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 Ellenville Central School District
Anderson, Banks, Curran and Donoghue, Esqs., attorneys for respondent,
James P. Drohan, Esq., of counsel
Petitioners appeal from an interim order issued by an impartial hearing officer directing respondent's committee on special education (CSE) to arrange for an evaluation by an expert in the field of autism of the speech and language portion of the special education program provided by respondent to petitioners' child during the 1990-91 school year. The appeal must be sustained in part.
Petitioners' eleven year old child was initially classified by the CSE as an autistic child in 1984. Prior to entering public school, the child was diagnosed as having Purine autism, which is a metabolic disorder. The child has seizures which cannot be completely controlled, and is hyper-sensitive to aural stimuli. She requires educational programming on a 12 month basis. The child's classification as autistic is not in dispute.
Prior to entering public school in 1984, the child participated in several pre-school programs. The CSE recommended that the child be educated in an in-home program for the 1984-85 school year, but respondent did not accept that recommendation. The parties subsequently resolved their differences as to an appropriate program for the child by agreeing, in February, 1985, that the child would continue to receive instruction at home until a special classroom had been prepared for the child in a school building. Thereafter, the child would attend school in a special one to one program for one and one-half hours each day, and would be provided at home with the services of an aide, a speech and language therapist and an occupational therapist. Between November and December, 1985, the child briefly attended school for part of the day in the special classroom. Thereafter and for the remainder of the 1984-85 school year, petitioners provided the child with instruction in their home at their expense. In September, 1986, the child briefly attended school, but thereafter she remained at home, where she received instruction at petitioners' expense.
In September, 1987, the CSE recommended that the child be placed in a special class of the Children's Annex, an approved private school for children with handicapping conditions located in Kingston, New York. Petitioners sought and obtained an impartial hearing to review the CSE's recommendation. In a decision rendered in September, 1988, a hearing officer upheld the CSE's September, 1987 recommendation.
Petitioners appealed to the Commissioner of Education from the hearing officer's decision. The Commissioner annulled the hearing officer's decision, after finding that the Children's Annex lacked a rational basis for recommending to the CSE that the school could meet the child's needs because the CSE had failed to provide the staff of the Children's Annex with evaluative data about the child (Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 323). In his decision, the Commissioner determined that, for purposes of Section 4404 (4) of the Education Law, the child's then current placement was in the combination in-school and at-home program set forth in the February, 1985 memorandum of understanding between the parties, because it was the last jointly agreed upon placement.
Petitioners instituted an action in the United States District Court for the Northern District of New York, claiming that respondent had not afforded the child a free appropriate public education as required by Federal law. In that action, the Court held a hearing on petitioners' request for a preliminary injunction, to determine what the child's then current placement was for purposes of 20 USC 1415 (e)(3), the Federal counterpart to Section 4404 (4) of the Education Law. By memorandum decision and order dated August 4, 1989, the Court held that the last jointly agreed upon placement for the child was a program of in-home instruction which had been provided prior to the 1985 memorandum of understanding. The Court found that respondent had not fulfilled its obligation under the 1985 memorandum of understanding, because it had delayed in providing an appropriate program, and that the special room in school which the district had prepared was inappropriate. The Court refrained from expressing any opinion as to the appropriateness of the in-home program for the child, but directed respondent to immediately hire staff and provide funding for that program. Respondent was directed by the Court to provide a special education teacher for the child for the entire school day, an aide for three hours per day, ten hours of occupational therapy per week and speech and language therapy for one and one-half hours each school day. The Court's order concludes with the following direction:
"Additionally, the Court orders the school district to make a good faith attempt to secure a special education teacher and therapists who have experience with pediatric and autistic children at [the child's] current age level, and have some training or experience within a clinical setting."
Special education and the related services of speech and language therapy and occupational therapy were provided by respondent to the child during the 1989-90 school year. The child's speech and language therapy was provided by a certified teacher of the speech and hearing handicapped (speech teacher), who was employed only on a 10 month basis and was not available during the months of July and August, 1990. The record does not reveal whether respondent could have obtained the necessary services through the local Board of Cooperative Educational Services (BOCES), nor does it reveal the extent of its efforts to obtain such services from the local BOCES during July and August, 1990. The record reveals only that respondent attempted through newspaper advertisements to recruit a temporary speech teacher replacement, but failed to employ anyone or otherwise arrange to have speech and language therapy provided to the child during July and August, 1990. In September, 1990, the speech teacher who provided services to the child during the 1989-90 school year was assigned by respondent to provide speech and language therapy to the child during the 1990-91 school year.
