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Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability


Hon. Michael A. Cardozo, Corporation Counsel, attorney for petitioner, Chad Vignola, Esq., and Marykate O'Neil, Esq., of counsel

Pillsbury Winthrop LLP, attorneys for respondents, Kerry A. Brennan, Esq., and Karen L. Nachbar, Esq., of counsel


       Petitioner, the Board of Education of the City School District of the City of New York (district), appeals from that part of an impartial hearing officer's decision which ordered it to provide applied behavioral analysis (ABA) services to respondents' son. The appeal must be sustained.

        Respondents assert that the appeal should be dismissed as untimely because the petition was not served within the time limitations set forth in the Regulations of the Commissioner of Education. State regulation requires that a petition for review of a hearing officer's decision, together with a notice with petition, be served within 40 days of receipt of the decision (8 NYCRR 279.2[c]). The hearing officer's decision in this matter was dated November 4, 2002. It appears from the record that a verified petition was served upon respondents on December 16, 2002. However, the verified petition was unaccompanied by the required notice with petition. By letter dated December 30, 2002, the Office of State Review informed petitioner that its appeal would be deemed to have been instituted on December 16, 2002, if the required notice and petition were served on respondents within 14 days. Petitioner subsequently served its notice and petition on January 10, 2003. In light of the foregoing, I find petitioner's appeal to be timely.

        At the time of the hearing, the student was 14 years old and was nonverbal. His identification as a student with autism was not at issue during the hearing. During the 2002-03 school year, the student was placed in a 12-month special education class with a 6:1+1 staff ratio. The individualized education program (IEP) for the 2002-03 school year provided for special education transportation and the assistance of a 1:1 transportation paraprofessional (Exhibit 1). The remaining services recommended for the student were not in dispute.

        On September 25, 2002, respondents requested an impartial hearing seeking transportation at public expense for their son via a private car service. Respondents argued that the length of time their son was required to commute to school on a bus provided by petitioner was detrimental to his health. The impartial hearing occurred on October 18, 2002. In his decision dated November 4, 2002, the hearing officer ordered petitioner to shorten the length of the student's school bus commute to no more than one hour and to provide weekly documentation of departure and arrival times. The hearing officer also required petitioner to search for an appropriate educational placement closer to respondents' home. The hearing officer required petitioner to reimburse respondents for use of a private car service on those occasions when the student's bus is more than 20 minutes late. The hearing officer further ordered that petitioner provide an ABA therapist for a total of no more than 25 hours to help the student adjust to changes in transportation services.

        Petitioner appeals from that part of the decision of the hearing officer that required it to provide an ABA therapist. Since neither party challenges the remainder of the hearing officer's decision, those portions of the decision are final and not subject to review (34 C.F.R. § 300.510 [a]). Petitioner contends that the impartial hearing officer lacked jurisdiction to order an ABA therapist sua sponte. In the alternative, petitioner alleges the record does not support such an order.

        A hearing officer must ensure that there is an adequate record upon which to premise his or her decision and permit meaningful review of the issues (Application of a Child with a Disability, Appeal No. 02-03; Application of the Bd. of Educ., Appeal No. 01-87). In this matter, there simply is no evidentiary support in the record for the order requiring ABA services. The testimony at the hearing indicated that the primary concern of the parent was limited to transportation issues. The transportation concerns included the duration of the ride and the student's behavior prior to and during transport (Transcript pp. 40, 41, 48-49, 52, 58). The parent did not request ABA services. The only exhibits admitted into evidence were the student's IEP for the 2002-03 school year (Exhibit 1) and a doctor's note introduced by the parent (Exhibit A). Neither the IEP nor the doctor's note addressed or recommended ABA services. The hearing officer ordered the services of an ABA therapist without receiving testimony from any of the student's teachers and without the benefit of reviewing a single evaluation. There was no expert testimony taken or submitted at the hearing that recommended ABA services. There is simply no evidence of the appropriateness of such services to address the individual needs of respondents' son. I find that the hearing officer erred by directing the district to pay for the service of an ABA therapist in the absence of an adequate record to support that decision.

        Having found that the hearing officer erroneously ordered ABA services, it is not necessary for me to address petitioner's other arguments.


IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent it ordered the provision of ABA services for respondents' son.

Topical Index

District Appeal
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