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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 Wappingers Central School District


Donoghue, Thomas, Auslander & Drohan, attorney for respondent, Daniel Petigrow, Esq., of counsel


            Petitioner appeals from the decision of an impartial hearing officer which dismissed petitioner's claims that respondent denied the student a free appropriate public education (FAPE) for the 2002-03 and 2003-04 school years.  The appeal must be dismissed.            

            Respondent asserts in its answer that the petition was not timely served.  A petition for review to a State Review Officer must be served upon the school district within 35 days from the date of the decision sought to be reviewed (8 NYCRR 279.2[b]). If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35-day period (8 NYCRR 279.2[b]).  A State Review Officer may excuse a failure to timely seek review within the time specified for good cause shown (8 NYCRR 279.13).  The reasons for such failure shall be set forth in the petition (id.). 

            The impartial hearing officer's decision is dated September 29, 2004 (IHO Decision, p. 1).  The record does not reflect that the decision was served by mail. Petitioner served the petition for review on respondent on November 22, 2004  (see Petitioner's Aff. of Service sworn to November 22, 2004).  Whether or not the decision was served on petitioner by mail, the petition was untimely served.  Petitioner did not specify good cause in the petition for the late service of the petition (see 8 NYCRR 279.13).  Petitioner did submit a letter to the Office of State Review, dated November 22, 2004, stating that the petition was not timely served due to the advocate's inability to obtain a notary public to notarize the "advocate's verification" and the limited availability of petitioner to sign before a notary public.  Petitioner did not file a reply to respondent's affirmative defense raised in its answer alleging that the petition for review was served in an untimely manner. 

            I find that petitioner's letter of November 22, 2004 does not comply with the requirement that good cause for filing a late petition be stated in the petition (8 NYCRR 279.13).  Furthermore, I am not persuaded to accept the untimely petition because there was a significant delay in serving the petition on respondent and petitioner's excuse does not amount to good cause.  The petition is, therefore, dismissed (Application of a Child with a Disability, Appeal No. 04-067; Application of a Child with a Disability, Appeal No. 03-109; Application of a Child with a Disability, Appeal No. 02-096).

             In addition to dismissing the petition because it was not timely served, I concur with the impartial hearing officer's determination to dismiss petitioner's claims below. 

             At the time of the hearing the student was 12 years old and had previously been determined eligible for special education and classified as a student with an emotional disturbance (Dist. Ex. 15 at p. 1; Tr. p. 73).  This classification was in dispute at the hearing (Dist. Ex. 6).  At the time of the hearing, the student's placement was a 12:1 integrated special class with a 1:1 full-time aide (Dist. Ex. 15 at p. 1).  The class was described as "the special education teacher and the general education teacher working together in an integrated classroom setting to provide services" (Dist. Ex. 15 at p. 1).  The student also received individual counseling services two times per six-day cycle for 30 minutes (Dist. Ex. 15 at p. 1).  Testing accommodations provided to the student included minimal distractions, punctuation waived, extended time (1.5), and special location (Dist. Ex. 15 at p. 1).  Program modifications provided to the student included preferential seating and use of a planner (Dist. Ex. 15 at p. 2).  Assistive technology devices offered included access to a calculator, spelling device and computer (Dist. Ex. 15 at p. 2).  The student had a positive reinforcement plan and a functional behavioral assessment (FBA), which was considered a "working document" by the CSE (Dist. Ex. 15 at p. 2).  

             The student began attending school in respondent's district in September 2002 (Tr. p. 160).  The student was initially classified as a child with an emotional disturbance prior to the 1999-2000 school year while attending school in another district (Dist. Ex. 7 at p. 1).  The only document in the record from the student's prior school district is a 2002-03 individualized education program (IEP), developed prior to the student's move to respondent's district. 