On September 5, 1990, petitioners requested that an impartial hearing be held to review the appropriateness of the speech and language therapy being provided to the child, because they objected to the continuing assignment of the speech teacher to provide services to the child. However, on September 24, 1990, petitioners withdrew their request for a hearing. On December 4, 1990, petitioners again requested an impartial hearing on the issue of the qualifications of the child's speech teacher to provide speech and language therapy to the child.
At the hearing commenced on January 14, 1991, petitioners advised the hearing officer that the sole issue to be decided was whether the child's speech teacher was qualified to provide speech and language therapy to the child. Testimony was taken from the speech teacher, the child's special education teacher, and a school administrator who supervised both teachers. An expert witness then testified on behalf of petitioners. On the sixth day of the hearing, respondent requested that it be allowed to present an expert witness to rebut the testimony of petitioners' witness. The hearing officer directed petitioners to state in writing whether they would permit respondent's intended witness to enter their house to observe the speech teacher provide speech therapy to the child on the day before or the morning of the day when the witness was expected to testify.
On the seventh day of the hearing held on March 21, 1991, petitioners objected to an observation of the speech portion of their child's program by the proposed expert witness. They asserted that neither Federal nor State law permitted such an observation, and expressed concern that they might become financially responsible for the fee charged by the prospective expert witness. The hearing officer assured petitioners that respondent would bear the cost of the observation and testimony of the expert witness. Petitioners, while expressing an interest in having the witness testify, declined to respond to the hearing officer's inquiry of whether they would permit the individual to come into their home to observe the speech teacher provide speech and language therapy. The hearing officer stated on the record that he would remand the matter back to the CSE, with the direction that the CSE have the speech and language portion of the child's program evaluated and then determine whether that portion of the program and its teacher were appropriate to meet the needs of the child as set forth in the IEP. The hearing officer further directed the CSE to hire other personnel, in the event the CSE concluded that the child's speech teacher was not qualified, or to refer the matter back to the hearing officer, if the CSE concluded that the child's program and teacher were appropriate. On March 22, 1991, the hearing officer issued a written decision, finding that the proposed observation was reasonable, and directed that the observation be completed no later than April 30, 1991.
Petitioners assert that the hearing officer erred in allowing the school district to conduct an evaluation of the speech portion of the program which it provides to their child, because it would unfairly allow the district to attempt to meet its burden of proof after the district had its opportunity to establish the appropriateness of its speech and language program. They further assert that the record demonstrates that respondent's employee is unqualified by training or experience to provide the services which the child needs. They ask that I find that the child requires the services of a speech therapist with a Master's degree in Speech/Language Therapy and a Certificate of Clinical Competence issued by the American Speech-Language-Hearing Association (ASHA).
Respondent asserts that its employee is qualified to provide speech and language therapy to the child, because the employee is certified by the State Education Department as a teacher of the speech and hearing handicapped. It also asserts that its intended use of a rebuttal witness is fully justified, because of petitioners' failure to produce their expert witness for the completion of cross-examination by respondent's attorney.
At the outset, I must note that petitioners have submitted a reply, all but one paragraph of which merely responds to assertions set forth in the answer. Such a response is not permitted pursuant to 8 NYCRR 279.6. However, I have accepted the reply for the limited purpose of recognizing petitioners' assertion in paragraph 11 of the reply that Exhibits D and E attached to the answer were not part of the record before the hearing officer and should not be considered in this appeal. I find that petitioners are correct on this matter, and I will not consider those exhibits to the answer.
