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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


Hon. Michael D. Hess, Esq., Corporation Counsel, attorney for respondent, Neil S. Rosolinsky, Esq., of counsel


        Petitioner appeals from an impartial hearing officer’s decision which found that respondent was not required to provide an individualized education program (IEP) for a three-year period, rather than on an annual basis. She also appeals from the hearing officer’s denial of her request for an order requiring respondent to place her son in a specific intermediate school. The appeal must be dismissed.

        Petitioner and her child have lived in the Bronx for the past several years, but she works in downtown Manhattan. Prior to living in the Bronx, petitioner and her son lived in downtown Manhattan, where the rest of petitioner’s family resides. Petitioner’s child, who is 12 years old when the hearing was held, has been classified as emotionally disturbed by respondent’s Committee on Special Education (CSE). There is no dispute about his classification.

        Petitioner’s son has been in respondent’s Specialized Instructional Environment-VII (SIE-VII) program since the second grade. In September 1998, he entered P.S. 169, which is an elementary school located in Community School District 2 in Manhattan that serves children citywide. The school is in close proximity to the parent’s work place, and to a mental health clinic that the student has attended once a week after school since August 2000 (Exhibit B).

        During the 2000-01 school year, the student was re-evaluated by the CSE at petitioner’s request. His SIE-VII teacher reported that the SIE-VII program was no longer appropriate for the student, and recommended that he be placed in a less restrictive setting (Exhibit 8). On March 12, 2001, the CSE recommended that the student remain classified as emotionally disturbed, but that his placement be changed to respondent’s Modified Instructional Services-I (MIS-I) program, which is less restrictive than its SIE-VII program. It further recommended that he receive 30 minutes of counseling in a group once a week and 40 minutes of speech/language therapy in a group twice a week (Exhibit 1). In a March 13, 2001 notice of recommended deferred placement, the Community School District 2 placement officer indicated that no immediate placement was available (Exhibit 10). Petitioner does not challenge the CSE’s recommendation that her son be placed in the MIS-I program (Transcript p. 6).

        Although she resides in another community school district in the Bronx, petitioner sought to have her son placed in an MIS-I class in Community School District 2. She informed the CSE chairperson that she had selected I.S. 104 for her son to attend in September 2001, noting that there was no one in the Bronx to take care of her son after school or in the event of an emergency. She also indicated that I.S. 104 would be convenient because her son attends an afterschool program at the NYC Boys Club that is approximately five blocks from where she works (Exhibit B). She testified at the hearing that it would not be possible for her son to continue to receive counseling at the mental health clinic in Manhattan if he attended school in the Bronx (Transcript p. 15).

        At the hearing in this proceeding, a representative of Community School District 2 testified that a variance would be required in order for petitioner’s son to attend I.S. 104, rather than one of the public schools in the Bronx where he resides with petitioner. The representative indicated that Community School District 2 would not grant a variance until it had found room for its own children in its schools, and that it was premature for it to consider a request for a variance (Transcript p. 8).

        The hearing officer issued her initial decision in this matter on July 20, 2001. She noted that the student appeared to have made significant gains while working with his current therapist in Manhattan, and that he would be unable to continue to work with the therapist if he had to attend school in the Bronx. She ordered respondent to provide an MIS-I placement for petitioner’s son within Community School District 2 in a school located south of 42nd Street during the 2001-02 school year, but she did not require it to place the student in I.S. 104. In an order dated August 3, 2001, the hearing officer determined that there were inaccuracies and omissions from the hearing transcript, and she ordered the hearing to resume on August 14, 2001. On that date, a second representative of Community School District 2 informed the hearing officer that the community school district would comply with her order, while noting that petitioner neither lived nor worked within the district. The hearing officer reiterated her earlier order in her final decision that was rendered on August 27, 2001.

        Petitioner asserts that her son has made remarkable progress while attending school and working with his present therapist in lower Manhattan. She is concerned that he might regress if he does not have some consistency in his life, and asks me to order respondent to allow her son to attend I.S. 104 for three years. In the alternative, she asks that her son be placed in a private school.

        Respondent asserts that there is no dispute that the student should attend school in Community School District 2 on the east side of Manhattan. It argues that there is no showing that one intermediate school would be more appropriate than another for this student within Community School District 2, and that the hearing officer correctly concluded that she had no authority to order that petitioner’s son be placed in I.S. 104. Respondent further argues that a multi-year placement is inconsistent with the Individuals with Disabilities Education Act (IDEA).

        The Board of Education is obligated to place petitioner’s son in an appropriate educational program that meets his special education needs. As part of its obligation, respondent must ensure that the student is suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR 200.6[a][3]). The record before the hearing officer and me does not reveal whether there is an MIS-I class in I.S. 104, much less whether petitioner’s son would be suitably grouped for instructional purposes with the students in such class. The hearing officer has directed that the student be placed in a school within Community School District 2, even though he is not a resident of that community school district. While I have no reason to believe that respondent will not attempt to accommodate petitioner’s wishes to place her son in I.S. 104, I find that there is no legal basis for me to compel the Board of Education to do so.

        Petitioner further argues that the hearing officer should have ordered a placement for the student in the intermediate school for three years, rather than for one year. I cannot agree with her. A child’s placement must, at a minimum, be evaluated yearly (34 C.F.R. §300.552(b)(1); 8 NYCRR 200.4 [f]). The purpose of the minimum annual review requirement is to enable the school district and parent to monitor the child’s progress, and if necessary, make changes to the student’s program or placement. Petitioner’s request is inconsistent with federal and state regulations, and cannot be granted.


Topical Index

Implementation/Assigned SchoolLocation
Parent Appeal