University of the State of New York Emblem

The State Education Department
State Review Officer

No. 93-19

Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Wappingers Central School District

Appearances:

Mid-Hudson Legal Services, Inc., attorney for petitioner, Rosalee Charpentier, Esq., of counsel

Raymond G. Kruse, Esq., attorney for respondent

DECISION

Petitioners appeal from the determination of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) to reduce the amount of occupational therapy to be provided to petitioners' child during the 1992-93 school year, and which held that petitioners were not entitled to an independent occupational therapy evaluation at respondent's request because respondent's evaluation was adequate. The appeal must be sustained.

Petitioners' child, who is 11 years old, was born prematurely. He experienced respiratory difficulty at birth and was treated. In October, 1983, the child began to receive speech/language therapy, physical therapy and occupational therapy consultation services in the infant-parent program of Rehabilitation Programs, Inc. in Poughkeepsie, New York. In 1984, the child was enrolled in a private preschool, where he received daily speech/language therapy. The child continued to receive physical therapy at a local hospital. The results of an occupational therapy evaluation completed by Rehabilitation Programs, Inc. in February, 1986 disclosed the possible existence of a sensory integrative dysfunction based upon the child's inefficient processing of vestibular, kinesthetic and tactile information. The child exhibited difficulty with bilateral integration and motor planning. The evaluator recommended that the child receive occupational therapy two or three times per week.

At the hearing in this proceeding, the child's mother testified that the child was enrolled in a regular education kindergarten class in 1986, but had difficulty remaining on task. The child experienced academic difficulty in first grade, and was referred to the CSE. As part of the CSE's evaluation of the child, a neurological examination was completed in February, 1988. The neurologist reported that the child exhibited signs of visual motor, gross motor and fine motor incoordination, hand sustention tremulousness and overflow movement, and opined that the child had a minimal brain dysfunction. The child was initially classified as other health impaired, but was subsequently classified as learning disabled. The record reveals that the child has a learning disability in reading and spelling. Petitioners do not challenge the child's classification.

The child has been enrolled in special education classes since the latter part of the 1987-88 school year. He is currently in sixth grade in respondent's Fishkill Plains School. The child's individualized education program (IEP) for the 1992-93 school year provides that the child is to be instructed in the special class, except for unspecified mainstreaming (cf. 8 NYCRR 200.4 [c][2][iv]). The IEP further provides for one hour per week of speech/language therapy in a small group and one 30 minute session per week of individual occupational therapy. Petitioners do not challenge any portion of the child's educational program, except the amount of occupational therapy for the child, who had previously received two 30 minute sessions of occupational therapy per week.

The present dispute between the parties began in December, 1991, when petitioners requested that the child's sensory integrative skills be re-evaluated. In her letter requesting the re-evaluation, the child's mother asserted that an occupational therapist employed by respondent had suggested the re-evaluation. A test of motor proficiency was administered by the occupational therapist in January, 1992. While reporting that the child's performance was above age level on tests of his upper limb coordination and speed and visual motor control and at age level for bilateral coordination, the child's occupational therapist stated that additional tests would be performed to assess the child's motor planning and organizational deficits.

In February, 1992, the child's occupational therapist asked another occupational therapist employed by respondent to evaluate the child. The latter therapist administered the Southern California Sensory Integration Test (SCSIT) to the child, even though the child's chronological age exceeded the age for which the SCSIT had been normed. At the hearing, the therapist who administered the SCSIT and who is providing occupational therapy to the child during the 1992-93 school year testified that use of the SCSIT would reveal the existence, but not the extent, of the child's sensory integration deficits. The therapist further testified that the SCSIT revealed that the child had a deficit in tactile perception in his fingers and hands, and difficulty crossing the midline of his body, which are significant with regard to his ability to write. The therapist also testified that the child exhibited difficulty in manipulating shapes with his left hand and that the child's kinesthetic sense or knowledge of body movement was not well developed. As a consequence of her findings, the consultant therapist recommended that the child be tested to assess his visual spatial perception and his posture control.

On April 21, 1992, the child's regular occupational therapist administered a test of visual motor integration to the child. However, the scoring of the test is incomplete and there is no written report of the results in the record. The therapist did not testify at the hearing. It is unclear from the record whether the child's posture control was further assessed. Although the consultant therapist referred to a test of motor proficiency in her testimony, the test protocol which is in the record does not reflect results directly bearing upon the child's posture control. In a written summary prepared in April, 1992, the child's regular occupational therapist reported that the child continued to display diminished joint stability throughout his upper extremities and his hips and that his motor planning and organization for complex tasks required further emphasis. The therapist also reported that the child's ability to perform rapid bilateral movement, such as rapid midline crossing, remained below age level. Referring to the visual motor integration test administered in April, 1992, the therapist reported that the child's skills were age appropriate. The therapist recommended, after consulting with respondent's physician, that the child receive only one 30 minute session of individual occupational therapy per week. Suggested annual goals for such therapy were listed as improvement of the child's upper body skills needed for functioning in school and improvement in his ability to automatically perform familiar and unfamiliar tasks. Although the therapist attached to her summary what appeared to be an annual goal and short-term objectives for occupational therapy from the child's 1991-92 IEP, that document is not in the record, nor is there any description of his achievement of that goal or those objectives.

