The State Education Department
State Review Officer
Application of a CHILD WITH A HANDICAPPING CONDITION, by her parents, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the Chazy Union Free School District
North Country Legal Services, Inc., attorney for petitioners, Alexander Lesyk, Esq., of counsel
Fitzpatrick, Trombley, Owens and Lahtinen, P.C., attorneys for respondent, Dennis D. Curtin, Esq., of counsel
Petitioners appeal from a determination of an impartial hearing officer which directed respondent's committee on special education (CSE) to obtain new physical and occupational therapy evaluations of petitioners' daughter and to prepare a new individualized education program (IEP) for the pupil. The appeal must be dismissed.
Petitioner's five year old daughter suffered severe perinatal asphyxia as an infant, and has epilepsy, partial with secondary generalization, as well as congenital spastic quadriparesis (cerebral palsy). She has seizures which are fairly well controlled and which occur approximately once every three months. The pupil can hold her head up for no more than two to three minute intervals, and has difficulty maintaining a sitting position. Petitioners' daughter makes some one syllable sounds. She communicates by eye movement, looking at pictures or words placed upon a communications board in her classroom. Petitioners' daughter was originally classified as multiply handicapped while she attended a preschool program operated by the Clinton-Essex-Warren and Washington Counties Board of Cooperative Educational Services (BOCES) during the 1989-90 school year. That classification was adopted by respondent's CSE in planning an educational program for the pupil for the 1990-91 school year. The pupil's classification is not in dispute in this appeal.
Petitioners' daughter has participated in special education programs since shortly after her birth. After three years of participation in an early intervention program, the pupil entered a preschool program of the Clinton-Essex-Warren-Washington Counties BOCES in September, 1989, which was recommended by respondent's committee on preschool special education. The BOCES class, which is located in Plattsburgh, New York, is known as an "Option IV" class. Pursuant to state regulation, an Option IV class is one in which the size of the class shall not exceed 12 students and in which there must be one adult, in addition to the teacher, for each three pupils (8 NYCRR 200.6 [f][iii]). The pupil's IEP for the 1989-90 school year provided for daily speech therapy for 60 minutes, for three 30 minute sessions of direct physical therapy and two 30 minute sessions of indirect physical therapy each week, and two 30 minute sessions of occupational therapy each week. As defined in a BOCES policy statement, direct services are services provided directly to a pupil, either individually or in a group. Indirect services are services rendered on behalf of the pupil, which could include the therapist meeting with the pupil's physician or teacher, or adjusting or fixing equipment to be used by the pupil.
On May 9, 1990, the CSE met to prepare a program for the pupil's initial year as a school-age pupil during the 1990-91 school year. The CSE recommended that the pupil continue in the BOCES Option IV class, with the same level of speech therapy. The minutes of the CSE meeting reveal that the CSE recommended that the pupil receive two 30 minute sessions of direct physical therapy and one 30 minute session of indirect physical therapy each week and two direct and one indirect sessions of occupational therapy of unspecified length, each week. However, the IEP which was prepared as a result of the CSE meeting provides that the pupil is to receive three sessions of direct, and two sessions of indirect physical therapy, and two sessions of direct and one session of indirect occupational therapy, each week. Each session of a related service would be for 30 minutes.
The pupil's father, one of the petitioners, expressed his dissatisfaction with the CSE's recommendation, and requested that the CSE reconvene. CSE meetings scheduled for June 19 and June 29, 1990 were postponed at petitioners' request. On June 12, 1990 respondent approved the CSE's recommendation. Respondent's record of its action reveals that it approved a program which would include only two 30 minute sessions of direct and one 30 minute session of indirect physical therapy each week. The board did approve the provision of speech therapy and occupational therapy in accordance with the CSE's recommendation. However, the CSE chairperson testified that the discrepancy between the IEP and the board's record as to the amount of physical therapy is merely a typographical error in the record of board action, and that respondent did approve the provision of three sessions of direct physical therapy and two sessions of indirect physical therapy each week.
