997, when he was four years old. Shanghainese and Mandarin are spoken in his home. The child was initially evaluated by respondent’s committee on preschool special education (CPSE) in the summer of 1997. The CPSE reportedly recommended that the child be classified as speech impaired and that he receive special education services. In September 1997, the boy began attending the East River Child Development Center, where he received bilingual speech/language therapy, physical therapy, and occupational therapy.

        The child passed from the CPSE’s jurisdiction to that of the CSE for the 1998-99 school year. The CSE recommended that the student be classified as speech impaired, and placed in respondent’s modified instructional services-IV (MIS-IV) program for kindergarten. It also recommended that the child receive the related services of speech/language therapy, physical therapy, and occupational therapy. An appropriate MIS-IV placement was reportedly unavailable at the beginning of the school year. In any event, the child’s mother requested an impartial hearing. The parties agreed to have the child receive ten hours of home instruction in Mandarin and English per week during the pendency of the hearing. On November 13, 1998, the hearing was dismissed without prejudice by a hearing officer because the child’s mother had withdrawn her request for a hearing (Exhibit K).

        The child’s mother and the assistant chairperson of the CSE subsequently agreed that the child would attend a MIS-IV class at P.142 in the morning and receive home instruction in the afternoon (Transcript pp. 29-32). The CSE apparently approved that agreement on February 9, 1999, when it prepared an individualized education program (IEP) indicating that the child should attend school for half of the day and receive home instruction for half the day (Exhibit L to petition). In a psychological update on November 18, 1998, the evaluator noted that the child attended the MIS-IV class with a 1:1 aide. The evaluator administered the Vineland Adaptive Behavior Assessment, using information provided by the boy’s mother. He reported that the child’s composite score of 48 placed him in the mild to moderate deficit range (Exhibit 9).

        The child was initially placed in a MIS-IV class for younger students at the kindergarten level. He was reportedly removed from that class and placed in a preschool class for two weeks. In December 1998, he was assigned to a MIS-IV class for older students in the first and second grades. The student, who had not completed kindergarten, was allegedly transferred to the more advanced class because his aide asked to be reassigned to that class (Transcript p. 46). The teacher of that class testified at the hearing that petitioners’ son had fleeting attention skills and required the assistance of an adult sitting with him to avoid placing himself in danger (Transcript pp. 14-15). In June 1999, the teacher reported that the child still did not appear to have any understanding of classroom routine. She indicated that although the child had made some progress, placement in the MIS-IV program was not meeting his needs (Exhibit 8). At the hearing, she testified that it would be an injustice to leave the child in the MIS-IV program (Transcript p. 59). There is no report by the child’s home instruction teacher in the record.

        The child’s speech/language therapist reported on June 15, 1999 that petitioners’ son had made minimal gains in all areas of receptive and expressive language skills, despite having received 30 minutes of individual therapy three times per week. She indicated that the child had severe to profound oral motor planning deficits and limited vocal imitation skills. The therapist recommended that the child’s individual speech/language therapy be increased to five times per week (Exhibit 6).

        On June 29, 1999, an educational re-evaluation was completed. The evaluator reported that the boy communicated with sounds and gestures, but did not utter any distinguishable language. The child demonstrated some receptive language skills in both Chinese and English by pointing to objects and following one-step directions. He could not read or write numbers, but had some number concepts. He was unable to recognize or read the letters of the alphabet. The evaluator suggested that assistive technology devices, such as a computer and a tape recorder, might help him in acquiring skills (Exhibit 5). On April 27, 1999, an assistive technology evaluator made certain recommendations to improve the boy’s speech/language and communication skills. She suggested that picture symbols be used, in addition to a voice output machine (Exhibit H).

        On July 11, 1999, a psychologist who examined the child in Shanghainese, Mandarin, and English reported that the child was extremely impulsive and hyperactive during the evaluation. She reported that he did not respond well to either English or Chinese, and did not say any meaningful words during the evaluation. On the Stanford-Binet, Fourth Edition, an IQ test which has not been normed for students with this student’s linguistic background, petitioners’ son was found to be functioning in the moderate range of deficiency. The psychologist noted that the child appeared to have delays in his visual motor functioning, in addition to severe delays in speech/language (Exhibit 4).

