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Application of a CHILD WITH A DISABILITY, by his parent for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York


Donald A. Lash, Esq., attorney for petitioner

Michael D. Hess, Esq., Corporation Counsel, attorney for respondent, Antoinette W. Blanchette, Esq., of counsel


        Petitioner appeals from an impartial hearing officer’s decision denying her request for an order compelling the Board of Education to transfer her son from a self-contained Modified Instructional Services-IV (MIS-IV) class to an inclusive MIS-IV class combining regular education and special education students. The appeal must be dismissed.

        Petitioner’s son is eight years old, and has been classified as speech impaired. His classification is not in dispute in this proceeding. The child is bilingual, but has significant language delays in both English and Spanish. On February 14, 2000, his speech/language therapist reported that the child exhibited mild receptive language delays and moderate expressive language delays. The child’s word and concept knowledge were reported to be below age expectancy. He was receiving 30 minutes of bilingual speech/language therapy per week. The child’s therapist recommended that the amount of therapy be doubled. (Exhibit 1).

        In a bilingual educational evaluation performed on February 9, 2000, the child demonstrated greater proficiency in Spanish than English, but had developed some readiness skills only in English. The evaluator reported that the child’s academic skills and fine motor skills appeared to be below age expectancy, and opined that he might have a difficult time responding to the requirements of instruction in a large classroom. The evaluator also opined that the child appeared to continue to need individual attention to address his language delays and develop his readiness skills (Exhibit 2).

        The school psychologist who evaluated the child on February 4, 2000 reported receptive and expressive language difficulties had hindered the child’s performance during testing. She noted that he lacked names for common objects in both English and Spanish, and was therefore unable to convey his thoughts. Petitioner’s son achieved a verbal IQ score in the mild range of mental deficiency. His performance IQ score was in the low average range. The school psychologist noted that although the child enjoyed learning, he was frustrated by his communication difficulties, which lowered his motivation and perseverance at times. She indicated that the child’s restlessness increased when he was unsure of himself. She opined that the child required modifications during the presentation of instructional material and in formal and informal communication because of his language difficulties (Exhibit 3).

        Petitioner’s son was enrolled in a self-contained, bilingual MIS-IV class at P.S. 176 during the 1999-2000 school year. In addition to speech/language therapy, the child also received occupational therapy. Petitioner asked to have her son be "decertified", i.e., removed from special education. The aforesaid evaluations were performed upon receipt of petitioner’s request. On February 14, 2000, petitioner met with members of the building team in what is known in New York City as an educational planning conference (EPC) to review the evaluations and her son’s individualized education program (IEP). The minutes of the EPC indicate that despite general agreement that the child had made considerable progress in communication and the development of readiness skills, the EPC team concluded that the child did not evidence sufficient skills to permit a successful placement in the regular education program (Exhibit 5). The EPC team recommended that the child remain in his 12:1+1 MIS-IV class and continue to receive 30 minutes of occupational therapy per week. It also recommended that his speech/language therapy be increased to 60 minutes per week.

        Petitioner did not agree with the EPC team’s recommendations, which were reviewed with her by respondent’s Committee on Special Education (CSE) on April 12, 2000. The CSE concurred with the EPC team’s recommendations. Petitioner then requested an impartial hearing to review the CSE’s recommendations that her child remain in his bilingual self-contained MIS-IV class. The hearing was held on May 22, 2000. At the hearing, petitioner’s attorney advised the hearing officer that petitioner wanted her son to be instructed only in English in an integrated or inclusive MIS-IV class for her son.

        In a decision dated September 8, 2000, the hearing officer agreed with petitioner’s request that instruction be provided in English, finding that there was a significant possibility that some of the boy’s difficulties could be attributable to having to function in two languages. However, he agreed with the CSE that the child continued to need placement in a self-contained MIS-IV class.

        As an initial matter, respondent maintains that this appeal must be dismissed as being time barred. An appeal should be commenced within forty days after the receipt of the decision (8 NYCRR 279.2[b]). This appeal was commenced on November 22, 2000, approximately seventy days after the hearing officer rendered his decision on September 8, 2000. Petitioner acknowledges that her petition is late, but requests that I excuse her delay because her attorney changed his employment. I find that the delay is excusable in this instance, given that the delay is approximately thirty days and that the respondent has shown no harm as a result of the delay.

        Petitioner contends that the hearing officer’s decision should be annulled because he applied the wrong standard in finding that respondent had demonstrated the appropriateness of its CSE’s recommendation. She asks me to order respondent’s CSE to revise her son’s IEP to provide that he be placed in a regular education class "with appropriate supports and services". A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (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 student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Petitioner does not challenge the accuracy of the IEP description of her son’s present levels of performance, or the appropriateness of his IEP annual goals and short-term instructional objectives. She does, however, challenge the CSE’s determination that her son requires a full-time placement in a self-contained special education class in order to have a reasonable opportunity to achieve those goals and objectives.

        The IEP indicates that petitioner’s son had kindergarten-level reading and math skills. He could write all of the letters of the alphabet, but confused upper and lower case letters. The child could count by rote to 70 in English. His IEP goals included developing beginning reading skills by identifying the letters of the alphabet and knowing the relationship between some letters and their sounds, and learning certain words by sight. In general, the child’s academic skills are well below those of his chronological peers. However, petitioner is correct in asserting that the level of her child’s performance does not afford a basis per se for excluding him from a regular education class (Application of a Child with a Disability, Appeal No. 90-19). A determination of what constitutes the least restrictive educational placement must be based upon the individual needs of each child, as specified in his or her IEP. Nevertheless, the presumption favoring the mainstreaming of children with disabilities must be balanced against the requirement that such children receive an appropriate education (Briggs v. Board of Educ., 882 F.2d 688 [2d Cir. 1989]).

        I must note that the record does not reveal whether the child has ever been in a regular education program. The child’s IEP, as well as the reports by his evaluators, indicate that he has difficulty understanding information that is presented to him, as well as difficulty expressing his own thoughts. The school psychologist who evaluated petitioner’s son indicated that he would have to have modifications in the curriculum to develop both his communication skills and his academic readiness skills. According to the child’s IEP, he requires additional time, even with curriculum modifications, to process information and therefore benefit from the curriculum. At the hearing, the child’s special education teacher testified that if the child were placed in a regular education class, which would be considerably larger than the MIS-IV class, he would receive less attention from the teacher and not have the extra time he needs to express himself. She opined that such a placement would not help him develop his language skills, the deficits in which keep him from participating successfully in a regular education environment (Transcript p. 8). While I have carefully considered petitioner’s brief testimony in support of changing her son’s class placement, I cannot in good conscience reject the testimony by respondent’s staff that such a change would keep the child from developing the skills he needs to be successful in a regular education setting at a later date.


Topical Index

Educational PlacementSpecial Class12:1+1
Parent Appeal
Preliminary MattersPleadingsTimeliness of Petition
Related ServicesOccupational Therapy
Related ServicesSpeech-Language Therapy (Pathology)
ReliefIEP Modification (Services)