Petitioners requested that an impartial hearing be held to review their daughter's program of the 1990-91 school year. A hearing was held on August 15, 1990. By decision dated August 25, 1990, the hearing officer found that, despite petitioners' written request that the physician member of the CSE be present at the May 9, 1990 meeting, no physician had been present at such meeting. The hearing officer also found that the IEP as originally prepared did not include goals for the pupil's physical and occupational therapy. The hearing officer concluded that the hearing had been held prematurely in view of petitioners' request for another meeting with the CSE and respondent's avowed willingness to accommodate that request. The hearing officer directed the CSE to reconvene, with the CSE's physician member present. He also directed respondent to obtain new evaluations of the pupil as to her need for physical and occupational therapy, to resolve the dispute between the parents and the school staff as to the necessary level of services. With regard to petitioners' request that their daughter attend class for only four hours per day, rather than the six hours per day recommended by the CSE, the hearing officer urged petitioners to accept a six hour day.
In this appeal, petitioners ask that I overturn so much of the hearing officer's decision as finds that new data as to the pupil's physical and occupational therapy needs must be obtained and which sustains the longer school day recommended by the CSE. Petitioners maintain that there is sufficient evidence in the record for me to conclude that their daughter requires both physical and occupational therapy five days a week, and that I should direct respondent to provide those related services at those levels. They also maintain that there is no evidence in the record to establish that their daughter would benefit from more than four to five and one-half hours of instruction each day, and that I should compel the CSE to amend the pupil's IEP to provide for a school day not to exceed four and one-half hours.
I concur with the hearing officer that the matter must be remanded to the CSE. Education Law Section 4402 (1)(b)(1) provides that a school physician need not be in attendance at any meeting of the CSE, unless the parents, the pupil or a member of the CSE submits a written request, at least 72 hours in advance of a meeting, that the physician attend such meeting. Petitioner did request in writing on April 25, 1990 that the physician member of the CSE attend the May 9, 1990 meeting. However, no physician was present at the CSE meeting. In this instance, the judgment of the CSE's physician as to the physical and occupational therapy needs of the pupil would have been essential for the CSE to reach an informed decision as to the pupil's needs. The CSE chairperson testified at the hearing that the CSE relied upon the advice of the staff at BOCES because no member of the CSE was qualified to prescribe physical or occupational therapy. A physician member of the CSE has the requisite professional expertise to advise the CSE on physical and occupational therapy.
I also concur with the hearing officer's conclusion that the CSE should obtain new physical and occupational therapy evaluations of the pupil. 8 NYCRR 200.4 (f)(4) provides that each pupil with a handicapping condition must be re-evaluated once every three years. However, that is a minimum requirement. In this instance, the pupil was evaluated for physical therapy and for occupational therapy in December , 1988, while she was in the BOCES preschool program. It is essential that these evaluations be updated, because of the passage of time since the evaluations were performed and because there is no clear statement in the record of the pupil's physical and occupational therapy needs for the purpose of providing an appropriate educational program.
Each board of education is required to provide a free appropriate public educational consisting of special education and related services in conformity with an individualized education program (34 CFR 300.4 [d]). Physical therapy and occupational therapy are related services, which are defined by Federal regulation to include such developmental, corrective, and other supportive services as are required to assist a child with a handicapping condition to benefit from special education (34 CFR 300.13 [a]).
The record reveals that physical therapy is provided to petitioners' daughter to assist in strengthening her head and body trunk control, while the occupational therapy which she receives is designed to strengthen and improve control of her upper extremities. However, I must note that the pupil's IEP of May 9, 1990 lacks goals for physical therapy and occupational therapy, although those goals should have been included on the IEP (8 NYCRR 200.4 [c][iii]). The purpose of these two related services is to improve the pupil's mobility, endurance, and to prepare her to eventually use a computer in school. There is no dispute that the pupil needs these services or that they are related to her special educational program, but it is not clear from the record what levels of service are required.
Although physical therapy must be rendered pursuant to a referral from a licensed physician (Section 6731 [c] of the Education Law) and occupational therapy must be rendered on the prescription or referral of a licensed physician (Section 7901 of the Education Law), the only referrals which respondent possesses are from the child's physicians who have recommended a regimen of physical therapy and occupational therapy that exceeds that which respondent is providing through BOCES. Respondent may, of course, rely upon the advice of its own physician, and is not bound by the recommendations of a pupil's personal physician (Application of a Child with a Handicapping Condition, 25 Ed. Dept. Rep. 365). Respondent may also rely, in part, upon the advice of the therapists employed by BOCES, with regard to the amount of time required to achieve specific goals. However, there is insufficient evidence in the record of this case to afford a basis for concluding that the CSE recommended appropriate regimens of physical therapy and occupational therapy in the pupil's IEP, particularly in view of the failure of the physician member to participate in the CSE's deliberation.
