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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 A. Cardozo, Corporation Counsel, attorney for respondent, Kit T. Wong, Esq., of counsel


       Petitioner appeals from an impartial hearing officer’s decision that authorized respondent to transfer her son from P.S. 255 at 154 in Community School District 25 to a public school in Community School District 5, in which petitioner and her son reside. The appeal must be sustained.

        Petitioner’s son is autistic. At the time of the hearing in the spring of 2001, he was nine years old and was being educated in a specialized instructional environment-III (SIE-III) class at P.S. 255, which is a school for children with disabilities that is located within P.S. 154. The SIE-III class consisted of six autistic students, a teacher, and an aide. Petitioner’s son was reportedly more verbal than his classmates, and was being mainstreamed into the regular education program for two periods per week.

        During the 2000-01 school year, school staff discussed with petitioner the possibility of transitioning the student to an inclusion class, i.e., a class of regular education and special education students with the latter continuing to receive specialized instruction in the less restrictive setting of a regular education class. Petitioner was reportedly not opposed to the concept of an inclusion placement for her son. However, she was informed that pursuant to respondent’s policy, her son’s inclusion placement would have to be made in Community School District 5, reportedly at P.S. 36, which is the student’s neighborhood school. Petitioner requested an impartial hearing apparently for the purpose of ensuring that her son remain at P.S. 255, although there has been no formal recommendation to change either his program or placement (Transcript p. 8).

        The hearing was held on May 23, 2001. At the hearing, a school district representative testified that although the possibility of an inclusion placement had been informally discussed with petitioner, respondent’s Committee on Special Education (CSE) had in fact made no such recommendation. A school district policy reportedly provides for students going into inclusion classes to be enrolled in such classes in their local community school districts. Notwithstanding the fact that there was no CSE recommendation for him to review, as well as the fact that neither side presented any documentary evidence, the hearing officer heard brief testimony by the district representative, the principal of P.S. 255, and petitioner. The principal described what an inclusion class would look like, according to the Board of Education’s model for such classes. Petitioner, who had visited P.S. 36, testified that the inclusion program there differed significantly from the inclusion program described by the principal of P.S. 255. She sought an order keeping her son at P.S. 255.

        In his decision dated August 1, 2001, the hearing officer ruled that respondent could transfer the student to an inclusion class in his home-zoned school, provided that the class met certain criteria. He specified that the class consist of age and grade appropriate students, that there be no more than two special education students for each aide in the class, that a "methods and resources" teacher be assigned to the class, and that staff be appropriately trained.

        Petitioner disagrees with the hearing officer’s decision. She asserts that the staff assigned to P.S. 255 are appropriately trained and have experience working with autistic students, and she questions whether the staff in her neighborhood school would have similar training and experience.

        I find that neither the hearing officer nor I have any basis for deciding the issue raised in this proceeding. As noted above, the CSE had not made any recommendation to change this student’s program or placement. There was no individualized education program (IEP) to review, and therefore no basis for holding a hearing (Application of a Child with a Disability, Appeal No. 97-3; Application of a Child with a Disability, Appeal No. 96-46; Application of a Child with A Disability, Appeal No. 94-13). In addition, I must note that it is an impartial hearing officer’s duty to obtain an adequate record to support his or her decision (Application of a Child with a Disability, Appeal No. 01-039). The record in this instance does not afford a basis for the hearing officer’s determination.

        I express no opinion with regard to the appropriateness of any future placement for this student.


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

Topical Index

Educational PlacementIntegrated Co-Teaching
Implementation/Assigned School
Parent Appeal
Preliminary MattersScope of Review