              According to the 2002-03 IEP, the student had diagnoses of an attention deficit hyperactive disorder (ADHD) with associated sensory-motor difficulties and oppositional defiant disorder (ODD) (Dist. Ex. 7 at p. 1).  The student was to receive the services of a 1:1 teaching assistant for academic and behavioral support, individual occupational therapy twice weekly, a variety of testing modifications, preferential seating and the use of a portable keyboard (Dist. Ex. 7 at pp. 5, 7-8).  Behaviorally, the student was described as being easily distracted and having difficulty with rote learning tasks or assignments that he viewed as insignificant (Dist. Ex. 7 at p. 3).  His social interaction with peers and adults was reportedly poor and self-management skills were identified as an area of concern.  He was described as sensitive to adults in authority roles providing direction (Dist. Ex. 7 at p. 4).  The student was expected to participate in a behavioral plan and required behavioral management intervention during the entire school day (Dist. Ex. 7 at p. 5).  The record indicated that the student had difficulty with completion of class assignments and with bringing homework assignments to school (Dist. Ex. 7 at p. 3). 

              Administration of the Wechsler Intelligence Scale for Children-III (WISC-III) in April 1999 yielded a verbal IQ score of 139, a performance IQ score of 91, and a full scale IQ score of 118, which is in the high average range of intellectual functioning (Dist. Ex. 7 at p. 2).  The student achieved scores in the fourth percentile on the Test of Early Written Language-2 administered in April 1999.  His performance on the Woodcock Johnson-Revised administered in July 2001 yielded average to above average standard scores on all academic achievement subtests.  The student's lowest standard score (88) was on the writing samples subtest. 

              The student's performance on the Bruininks-Oseretsky Test of Motor Proficiency, which is an individual measure of gross and fine motor skills, revealed a standard score of 17 (Dist. Ex. 7 at p. 3-4).  The 2002-03 IEP indicated that the student exhibited poor hand strength, weak wrist dissociation, and poor wrist/arm posturing resulted in writing difficulties.

              Readministration of the WISC-III to the student in July 2001 yielded a performance IQ score of 99, a verbal IQ score of 137 and a full-scale IQ score of 121 (Dist. Ex. 8 at p. 2).  The student's full-scale IQ score of 121 was in the superior range of intellectual functioning.

              Upon entering respondent's district in September 2002, the student initially received home instruction (Dist. Ex. 22).  On October 30, 2002, respondent convened a Committee on Special Education (CSE) and developed an IEP for the 2002-03 school year that contained a majority of the student's management needs, testing accommodations, assistive/adaptive technology devices and program modifications listed on the 2002-03 IEP developed by student's prior school district (Dist. Exs. 7, 8).  Beginning in November 2002, the student was placed in a 6:1 BOCES special class, where he also received individual counseling and occupational therapy (Dist. Exs. 8, 22, 26).

               A subcommittee of respondent's CSE began the student's annual review in March 2003 and recommended placement in an integrated 12:1+1 class at respondent’s elementary school for the 2003-04 school year (Dist. Ex. 31 at p. 4).  Individual counseling and occupational therapy continued (Dist. Ex. 31 at p. 1).  Achievement testing in February 2003 measured by the Metropolitan 8 resulted in a math grade equivalent score of 5.5 and total reading scores in the post high school range (Dist. Ex. 31 at p. 2).  An IEP developed by the CSE in March 2003 stated that the student's academic skill levels were above expectation in the areas of reading comprehension, math concepts, social studies and science (Dist. Ex. 31 at p. 2).  The student's skill levels were below average in the areas of math computation, spelling, grammar and punctuation.  He also had deficits in the areas of organization, study skills and handwriting (Dist. Ex. 31 at p. 2).  It was recommended that the student learn more appropriate ways to communicate his frustrations, relate appropriately to peers and adults, understand and comply with school rules and develop appropriate social judgment (Dist. Ex. 31 at pp. 2-3). 

