03-109

           Petitioner appeals from an impartial hearing officer's determination upholding the recommendation of respondent's Committee on Special Education (CSE) to place her son in a special program in a specialized school.  The appeal must be dismissed on both procedural and substantive grounds. 

            First I will address the  procedural issue.  Respondent alleges in its Answer as an affirmative defense that the appeal should be dismissed because the petition was not served and filed in a proper and timely manner.  The hearing was held on August 1, 2003 and concluded on that day.  On September 3, 2003, the hearing officer rendered his decision, finding that the district's recommended 12:1+1 program was appropriate.  The petition for review was initiated under the Part 279 Regulations of the Commissioner in effect prior to their recent amendment effective January 1, 2004.  Under the regulations that were in force prior to January 1, 2004, petitioner would have had to serve her petition "within 40 days from receipt of the decision sought to be reviewed" (8 NYCRR §279.2[b]).  In addition, Section 279.2(b), in effect at the time,  provided that the notice of intention to seek review from an impartial hearing officer's decision  be served on the board of education, district clerk, or chief school officer within 30 days after receipt of the decision. 

          In the instant case, although the record does not reveal when petitioner received the decision, petitioner filed a notice of intention to seek review on November 18, 2003, 76 days from the date of the hearing officer's decision.  Petitioner then sent to the Office of State Review letter purported to be her petition dated December 3, 2003.  Respondent contends that the documents were neither timely nor properly served because they first received petitioner's complete pleadings 117 days after the date of the hearing officer's decision and only after requesting and receiving copies of the documents from the Office of State Review (Answer ¶ 17).  I find that the petition was served late. Article 89 of the Education Law and its federal counterpart, the Individuals with Disabilities Education Act (IDEA), provide a due process mechanism to promptly resolve the disputes which arise between parents and school districts, so that children will receive appropriate special education services.  An untimely petition may be excused for good cause shown (Application of a Child with a Disability, Appeal No. 03-005; Application of a Child with a Disability, Appeal No. 97-18; Application of the Bd. of Educ., Appeal No. 91-35).  Petitioner here offers no explanation for her extended delay in serving her petition, nor did she file a reply responding to the defense that the petition was untimely.  Therefore, I have no basis upon which to excuse her delay, and I find that the appeal is untimely (Application of the Bd. of Educ., Appeal No. 00-050 [90 day delay in serving petition untimely]; Application of a Child with a Disability, Appeal No. 99-39 [one year delay in serving petition untimely]; Application of a Child with a Disability, Appeal No. 98-52 [over one year delay in serving petition untimely]).¹

            Even if the appeal were not dismissed on procedural grounds, I would dismiss it on the merits, since I find that the hearing officer's determination is supported by the record.  At the time of the hearing, petitioner's son was eight years old and in the third grade.  He was classified as other health impaired and has diagnoses of conduct disorder and an attention deficit hyperactivity disorder (ADHD) (Exhibit 14).  During the hearing, petitioner's son attended a 12:1+1 program located within respondent's district, where he received special education and related services (Exhibit 5; Transcript p. 6).  The child exhibited behavior problems at home and at school at an early age.  As a preschooler, he attended the Astor Day Treatment Center and then attended a modified instructional services IV (MIS IV) program at P.S. 72.  He exhibited oppositional behavior and temper tantrums while enrolled in that program (id.).  His behavior has negatively impacted his classroom performance and has involved verbal and physical aggression towards his peers, including threatening classmates.  According to teacher reports, he often argues, is frequently out of his seat, makes inappropriate and disruptive noises in class and needs assistance to stay focused (Exhibits 10, 12).  In May 2002, the child began taking medication to treat his ADHD and was also in therapy to address his attention deficits (Exhibit 11).  His behavior improved during this time and he seemed to make progress, but his mother discontinued both courses of treatment sometime prior to September 2002 (Exhibits 5, 11). 

