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91-6

Application of a CHILD SUSPECTED OF HAVING A HANDICAPPING CONDITION, by his parent, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the City School District of the City of New York

Appearances:

Shearman and Sterling, Esqs., attorneys for petitioner, Eileen Wishnia, Esq., of counsel

Hon. Victor A. Kovner, Corporation Counsel, attorney for respondents, Sharon M. McGuire, Esq., of counsel

DECISION

Petitioner appeals from the determination of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioner's son be educated in a combination specialized instructional environment I/IV (SIE I/IV) program at respondent's P.S. 271 in Staten Island, New York, and which denied petitioner's request that the pupil's classification be changed to traumatic brain injured. The appeal must be sustained in part.

Petitioner's son, who is now 19 years of age, incurred anoxic brain damage secondary to strangulation as the result of an attempted suicide in September, 1984. The pupil remained in a coma for six months. From January, 1985 until October, 1986, the pupil received rehabilitation services, such as physical, occupational and speech therapy at the Children's Specialized Hospital, Mountainside, New Jersey. The pupil made significant progress at that facility in regaining his ability to communicate and to ambulate. Upon the pupil's discharge from the hospital, he was referred to the CSE of Community School District 22. The pupil was initially provided with home instruction for a three month period. In January, 1987, he was placed by the CSE in a modified instructional services (MIS-I) program at respondent's Intermediate School 15. In May, 1988, the CSE referred the pupil to respondent's Central Based Support Team, to locate an appropriate private day school program.

In September, 1988, the pupil was placed on a twelve month basis in the Human Resources School, Albertson, New York, which is an approved private school for pupils with handicapping conditions. He has remained at the Human Resources School, with minor variations in his educational program. Petitioner has on occasion sought to have the pupil placed in a residential school, and testified at the hearing that he accepted the placement at the Human Resources School as a temporary measure. In September, 1988, the pupil became the responsibility of the CSE of Community School District 26, which has declined to seek a residential placement for the pupil.

Following petitioner's request for a hearing to review the appropriateness of the pupil's continued placement at the Human Resources School, a hearing was held on three days in September and October, 1990. By a decision dated November 5, 1990, the hearing officer found that the program provided for the pupil at the Human Resources School did not address the pupil's emotional needs and his need for vocational instruction. The hearing officer further found that the pupil was inappropriately grouped for academic instruction with pupils of normal intelligence who were pursuing a traditional academic curriculum, because the pupil's cognitive deficits require that he receive training in functional skills, using cognitive retraining and constant repetition. The hearing officer directed the CSE to locate a program which could provide instruction in the manner required by the pupil's cognitive deficits, and which could integrate the rehabilitative services and vocational training he requires, while also promoting his social development. While the hearing officer suggested the possibility of a residential placement for the pupil, she did not expressly direct respondent to make such a placement. The hearing officer retained jurisdiction of the matter, and directed respondent to report its efforts to select a new program by no later than December 3, 1990.

On November 30, 1990, the CSE met with petitioner to develop a new individualized educational program (IEP) for the pupil. Instead of a residential school as sought by petitioner, the CSE selected a modified day program at respondent's Hungerford School, also known as P.S. 271. The proposed program would include instruction in functional reading and mathematics with one group of students with various handicapping conditions, in a SIE IV class, and instruction in vocational educational and adaptive physical education with pupils who have cerebral palsy, in a SIE I class. Instruction would be provided on a twelve month basis, and would be supported by individual and group counseling, physical therapy, occupational therapy and speech/language therapy. The pupil would be assisted by a full-time aide to help with ambulation, toileting and other needs, including transportation to and from school. The various related services would be presented after school on an individual basis, and during school on a group basis.

