00-062

        Petitioner appeals from an impartial hearing officer’s decision that directed respondent to offer a new placement to petitioner’s son for the 2000-01 school year, instead of requiring respondent to enroll the student in a specialized private school. Near the end of 1999-2000 school year, the hearing officer found that respondent had failed to prove the appropriateness of the placement which it had offered for that year, and he ordered respondent to offer an appropriate placement at least 30 days prior to the start of the 2000-01 school year. The appeal must be sustained.

        Petitioner’s son was twelve years old at the time of the hearing in April 2000. He reportedly did not speak any words until the age of three. He was initially classified as speech impaired by respondent’s Committee on Special Education (CSE) while in the first grade in 1993. The CSE offered a placement in a modified instructional services–III (MIS-III) class; however, petitioner opted to enroll him in St. Cecilia School in Community School District 14. At petitioner’s choice, the student continued to attend that school through the fifth grade in a special program for slow learners and received speech/language therapy in an after-school program. He was reportedly held over in grade once (Exhibit 4). While the student was in the fifth grade during the 1998-99 school year, petitioner requested that the CSE conduct a reevaluation because she was concerned with his academic progress.

        An educational evaluation conducted on October 29, 1998 indicated that the student had significant expressive and receptive language delays that were severely affecting his academic and social functioning (Exhibit 4). The child’s picture vocabulary and listening comprehension skills were reported to be at the kindergarten level. His overall reading skills were assessed to be on a 2.6 grade level, and his overall math skills were found to be on a 1.6 grade level. His performance of tasks involving auditory processing and verbal reasoning was significantly delayed. The evaluator concluded that the student would benefit from full-time instruction in a small group, with an emphasis on the development of language and communication skills.

        A psychological evaluation was conducted on November 6, 1998. The student achieved a verbal IQ score of 56, a performance IQ score of 98, and a full-scale IQ score of 74 (Exhibit 5). The child’s verbal skills were generally delayed, with some perseveration and echolalia noted. Projective testing indicated that the child was somewhat frightened and fragile. The school psychologist reported that the student’s significant speech and language deficits negatively influenced both his academic functioning and his social interactions. He further hypothesized that the child’s social immaturity and some of his behavioral difficulties resulted from his speech, language and communication problems, and he recommended counseling and a small instructional group.

        Community School District 14’s CSE convened on March 25, 1999 to develop an individualized education program (IEP) for the student for the 1999-2000 school year (Exhibit 3). In addition to the aforesaid evaluations, the CSE had a brief progress report from the student’s speech/language therapist, who recommended that the student continue to receive both group and individual speech/language therapy (Exhibit 8), and an updated social history (Exhibit 6). I note that the record also includes a pediatrician’s report dated October 30, 1998, which diagnosed the student as having a Pervasive Developmental Disorder and Central Auditory Processing Dysfunction (Exhibit 7).

        The CSE recommended that the student remain classified as speech impaired, and that he be placed in an MIS-III program with a student: teacher ratio of 12:1:1. The CSE further recommended that the student continue receiving speech/language therapy in a group of three twice per week and individually once per week, and that he receive counseling in a group once per week. The CSE’s summary of recommendations indicates that the committee recognized the student’s significant learning difficulties based on problems with language and communication, and that the student would benefit from a full-time special education class for students who have language based delays (Exhibit 1).

        A final notice of the CSE’s recommendation offering a specific placement at IS 292 was sent to petitioner on June 25, 1999 (Exhibit 2). While petitioner did not disagree with the recommendation for an MIS-III placement, she did not believe that the specific class which she visited at IS 292 was appropriate for her son. The student did not attend school during the 1999-2000 school year. Instead, petitioner home schooled him without obtaining approval of a home schooling plan pursuant to 8 NYCRR 100.10 (Transcript p. 11).

        Petitioner obtained a second opinion on the evaluation of her son. In March 2000, a psychologist at the Coney Island Hospital Child Development Center reported that the student suffered from Severe Communication Disorder involving both receptive and expressive language (Exhibits A, H). He stated that the student had tremendous trouble relating to others and was greatly emotionally impaired as a result of that difficulty. The psychologist asserted that the student had unusual educational needs and recommended placement in a small class setting in a specialized school. A pediatric neurologist from the child development center confirmed this diagnosis and recommendation (Exhibit C).

        In March 2000, a speech pathologist at the Beth Israel Hearing Speech/Language Center evaluated the student, and reported that his communication deficit was not reflective of a typical language learning delay (Exhibit D). She strongly urged that the student attend a small class setting in a specialized school devoted to children with similar processing and learning difficulties. She reported that the results of an evaluation conducted in September 1997 indicated severe language processing difficulties, and that subsequent testing by an audiologist confirmed the existence of a severe Central Auditory Processing Disorder. The speech pathologist further stated that significant deficits in the student’s auditory comprehension and expressive language skills had resulted in low self-esteem and an inability to develop age appropriate social relationships with his peers. She opined that without the highly focused intervention that a small class setting in a specialized school could provide, the student appeared destined for continued academic and social failure.