        On August 18, 1999, the CSE recommended that the child’s classification be changed from speech impaired to mentally retarded. It further recommended that he be placed in a nonpublic school class with a 12:1+1 child to adult ratio for instruction in Mandarin, and that he receive adaptive physical education. The child was also to receive 45 minutes of individual speech/language therapy in Mandarin three times per week, 30 minutes of individual physical therapy in English twice per week, and 30 minutes of individual occupational therapy in English three times per week. The child’s IEP also indicated that a full-time aide would be assigned to assist him, and that assistive technology devices would be used as needed for tests, as well as other testing modifications (Exhibit 1). A behavior intervention plan was included in the boy’s IEP. The CSE indicated on the IEP that it had considered placing the child in a full-day MIS-IV class, but had concluded that such placement would not have addressed his needs because of his high level of distractibility.

        By letter dated September 24, 1999, the child’s mother requested an impartial hearing to review the CSE’s recommendation that her son’s classification be changed to mentally retarded. In the letter, the mother also indicated that she had been told at the CSE meeting that her son would be placed in the MIS-V program because he was mentally retarded and non-verbal (Exhibit 3). It is not clear from the limited record whether an interim placement in the MIS-V program was discussed at the CSE meeting. There are no minutes of the CSE meeting. Petitioners assert that an interim service plan was prepared at the August 18, 1999 CSE meeting, but was not shared with them at that time. In its answer, respondent alleges that the plan was not prepared until a subsequent CSE meeting on October 7, 1999, after one of its employees had difficulty locating a nonpublic school for the child. The interim service plan has both meeting dates on it (Exhibit 2). In a letter dated September 23, 1999, petitioner asserted that she had signed a form consenting to her son’s interim placement in the MIS-V program under the mistaken impression that her son would have no placement unless she signed the form (Exhibit F). The child was placed in a MIS-V class at P. 137 in September 1999.

        At the hearing, the mother indicated that she was not opposed to a nonpublic school placement, but she did object to her son's placement in the MIS-V class at P. 137. She requested that her son be allowed to return to the MIS-IV program on a half-day basis and receive home instruction on a half-day basis. The mother also indicated that she did not believe her son was mentally retarded, but she did not know what would be an appropriate classification.

        The hearing was conducted on October 14 and 29, 1999. The hearing officer rendered her decision on December 1, 1999. While noting that the record was confusing in a number of respects, the hearing officer nevertheless found that respondent had met its burden of showing that the CSE's recommendations were appropriate. She also found that the MIS-IV program was inappropriate for the boy because it was not designed to serve moderately retarded children. The hearing officer noted that petitioners' child had little or no language and was functioning in the moderately retarded range. She found that the child fit the profile for admission to respondent's MIS-V program, with caveat that there was no adaptive behavior assessment (cf. Exhibit 9). The hearing officer nonetheless directed that the child be classified as mentally retarded. In view of the child's limited skills in any language, the hearing officer urged the CSE to reconsider its recommendation that he receive instruction and speech/language therapy in Mandarin. She directed that the child attend the MIS-V program on an interim basis, pending his placement in a non-public school, and with the related services which appeared on his IEP.

        Petitioners assert that the hearing officer denied them due process of law at the hearing by precluding the mother from having an adequate translation of the proceedings at the hearing. The Regulations of the Commissioner of Education require that an interpreter fluent in the parents' dominant language be provided at district expense at all stages of the proceeding, "where required" (8 NYCRR 200.5 [c][3]). A translator of Mandarin who was to have been at the hearing on October 29, 1999 called in sick. The hearing officer asked the parents' advocate to serve as interpreter, which she agreed to do (Transcript pp. 6-7). I note that at various times during the hearing on that day the boy's mother spoke without an interpreter. I find that petitioners' assertion is without merit.

        Petitioners also assert that the hearing officer failed to allow the boy's mother an opportunity to fully and fairly develop her case at the hearing. Hearing officers must afford unrepresented parties the opportunity to fairly present their case (Application of a Child with a Handicapping Condition, Appeal No. 92-38). Having reviewed the record, I find that the hearing officer afforded the boy's mother that opportunity (Transcript pp. 42-54).

        The parents contend that respondent violated their due process rights by not providing them with procedural safeguard notices or written information in Chinese. I find that this issue was not raised at the hearing, and is therefore not properly raised in this appeal (Application of a Child with a Disability, Appeal No. 99-60). In doing so, I note that there is no record upon which I could decide the issue.