On December 4, 1990, respondent's Impartial Hearing Office received a written response from petitioner's advocate to the CSE's recommendation of November 30, 1990. The advocate requested an immediate meeting with the hearing officer, for the purpose of obtaining an order directing respondent to place the pupil in a residential school, to reclassify the pupil as traumatic brain injured and to address the issue of compensatory education for the pupil. A hearing was scheduled for December 12, 1990. However, petitioner and his lay advocate refused to attend the hearing. Petitioner requested, and was granted, the right to make an oral statement by telephone to the hearing officer at the hearing.

By decision dated December 28, 1990, the hearing officer found that the recommended day placement at respondent's Hungerford School would meet the pupil's academic, vocational, emotional and social needs, and that all needed services would be sufficiently integrated. The hearing officer further found that the school's instructional program, which does not provide cognitive retraining per se, would be adequate, notwithstanding her endorsement of that instructional technique in her prior decision. With regard to petitioner's request for a change in the pupil's classification, the hearing officer noted that the Part 200 of the Regulations of the Commissioner of Education has not yet been amended to provide for the classification of traumatic brain injury as a specific handicapping condition, and suggested that the CSE should first consider the issue. The hearing officer denied petitioner's request for additional occupational and physical therapy on the ground that there was insufficient information in the record to support that request. The hearing also denied petitioner's request for compensatory education, because there was no basis in the record to support that request.

Before addressing the issues raised by the parties, I will first consider a procedural issue raised by petitioner's submission of a reply to the answer by respondent.

In accordance with the provisions of 8 NYCRR 279.6, no reply is permitted, except in response to new documentary evidence submitted with the answer. The answer was accompanied by two affidavits from employees of respondent's Office of Impartial Hearings, with regard to a request by petitioner and/or his lay advocate for the initial hearing in this matter. The first three paragraphs of the reply, and an affidavit by petitioner address the issue of the request for the hearing, and will be considered. However, the remainder of the reply responds to assertions made by respondent in its answer, and will not be considered (Application of a Child with a Handicapping Condition, Appeal 90-17).

Petitioner's son has been classified as multiply handicapped (learning disabled, orthopedically impaired, emotionally disabled). That classification was not challenged at the first hearing. The minutes of the CSE meeting held on November 30, 1990 reveal that petitioner requested that the pupil's classification be changed to traumatic brain injured, and that the CSE concluded that such a classification did not come within its jurisdiction.

The Education for All Handicapped Children Act (20 USC 401 et seq.) was amended by P.L. 101-46, as of October 30, 1990, to add the term "traumatic brain injury" to the definition of children with disabilities. However, the statute does not define traumatic brain injury, nor have Federal regulations been promulgated as yet to provide a definition. As noted by the hearing officer, Part 200 of the Regulations of the Commissioner of Education has also not been amended to add traumatic brain injury as a specific handicapping condition. A multiply handicapped pupil is defined by State regulation, in part, as a "pupil with two or more handicapping conditions that result in multisensory or motor deficiencies and developmental lags in the cognitive, affective or psychomotor areas ..." (8 NYCRR 200.1 [ff][11]). As discussed below, the pupil's needs are consistent with that definition. In the absence of an authoritative definition of the term in either Federal or State regulation, I find that neither the CSE nor the hearing officer erred in declining to accede to petitioner's request for a change in the classification of the pupil. Once a definition is established by Federal or State regulation, it would be appropriate for the CSE to reconsider petitioner's request, as respondent has promised it would do, in its answer.

The record reveals that the pupil has extensive physical, cognitive and communications deficits. In a neuropsychological evaluation performed in July, 1990, the pupil achieved a full scale IQ score of 73. His reading recognition skills were measured at the beginning eighth grade level, while his reading comprehension was reported to be at a high third grade level. The pupil's comprehension deficits were attributable to his poor language comprehension and judgment. The pupil's arithmetic skills were assessed at the beginning third grade level. The evaluator described the pupil's speech as slow, with articulation problems and little control over volume or expression. The evaluator noted that the pupil smiled or laughed at inappropriate times during the testing, and exercised poor judgment and inattentiveness when working by himself. The pupil's maladaptive behavior, including impulsive and destructive behavior, were also noted by the evaluator.

