University of the State of New York Emblem

The State Education Department
State Review Officer

No. 93-21

Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York

Appearances:

Neal H. Rosenberg, Esq., attorney for Petitioner,

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Martha A. Calhoun, Esq., of counsel

DECISION

Petitioner appeals from the decision of an impartial hearing officer which found that respondent had sustained its burden of proving the appropriateness of the manner in which it provided the related services of speech/language therapy and occupational therapy to petitioner's child during the 1992-93 school year. The appeal must be dismissed.

Petitioner's child, who is six years old, is classified as learning disabled. The child has experienced delays in language skills and processing information, and has demonstrated fine motor deficits. The child also exhibits some difficulty remaining on task when not actively focused. Her classification is not disputed.

From December, 1990, until December, 1991, the child attended a regular education nursery school. She received speech/language therapy in her home from a private therapist provided by respondent under the direction of its committee on preschool special education. From December, 1991, until June, 1992, the child attended a special education preschool, in which speech/language therapy was provided during the school day. Additional speech/language therapy was provided after school at petitioner's expense.

For the 1992-93 school year, respondent's Committee on Special Education (CSE) recommended that the child be enrolled in a regular education kindergarten class in P.S. 114. The CSE further recommended that the child receive thirty minutes of individual occupational therapy twice per week and thirty minutes of small group speech/language therapy twice per week. Petitioner accepted the CSE's recommendation. In September, 1992, the child's individualized education program (IEP) was implemented. The record reveals that the child is the only child with a disability in her kindergarten class, and that the child receives speech/language therapy in the morning and occupational therapy in the afternoon on Tuesdays and Fridays. The services were provided to the child in P.S. 114, but not in her classroom.

Approximately three weeks after the child began attending kindergarten, petitioner requested that the child's speech/language therapy be discontinued because petitioner was concerned that the child was missing too much or her instructional program while receiving her related services. A special education services supervisor suggested to petitioner that the child receive speech/language therapy after school in respondent's Beach Channel High School. However, petitioner believed that the high school was an inappropriate site for her child to receive services. In a written request dated November 30, 1992 to the placement officer of Community School District 27, petitioner asked that the child be provided with speech/language therapy after school in a private clinic. However, she did not request that provision of the child's occupational therapy be changed. By letter January 4, 1993, petitioner requested that respondent discontinue providing speech/language services in school to the child. Respondent acceded to petitioner's request, even though the parties understood that the child needed speech/language therapy.

On February 23, 1993, the CSE reviewed the child's IEP, and recommended that the child remain in her regular education kindergarten class and continue to receive speech/language therapy and occupational therapy. The CSE did not recommend any change in the manner in which the related services were provided.

Petitioner requested that an impartial hearing be held to review the manner in which the child's speech/language and occupational therapy were provided. At the hearing which was held on March 31, 1993, the parties stipulated on the record that the child's classification and placement in kindergarten class in P.S. 114 were appropriate. The parties also agreed that the child required both speech/language therapy and occupational therapy, and that the child's IEP provided for the appropriate amount of each service. The sole issue before the hearing officer was whether the manner in which the services were provided, i.e., during the school day and away from the child's class, was appropriate. At the hearing, petitioner asserted that the child disliked leaving her class to receive her speech/language therapy and occupational therapy because her absences from class brought the attention from the other children to her disability. She also asserted that her dissatisfaction with the speech/language therapy provided in the child's school was caused in part by an alleged lack of rapport between the child and her therapist. Petitioner further asserted that providing the child with speech/language therapy and/or occupational therapy, in her classroom would be inappropriate because it would also draw attention to the child's disability.

In a decision dated April 27, 1993, the hearing officer found that there was no evidence that the child's academic performance had been adversely affected by her absence from class to receive speech/language therapy and occupational therapy, and held that respondent had met its obligation of providing an appropriate educational program under Federal and State law. The hearing officer also rejected petitioner's argument that respondent had violated Section 504 of the Rehabilitation Act of 1973 (29 USC 749).

At the hearing in this proceeding, petitioner's attorney asserted that petitioner did not oppose per se the removal of the child from class in order to receive related services, but that respondent should have made a reasonable accommodation in providing related services to the child because she was the only child with a disability in her kindergarten class. In this appeal, petitioner asserts that the child's program, i.e., the child's program for the 1992-93 school year is inappropriate. Although petitioner requests that the hearing officer's decision be annulled, she does not seek any other relief. Indeed, no meaningful relief could be accorded to petitioner because the 1992-93 school year has ended. The record does not reveal whether the CSE has recommended that the child receive speech/language therapy and/or occupational therapy during the 1993-94 school year, and if so, the manner in which such services are to be provided. Upon the record before me, I must find that the appeal is moot (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 482; Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 105; Application of a Child with a Disability, Appeal No. 93-27).

Even if the appeal were not moot, it would nevertheless be dismissed. Respondent bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal 93-2); Application of a Child with a Disability, Appeal No. 93-11). There is no dispute about the child's need for the two related services. Nor is the appropriateness of the CSE's recommendation that the child receive two thirty minute sessions of each service per week in dispute. At the hearing in this proceeding, the child's kindergarten teacher testified that the child expressed herself in complete sentences and responded appropriately to questions, and that the child's fine motor coordination and motor skills had significantly improved during the school year. The teacher testified that the language delays set forth on the child's IEP were not readily apparent in the child's performance in school. The record also includes a report of a classroom observation of the child conducted on February 22, 1993, in which the child was reported to have been an active participant in a classroom discussion and to have responded correctly to questions. Petitioner offered the testimony of the child's former private speech therapist, who provided speech/language therapy to the child through May, 1992. The therapist testified that the child had not made as much progress in her expressive and receptive language as the therapist would have expected her to make, when the therapist evaluated the child in December, 1992. Nevertheless, the child's December, 1992 speech/language evaluation and March, 1993 occupational therapy progress note, which was also prepared by a private therapist, reveal that the child was making progress in each area of therapy. Upon the record before me, I find that there is no basis for concluding that the services provided by respondent were inadequate or inappropriate.

With regard to the issue of whether the services should be provided during the school day or after school, the child's teacher testified that she had not observed the child exhibit any unwillingness to leave the classroom to receive her related services, and that no child had asked the teacher about the child's absences from class. The teacher also testified that seven other children left the kindergarten class twice each week to receive additional reading instruction. The teacher further testified that the kindergarten children participated in independent activities during the time when petitioner's child received speech/language therapy, and that she provided the child with individual instruction for the instruction given to the other children when the child received occupational therapy. Respondent's supervisor of special services testified that providing related services during the school day allows for better collaboration between the providers of such services and teachers. The supervisor further testified that the child's speech/language therapist had consulted with the child's teacher, but the supervisor was unable to state how often such consultation had occurred. I find that respondent has demonstrated a rational basis for the manner in which it provided related services to the child. The Federal regulations implementing Section 504 of the Rehabilitation Act of 1973 provide that the implementation of a child's IEP in accordance with the provisions of the Individuals with Disabilities Education Act is one means of meeting the requirement of Section 504 to provide a free appropriate public education (34 CFR 100.33 [b][2]). The Office of Civil Rights of the U.S. Department of Education has opined that the separation of a child from the child's peers in order to receive appropriate educational services does not per se violate Section 504 of the Rehabilitation Act of 1973 (Sacramento City Unified School District, 18 IDELR 787). Accordingly, I find that the hearing officer correctly dismissed petitioner's Section 504 claim.

THE APPEAL IS DISMISSED.

Dated:           Albany, New York                                     _________________________
                       June 28 , 1993                                               HENRY A. FERNANDEZ