        Petitioners challenge the CSE’s recommendation to classify their son as mentally retarded. The board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 92-37; Application of a Child with a Handicapping Condition, Appeal No. 91-11). A mentally retarded child is defined by State regulation as:

"A student who, concurrent with deficits in adaptive behavior, consistently demonstrates general intellectual functioning that is determined to be 1.5 standard deviations or more below the mean of the general population on the basis of a comprehensive evaluation which includes an individual psychological evaluation" (NYCRR 200.1 [mm] [7]).

        There are two psychological evaluations in the record. As noted above, the psychologist who evaluated the child in July 1999 found the child to be functioning in the moderate range of deficiency. However, the psychologist used a test instrument which had not been normed for a student with this child’s background (Exhibit 4). The child was examined by another psychologist on September 26, 1999. That psychologist administered the Stanford-Binet Intelligence Scale: Fourth Edition, on which the child achieved a composite score of 52. The psychologist reported that the boy was functioning in the mildly mentally retarded range. However, his primary diagnoses for the boy were a mixed receptive-expressive language disorder and a developmental coordination disorder. The psychologist noted that the boy’s inability to communicate verbally appeared to contribute significantly to his deficits in other areas. I note that there is no evidence of a non-verbal intelligence test, such as the Leiter International Performance Scale, having been administered to the child. In the absence of such testing, and in view of the report by the child’s speech/language therapist describing the child’s oral motor difficulties (Exhibit 6), I find that respondent has not met its burden of proof with regard to the proposed change of classification to mentally retarded.

        As noted above petitioners do not challenge the CSE’s recommendation that their son be enrolled in a nonpublic school. I therefore do not address the appropriateness of that recommendation. Petitioners do challenge the appropriateness of the their son’s interim service plan, pursuant to which the child was placed in the MIS-V program. Even though the placement was intended to be temporary, I find that respondent bears the burden of demonstrating the appropriateness of a placement in the MIS-V program. There is very little information about the program in the record. The CSE’s representative at the hearing testified that the CSE felt that the MIS-V program was more appropriate than the MIS-IV (Transcript p. 9). That belief was apparently premised upon the CSE’s perception that the child was mentally retarded and upon information provided by the child’s MIS-IV teacher. The teacher testified that the child would benefit from being in a smaller class and receiving instruction which was geared more to his level (Transcript p. 17). The record does not reveal the class size of the boy’s MIS-V class at P. 137, or the nature of the instruction provided in the class. Therefore, I must find that respondent has not met its burden of proof.

        Finally, petitioners contend that respondent violated the pendency provisions of Federal and State law by placing their child in a MIS-V class. The Federal and State statutes refer to the child’s "then current educational placement", which has been defined to mean the last mutually agreed upon placement at the time when the due process proceeding was commenced (Zvi D. v. Ambach , 694 F. 2d 904 [2d Cir., 1982]; Drinker v. Colonial School District, 78 F.3d 859 [2d Cir., 1996]). They assert that their child’s last agreed upon placement was in the half-day MIS-IV and half-day home instruction program.

        Respondent asserts that the child’s mother agreed to her son’s interim placement in the MIS-V program. However, the documents to which respondent refers (Exhibits 1 and 2) do not support that assertion. Respondent further asserts that the child’s mother acquiesced in her son’s placement in the MIS-V class at P. 137. Petitioners acknowledge that the mother signed a form purporting to consent to her son’s placement, but allege that she did so under duress because an assistant chairperson of the CSE allegedly told her that she had no choice. Respondent has not produced the form which the child’s mother signed, nor has it submitted an affidavit by anyone familiar with the facts surrounding the mother’s alleged consent to having the child placed in the program. I find that the last mutually agreed upon placement was set forth in the boy’s February 9, 1999 IEP, which provided for the half-day MIS-IV and half-day home instruction program.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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

IT IS FURTHER ORDERED that within 30 days after the date of this decision, respondent's CSE shall have the child re-evaluated, to include a nonverbal intelligence test and an updated adaptive behavior assessment, after which the CSE shall recommend an appropriate classification for the child; and

IT IS FURTHER ORDERED that the child’s pendency placement shall be the two half-day programs as described above, unless the parties agree to an alternative or the child is placed in accordance with the CSE’s recommendation of a nonpublic school.