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The State Education Department
State Review Officer

90-4

APPLICATION OF A CHILD WITH A HANDICAPPING CONDITION, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Floral Park-Bellrose Union Free School District

Appearances:

Jeffrey F. Pam, Esq., attorney for petitioners

Pelletreau and Pelletreau, Esqs., attorneys for respondent, Kevin A. Seaman, Esq., of Counsel

DECISION

Petitioners appeal from the determination of an impartial officer relating to the provision of psychological counseling, occupational therapy and physical therapy to their daughter by the Floral Park-Bellrose Union Free School District. The appeal must be sustained in part.

Petitioners' daughter was classified as a learning disabled pupil by respondent's committee on special education (CSE) in 1985. That classification is not at issue in this appeal.

The student was enrolled in respondent's schools through the 1988-89 school year. In June, 1989, respondent's CSE recommended that the pupil be placed in a self-contained class for learning disabled pupils for the 1989-90 school year.

In July, 1989, the Commissioner of Education rendered a decision in an appeal by petitioners with respect to the testing of their daughter (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 9), in which the Commissioner directed the CSE to consider appropriate testing modifications and the provision of counseling, to address the student's negative reaction to testing. Petitioners met with the CSE on August 10, 1989, and thereafter enrolled their daughter in a private school located in the Port Washington Union Free School District.

On September 22, 1989, petitioners met with the CSE to consider a revised individualized education program (IEP) for their daughter for the 1989-90 school year, which reflected the fact that the student would be enrolled in the private school located within the Port Washington Union Free School District. The IEP indicated that counseling services were "to be provided 1:1". The frequency of services and the length of session were not specific, nor was there any indication of the identity of the psychologist who would provide the service. The IEP also indicated that resource room services would be provided on a daily basis.

A copy of the IEP was forwarded by the CSE to the Director of Pupil Personnel Services of the Port Washington Union Free School District for implementation of counseling and resource room services. However, petitioners' daughter was hospitalized for the removal of a brain tumor on October 19, 1989, before the Port Washington schools had commenced providing services to her. After her surgery, petitioner's daughter exhibited dysmetria of the right arm, which made it difficult for her to write, and had weak balance, which caused her to fall towards the right. On October 19, 1989, the student's physician recommended that the student receive occupational therapy three times each week and physical therapy twice each week. The student did not return to school until January 29, 1990. During the time student was absent from school, she received one hour of home instruction each day, but did not receive counseling.

On December 1, 1989, petitioners met with the CSE to discuss the provision of counseling, physical therapy and occupational therapy to their daughter. Respondent's occupational therapist recommended that occupational therapy be provided twice per week, and respondent's physical therapist recommended that physical therapy be provided once a week. The occupational therapist stated that such therapy is usually provided in sessions of 30 to 45 minutes. The physical therapist stated that physical therapy is usually provided in sessions of 45 to 60 minutes. The CSE agreed to arrange for a private psychologist who was then providing counseling to the student to continue to do so at district expense, until the student returned to school. A revised IEP was then prepared which indicated that counseling services were to be provided until the student returned to school, and that she would receive two 45 minute sessions of occupational therapy and one 45 minute session of physical therapy each week.

On January 12, 1990, the CSE met again to revise the student's IEP. The revised IEP provided that the student was to receive three 30 minute sessions of occupational therapy and two 30 minute sessions of physical therapy each week. The IEP also indicated that counseling services would be provided, but did not specify who would provide such services, or the frequency and length of the services. The student's mother signed the IEP on February 7, 1990.

On February 7, 1990, petitioners requested that an impartial hearing be held to review their complaints about the provision of counseling and therapy services to their daughter. In essence, petitioners contended that respondent had reneged on the CSE's promise to use the child's therapist to provide counseling, had failed to initiate the counseling on a timely basis, and had arbitrarily altered the schedule for the provision of occupational and physical therapy. The hearing officer, by decision dated June 27, 1990, rejected each of the petitioners' contentions.

Petitioners contend that respondent failed to provide counseling on a timely basis, in violation of the provisions of section 200.4(d) of the Regulations of the Commissioner of Education. The regulation provides that a board of education must provide appropriate services within 30 school days after receipt of a recommendation for such services from the CSE.

The record does not indicate when the CSE's recommendation was forwarded to respondent. I note that there was no projected date of initiation of service on the IEP of September 22, 1989, in violation of the provisions of Section 200.4(c)(2)(v) of the Regulations of the Commissioner of Education. The acting chairperson of the CSE promptly contacted the Port Washington school district to arrange for counseling, but counseling was not provided because of the student's illness. The student's hospitalization in October, 1989 would afford a basis for delaying the implementation of counseling. However, the record does not reveal any attempt by respondent's CSE or the Port Washington School district to ascertain when the student's physical condition would allow for the counseling to begin. In view of the fact that the student was homebound until January 29, 1990, some additional delay might have been warranted to make alternative arrangements for the counseling to be provided at the pupil's home until she returned to school. However, I must find that respondent failed to provide counseling on a timely basis, by not providing counseling until March 2, 1990.

A board of education may, in its discretion, select qualified school district employees or may engage the services of qualified non-employees to provide related services, such as counseling (Matter of Bd. of Ed., Frontier CSD, 23 Ed. Dept. Rep. 85). Counseling may be provided by qualified social workers, psychologists, guidance counselors or other qualified personnel (34 CFR 300.13[b][2]). In this instance, the CSE did agree, at its December 1, 1989 meeting, to secure the services of the student's private psychologist until the student returned to school. Thereafter, the CSE advised petitioners that the district was precluded as a matter of law from employing a private psychologist. However, there is no such restriction, as noted above. Although a school district may be compelled to honor its agreement to provide services in a particular manner (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 507), there would be no purpose in ordering respondent to contract with the psychologist in question to provide services on a temporary basis because the student is now receiving counseling from an employee of the Port Washington public schools. However, I note that respondent was previously directed by the Commissioner of Education to implement this child's IEP as written (Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 339), and I direct respondent to not alter the agreed upon terms of a proposed IEP without affording petitioners an opportunity to discuss such changes with the CSE.

As noted above, the student's IEP of December 1, 1989 provided for two 45 minute sessions of occupational therapy and one 45 minute session of physical therapy each week, while the IEP of

January 12, 1990 provided for three 30 minute sessions of occupational therapy and two 30 minute sessions of physical therapy each week. The frequency with which these related services were to be provided pursuant to the January IEP is consistent with the recommendation of the student's pediatric neurologist. However, petitioners argue that each session of therapy should be for a minimum of 45 minutes. I note that the neurologist's original recommendation did not specify the length of each session. The testimony of respondent's occupational therapist and physical therapist at the hearing supports the CSE's decision to alter the length of each session of therapy.

Petitioners also contend that their daughter's IEPs were often incomplete as to required details, and ask that I direct respondent to adhere to the requirements of Federal and State regulations in preparing future IEPs. My review of the record indicates that the student's IEPs frequently lacked required information as to the related services to be provided, such as the length of sessions, group size, goals and projected initiation dates, in violation of 34 CFR 300.346 and 8 NYCRR 200.4(c)(2)(v). I direct respondent to ensure that its CSE comply with these requirements in the future.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

Dated: Albany, New York                                                                 _________________________
           October 4, 1990                                                                       HENRY A. FERNANDEZ