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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


Thompson Hine LLP, attorneys for petitioner, Robert T. Barnard, Esq., of counsel; New York Legal Assistance Group, attorneys for petitioner, Laura Davis, Esq., of counsel

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Donna M. Kasbohm, Esq., of counsel


           Petitioner appeals from the decision of an impartial hearing officer which denied her request for an order requiring respondent to fund her daughter's placement at the Westchester School for Special Children. The appeal must be dismissed.

        At the time of the hearing, petitioner's daughter was five years old and was not receiving any services (Exhibit A). The child was diagnosed as having Rett syndrome at the age of 15 months. Rett syndrome is a rare disorder requiring significant educational and medical intervention to address language and motor delays and is usually characterized by developmental delays (Exhibit 8). The child began receiving early intervention services in September 1999 (Exhibit 5). She was evaluated in March 2000 in preparation for her transition to pre-school. The child began receiving pre-school services through United Cerebral Palsy in September 2000 and was evaluated again in February 2001 (Exhibit 14).

        On the Bayley Scales of Infant Development–Second Edition administered on February 6, 2001, when petitioner's daughter was three years and three months old, the child's score placed her in the significantly delayed range, with a developmental age estimated at the three-month level (Exhibit 14; Transcript p. 55). However, the evaluator noted that this score should be interpreted with caution due to the child's fine motor delays, response inconsistency and distractibility (Exhibit 14; Transcript p. 55). A speech-language evaluation, also administered in February 2001, indicated language comprehension at the seven and eight month level. According to the Rosetti Infant-Toddler Language Scale, the child's expressive language skills ranged from five to ten months (Exhibit 7). The child is nonambulatory and wears ankle-foot orthotics on both legs to assist with standing as well as a Milwaukee brace for progressive scoliosis (Exhibit 20). She has limited use of her hands and arms and is dependent upon others in all areas of activities of daily living (Exhibit 17). Her Adaptive Behavior Composite on the Vineland Adaptive Behavior Scales, administered on February 6, 2001, indicated skills in the zero to five month level (Exhibit 14). She exhibits hand-wringing which is characteristic of Rett syndrome (Exhibit 16). An educational progress report dated December 6, 2001, described the child as cooperative, allowing staff to provide hand-over-hand assistance and as tolerant of a variety of therapeutic positions. She was also described as enjoying the company of her peers and participation in all classroom activities (Exhibit 17).

        In preparation for the child's transition to kindergarten for the 2002-03 school year, an individualized education program (IEP) was prepared by respondent's Committee on Special Education (CSE) on April 24, 2002 (Exhibit 21). The child was classified as multiply disabled due to mental retardation and orthopedic impairment (Exhibit 21). The child has been classified as multiply disabled. The classification of multiple disabilities is defined as "concomitant impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination of which cause such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf-blindness" (8 NYCRR 200.1[zz][8]). Mental retardation is defined as "significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student's educational performance" (8 NYCRR 200.1[zz][7]). The orthopedic impairment aspect of the child's classification is not in dispute. The psychological evaluation administered on February 6, 2001 revealed that the child's cognitive functioning and adaptive behavior are significantly delayed (Exhibit 14). The record reflects that the child has been appropriately classified as having multiple disabilities based upon mental retardation and orthopedic impairment (8 NYCRR 200.1[zz][7], [8], [9]; Exhibit 14; Transcript pp. 55-60). The CSE recommended a special class in a specialized school with a student to staff ratio of 12:1+4. The CSE further recommended a 12-month program which included the related services of occupational therapy, physical therapy, and speech-language therapy, each to be provided on an individual basis three times per week for 30-minute sessions. The IEP also included a full time health paraprofessional and transportation in an air-conditioned minivan (Exhibit 21). On June 10, 2002, the CSE recommended a placement at respondent's P. 396 (Exhibit 22). After visiting P. 396, petitioner rejected the placement because she felt the individual who showed her the school was unprofessional and because she objected to students watching videos instead of receiving instruction (Exhibit A; Transcript pp. 63-67; Pet. ¶¶ 29-31).

        On October 3, 2002, the CSE recommended a placement at respondent's P. 811 at P. 329 (Exhibit 23). After an unsuccessful attempt to schedule a visit to see the school (Exhibit A; Transcript pp. 10-11; Pet. ¶ 33), by letter dated October 29, 2002, petitioner requested an impartial hearing "so that [her] daughter can attend the Westchester School for Special Children" (Exhibit A).