On May 14, 1992, a subcommittee of the CSE prepared the child's IEP for the 1992-93 school year, in which the subcommittee adopted the recommendations of the child's occupational therapist with regard to the amount of occupational therapy to be provided and the annual goals for such therapy. The IEP did not list any short-term instructional objective for any of the special education services to be provided (cf. 8 NYCRR 200.4 [c][2][iii]).

On June 19, 1992, the child was evaluated by respondent's physician, who is a physiatrist, i.e., specialist in rehabilitation. The physician reported that the child exhibited poor muscle tone, but described his gross motor skills as functional. The physician further reported that the child's fine motor dexterity had improved, so that he could perform simple, rapid exercises with acceptable speed. While the physician noted some improvement in the child's motor planning, the physician reported that there was some evidence of slowness in the tasks which the child performed for the physician. The physician opined that the child's performance of tasks would improve with continued practice. The child's handwriting was described as good, despite having difficulty with his pencil grip. The physician recommended that the child receive occupational therapy once per week to facilitate improved carryover of classroom tasks and incorporate his improved coordination in classroom functions. Addressing the concerns of the child's mother, who was present during the evaluation, the physician opined that the child had achieved functional dynamics which occupational therapy would provide and that the child's performance would improve through the repetition of tasks in an educational setting.

In July, 1992, petitioners obtained a private educational evaluation of the child. The evaluator reported that the child exhibited above average cognitive ability, but had a severe reading disability. Although the child was able to perform near and far point copying accurately, the evaluator reported that the child's handwriting was immature and unevenly spaced. In tests of the child's visual, auditory and kinesthetic skills, the child exhibited the most difficulty when he was required to integrate information obtained either visually or auditory with a kinesthetic-motor response. The evaluator further reported that the child exhibited sequencing deficits in speech and writing. Although the child's mathematics skills were not as severely deficient as his reading skills, the evaluator noted that the child was very uncertain about the procedure which he had employed to solve problems. The evaluator recommended that the child's present special education needs be reconsidered by the CSE.

On October 1, 1992, petitioners requested that an independent occupational therapy evaluation of the child be performed in a local hospital. By letter dated October 9, 1992, petitioners asked for an impartial hearing to review the recommendation to decrease the amount of occupational therapy to be provided to the child. On October 14, 1992, the CSE approved its subcommittee's recommendation to reduce the amount of occupational therapy for the child during the 1992-93 school year. With regard to petitioners' request for an independent evaluation, the CSE recommended that the child be evaluated by another occupational therapist employed by respondent (cf. 8 NYCRR 200.1 [u]), and respondent subsequently initiated a hearing to establish the appropriateness of its occupational therapy evaluation (8 NYCRR 200.5 [a][1][vi][a]).

By agreement of the parties, the hearings initiated by petitioners and respondent were consolidated into a single proceeding. The hearing commenced on January 7, 1993 and concluded on February 25, 1993. In a decision dated April 2, 1993, the hearing officer found that the evaluation performed by various members of respondent's staff was adequate and that petitioners were consequently not entitled to an independent evaluation at respondent's expense. Relying upon the testimony of respondent's physician and the child's current occupational therapist, the hearing officer further found that the child's occupational therapy needs would be adequately addressed by the provision of occupational therapy only once per week, as recommended by the CSE.

Petitioners assert that the hearing officer's decision should be annulled because respondent was required to conduct an adequate evaluation before changing the amount of the child's occupational therapy and the record establishes that respondent did not conduct an adequate evaluation. They further assert that the hearing officer erred in not ordering respondent to pay for an independent evaluation in light of the inadequacy of respondent's evaluation.

The adequacy of respondent's evaluation is the central issue in this appeal. Federal regulation requires that a child be evaluated before any significant change in his placement (34 CFR 104.35 [a]; Application of a Child with a Disability, Appeal No. 93-15). The Office of Civil Rights of the U.S. Department of Education has opined that a reduction in the amount of occupational therapy to be provided to a child is a significant change in placement which may not be done without an evaluation of the child's needs (Columbia School District, EHLR 352:21).

Petitioners challenge the evaluation conducted by respondent's staff on the grounds that none of the staff formally observed the child in his classroom and prepared a written report of such observation. Three of respondent's staff were involved in the child's evaluation between January and June, 1992. Respondent's physician testified at the hearing that she had not observed the child in class, but had obtained information about his performance in class from the child's teacher. The child's occupational therapist for the 1991-92 school year did not testify at the hearing and there is no written evidence in the record of the therapist's observation of the child in class. The child's occupational therapist for the 1992-93 school year, who was not the child's therapist during the 1991-92 school year, but did test the child's sensory integration skills in February, 1992, acknowledged during her testimony that she had not observed the child, and testified that she had consulted the child's teacher about the child's performance in class during the 1991-92 school year. The occupational therapist further testified that she concurred in the CSE's recommendation, based in part upon her observation of the child in class during the 1992-93 school year. However, there is no written evidence of any observation by that therapist.

