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
Michael A. Cardozo, Corporation Counsel, attorney for respondent, Martin Bowe, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision, which upheld a recommendation by respondent's Committee on Special Education (CSE) to classify her son as emotionally disturbed and to place him in a special education class with a student to staff ratio of 12:1+1 with related services. The appeal must be sustained in part.
At the time of the hearing, petitioner's son was seven years old and had been classified by the CSE as emotionally disturbed (Exhibit 6). During the 2000-01 school year, the student was placed in a kindergarten class for gifted students (CIGMA) at P.S. 188. In April 2001, the student was suspended for kicking and hitting his teacher (Exhibit 13-5). Shortly after beginning first grade, the student was transferred out of his class because he was not doing his work. He was placed in another CIGMA class; however, he continued to refuse to do assigned work, and he was ultimately removed from that class and placed in a general education class (Transcript pp. 19, 164-67; see also, Answer ¶ 14). The student's behavior became increasingly problematic. He was aggressive with his teacher and caused conflict with the other children in the classroom. The student was then transferred to another general education class but continued to have numerous behavioral problems and was reported to be a danger to himself and others (Exhibits 13 and 14). During the last three months of the 2001-02 school year, an aide was assigned to be with the student on a full-time basis, but his behavior did not improve (Exhibit 7).
On May 13, 2002, petitioner requested that the student be reevaluated (Exhibit 15). The new evaluations were reviewed by the CSE, which recommended that the student be placed in a special class with a 12:1+1 student to staff ratio in a specialized school. Additionally, the CSE recommended that the child receive both group and individual counseling (Exhibit 6). The student was offered a placement at P. 370, which is located at P.S. 100 (Exhibit 1). Petitioner disagreed with the recommendation and requested an impartial hearing, objecting to her son's placement in a special class (Hearing Request dated 7/18/03).
On August 15, 2002, the first day of the hearing, petitioner requested an adjournment because her advocate was not present. Petitioner stated at the hearing that she had called the advocate the previous week to request her presence at the hearing and that the advocate had asked her to call the night before the hearing to remind her. When she called the advocate's home the night before the hearing, the advocate's son said that she was out (Transcript pp. 7-8, 11-12). Petitioner was also unable to reach the advocate the morning of the hearing. Respondent's representative at the hearing objected to an adjournment because of the unavailability of the board's witnesses during the summer (Transcript p. 9). After a discussion with the petitioner and respondent's witnesses, the impartial hearing officer set August 30, 2002 as a continuation date, at which time respondent's witnesses would be available for cross-examination by telephone. The impartial hearing officer then proceeded to hear the testimony of respondent's first two witnesses. During the testimony of the first witness, petitioner objected to continuing with the proceeding without her advocate being present; the impartial hearing officer denied her request for an adjournment. Petitioner voiced her objection again and after some heated words with the impartial hearing officer, she left the hearing (Transcript pp. 31-34). The hearing officer continued to hear the direct testimony of respondent's first witness and then took the direct testimony of respondent's second witness.
The hearing was completed on September 4, 2002. On that date, the parent's advocate objected to having the impartial hearing officer consider the testimony taken on August 15, 2002 (Transcript pp. 89-93). The hearing officer explained to the advocate that she was in a better position to cross-examine the witnesses who testified on the first hearing date because she had the benefit of the transcript (Transcript pp. 92-93), and the hearing continued. The hearing officer rendered her decision on September 30, 2002 finding that the program and placement recommended by the CSE were appropriate.
Petitioner appeals from the decision of the impartial hearing officer. Petitioner maintains that the hearing officer conducted a tainted hearing. She further argues that the program recommended by the CSE is too restrictive and that her child belongs in a general education class with support services. Finally, petitioner maintains that contrary to what was stated by respondent at the hearing, she never received a number of the documents that were introduced at the hearing by respondent, and that, therefore, her advocate's objection to receiving such documents in evidence should have been sustained.
With respect to the manner in which the hearing was conducted, I first consider whether petitioner's due process rights were violated by the hearing officer's determination to proceed with the hearing on August 15, 2002, despite petitioner's request for an adjournment. As related above, petitioner advised the hearing officer at the beginning of the hearing that an advocate represented her and that her advocate was not present. Petitioner stated that her advocate was much more knowledgeable about the matters under consideration than she was, and she requested an adjournment of the hearing so that her advocate could be present (Transcript pp. 7-10). The hearing officer denied her request (Transcript pp. 17-18, 31-33).
The parent of a child with a disability is entitled to "[b]e accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities" at an impartial hearing (34 C.F.R. § 300.509 [a]; see also, 8 NYCRR 200.5[i][vii]). In the case before me, petitioner advised the impartial hearing officer that she had secured assistance from an advocate but that the advocate had not appeared at the hearing. There is no evidence in the record of a prior request by petitioner for an adjournment of this hearing, nor is there any evidence that petitioner was using this request for an adjournment as a way to delay the hearing. Rather, the evidence establishes that the petitioner wanted assistance and did not feel comfortable proceeding by herself. When a parent requests an adjournment because the advocate who is advising her has not appeared, a hearing officer should afford the parent a reasonable opportunity to be accompanied by that advocate (Application of a Child with a Disability, Appeal No. 93-2). In granting an adjournment, an impartial hearing officer should consider the requirement to complete the hearing and issue a decision within mandated timelines (34 C.F.R. 300.511 [a], 8 NYCRR 200.5 [i]). In appropriate circumstances, short adjournment periods may be granted without compromising mandated timelines. An impartial hearing officer may grant specific extensions of time beyond those mandated by state and federal regulations at the request of either the school district or the parent, however such determination must be documented in the hearing record and otherwise comport with 8 NYCRR 200.5 (i)(4)(i). Under the circumstances presented in this case, I find that the hearing officer's denial of petitioner's request for an adjournment was unreasonable (Application of a Child with a Disability, Appeal No. 00-015; Application of a Child with a Disability, Appeal No. 93-2).
Because the school year at issue in this appeal has ended and, under the circumstances presented, no meaningful relief could be granted for the 2002-03 school year, there would be no point in sending this matter back for a new hearing at this time. Rather, I will annul the hearing officer's decision and remand this matter to respondent's CSE to develop or reconsider its recommendations for the 2003-04 school year. I note that at this point in time, the medical examination contained in the record is old and does not indicate that the student has been screened for vision or hearing problems (Exhibit 11). I further note that in a May 22, 2002 psychological evaluation update, the child was reported to have been diagnosed with asthma, but that there is no indication in the record of what, if any, medication he takes and what, if any, side effects may be associated with such medication. Additionally, there is no indication in the record that the possibility that the child may have an attention disorder has been considered, although the child has been described as impulsive, angry and out of control. Finally, I note that the goals and objectives included in the student's individualized education program (IEP) lack specificity, fail to identify in sufficient detail the behaviors that need to be changed, fail to adequately identify positive social behaviors to be achieved by the student, and fail to provide a basis upon which to measure the student's progress toward his goals. When it reconvenes pursuant to this decision, the CSE should consider these issues.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is hereby annulled; and
IT IS FURTHER ORDERED, unless the parties otherwise agree, that this matter be remanded to the CSE to develop or reconsider its recommendations for the 2003-04 school year in accordance with the terms of this decision.