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90-20

Application to reopen the appeal 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-Bellerose 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

This is an application by respondent Board of Education of the Floral Park-Bellerose Union Free School District to reopen the decision in Appeal 90-4, dated October 4, 1990, in which I found that respondent had failed to provide petitioners' child with the related service of counseling on a timely basis, and in which I noted that respondent had failed to include all of the necessary information on the individualized education programs (IEPs) which it prepared for the pupil.

Petitioners oppose respondent's application to reopen, and apply to reopen the portion of the decision which found that respondent's committee on special education (CSE) had a reasonable basis for altering the pupil's IEP with regard to the length of sessions of physical therapy and occupational therapy to be provided to the pupil. Both respondent's application and petitioners' cross-application must be denied.

These applications are made pursuant to the provisions of 8 NYCRR 279.1 (a) and 8 NYCRR 276.8. 8 NYCRR 279.1 (a) provides that the provisions of 8 NYCRR 275 and 276, governing appeals to the Commissioner of Education, also generally apply to appeals to the State Review Officer. Pursuant to 8 NYCRR 276.8, a party seeking to reopen an appeal must demonstrate that the decision in such appeal was rendered under a misapprehension of fact, or that there is new and material evidence which was not available at the time the original decision was made. Respondent's application to reopen and petitioners' cross-application do not meet these criteria.

In Appeal 90-4, I concluded that respondent had failed to provide counseling to petitioners' daughter on a timely basis, in view of the fact that the pupil's IEP of September 22, 1989 called for the provision of counseling while no counseling was provided by respondent until March 2, 1990. I stated that, while some delay in providing counseling was understandably attributable to the pupil's hospitalization in October, 1989, the record did not reveal any attempt by respondent's CSE or the Port Washington Union Free School District to ascertain when the pupil's physical condition would allow for the commencement of counseling.

Respondent now refers to two portions of the hearing testimony of its CSE chairperson, who stated that she had spoken to the pupil's mother on numerous occasion over the telephone about the pupil, as proof that its CSE had attempted to ascertain when the pupil could begin to receive counseling. However, neither the specific statements to which respondent refers nor the context in which they were made demonstrate what, if any, steps were taken by its CSE to ascertain when counseling could commence. My concern in Appeal 90-4 was, and remains, that respondent was well aware of the pupil's need for the related service of counseling by no later than September, 1989, but did not take steps to ensure that the service was available immediately upon the pupil's return to school in January, 1990. I do not condone respondent's willingness to rely upon each meeting with petitioners subsequent to September, 1989 as a basis to delay the provision of service to the pupil for a maximum of 30 days pursuant to 8 NYCRR 200.4 (d).

Respondent suggests that I may have failed to consider the difficulty it encountered in providing counseling to petitioners' daughter, because she was attending a nonpublic school located in another school district, and further suggests that I may have imposed upon it a more stringent obligation to provide related services than is required by Federal regulations.

It is well settled that mere reargument of the issues presented in a prior appeal is not a basis for reopening that appeal (Application to reopen the appeal of a Handicapped Child; 26 Ed. Dept. Rep. 159; Application to reopen the appeal of a Child with a Handicapping Condition, 27 id. 110; Application to reopen the appeal of a Child with a Handicapping Condition, 28 id. 496; Application of a Child with a Handicapping Condition, 29 id. 9).

In accordance with the provisions of Section 3602-c of the Education Law, the CSE of the school district in which a pupil resides recommends to its board of education the services to be provided to the pupil, and the board of education contracts with the board of education of the school district in which the nonpublic school attended by the pupil is located for the provision of services. As noted in my decision, respondent's CSE contacted the Port Washington Union Free School District, in which the pupil's school is located, to arrange for counseling prior to the pupil's hospitalization in October, 1989. A school administrator employed by the Port Washington district testified at the hearing that he had made arrangements to have the counseling provided to the pupil. The arrangements had been made well before the related service was provided to the pupil in March, 1990.

Respondent's suggestion that my decision imposes a greater burden upon it to provide services to petitioners' daughter than is required by Federal regulation is without merit. 34 CFR 300.452 (a) requires each local educational agency, such as a board of education, to provide special education and related services designed to meet the needs of private school children with handicapping conditions residing within the jurisdiction of such educational agency. It is not necessary to determine the extent or nature of a board of education's obligation under that regulation, because respondent is also obligated to provide related services to petitioners' daughter pursuant to Education Law Section 3602-c (Matter of Bd. of Ed. City School District City of New York , 24 Ed. Dept. Rep. 155). I must also note that nothing in my prior decision compels respondent to contract with the pupil's private psychologist, or to provide counseling for any purpose which is not school-related.

Respondent also asks for a reconsideration of the decision in Appeal 90-4 in light of its receipt of allegedly new and material evidence , in the form of a letter dated October 29, 1990 from petitioners' attorney to respondent's attorney. The letter asks that the counseling be rescheduled to take place after school hours, noting that the counseling is unrelated to the nonpublic school which the pupil attends. Respondent suggests that I should re-examine the pupil's need for counseling, since petitioners' attorney views the counseling as unrelated to the pupil's education. I decline to do so.

By the decision in Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 9, respondent's CSE was directed by the Commissioner of Education to consider providing counseling to address the pupil's negative reaction to testing. My decision refers to the prior decision of the Commissioner of Education, and the purpose of the counseling. The alleged misperception of the pupil's attorney as to the purpose of the counseling is irrelevant, and affords no basis for reopening my decision.

Petitioners seek to reopen that portion of my decision which discussed the appropriate levels of physical therapy and occupational therapy to be provided to the pupil during the 1989-90 school year, upon the ground that there is new and material evidence available. However, the evidence to which petitioners refer consists primarily of letters from the pupil's physicians and a physician engaged as a consultant by respondent. The opinions set forth in each of the letters reflect the pupil's present needs for physical and occupational therapy during the 1990-91 school year, and are of no probative value with regard to the pupil's needs during the 1989-90 school year.

Finally, I must note that these applications demonstrate, once again, that there has been a complete breakdown in the relationship between petitioners and respondent. The parties have a mutual obligation to work together to develop and implement an appropriate individualized education program for the pupil (Burlington School Committee v. Department of Education, 471 U.S. 359; Tucker v. Bay Shore Union Free School District, 873 F. 2d 563). I urge the parties to work together for the benefit of the pupil.

THE APPLICATION AND THE CROSS-APPLICATION ARE DENIED.

Dated: Albany, New York

December 12, 1990                                                                                                                               HENRY A. FERNANDEZ