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The State Education Department
State Review Officer

No. 92-47

Application of a CHILD WITH A HANDICAPPING CONDITION, by his parents, for review of a determination of a hearing officer relating to the educational program offered by the Board of Education of the Port Byron Central School District

Appearances:

Legal Services of Central New York, Inc., attorney for petitioners, Ronald Van Norstrand, Esq., of counsel

Matthew R. Fletcher, Esq., attorney for respondent

DECISION

Petitioners appeal from the determination of an impartial hearing officer holding that respondent's committee on special education (CSE) should have considered more fully petitioners' request that a school aide be assigned to accompany their child while in transit between home and school during the 1992-93 school year, but declining to direct the CSE to reconsider petitioners' request or to direct respondent to provide the requested service. The appeal must be sustained in part.

Petitioners' child is 17 years old, and is classified as multiply handicapped. The child's condition is called hydrocephalus, a disorder of the central nervous system. A shunt relieves the pressure of fluid upon the child's brain. The child is non-ambulatory because of hip and spinal problems, and uses an electric wheelchair for mobility. The child's use of his hands is limited to the pointer finger of each hand. The child has a history of seizures, but he reportedly has not had a seizure within the past five years. The child's oral expression is limited to approximately 20 words, which only those who interact with him on a regular basis would recognize. However, the child has begun to use specialized equipment for facilitated communication. His teachers have described the child as easily distractible. The child's classification is not disputed.

For a number of years, the child has been enrolled in special education classes operated by the Board of Cooperative Educational Services of Cayuga and Onondaga Counties (BOCES) in the Skaneateles Central School District. During the present school year, the child is in a BOCES 12:1+1 special education class at the Skaneateles High School, and receives the related services of speech/language therapy, physical therapy and occupational therapy. The child's individualized education program (IEP) for the 1992-93 school year provides that he be mainstreamed for English, consumer mathematics and social studies. The child's IEP further provides that he will receive special transportation on a bus equipped with a hydraulic lift for a wheelchair, and that such transportation will be provided between the school the child attends and community and/or vocational work sites, as well as between home and school.

At the hearing, the child's bus driver testified that the child boards the bus by backing his electric-powered wheelchair onto a hydraulic lift, a task which the driver testified is difficult for the child to do alone. The driver also testified that the child and his wheelchair are secured in the bus by a series of four straps and a lap seat belt. The bus driver further testified that either petitioners or an aide have assisted the child into the school bus in the morning, for an approximately 50 minute ride to the Skaneateles High School. The driver testified that after arriving at the school, she assists the child in positioning himself on the hydraulic lift and then leaves the bus to operate the lift. The driver expressed her preference at the hearing for having the assistance of an aide. The child's special education teacher testified that either a teacher or aide accompanied the child when he was transported from school to vocational and/or community training sites, and that the child could become flustered when maneuvering his wheelchair.

In October, 1985, the school bus in which the child was riding overturned. The child who was strapped to a wheelchair which was secured to the floor of the bus, had to remain in the bus until he could be removed by a team of firemen. At the hearing, the child's mother testified that the child's shunt was cracked in the bus accident, requiring the child to undergo a series of operations. The child's mother further testified that approximately one month after the accident, an aide was assigned to the child's bus, and that the aide had been on the bus during each succeeding school year through June, 1992. The assistance of a transportation aide is not specified in any of the child's IEPs.

At a budget hearing in April, 1992, respondent discussed the possible elimination of the positions of two transportation aides beginning with the 1992-93 school year. The child's mother subsequently spoke to the members of respondent to express her concerns about the child's safety if the transportation aide were removed from her child's school bus. During the Spring of 1992, the child's mother also met with a team of the child's teachers and related service providers in Skaneateles, to prepare the child's 1992-93 IEP. The mother did not raise the issue of transportation at that meeting.