        The impartial hearing was held on April 3, 2000. Petitioner did not dispute the MIS-III recommendation made by the CSE, but she challenged the appropriateness of the class that had been offered. She testified that she had visited IS 292 and had concluded that the MIS-III program there did not meet her son’s particular needs (Transcript p. 8). Petitioner had visited an MIS-III class where the majority of the students were capable of communicating freely with the teacher in spite of their hearing impairment. She asserted that her son was not capable of this level of communication, and that he should receive instruction in a group of students with processing and learning difficulties similar to his (Transcript pp. 21-23). She further testified that no one had shown her a program in the Board of Education system that she felt could meet his educational needs (Transcript p. 12).

        The District 14 CSE chairperson’s representative testified that she was not familiar with the site that had been offered to the student because it was in Community School District 19 (Transcript p. 7). The assistant CSE chairperson from District 19 testified generally about the MIS-III program, but failed to offer any information on the specific placement that had been offered to the student for the 1999-2000 school year. At the time of the April hearing, he further testified that there was no seat currently available for the student in a sixth grade MIS-III class. Respondent also called a speech and language therapist who testified that there were many children who had language based learning disabilities with a similar type of profile to the student, but that she did not know anything about the specific class that had been offered to him (Transcript p. 25). She recommended that petitioner visit several sites to find a class that used visual, auditory and other sensory modes of learning to help students understand, and stated that petitioner would have to look at different MIS-III classes to see which one best fit her son (Transcript pp. 18-24).

        The hearing officer rendered his decision on June 23, 2000. He found that respondent had failed to meet its burden of demonstrating the appropriateness of the class that it had proposed for the 1999-2000 school year. In determining an appropriate remedy, the hearing officer noted that a new school year would soon begin, and decided that respondent should have an opportunity to offer a new placement. He ordered respondent to offer an appropriate MIS III placement for petitioner’s son at least 30 days before the start of the 2000-01 school year. Respondent offered a placement at P.S. 346 on September 29, 2000 (Answer, paragraph 46).

        Petitioner appeals from the hearing officer’s denial of her request that her son be placed in a specialized private school, and asserts that respondent failed to offer the student a free appropriate public education. Respondent asserts that the petition should be dismissed on procedural grounds because a Notice of Intent to Seek Review was never received and the petition was untimely. Respondent further asserts that the petition fails to state a cause of action.

        I will first address respondent’s procedural objections. The Regulations of the Commissioner of Education provide that a parent seeking review of a hearing officer's decision must serve a notice of intention to seek review upon the board of education within 30 days after receipt of that decision, and must serve a petition for review upon the board of education within 40 days after receipt of the decision (8 NYCRR 279.2 [b]). I note that a failure to serve a notice of intention to seek review is not a jurisdictional defect (Application of a Child Suspected of Having a Disability, Appeal No. 93-45; Application of a Child with a Disability, Appeal No. 95-66). Although petitioner has not offered an explanation for her delay in pursuing this appeal, respondent may have contributed to that delay by failing to offer a placement for the 2000-01 school year until September 29, 2000, notwithstanding the hearing officer’s directive that an appropriate placement be offered at least 30 days prior to the start of the new school year. In light of respondent’s failure to offer a timely placement pursuant to the hearing officer’s decision, and in the absence of any evidence of prejudice to respondent by petitioner’s delay, I will excuse her delay in bringing this appeal (Application of a Child with a Disability, Appeal No. 93-45; Application of a Child with a Disability, Appeal No. 97-36).

        Petitioner is not aggrieved by the hearing officer’s decision that respondent had failed to establish that it had offered an appropriate placement to her son for the 1999-2000 school year. Her grievance is with the remedy selected by the hearing officer, which afforded respondent the opportunity to select another MIS-III class for the student for the 2000-01 school year. In his decision, the hearing officer acknowledged that the remedy of a P-1 letter [which allows parents to place their children in approved private schools at respondent’s expense pursuant to the order in Jose P. et al. v. Ambach et al., 79-C-270, U.S. D.C. E.D. N.Y., 1982] would have been an appropriate remedy if petitioner had asked for a hearing before the start of the 1999-2000 school year. Although respondent did offer another placement for the 2000-01 school year, that occurred after the record was closed in this proceeding, and I have no information about it. I am nevertheless troubled by the facts which are in the record.

        Petitioner provided credible evidence that her son required a highly focused intervention that could be provided in a small class setting in a specialized school, and that the student appeared destined for continued academic and social failure without such an intervention. This student has significant deficits in his communication, academic and social skills. He will require intensive instruction and assistance. I must agree with the opinions offered by the professionals who have worked with him that he requires the kind of assistance and environment which a specialized private school could provide. In view of the extent of his needs and the delay in addressing those needs, I find that he should be placed by respondent in an approved private facility.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer’s decision with respect to providing respondent with an opportunity to offer a new placement is hereby annulled; and,.

IT IS FURTHER ORDERED that within 30 days after the date of this decision respondent shall arrange for this child’s placement in an approved private school for children with disabilities for the 2001-2002 school year.