        A psychologist evaluated the child in February 2002 and observed that the child's responses sometimes did not make any sense (Exhibit 5).  Additionally, the psychologist noted paranoid tendencies.  The child perceived classmates teasing him when they were not.  During the evaluation, the child made growling noises and at times lacked coherence and expressed disconnected thoughts.  At one point, he asked if the examiner was going to eat him.  The psychologist recommended a psychiatric evaluation.  A school psychiatrist evaluated the child in March 2003.  The psychiatrist described the child as anxious and displaying excessive motor mannerisms.  During the evaluation, the child spoke of the devil taking over his mind and making him do things, and of fearing the devil (Exhibit 11).  The psychiatrist offered a diagnosis of psychotic disorder, not otherwise specified (NOS), with evidence of delusions, visual hallucinations and thought insertions. He recommended an evaluation in a mental health setting with a psychiatrist on staff (id.).  An educational evaluation was completed in March 2003 and petitioner's son was determined to be approximately a year behind his peers academically (Exhibit 6).   On the Wechsler Individual Achievement Test (WIAT), the student achieved standard (and grade equivalent) scores of 92 (2.6) in reading comprehension, 80 (1.6) in computation and 99 (2.9) in math problem solving (Exhibits 3, 6). 

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. ex rel. S.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 02-028; 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, 206-07 [1982]).  The IDEA requires that students with disabilities be educated with nondisabled students "to the maximum extent appropriate" (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.1[cc]) and that a child with a disability be served in a setting where the child can be educated successfully according to the individual student's needs (34 C.F.R. Part 300, Appendix A, Section 1,Question 1).  An appropriate program begins with an individualized education program (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 the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 02-008; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). 

        In order to make an appropriate recommendation, it is necessary to have appropriate evaluative information (Application of a Child with a Disability, Appeal No. 02-044; Application of the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 02-008).  A board of education must assess a student in all areas related to a suspected disability, and the evaluation must be sufficiently comprehensive to identify all of the student's special education needs (8 NYCRR 200.4[b][6][vii] and [ix]).  The evaluative information must be sufficient to ascertain the physical, mental, behavioral, and emotional factors which contribute to the suspected disabilities (8 NYCRR 200.4[b][1][v]), and it should provide information related to enabling the student to participate and progress in the general education curriculum (8 NYCRR 200.4[b][1]).  A CSE may direct that additional evaluations or assessments be conducted to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]).

        Respondent's CSE recommended a full time twelve month 12:1+1 special class in a specialized school, with counseling once per week individually for thirty minutes and once per week in a 4:1 group setting for thirty minutes (Exhibit 3).  The specialized school had three 12:1+1 classes with students who were described as similar to the child (Transcript pp. 17-19).  At the time of the CSE recommendation, the proposed program had seven students who were the same age as the student, all of whom were classified as emotionally disturbed.  He would be grouped with students who were at his level in academic subjects.  The teachers in the program had experience working with children who have emotional difficulties, and all teachers received ongoing training through a regular staff development program.  All of the students at the school had behavior intervention plans, and other students in the program exhibited behaviors similar to those exhibited by the child.  The program had a behavior management program that was based upon positive reinforcement.  The program also had a crisis intervention teacher trained in a methodology identified as "life space crisis intervention" which was designed for children who have difficulty with their perception of reality (Transcript pp. 17-19).

        I have reviewed the evaluative information regarding petitioner's son available at the time of the June 16, 2003 CSE meeting.  The CSE based their recommendation on an array of information including a psychological evaluation report and oral report from the psychologist, as well as an evaluation performed by a psychiatrist (Exhibits 5, 11).  I find that such information was adequate to support the CSE's recommendation to change the student's placement and that the recommended special class placement would provide an appropriate individualized program to meet his needs in the least restrictive environment (LRE).  Despite petitioner's desire to have her child remain in the current 12:1+1 program at P.S.71, I find this placement to be inappropriate for the reasons discussed above.  Further, because of the severity of the child's social and emotional needs as described by both the psychologist and the psychiatrist, I encourage the CSE to monitor the child's progress closely to ensure that the recommended placement continues to meet  his needs throughout the school year, and to provide additional psychiatric evaluation and support as appropriate.

THE APPEAL IS DISMISSED.