On June 18, 1992, the child and his mother met with respondent's CSE. The BOCES team also attended the CSE meeting. The child's proposed program, including the addition of a speech facilitator, was discussed with the CSE. Upon completion of the discussion of the child's program, the child's mother spoke to the CSE about the child's need for a transportation aide. The child's mother provided the CSE with two letters. One letter by the child's pediatrician stated that it would be advisable to have an aide present when the child was bused. The other letter by the child's pediatric neurologist stated that it would be advisable if measures could be taken to give the child supportive care and help if he should break through with a seizure. The physician member of the CSE was not present. His presence had not been requested by petitioners (See, Section 4402 [1][b][1] of the Education Law). The CSE did not recommend to respondent that the child be assigned a transportation aide. In a notice dated July 15, 1992, petitioners were informed that respondent had accepted the CSE's recommendation.

In a letter dated July 6, 1992, petitioners requested that an impartial hearing be held. The hearing commenced on August 20, 1992, and concluded on August 28, 1992. By decision dated November 12, 1992, the hearing officer found that petitioners' request for the services of a transportation aide had not received the full consideration of the CSE. The hearing officer referred to differing accounts by witnesses at the hearing of remarks made by the CSE chairperson at the June 18, 1992 CSE meeting which supported the conclusion that the members of the CSE had not considered petitioners' request on its merits. The hearing officer declined to find that petitioners had been denied a meaningful opportunity to participate in the development of the child's IEP. He further declined to find that the manner in which the CSE had considered petitioners' request constituted, as a matter of law, a denial of the child's right to a free appropriate public education. The hearing officer noted petitioners' concern for the child's safety in the event of a seizure or an accident occurring while he is on the school bus, but held that respondent was not required to provide an aide on the child's school bus.

Petitioners assert that respondent failed to provide them with the requisite notice of the CSE's recommendation to respondent upon their request for the services of a transportation aide. Federal regulation requires that the written notice which a local educational agency gives to a parent concerning a change in, or a refusal to change, a child's identification, evaluation or educational placement or the provision of a free appropriate public education to the child include an explanation of why the agency proposes or refuses to act, and a description of any options which the agency considered and the reasons why those options were rejected (34 CFR 300.505 [a][2]). State regulations were recently amended to impose a comparable requirement with regard to program and placement options considered by a CSE (8 NYCRR 200.5 [a][4][i][c]). The notice of the CSE's recommendation which was sent to petitioners does not refer to their request for a transportation aide. If the provision of such an aide could be part of a free appropriate public education, the failure to describe the option of providing the services of such an aide and why that option was rejected would be a violation of the Federal regulation. The Federal regulatory definition of free appropriate public education includes special education and related services (34 CFR 300.8 [a]), while related services are defined to include "transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education" (34 CFR 300.16 [a]). Special transportation arrangements may be part of the free appropriate public education which respondent must provide (Macomb County Intermediate School District v. Joshua S., 715 F. Supp. 824 [ED, Mich., 1989]). I find that the notice of the CSE's recommendation which petitioners received did not meet the requirement of the Federal regulation (Application of the Board of Education of Pittsford Central School District, Appeal No. 91-14; Application of a Child with a Handicapping Condition, Appeal No. 92-3; Application of a Child with a Handicapping Condition, Appeal No. 92-40).

Petitioners also challenge the manner in which the CSE considered petitioners' request for the services of an aide. Technically, petitioners requested a change in the child's program, because although the services had been previously provided, they were never before included in the IEP. The chairperson and the parent member of the CSE each testified at the hearing that the CSE typically approved the program or changes in a program that had been recommended by the building team, unless one or more members of the CSE disagreed with the recommendation. In this instance, the building team had recommended the addition of the services of a speech facilitator to the child's program for the 1992-93 school year. The CSE chairperson testified that he and others discussed the building team's recommendation for speech facilitator services at the CSE meeting, and that by consensus the CSE approved that change in the child's IEP. The request for a transportation aide had not been raised at the BOCES team meeting. At the end of the IEP discussion, the child's mother was permitted to speak to the CSE for approximately 10 minutes about her child's need for a transportation aide. The child's mother also gave the CSE copies of two brief notes from the child's pediatrician and pediatric neurologist, in support of her request. The CSE chairperson testified that the members of the CSE had not seen the physicians' notes before the June 18, 1992 meeting.