               As of the third marking period in the 2002-03 school year, the student had achieved the following grades: Math (B), Reading (A), Language Arts (C+), Social Studies (A), and Science (B) (Dist. Ex. 27 at p. 1).  He demonstrated improvement in three out of ten areas of personal growth and work habits (Dist. Ex. 27 at p. 1) and exhibited "average progress" toward IEP counseling goals (Dist. Ex. 27 at p. 3).  The occupational therapist reported that the student was making "some progress" in improving his handwriting skills, and was progressing satisfactorily toward improvement in computer skills and hand strength and endurance (Dist. Ex. 27 at pp. 4-5).  Teacher comments from the fourth quarter revealed that the student was making progress toward acceptance by his peers, but continued to engage in inappropriate conversations with them (Dist. Ex. 27 at p. 7).

              The CSE met on September 22, 2003 to conduct a program review of the 2003-04 IEP (Dist. Ex. 9).  Changes made to the 2003-04 IEP by the CSE at that meeting included the addition of a planner to be used by the student as well as a positive reinforcement plan (Dist. Ex. 9 at pp. 1-2).  In October 2003 petitioner consented to the administration of evaluations in preparation for the student's triennial evaluation (Dist. Ex. 21).  The special education teacher's report prepared for the triennial evaluation indicated that the student continued to have "extreme" behavioral episodes that interfered with academic work on a daily basis (Dist. Ex. 20 at p. 1; Tr. pp.122-129).  The CSE furnished a 1:1 aide for the student on a trial basis in order to "keep [the student] organized" and focused, and to assist him with transitioning from class to class (Dist. Ex. 20 at p. 1; Tr. pp. 76, 87-88).  The 1:1 aide also "calmed" the student when he acted out in class (Tr. p. 76).

               In early October 2003, the student received a one-day out of school suspension for hitting another student (Parent Ex. B at p. 5). The CSE determined that the student's actions were a manifestation of his disability and recommended the development of a behavioral intervention plan (BIP) (Parent Ex. B at p. 1).  The CSE met on October 17, 2003 and added a full time 1:1 teacher aide to the IEP (Dist. Ex. 10 at p. 1).  The IEP stated that a CSE meeting would be held in November 2003 to determine whether an alternate location/classroom setting was required (Dist. Ex. 10 at p. 4).  A psychiatric evaluation was also recommended (Dist. Ex. 10 at p. 4). 

                A psychological evaluation was conducted in November 2003 as part of a triennial review of the student (Dist. Ex. 22).  Administration of the Woodcock Johnson Tests of Cognitive Abilities-III yielded a general intellectual ability extended scale score within the high average range (Dist. Ex. 22 at p. 3).  Administration of the Wechsler Abbreviated Scale of Intelligence yielded a 36 point difference between verbal and performance scores, which suggested that the student's language skills were statistically more developed than his non-language skills (Dist. Ex. 22 at p. 3).  The student's academic achievement was assessed with the Woodcock Johnson Tests of Achievement-III and the Test of Written Language-3.  His performance on subtests measuring language (including oral language and reading), applied math (tasks that required the ability to analyze and solve applied math problems), and spontaneous writing were within the average range (Dist. Ex. 22 at pp. 3-4).  The student's performance was below average on subtests measuring basic math operations and calculations requiring speed and accuracy (Dist. Ex. 22 at p. 3).  The student exhibited difficulty with "contrived" writing, and weaknesses were noted in the quality of the student's sentence structure, grammar, punctuation and spelling (Dist. Ex. 22 at p. 4). 

                The parent and the student's teachers completed the Behavioral Assessment System for Children in November 2003 (Dist. Ex. 22 at p. 4).  The student's parent rated the student in the "clinically significant" range for conduct problems and in the "at risk" range for hyperactivity, aggression, depression, attention problems and adaptability (Dist. Ex. 22 at p. 4).  The student's teachers rated the student as "clinically significant" for hyperactivity, aggression, conduct problems, attention and learning problems.  Depression was also identified as a concern (Dist. Ex. 22 at p. 4).  The examiner noted that there was consistency among the teachers' ratings of the student (Dist. Ex. 22 at p. 4).    