The BOCES has adopted a uniform policy of evaluating physical therapy needs and providing services. The BOCES physical therapist testified that petitioners' daughter is not entitled to a higher level of service under the BOCES policy because her condition is thought by the BOCES staff to be stable. Pursuant to its policy, additional physical therapy is provided by the BOCES, but only to pupils whose conditions are changing, i.e. they have a progressive disease, or if additional physical therapy would help a pupil make a significant gain in progress or would prevent a pupil from regressing. While the BOCES physical therapist testified that petitioner's daughter has been making steady progress in the area of physical therapy, no substantial explanation was provided to conclude that additional physical therapy would not be educationally useful. Both the BOCES physical therapist and the pupil's teacher expressed the concern that additional physical therapy would lessen the amount of direct instructional time available. Nonetheless, it is difficult to conclude that two additional 30 minute sessions of physical therapy each week will detract from the pupil's educational program. Moreover, there is no reason why physical therapy cannot be provided in the classroom as an educational activity. There was also little, if any, explanation of the benefits to the pupil of the one hour per week of indirect physical therapy to be provided pursuant to the IEP.
Respondent is obligated to provide special educational and related services which meet the unique needs of petitioner's daughter (20 USC 1400 [c], Section 4202 [a] of the Education Law). Although physical therapy is allegedly available on a daily basis at the BOCES facility, I must note that a BOCES administrator admitted at the hearing that no pupil in that facility was receiving direct physical therapy or direct occupational therapy on a daily basis. The application of a uniform policy concerning the amount of service to be provided, without regard to the individual needs of pupils, is incompatible with Federal law (Battle v. Commonwealth of Pennsylvania, 629 Fed. 2d 269). I am persuaded by the record before me that the CSE determined the level of related services to be provided to petitioners' daughter by what was dictated under the BOCES policy, rather than what was necessary to meet the individual needs of the pupil.
The inclusion of indirect physical therapy and indirect occupational therapy in the pupil's IEP is not supported by the record. As explained at the hearing, indirect service is time which a therapist spends ordering and maintaining adaptive equipment, visiting a pupil's physician with parents to learn more about a pupil's needs, consulting with a pupil's teachers and a pupil's parents. Although therapists undoubtedly have duties in addition to working directly with pupils, that is an administrative concern of the BOCES which should not be reflected on a pupil's IEP. Such services appear to have little direct benefit to the pupil and are not a substitute for direct service to the pupil. Moreover, the proportion of time spent on these other tasks in relation to the time spent in actually providing therapy is also highly questionable.
Although I find that respondent has failed to establish a rational basis for the levels physical therapy and occupational therapy to be provided to petitioners' daughter under her IEP, I am also not persuaded by the evidence offered by petitioners that the record affords an adequate basis for determining the amount of service which should be provided.
The brief written remarks of the pupil's physicians that the pupil should receive physical therapy and occupational therapy on a daily basis do not demonstrate an awareness of the purpose for which these related services are to be provided by a board of education, or how a particular level of service is related to the educational goals of the pupil. Moreover, the assessments of the pupil's progress by the pupil's physicians are inconsistent and reflect a substantial diference of opinion that has not been adequately explained in the record before me.
With regard to the length of the school day for petitioners' daughter, I note that a normal school day for an elementary level pupil would be five hours, exclusive of lunch (8 NYCRR 175.5 [a]). However, the individual needs of each pupil with a handicapping condition must be considered in determining an appropriate length of the school day for such pupil. Petitioners are concerned that their daughter might become fatigued by a school day in excess of four and one-half hours, and that she could experience seizures more frequently as a consequence of being tired. Petitioners submitted letters from the pupil's physicians, which recommend that the pupil attend half-day sessions of school. However, it is not apparent from the physicians' letters what they perceive half-day sessions to be. As with the level of services to be provided, the length of the school day is an issue which should be addressed by the CSE with the active participation of the physician member of the CSE. I urge that one or more of the pupil's physicians meet with the CSE, so that the CSE may obtain an accurate and comprehensive account of the pupil's physical condition and plan on an appropriate program to meet the pupil's individual educational needs.
THE APPEAL IS DISMISSED.Dated: Albany, New York _________________________