A psychological evaluation performed in August and September, 1990 revealed that the pupil expressed feelings of depression, loneliness, helplessness and frustration. Although the evaluator suggested that the pupil had some feelings which could lead to another suicide attempt, he also noted that the pupil's feelings were quite labile, making it difficult to predict his intentions. The evaluator also commented upon the inappropriateness of the pupil's dependency upon petitioner for his social and daily living needs.

Although the pupil has made significant progress in overcoming his physical disabilities, his poor fine motor control limits his ability to perform daily living skills. At the hearing, petitioner testified that the pupil can dress himself, but that it is a time consuming process. The pupil can ambulate with a labored gait, but has some difficulty with balance. The pupil's orthopedic surgeon testified that the pupil has very limited use of his hands, because the range of motion of his elbows and shoulders is limited. The surgeon further testified that pupil requires much repetition in instruction, because of his impaired short term memory.

With regard to an appropriate educational program for the pupil, I note that neither party has challenged the hearing officer's finding in her November 5, 1990 decision that the pupil's present placement at the Human Resources School is inappropriate, and I concur with that finding. The appropriateness of the proposed placement at respondent's Hungerford School must be assessed by first examining the IEP developed by the CSE. I find that the Phase I IEP does not address the pupil's limited attention span and ability to follow complex directions. The IEP proposes that the pupil's reading and mathematical skills will be improved by the use of prescriptive teaching methods. The principal of the Hungerford School testified that cognitive training is a part of the methodology of prescriptive teaching, but that cognitive training per se is not employed. However, respondent's expert witness, a professor of education at Teachers' College of Columbia University testified that cognitive training activities improve a pupil's functioning in areas such as memory, attention, perception, and decrease impulsivity, which are among this pupil's needs. Respondent's expert witness further testified that suitable computer software exists to provide instruction to a pupil such as this pupil. While, the school principal testified that computers are available, there was no proof that the software in question is available and the IEP does not refer to the use of computer assisted instruction. Although the goal of the academic program at the Hungerford School would be to increase the pupil's functional reading and mathematical skills, I am not persuaded by the record that the proposed instructional program will attain that goal.

In view of this pupil's age, it is imperative that a suitable program of vocational instruction be provided. The Phase I IEP provides for exploring various tasks and encouraging the pupil to be more realistic in terms of selecting an occupation, but does not make any provision for specific occupational education to begin. It is therefore deficient.

As noted in the psychological and neuropsychological evaluations referred to previously, the pupil needs to improve his ability to interact with other people by decreasing or eliminating inappropriate behaviors and responses, in order to prepare himself for employment. However, the Phase I IEP does not address this important concern. In view of his limited mobility, the pupil should be encouraged to develop recreational interests to make better use of his leisure time and to decrease his dependence on petitioner or any other person for his social needs. This need is also not addressed by the pupil's IEP.

The Phase I IEP also sets forth general goals for improving the pupil's gross and fine motor skills. These goals are vague and are not listed under the portions of the IEP pertaining to physical therapy and occupational therapy. Therefore, it is unclear how these goals will be achieved or who will be responsible for assisting the pupil in achieving the goals.

Although the pupil's IEP could be revised to address some of the concerns which I have expressed, there is a far more substantial question as to the appropriateness of the recommended program. It is well settled that a board of education bears the burden of establishing the appropriateness of its recommended program or placement (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Matter of Handicapped Child, 23 id. 415; Matter of Handicapped Child, 25 id. 353; Application of a Child with a Handicapping Condition, 27 id. 335; Application of a Child with a Handicapping Condition, 29 id. 83). In satisfying its burden, the board of education must show that the program or placement is reasonably calculated to enable the pupil to receive educational benefits (Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176).