                The CSE reconvened on November 3, 2003 to conduct a program review (Dist. Ex. 11 at p. 4).  The CSE confirmed that the student required a 1:1 aide.  The IEP indicated that petitioner was not in agreement with the functional behavior assessment (FBA) that was developed by the teaching team, therefore, an independent FBA was authorized (Dist. Ex. 11 at p. 4).  The IEP reflected that the student had been discharged from occupational therapy and that a psychiatric evaluation was still being pursued (Dist. Ex. 11 at p. 4).

                 The student's independent FBA was developed on January 10, 2004 (Dist. Ex. 29; Tr. p. 78).  The CSE met again on January 12, 2004 to finalize the FBA which identified behaviors such as calling out, making inappropriate comments, and failure to complete classwork and homework assignments (Dist. Exs. 12 at p. 4, 28; Tr. pp. 111-113).  The document also provided prevention strategies and positive interventions to replace target behaviors (Dist. Ex. 28; Tr. pp. 112-114).  The CSE reconvened on January 26, 2004 and adopted the FBA (Dist. Ex. 13 at p. 4).

                  The student was suspended for two days in early February 2004 for insubordination  (Parent Ex. B at p. 6).  In addition to the suspension, the student received disciplinary action on six occasions from January 27, 2004 to February 25, 2004 (Parent Ex. B at pp. 6-8).  The record indicates that petitioner kept the student home from school beginning February 25, 2004 (Parent Ex. B at p. 8).  Respondent offered home instruction for the student, which was declined by petitioner (Parent Ex. B at p. 8). 

                   A psychiatric evaluation of the student was conducted on February 20, 2004.  The psychiatrist opined that the student "display[ed] some features associated with Asperger's Disorder," such as impairment of social skills and restricted patterns of behavior and also "demonstrate[d] some features associated with Obsessive Compulsive Disorder."  The psychiatrist did not offer definitive diagnoses of either disorder (Dist. Ex. 18 at p. 3). 

                    CSE meetings were held on February 23, 2004 and March 24, 2004 (Dist. Exs. 14, 15).  As of the March 24, 2004 CSE meeting the student was not attending school (Tr. pp. 270-271).  Petitioner requested that the student be placed on homebound instruction and asked that he be evaluated in all areas of suspected disability (Dist. Ex. 15 at p. 4).  The CSE approved an independent psychological evaluation to be conducted by the examiner suggested by petitioner’s advocate (Dist. Ex. 15 at p. 4; Tr. p. 273).  The CSE recommended that the student be placed in the Board of Cooperative Educational Services Intensive Day Treatment (BOCES IDT) program; however, petitioner declined that placement until petitioner could visit the site (Dist. Ex. 15 at p. 4; Tr. pp. 260, 265).  The IDT program was described as a "transitional" program for students with a variety of classifications and disabilities who need intensive academic and therapeutic services (Tr. pp. 269-270).  IDT class sizes were typically 8:1+1 or 8:1+2 and psychiatrists, psychologists and social workers participated in the program on a daily basis (Tr. p. 270). 

                     By letter dated March 26, 2004, petitioner requested an impartial hearing (Dist. Ex. 6).  Petitioner asserted that respondent failed to test the student in all areas of suspected disability and that the student's classification was inappropriate.  Petitioner further asserted that the student was denied a FAPE for the 2002-03 and 2003-04 school years.  Petitioner requested the following: an evaluation to determine if the student has Asperger's syndrome and to identify an appropriate classification and subsequent placement; an order to direct respondent to provide homebound instruction until an appropriate placement was found; and individual "remedial tutoring sessions" in the student's areas of disability (Dist. Ex. 6 at pp. 3, 4).  In light of the lack of agreement   to place the student in the IDT and the impending hearing, respondent continued the student's placement per the March 24, 2004 IEP (Tr. p. 275). 