With regard to the hearing officer's determination to allow respondent to offer the testimony of an expert witness in rebuttal to the testimony of petitioners' expert, I note that each trier of fact has broad discretion in permitting rebuttal evidence (Young v. Strong, 118 AD 2d 974; Section 4011 of the Civil Practice Law and Rules). However, the party having the burden of proof of a particular issue is bound to present all of the evidence to support that party's position during the presentation of the party's case, and may not attempt to add evidence through the device of rebuttal evidence (Hutchinson v. Shaheen, 55 AD 2d 833). In this instance, I note that on February 7, 1991, after presenting the testimony of three witnesses, respondent's attorney was asked whether he intended to have any other person testify. The attorney stated that he did not intend to present any additional witness, but might offer additional documentary evidence. Respondent's attorney did not raise the issue of an additional witness on behalf of respondent, until after petitioners' expert witness had testified on March 5, 1991. The testimony of petitioners' expert, who had never observed the child's speech teacher teach the child, primarily focused upon the expert's belief that speech therapy should be provided to autistic children by licensed speech therapists who possess Certificates of Clinical Competence. The basis for the expert's belief was adequately probed by respondent's attorney, upon cross-examination of the witness. Although respondent asserts that it was unfairly precluded from completing its cross-examination of petitioners' expert witness, I concur with the hearing officer's observation that respondent had an adequate opportunity for cross-examination. Rebuttal testimony is not offered for the purpose of corroborating facts already in evidence, but to deny some affirmative fact which the opposing party has attempted to provide (Marshall v. Davis, 78 NY 414). In view of the largely speculative testimony of petitioners' expert, as well as the fact that the issue of competence to provide speech/language therapy is a legal issue determined by State law and regulation, I find that the hearing officer erred in acceding to respondent's request to allow rebuttal evidence through its proposed expert witness.
Although I agree with petitioners' assertion that there is an adequate basis in the record to make a decision on the narrow issue of the speech teacher's qualifications to provide speech/language therapy to the child, I am compelled to find that the speech teacher is legally competent to provide such service to the child. Federal law requires that each state provide each child with a handicapping condition with a free appropriate public education (20 USC 1412 [B]). A free appropriate public education is defined to mean:
"... special education and related services that
(A) have been provided at public expense, under public supervision and direction, and without charge,
(B) meet the standards of the State educational agency,
(C) include an appropriate preschool, elementary, or secondary school education in the State involved, and
(D) are provided in conformity with the individualized education program ..." (20 USC 1401 [a])
Neither Federal statute nor regulation establishes specific standards for the training and/or experience of professional persons who will provide services to children with handicapping conditions. Instead, Federal regulations authorize each State to establish such standards (34 CFR 300.12, 300.153 [b]). Section 3004 of the Education Law authorizes the Commissioner of Education subject to approval by the Board of Regents, to prescribe regulations for the certification of teachers employed in all public schools of the State. Section 4403 (3) of the Education Law authorizes the Commissioner of Education to promulgate such rules and regulations pertaining to the physical and educational needs of children with handicapping conditions as the Commissioner shall deem to be in their best interests. Section 200.6 (b)(3) of the Regulations of the Commissioner of Education sets forth the standards for providers of related services to children with handicapping conditions as follows:
"Related services shall be provided by individuals with appropriate certification or license in each area of related service."
Speech and language therapy is a related service (Section 4401 [k] of the Education Law). Speech and language therapy is part of the practice of speech pathology (Section 8201 of the Education Law), for which a license under Article 159 of the Education Law is required, except for individuals employed in public or non-public elementary schools as, among others, teachers of the speech and hearing handicapped (Section 8207  of the Education Law).
The record reveals that the credentials of the employee selected by respondent to provide speech and language therapy are a Bachelor of Science degree in Speech Pathology, a Master of Science degree in Education and a permanent certification from the State Education Department as a teacher of the speech and hearing handicapped, issued in accordance with the requirements of Section 80.6 (a) and (b) of the Regulations of the Commissioner of Education. The speech teacher satisfies the requirements of Section 200.6 (b)(3) of the Regulations of the Commissioner of Education. Under New York law, the child's speech teacher is therefore legally competent to provide speech and language therapy to the child in an exempt setting such as this temporary public school program (Sections 4403 (3) and 8207  of the Education Law).
Although petitioners prefer that respondent employ a licensed speech therapist with a Certificate of Clinical Competence issued by the ASHA, respondent is not required to employ such an individual, as a matter of law. Indeed, the Director of the United States Education Department's Office of Special Education Programs has opined that a State Education agency is not required to adopt the licensure requirements set by ASHA in order to comply with Federal law (16 Education of the Handicapped Law Reporter 1361). I must also note that the Federal Court order directing respondent to provide appropriate services to the child does not expressly require that speech and language therapy be provided by a licensed speech pathologist or a licensed speech pathologist with a Certificate of Clinical Competence, rather than by a certified teacher of the speech and hearing handicapped.