The proposed program would result in the pupil receiving instruction in at least two distinct groups of students, who have differing needs. The record is devoid of significant information about the pupils who would be instructed in reading and mathematics with this pupil. A class profile of the group in which the pupil would receive the remainder of his instruction is the record. The profile and the testimony of the school's principal leads me to conclude that there are significant differences between the other pupils and petitioner's son. Three of the pupils are confined to wheelchairs and require the assistance of full-time health aides. Four of the other pupils are unable to communicate orally. Apparently, only one of the pupils needs counseling services. Upon the record before me, I am unable to conclude that respondent has demonstrated that the pupil would be appropriately grouped.

The CSE has agreed to provide a number of disparate services to meet the pupil's significant needs. The proposed program would require the services of at least two teachers and four therapists, all of whom must coordinate their efforts so that an integrated program of instruction and therapy can be offered. The building principal testified that respondent's staff typically coordinate their activities at lunch time. It is not clear from the record whether non-employees, such as the therapists who would provide services to the pupil after school, are to be included in the coordination of activities. Respondent asserts that the health aide who is to be assigned to be with pupil throughout the day could coordinate the activities of the pupil's teachers and therapists. However, it is not reasonable or appropriate to have a paraprofessional make the professional judgments inherent in coordinating the activities of the teachers and therapists.

The CSE's recommendation that the pupil have a full-time paraprofessional raises two additional concerns. Respondent suggests that the aide will provide instruction at the pupil's home when the pupil is too ill to attend school. Respondent is reminded that it may not employ uncertified or unlicensed personnel to provide instruction (Education Law Section 3001). It is also not apparent from the record that the pupil requires a full-time aide. I note that the pupil did not have a full-time aide in his present placement. It is important that this 19 year old pupil be prepared for the adult world which he will soon enter. Although the pupil presently requires general supervision, there is nothing in the record that suggests that the services of a personal aide are required on a continuous basis.

For all of the foregoing reasons, I conclude that respondent has not met its burden of proof in demonstrating the appropriateness of the proposed program at the Hungerford School. I find, as did the hearing officer, that the pupil has an extensive array of needs which should be addressed by a school which can integrate rehabilitative services with an appropriate instructional program, and which can offer appropriate socialization opportunities. Respondent has recognized that the pupil's needs cannot be completely addressed during the normal school day. However, the pupil requires more than just a lengthened school day. The pupil needs a structured environment extending beyond school, because he is not self-directed, lacks organizational skills, is impulsive, has poor judgment, and learns best through constant repetition and reinforcement. He must develop basic, self-help skills, such as showering, which are not easily taught in a classroom. The pupil also needs to develop social skills in a supervised setting which extends well beyond the classroom.

Respondent correctly points out that each pupil must be educated in the least restrictive environment (34 CFR 300.550 [b] and 8 NYCRR 200.6 [a][1]), and that no pupil may be placed in a residential school unless such placement is necessary for the pupil to benefit from his educational program (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 130). It is also well settled that adverse or unpleasant situations at the pupil's home do not afford a basis for placing a pupil in a residential school (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 20; Application of a Child with a Handicapping Condition, 27 id. 131). While I am mindful of the tremendous responsibility petitioner has shouldered in providing care for his son, I have not premised my conclusion that the pupil belongs in a residential school upon the burden which petitioner has borne.

It is clear from the record that the pupil has interrelated instructional, social and emotional needs, and that his educational needs predominate. His educational needs are appropriately addressed in a residential setting which would provide greater continuity and consistency of approach (Abramson v. Hershman, 701 F 2d 223), and which would afford a basis for providing instruction beyond the normal school day (Kruelle v. New Castle County School District, 642 F 2d 687). Therefore, I will direct respondent to place the pupil in an appropriate residential school (Vander Malle v. Ambach, 667 F. Supp. 1015).

