03-072

      Petitioner, the Board of Education of the Springville-Griffith Institute Central School District (district), appeals from an impartial hearing officer's July 10, 2003 decision determining that the district provided respondent’s son with a free appropriate public education (FAPE) and ordering the Committee on Special Education (CSE) to reconvene and do the following: review the student’s individualized education program (IEP) to ensure the provision of transitional services; consider counseling for the child and/or counseling and training for the parent; determine the need for indirect consultant teacher support in addition to direct consultant teacher support; determine what speech-language compensatory services should be provided to the child because of the certification deficiency of the provider; and prepare and consider a functional behavioral assessment (FBA). Additionally, the district appeals from the decision ordering the CSE to review its procedures with respect to 8 NYCRR 200.4(d)(5). The appeal must be sustained.

        Respondent did not file an answer or cross-appeal in conformance with the requirements of Part 279 of the Regulations of the Commissioner of Education. Instead of responding to the district’s petition, respondent filed an untimely petition for review containing an untimely answer to the district’s petition in the instant case. Respondent’s petition, along with the answer, were dismissed as untimely in Application of a Child with a Disability, Appeal No. 03-086. Accordingly, in the absence of good cause for failure to comply with Part 279, I will exercise my discretion and proceed without further consideration of respondent’s pleadings. With that determination having been made, I am still required to examine the entire record (34 C.F.R. § 300.510[b][2][i]) and to make an independent decision (20 U.S.C. § 1415[g]) based solely on the record (8 NYCRR 279.3), notwithstanding respondent's failure to properly answer (Arlington Cent. Sch. Dist. v. State Review Officer, 293 A.D.2d 671 [2d Dept 2002]).

        Respondent's son was seven years old and in the first grade at the commencement of the hearing in April 2003. He has been classified as a student with autism and that classification is not in dispute. During the hearing, the child attended a 12:1+1 class with a 1:1 aide located within petitioner's district where he received special education and related services.

        Petitioner convened a CSE on December 18, 2002 (Exhibit D14). The CSE recommended 12:1+1 self-contained class with a 1:1 aide along with the following weekly services: two 30-minute push-in sessions of group occupational therapy; two 30-minute sessions of group occupational therapy; two 30-minute sessions of individual occupational therapy; two 60-minute push-in sessions of speech-language therapy; two 30-minute pull-out sessions of group speech-language therapy; three 30-minute sessions of individual speech-language therapy, and two 30-minute sessions of individual physical therapy.

        Respondent requested an impartial hearing on February 13, 2003 alleging non-compliance with the applicable law concerning the program and placement of the child (Exhibit D9). The impartial hearing in this matter was conducted on four separate days, concluding on May 14, 2003. The resultant record contained a transcript of almost 1000 pages, consisting of testimony from 12 different witnesses and included nearly 100 exhibits.

        At the hearing, respondent argued that the recommended placement was not in the least restrictive environment (LRE). She objects to the self-contained 12:1+1 classroom because she wants her son to model his nondisabled peers (Transcript p. 853). Further, respondent wants her son to participate in mainstream classes for the social and academic benefits. The parent disagrees with the assertion that her son has difficulty interacting with his peers and testified that her home is a meeting ground for children and her son plays with and interacts with the children at her home (Transcript p. 943).

        The hearing officer rendered his decision on July 10, 2003. He found that the district offered the child a FAPE in the LRE. He rejected the argument that the recommended placement was not the LRE for the child, and found that the child could not receive an appropriate education in a mainstream setting, even with supplemental aids and services. He determined that, although children with disabilities are to be educated with nondisabled children to the maximum extent possible, a child's individual needs must determine whether his placement is in the LRE. He found the recommended self-contained classroom appropriate for the child's academic instruction because the educational components were supplemented by a teacher's assistant with constant repetition, verbal and physical prompting, and reinforcement. He further found that the child's limited and delayed communication skills affected his ability to adequately function in a large academic setting. He also noted the child's social needs would be met by the recommended program, due to his lack of interaction with other children, as testified to by his special education teacher. He found the child's management needs to be substantial (screaming, hitting, getting out of his seat) and that the recommended placement would address his needs by placing him with children of similar needs. The hearing officer determined that a FAPE was offered, and his determination is a final determination given the procedural history herein (34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][4][ii]).

        Additionally, despite determining that a FAPE had been provided, the hearing officer ordered the CSE to reconvene to review and revise the IEP. I find that the hearing officer improperly did so under the circumstances of this case. A hearing officer is required to make a determination related to the identification, evaluation, or educational placement of a student with a disability, or the provision of a free appropriate public education to the child (8 NYCRR 200.5[i][1]). In this instance, the hearing officer found that a FAPE was provided to the student. He did not find the IEP was deficient. The decretal provisions of the hearing officer’s decision are not consistent with the findings of facts and determinations within his decision and therefore must be annulled.

        I have considered petitioner's other assertions and find them to be without merit.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decretal portion of the hearing officer's decision which ordered respondent to take certain actions is annulled.