The child's mother testified that the CSE chairperson said at the June 18, 1992 meeting that the CSE would not consider her request for an aide because petitioners had already raised that issue with respondent. A BOCES teacher present at the CSE meeting confirmed the mother's testimony. A second BOCES teacher testified that the CSE chairperson stated that he could not discuss the matter because respondent's transportation staff were not present. The parent member of the CSE and the CSE chairperson each testified that it was the consensus of the CSE to deny petitioners' request. The chairperson further testified that he had inferred the consensus decision because no CSE member had spoken in support of petitioners' request at the CSE meeting. The minutes of the CSE meeting were introduced into evidence, but the minutes fail to show that the issue of an aide was even discussed at the meeting.

Federal and State regulations require that a child's IEP be prepared by a CSE, with the participation of the child's parents (34 CFR 300.415 [a]; 8 NYCRR 200.4 [c][3]). The official interpretation of the Federal regulations states, in material part, that:

"The IEP meeting serves as a communication vehicle between parents and school personnel, and enables them, as equal participants, to jointly decide what the child's needs are, what services will be provided to meet those needs, and what the anticipated outcomes may be." (34 CFR 300, Appendix C, I.a. Purpose of the IEP).

A CSE is not obligated to accede to the wishes of the parents, but it must nevertheless afford parents a meaningful opportunity to interact with the CSE (Application of a Child with a Handicapping Condition, Appeal No. 91-13; Application of a Child with a Handicapping Condition, Appeal No. 90-13). Merely listening to the parents' concerns, without involving them in the process by which the CSE reaches its recommendation to a board of education does not satisfy the requirement of affording parents a meaningful opportunity to participate (Application of a Child with a Handicapping Condition, Appeal 92-7; Application of a Child with a Handicapping Condition, Appeal No. 91-13). In this instance, there is no real dispute that the CSE allowed the child's mother to request an aide but did not discuss the request with the child's mother at the June 18, 1992 CSE meeting. I find, as did the hearing officer, that the CSE erred in not discussing and virtually ignoring petitioners' request at the CSE meeting. However, I find that the hearing officer erred in concluding that the CSE did not abridge petitioners' right to participate in the development of the child's IEP.

I further find that the hearing officer erred in concluding that it would not be useful to remand the matter to the CSE because the essential facts of the matter had been presented at the hearing. Such a conclusion detracts from "... the Congressional emphasis upon full participation of concerned parties throughout the development of the IEP ..." (Board of Education Hendrick Hudson Central School District et al. v. Rowley, 458 U.S. 176, 206), and is not supported by the present record. Where the record supports a hearing officer's determination concerning a child's need for a service or other element of an educational program which a CSE has not recommended, the hearing officer may order a board of education to provide such service or program element, in lieu of merely remanding the matter to the CSE (Application of a Child with a Handicapping Condition, Appeal No. 90-17). The present record does not support a finding that the child requires, or does not require, the services of a transportation aide. Petitioners have raised the issue that the child's physical condition, including the susceptibility to seizures, mandates that he should be accompanied by an aide while being transported. Until June of 1992, the school district supplied that service although the service was not reflected in the IEP. At the hearing, the CSE chairperson testified that he had not spoken to the child's physicians about the child's condition. There is no testimony by either the child's physicians or the school physician in the record which would afford a basis for the hearing officer or myself to determine whether the child requires the services of an aide, or whether the aide is required under another state regulation (see generally 8 NYCRR 156.13[g][4]).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS FURTHER ORDERED that the decision of the hearing officer is annulled, and;

IT IS FURTHER ORDERED that within 15 days after the date of this decision the CSE shall afford petitioners an opportunity to meet with the CSE to consider petitioner's request for the services of a transportation aide, in accordance with the tenor of this decision, and the CSE shall then recommend to respondent whether the services of a transportation aide should be provided to petitioners' child.

Dated:

Albany, New York

 

__________________________

 

February 12, 1993

  HENRY A. FERNANDEZ