Petitioner requests that I direct respondent to provide the pupil with compensatory education, i.e. that respondent be compelled to continue to provide instruction for two and one half years after the school year in which the pupil attains 21 years of age (Education Law Section 4402 [5]). Petitioner asserts that he has attempted to obtain a residential placement for the pupil since 1987, and that the pupil has been deprived of a valuable educational opportunity in the interim. Compensatory education may be an appropriate remedy under particular circumstances (Burr v. Ambach, 863 F 2d 1071; Miener v. Missouri, 800 F 2d 749; Jefferson

County Board of Education v. Breen, 864 F 2d 795. In awarding compenstory education as a form of relief under the Education For All Handicapped Children Act (now, Individuals with Disabilites Education Act), equitable consideration are relevant (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 223). Both parties accuse each other of reponsibility for the delay in concluding the hearing beyond the 45 day period prescribed by Federal and State regulation, as discussed below. However, I find that there are much more significant issues in determining the pupil's entitlement, if any, to compensatory education.

It is evident from the record that petitioner has since 1988, with the assistance of respondent's staff, actively sought an appropriate program in a residential facility. In the interim, the pupil has been in a day program, which has not met the pupil's needs. The pupil is now 19 years old, and in need of many services and suitable vocational training to prepare him for adult life. In view of the shortness of time until the end of the school year in which the pupil becomes 21 and the absence of a meaningful vocational education program to date, I find that equity compels the award of an additional two years of compensatory education.

Petitioner's request for compensatory damages must be denied. I must first note that petitioner offers no authority for the proposition that an administrative officer may award such damages under either Federal or State law. In addition, I find that petitioner has failed to establish misconduct by respondent in providing services to the pupil or in according petitioner his due process rights.

Petitioner raises the issue of the timeliness of the hearing officer's decisions. Federal and State regulations require that the decision of a hearing officer be rendered within 45 days after a parent has requested that a hearing be held (34 CFR 300.512 [a][1] and 8 NYCRR 200.5 [c][10]). Petitioner requested a hearing on August 17, 1990. The record reveals that respondent offered to conduct the hearing on August 25, but that petitioner's lay advocate requested a later date and agreed that the hearing would be held on September 18, 1990. The hearing continued to take place on September 25 and October 11, 1990, and a decision was not rendered until November 5, 2990, which is in excess of the prescribed period. In addition, that decision was not final, in that the hearing officer retained jurisdiction while affording respondent time to comply with her decision.

While I do not condone any delay in the completion of impartial hearings, I must note that this is a fairly complex matter involving a pupil with relatively unique needs. I decline to find that the delay in reaching a final decision until December 28, 1990 should afford a basis for awarding compensatory damages.

Petitioner also asserts that respondent breached the confidentiality of the pupil's records by disclosing the records to the individuals who testified on behalf of the CSE at the December 12, 1990 hearing. With the exception of an expert witness from Columbia University, the other witnesses were respondent's employees. A board of education must obtain parental consent before disclosing personally identifiable information from a pupil's records to third parties (34 CFR 300.571). However, prior parental consent is not necessary for the disclosure of information to employees of the board of education, and the United States Office of Special Education and Rehabilitation Services has opined that records may be disclosed without parental consent to a school district's outside expert witness (EHLR 213:121).

Finally, I note that petitioner challenges the refusal of the hearing officer to consider petitioner's request for changes in the amount of physical and/or occupational therapy to be provided, pursuant to medical prescriptions dated December 18, 1990, six days after the last hearing in this matter. The prescriptions, which had not been reviewed by the CSE, are not part of the record before me. Consequently, there is no basis upon which I could determine the pupil's present physical and/or occupational therapy needs.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer be, and the same hereby is, annulled; and

IT IS FURTHER ORDERED that within 30 days of the date of this decision, the CSE shall recommend to respondent a new placement for the pupil, in accordance with the provisions of this decision; and

IT IS FURTHER ORDERED that respondent provide a free appropriate public education to the pupil through and including the month of June of the school year in which the pupil attains 23 years of age.

Dated: Albany, New York

March 8, 1991                                                                                                                 HENRY A. FERNANDEZ