An observation of the child's performance in class was essential in order to apprise the CSE and the child's parents of his continuing need, if any, for occupational therapy as a related service. Federal regulation defines a related service as

"...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]).

The issue which the CSE and its subcommittee should have considered is whether the child requires occupational therapy to benefit from his special education program, and, if so, how much occupational therapy does he require for that purpose. An observation by an occupational therapist would have provided the necessary link between the methodologies employed by the child's therapist and the child's performance in the classroom. Although a written observation report would be the preferable manner of documenting the link between the child's occupational therapy and his classroom performance, evidence that the child's therapist had discussed the child's occupational therapy needs at the meetings of the CSE or its subcommittee might also be satisfactory (Application of a Child with a Handicapping Condition, Appeal No. 92-12). However, there is no proof in the record that either therapist discussed the matter with the CSE or its subcommittee.

Although I find that neither the CSE nor its subcommittee has adequate information to reach a conclusion about the child's occupational therapy needs, I must still determine whether there is an adequate basis in the record to determine the extent of the child's need for occupational therapy (Application of a Child with a Handicapping Condition, Appeal No. 91-21). In doing so, I have considered petitioners' assertion that the tests administered by respondent's staff were inappropriate and/or incomplete. Although the SCSIT administered to the child in February, 1992 was not normed for the child's age, respondent's occupational therapist attempted to justify its use because there was no other test available. The therapist's testimony was unchallenged. An occupational therapist testified on behalf of petitioners that a portion of the test of the child's visual motor integration skills and a portion of the SCSIT were missing from the test protocols admitted into evidence. Although respondent asserts that the witness was unable to state whether the missing portions were in fact in the records maintained by respondent, it has not established that the documents exist.

Respondent's physician and the child's occupational therapist for the 1992-93 school year each opined at the hearing that the child did not require more than one session of occupational therapy per week. The therapist did not explain the basis for her opinion. The physician testified that the child's motor planning deficits do not require the assistance of an occupational therapist, and would be adequately addressed by the child's repetition of tasks in the classroom. The physician further testified that the child's primary special education need is for assistance in learning how to read, and that occupational therapy would not assist the child in meeting that need. In her written report of the June 19, 1992 evaluation, the physician reported that the child was distractible and that his functional patterns had improved to the extent that they were acceptable in a less distractible setting. However, the physician did not, and could not, opine how the child would function in a distractible setting like a classroom. The record includes two samples of the child's handwriting. The first was done by the child during his evaluation by the physician and is quite legible. The second was done by the child in a library in the presence of other children and is far less legible, which is consistent with the description of his handwriting by the independent educational evaluator.

The child's teacher during the 1991-92 school year briefly testified about the extent to which the child's occupational therapist had seen the child perform various tasks in class. However, the teacher did not testify about the child's performance. Respondent bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-8; Application of a Child with a Disability, Appeal No. 93-2). Upon the record before me, I find that respondent has not met its burden.

The parent of a disabled child is entitled to obtain an independent educational evaluation at public expense, ... "if the parent disagrees with the evaluation obtained by the school district" (8 NYCRR 200.5 [a][1][vi][a]). However, a parent's right to an independent evaluation at public expense is subject to the right of a board of education to initiate an impartial hearing to demonstrate the appropriateness of its own evaluation. If the hearing officer determines that the board's evaluation is appropriate, the parent may have an independent evaluation, but not at public expense (34 CFR 300.503 [b]; 8 NYCRR 200.5 [a][1][vi][a]).

In this instance, I have determined that respondent failed to demonstrate the appropriateness of the reduction in the amount of the child's occupational therapy recommended by its CSE because respondent's evaluation did not provide a nexus between the technical findings reported by the occupational therapists and physician and the child's performance in class. The purpose of an evaluation is to establish a basis for planning an appropriate educational program (Application of a Child with a Handicapping Condition, Appeal No. 91-11). Respondent's evaluation did not afford a basis for planning the child's educational program. Therefore, I find that petitioners are entitled to an independent evaluation at respondent's expense. Respondent has expressed concern that an independent evaluation conducted in a clinical setting such as a hospital would not provide useful educational information. I encourage the parties to ensure that the independent evaluator is afforded the opportunity to observe the child in his class and to discuss his performance with his teacher.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that respondent shall pay for an independent occupational therapy evaluation of the child upon receipt by its CSE of the results of such evaluation.

Dated:             Albany, New York                                     _________________________
                        June 10, 1993                                               HENRY A. FERNANDEZ