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Application of a CHILD WITH A DISABILITY, by her 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, Theresa Crotty, Esq., of counsel


        Petitioner appeals from an impartial hearing officer's decision upholding the recommendation by respondent's Committee on Special Education (CSE) that petitioner's child be enrolled in a specialized instructional environment-III (SIE-III) class in P.S. 37 during the 2001-02 school year. The appeal must be sustained in part.

        There are two procedural issues to be addressed at the outset. Petitioner has asked me to consider three documents that were not made part of the impartial hearing record. The first document is a letter dated January 16, 2002 from Saint Vincent's Catholic Medical Center. The second and third documents are photographs of the child that allegedly show how she looked upon returning home from P.S. 37. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer’s decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without it (Application of a Child with a Disability, Appeal No. 98-55; Application of a Child with a Disability, Appeal No. 95-41). While I would not ordinarily admit documents into evidence that presumably existed at the time of the impartial hearing and therefore could have been offered at that time, I note that the petitioner is not represented by counsel and that the issues raised by these documents were also raised by petitioner at the hearing and do not create a surprise. In the interest of making the record complete, I will consider the petitioner's submissions

        Respondent requests that I excuse its brief delay in serving its answer to the petition. It maintains that the delay was due to the disruption that occurred when the September 11, 2001 attack on the World Trade Center displaced the New York City Law Department from its offices at 100 Church Street in New York City until late April 2002. In view of the circumstances for and the extent of the delay, I will exercise my discretion and accept respondent's answer (Application of a Child with a Disability, Appeal No. 02-005).

        Petitioner's daughter was ten years old and receiving home instruction when the hearing in this matter was held on March 1, 2002. The student has been classified as autistic by respondent's CSE. When evaluated by a school psychologist in July 2001, the student could not be tested with formal cognitive tests. Her adaptive functioning in communication, daily living skills, and socialization was in the severe to profound range. The examining psychologist reported that the student required a self-contained environment to address her intense needs in communication, daily living, and socialization (Exhibit 6). There is no dispute about her classification (Transcript p. 5).

        The student had reportedly been enrolled in the SIE-III program at P.S. 37, when a dispute arose between the parties (Exhibit 14). On October 25, 2000, an impartial hearing officer authorized petitioner to place her child in a state-approved private school, with a "Nickerson" letter (see Jose P. v. Ambach et al., 79 C 270, U.S. D.C. E.D. N.Y., 1982). Petitioner was unable to secure a placement for her child in a state-approved private school. In the interim, the student was to receive home instruction from a teacher trained to use the applied behavioral analysis (ABA) methodology. However, there were reportedly difficulties coordinating the schedules of the teacher and the parent (Exhibit 18). The district recommended that the student be placed in a special education class in P.S. 37 as an interim placement. On September 10, 2001, the parent requested an impartial hearing to contest the placement. Thereafter, the parties agreed to entry of a consent order on November 2, 2001, which provided that the student would receive two and one-half hours of home instruction twice per week for a three-month period while she awaited placement in a non-public school. If the student had not been placed in a private school by the end of the three-month period, the CSE was to determine whether she should remain at home with home instruction.

        The student had not been placed in a private school when the CSE convened on February 5, 2002. Although the CSE was aware that the student had made some academic progress with 1.5 hours of home instruction two times per week, it concluded that she required a longer instructional day, and that home instruction would not fully address her needs because it did not afford her an opportunity to socialize with peers. The CSE recommended that the student be immediately placed in a full time special education class in a specialized school with a 6:1+1 staffing ratio. Additionally, the student was to receive individual occupational therapy twice per week, individual speech-language therapy twice per week, and was to have a transportation aide (Exhibit 4). Petitioner was offered a placement for her child on a twelve-month basis in an SIE-III class at P.S. 37.

        Petitioner disagreed with the CSE's recommendations and requested an impartial hearing (Exhibit 1). At the hearing, she indicated that she wanted her daughter to continue receiving home instruction until a private school placement could be obtained for her (Transcript p. 41). Petitioner asserted that her daughter had begun shaking her hands constantly and had developed constipation while attending P.S. 37, and that the latter had decreased while she was receiving home instruction. An impartial hearing was held on March 1, 2002.