                     A hearing was held on May 20, May 21, and June 22, 2004, and then adjourned.  A psychological evaluation of the student was completed on May 27, 2004, but the subsequent report was not available at the hearing (Answer ¶ 21, Ex. A).  On September 2, 2004, respondent's CSE developed an IEP that contained an out of district placement for the student at the School for Autistic Strength, Purpose and Independence in Education (ASPIE), which respondent asserts was agreed to by petitioner (Answer ¶ 22, Ex. B).

                     On September 7, 2004, the impartial hearing officer convened a conference between petitioner’s advocate and respondent's attorney and entertained a motion to clarify the remaining issues in dispute (IHO Decision, pp. 1, 2).  During this conference, respondent contended that all issues were moot.  Petitioner did not agree.  Petitioner's advocate was instructed to submit a written memorandum to the hearing officer by mail by September 13, 2004 setting forth all remaining issues in dispute and the reasons why they were still before the impartial hearing officer.  Neither petitioner nor her advocate submitted a written memorandum to the impartial hearing officer as directed. 

                      In a decision dated September 29, 2004, the impartial hearing officer dismissed petitioner's claims.  He found that there were no issues left for him to decide based on:  petitioner's failure to identify any issues remaining in dispute as he requested; the parties agreement with the placement of the student at ASPIE for the 2004-05 school year; and the lack of any objection to the 2004-05 IEP. (IHO Decision, pp. 2, 3).  On November 15, 2004, after the decision of the impartial hearing officer and before petitioner’s appeal was filed with the Office of State Review, respondent changed the student’s classification to a student with multiple disabilities (Answer ¶ 23, Ex. C).

                     On appeal, petitioner requests that the impartial hearing officer’s decision be annulled and that petitioner be permitted to have her 2003-04 claims addressed before another impartial hearing officer; or that the student be granted 1:1 remedial tutoring sessions in the student's areas of disability.  Respondent contends that the issues raised on appeal are moot because the student has been re-evaluated, re-classified, and provided with a new IEP, all of which have received petitioner's approval.

            An impartial hearing officer is appointed to preside at a hearing and provide all parties an opportunity to present evidence and testimony (8 NYCRR 200.5[i][3][vi]).  An impartial hearing officer may conduct a prehearing conference to simplify and/or clarify the issues  (8 NYCRR 200.5 [i][3][xi][a]).  I see nothing that would prevent an impartial hearing officer from conducting a conference in the midst of a hearing to ask the parent and/or their representative to further identify or specify issues in dispute, especially when the impartial hearing officer was presented with an application by respondent asserting that all issues have been resolved.

            At the September 7, 2004 conference, the impartial hearing officer directed petitioner's advocate to submit a written memorandum, by mail, by September 13, 2004 setting forth all issues remaining for the hearing (IHO Decision, pp. 1, 2).  Neither petitioner nor her advocate submitted a written memorandum to the impartial hearing officer as requested, nor was additional time requested from the impartial hearing officer for this to be done (IHO Decision, p. 2).  The impartial hearing officer dismissed petitioner’s hearing request because of petitioner's failure to provide the information he requested and because the parties were in agreement as to placement and programming for the student for the 2004-05 school year.  On appeal, petitioner does not dispute the impartial hearing officer's assertion that petitioner was put on notice on September 7, 2004 to clarify the issues remaining at the hearing by September 13, 2004 and petitioner does not offer a reason in the petition as to why a memorandum was not submitted to the impartial hearing officer by September 13, 2004. I find that it was within the impartial hearing officer's authority, as a reasonable directive, to require petitioner to identify specific allegations remaining at issue and find that petitioner was obligated to comply with such a directive (Application of a Child with a Disability, Appeal No. 04-061; Application of a Child with a Disability, Appeal No. 04-010).

             I find no basis on which to disturb the decision of the impartial hearing officer.  The appeal is dismissed on the grounds that petitioner failed to pursue her appeal in a timely manner and the impartial hearing officer properly dismissed petitioner’s claims.

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


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Parent Appeal
Preliminary MattersPleadingsTimeliness of Petition