        The impartial hearing took place on November 18, 2002. At the time of the hearing, the placement offered at P. 811 at P. 329 was no longer available (Transcript p. 63), and respondent presented evidence concerning the appropriateness of the CSE's initial recommendation of placement at P. 396. Petitioner sought placement for her daughter at the Westchester School for Special Children at public expense. The impartial hearing officer interpreted this as a request for a "Nickerson letter" (Transcript p. 78). Petitioner also sought a reevaluation of her daughter. In her decision dated December 5, 2002, the impartial hearing officer denied petitioner's request for a "Nickerson letter" and granted her request for a reevaluation. Since neither party appeals from that part of the hearing officer's decision which granted petitioner's request for a reevaluation, that part of the decision is final and not subject to review (34 C.F.R. § 300.510[a]).

        Petitioner did not dispute her child's classification in the hearing request dated October 29, 2002 (Exhibit A). In testimony at the hearing, petitioner stated that her child "is delayed but not retarded" (Transcript p. 56). In this appeal, petitioner "disagree[s] with the classification by the CSE of [her child] as mentally retarded, and emphasize[s] that she would like [her child] exposed to older, more mobile children who [her child] may learn from" (Pet. ¶ 3). In this appeal, petitioner seeks a "Nickerson letter" pursuant to Jose P. v. Ambach, No. 79 C 270, 3 EHLR 553:298 (E.D.N.Y. January 5, 1982). In Jose P., the Board of Education of the City School District of the City of New York was found to have failed to act in a timely manner in its evaluation and/or placement of thousands of children with disabilities. Judge Nickerson ordered the board to issue letters to the parents of each eligible child who had not been placed within 60 days of referral or evaluated within 30 days of referral advising the parents of their right to place the child in an approved nonpublic school at public expense (Jose P.supra, Appendix, Exhibit 1).

        Petitioner contends that she requested a CSE meeting prior to the commencement of the 2002-03 school year (Pet. ¶ 25). The record does not support petitioner's contention. Neither the transcript of the hearing nor the exhibits in the record indicate any such request occurred. Rather, it appears that the child's evaluations were updated in preparation for the child's annual review and not the result of a parental request (Exhibits 16, 17, 18, 19). Further, there was no evidence presented at the hearing to indicate that the child's IEP and respondent's recommended placement were untimely. In any event, petitioner's reliance on Jose P. is misplaced because her daughter was already receiving services at the time of her request for a "Nickerson letter." Therefore, she is not entitled to the requested relief (Application of a Child with a Disability, Appeal No. 01-020; Application of a Child with a Disability, Appeal No. 00-092).

        Nevertheless, respondent is required to provide petitioner's daughter with a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. § 300.13). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) that the program developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits and is provided in the least restrictive environment (LRE) (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). The record indicates that respondent has complied with the procedural requirements of the IDEA.

        An appropriate program begins with an IEP formulated in compliance with IDEA requirements, 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 (20 U.S.C. § 1414[d]; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        The child's IEP accurately reflects her needs for intensive special education and speech-language therapy, occupational therapy, physical therapy and medical monitoring (Exhibits 13, 14, 16, 18, 19, 21). The child is completely dependent upon others for all activities of daily living. She is non-ambulatory, and her physical therapy goals appropriately reflect her needs in the areas of movement, specifically position transitions and range of motion. The assistant principal of respondent's P. 396 testified that the recommended placement was equipped to provide each of the related services set forth in the child's IEP (Transcript p. 27). I further find that the goals and objectives developed by the CSE to address her communication, fine motor, gross motor, readiness, activities of daily living, adaptive physical education, and other needs are appropriate (Exhibit 21). The assistant principal further testified that the majority of students at P. 396 were multiple sensory impaired, there were age appropriate classrooms accessible to the child, and that the recommended placement was able to implement the child's IEP (Transcript pp. 27-32). In addition, P. 396 has a registered nurse on site who will monitor the use of the child's Milwaukee brace for the risks associated with the brace such as skin breakdown and respiratory distress (Transcript pp. 28-29). The child's IEP also provides for a 1:1 full time health care paraprofessional to care for her physical needs and for daily monitoring of skin care relative to her Milwaukee brace, ankle-foot orthotics and hand-wringing. The recommended program of a 12-month special class with a staffing ratio of 12:1+4 is appropriate, as is the addition of a 1:1 aide. The program further includes a sufficient number of students for socialization while addressing all of the child's needs. Based upon the foregoing, I find respondent has met its burden of proving it has offered to provide a FAPE to petitioner's daughter.

        I have considered petitioner's remaining contentions and find them to be without merit.


Topical Index

Educational PlacementSpecial Class12:1+4
Parent Appeal