        In her decision, which was rendered on March 19, 2002, the hearing officer found that there was no evidence that any private school would offer a placement to the student during the 2001-02 school year. She noted that respondent was required to place the student in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]), and found that this student did not require so restrictive a placement as home instruction. The hearing officer found that the student's individualized education program (IEP) appropriately identified the student’s needs and that the program recommended by the CSE would meet the student’s individual educational needs. She found that the other students in the proposed class had similar academic, social and physical needs, and that the low staff to student ratio would enable the student to receive structured individual attention. The hearing officer also found that the parent’s concern about her daughter's constipation and self stimulating behavior would be addressed in the proposed program.

        Petitioner contends that her daughter should not attend the SIE-III program at P.S. 37 because of her previous experience in that program. She asserts that her child was extremely agitated, and came home with scratches on her hands and fingers while attending P.S. 37. When she questioned school staff, the staff reportedly could not explain what had happened to her child. Petitioner asserts that her daughter began to fear going to school, and developed physical symptoms such as chronic constipation and shortness of breath. She contends that these problems have improved since the student has been receiving home instruction. Petitioner also contends that her daughter's IEP erroneously indicates that she was in a bilingual program and that she has a seizure disorder, and that such errors have hindered her in her effort to obtain a suitable private school placement.

        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 (Bd. 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).

        I have reviewed the IEP developed for this student (Exhibit 4), and I find that it accurately reflects the results of the student's evaluations. Contrary to petitioner's assertions, the IEP does not indicate that the student has seizures, nor does it refer to her being in bilingual education classes. The IEP identified the student’s present level of performance, set goals for the student to achieve and set out the interim steps for determining whether the student is progressing towards those goals. In preparing the portion of the IEP describing the student's present levels of performance, the CSE relied upon the results of the July 2001 psychological evaluation and an educational evaluation also performed in that month. On February 25, 2002, almost three weeks after the CSE prepared the IEP, the student's home instruction teacher reported on the student's progress (Exhibit A). Having reviewed the teacher's report as well as the IEP, I find that the latter nevertheless accurately reflected the student 's needs and current levels of performance. As a result, the student's IEP short-term objectives were reasonably related to her special education needs, as for example, matching identical pictures and matching pictures to objects.

        After reviewing the evaluations, the CSE determined that the student needed a small highly structured special education program for autistic children, and that home instruction was not addressing the student's needs and was too restrictive an environment. The program recommended by the CSE in P.S. 37 would provide a small structured environment with a 6:1+1 child to adult ratio. In additional to helping the student develop academic and communication skills, the program is designed to help her develop activities of daily living (ADL) and other self-help skills including socialization skills (Transcript p. 22). The hearing officer questioned a school psychologist about the proposed class at P.S. 37. The school psychologist testified that he had frequently been in that classroom, and that there were children in the class with needs and abilities similar to petitioner's daughter (Transcript pp. 22, 26-29). Respondent also submitted a class profile (Exhibit 19) to support its position that petitioner's daughter would have been suitably grouped for instructional purposes (8 NYCRR 200.6[a][3]).

        There is, however, one issue that needs to be addressed. The record shows that the student is unaware of her surroundings and oblivious to danger. At the hearing, the school psychologist conceded that the student has a history of becoming agitated and injuring herself and that, in the past, this issue was not always addressed (Transcript p. 29). He testified that the other students no longer displayed as much distracting behavior as in prior years, and he expressed the belief that staff would be able to give more time to the student and either limit or extinguish her self-injurious behavior. Given the nature of the problem, I do not find that petitioner should have to rely upon a hope that it would be addressed in the recommended placement. Accordingly, I find that the student should be provided with an aide to accompany her on the bus and in school throughout the school day in order to monitor her behavior and prevent her from injuring herself.

        I have considered petitioner's claim with regard to her child allegedly having chronic constipation as a result of having attended P.S. 37 previously, but I find that there is insufficient evidence of a nexus between the child's attendance and her physical problem, which is noted on her IEP. Except as noted above, I find that the respondent has met its burden of demonstrating the appropriateness of the educational program that its CSE recommended on February 5, 2002.


IT IS ORDERED that the hearing officer's decision is hereby annulled, to the extent that she determined that the student's educational needs could be met without the assistance of a full time individual aide in the program recommended by respondent's CSE; and

IT IS FURTHER ORDERED that respondent assign a full time individual aide to the child to attend the SIE-III class at P.S. 37.

Topical Index

Educational PlacementSpecial Class6:1+1
Nickerson Letter/José P.
Parent Appeal
Preliminary MattersAdditional Evidence/Record Issues
Preliminary MattersPleadingsTimeliness of Petition