I have reviewed the results of a privately obtained speech and language evaluation of the child, as well as the testimony of petitioners' expert witness. The private evaluator recommended that the child receive daily speech and language therapy provided by an ASHA certified and New York licensed speech pathologist, but the evaluator's report does not reveal any specific basis for that recommendation. Petitioners' expert witness also recommended that the child receive speech and language therapy from a speech pathologist holding a Certificate of Clinical Competence from ASHA. While the witness opined that it could be harmful to an autistic child to receive speech and language therapy from a therapist who has not been trained to recognize the atypical ways in which autistic children communicate, the witness did not in fact establish that only a person with a Certificate of Clinical Competence could possibly recognize this child's attempts to communicate. The witness conceded that the coursework and clinical experience of each holder of a Certificate of Clinical Competence are not identical, and that she had never observed respondent's speech teacher provide services to the child.
Petitioners' witness also attempted to draw inferences as to the speech teacher's competence from the child's Phase II IEP which the speech teacher had prepared, despite the fact that petitioners did not challenge the IEP. The witness expressed her preference for particular techniques, especially for symbolic language as presented to the child in line drawings. The witness suggested that this approach would capitalize upon the child's relative strength in visual ability, and was critical of IEP objectives which relied upon the child's aural comprehension. However, the testimony of the child's speech teacher, as well as that of the child's special education teacher, revealed that the child's communication needs were being addressed by aural, visual and tactile techniques in a speech and language program which was integrated with the child's special education program.
Petitioners also attempted to demonstrate that the child's speech teacher lacked the requisite experience in dealing with autistic children to provide an effective speech and language therapy program. However, even petitioners' expert witness conceded that she had never before seen a child with this particular form of autism. While the speech teacher admitted at the hearing that she had felt inadequately prepared to address the child's needs when first assigned to provide services to her in September, 1989, she described the extensive research which she and the child's special education teacher have undertaken to become familiar with the special needs of autistic children. At the time of the hearing, the speech teacher had worked with the child for almost one and one-half years and was familiar with the child's needs.
I find that there is no basis in the record for concluding that the child's speech teacher lacks the training or experience to provide an appropriate program of speech and language therapy as set forth in the child's IEP. It is apparent, however, that there is a significant disagreement between petitioners and respondent as to the contents of the child's IEP. The appropriateness of the objectives set forth in the child's IEP must be determined on at least an annual basis. In view of the fact that the 1990-91 school year has ended, it would serve no useful purpose to attempt to expand the scope of the present appeal to review the details of last year's IEP. Petitioners will have an opportunity to address their concerns at the next IEP meeting with the CSE.
I do not condone respondent's failure to provide speech and language therapy to the child during July and August, 1990, and indeed that may explain why the record reveals a substantial breakdown in the relationship between petitioners and at least some members of respondent's staff. That continued poor working relationship will inevitably hinder their mutual obligation to work together to develop and implement an appropriate educational program for the child (Burlington School Committee v. Department of Education, 471 U.S. 359; Tucker v. Bay Shore Union Free School District, 873 F. 2d 563). Accordingly, I urge the parents and the responsible staff of the school district to work together for the benefit of the child.
Finally, I must comment upon the deplorable state of the record in this case. Copies of some of the exhibits supplied by respondent were in fact not admitted into evidence or related to a different hearing involving petitioners and respondent. In some instances, the exhibits were so poorly identified in the transcript, that it was difficult to ascertain what the exhibits were. While I am satisfied that the record before me includes copies of all the relevant documents which were introduced into evidence, I will recommend to the Office of Special Education Services that the Regulations of the Commissioner of Education be amended to impose responsibility upon the hearing officer to maintain a record of each exhibit which has been introduced into evidence and to file a copy of such record and each exhibit with the board of education, upon completion of the hearing.
THE APPEAL IS SUSTAINED AS INDICATED.
IT IS ORDERED that the interim decision of the hearing officer be, and the same hereby is annulled.
|Dated:||Albany, New York||__________________________|
|September 12, 1991||HENRY A. FERNANDEZ|