The State Education Department
State Review Officer

No. 95-10

 

 

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

Appearances:
Hogan and Sarzynski, Esq., attorneys for respondent, Edward Sarzynski, Esq., of counsel

DECISION

        Petitioner appeals from the decision of an impartial hearing officer which found that the individualized education program (IEP) for the 1994-95 school year prepared for petitioner's son by respondent's committee on special education (CSE) was appropriate, with certain exceptions. The hearing officer also denied petitioner's request that his child be provided compensatory education because of respondent's past failure to consistently provide services, on the ground that any deficiency or inability which the child had was related to his medical condition, rather than the lack of services from respondent. The appeal must be sustained in part.

        In March, 1991, petitioner's son sustained multiple trauma, including a severe head injury, in an automobile accident. The child's physician has opined that the child's head injury has resulted in gross dysautonomia which has caused difficulty regulating his body temperature and blood pressure. A neurologist who examined the child in 1992 opined that the child was likely to remain in a persistent vegetative state, with little chance for meaningful recovery. The child has a tracheostomy to assist him in breathing, and receives nutrition through a jejunostomy. Care must be taken in moving the child to prevent the tubing used to support his breathing and feeding from being dislodged. In a written summary prepared in February, 1993, the child's attending physician reported that the child responded to painful stimuli, and was able to open is eyes, breathe and cough. However, the child was unable to perform any meaningful movements or activities on command. The physician also reported that the child had a seizure disorder. The attending physician testified at the hearing in this proceeding in December, 1994 that there had been little, if any, change in the child's condition since August, 1992. Although the child was initially classified by the CSE as other health impaired, he is presently classified as traumatic brain injured (8 NYCRR 200.1 [mm][12]). There is no dispute about the child's classification.

        After his initial hospitalization for the accident, the child was transferred to a head injury rehabilitation facility in Pennsylvania, where he remained until May, 1992. He returned to Syracuse for a cranioplasty and the insertion of a cranial shunt in May, 1992. Thereafter, he was transferred for approximately one month to the St. Camillus Health and Rehabilitation Center. In July, 1992, the child was admitted to the Crouse-Irving Memorial Hospital, in Syracuse, because of recurrent fever and hypotension (abnormally low blood pressure). He has remained as a patient at that hospital.

        In April, 1992, respondent's CSE recommended that petitioner's son receive a total of two hours per day of special education services to include special education, speech/language therapy, physical therapy, and occupational therapy, so long as those services did not interfere with the child's medical care. The child's special education services were to be provided by the Board of Cooperative Educational Services of Onondaga, Cortland and Madison Counties (BOCES). A BOCES teacher began to provide special education to the child.

        In November, 1992, petitioner requested that an impartial hearing be held because respondent had reportedly failed to provide the child with all of the special education services set forth in his IEP. A hearing officer found that the child's IEP was deficient because it did not provide sufficient information to permit the child's service providers to plan appropriate programs for the child. The hearing officer directed the CSE to prepare a new IEP for use during the 1993-94 school year.

        Petitioner appealed from the hearing officer's decision to the State Review Officer. Petitioner's appeal was sustained in part, upon findings that respondent's CSE had failed to make its initial recommendation for the child's classification and placement on a timely basis, and that respondent had failed to demonstrate that it had provided each of the special education services in the amounts specified in the child's IEP (Application of a Child with a Disability, Appeal No. 93-34). The appropriateness of the special education, speech/language therapy, physical therapy and occupational therapy listed in the child's IEP was not disputed in that appeal. Petitioner's request for an order directing respondent to provide compensatory education, i.e., services after the child became ineligible because of his age, was denied because there was no basis for finding that the child would be unable to complete his educational goals by the age of 21. Petitioner also sought an order directing respondent to provide additional services to the child during the 1993-94 school year to make up for the services which it had failed to provide during the 1992-93 school year. In the absence of evidence in the record about the harm to the child as a result of the failure to provide services, and lack of sufficient information about the services to be provided to the child in the 1993-94 school year, the State Review Officer directed respondent's CSE to review the child's program and to recommend such additional services as would enable the child to address any deficiency caused by respondent's failure to provide services.

        The decision in petitioner's appeal was rendered on August 26, 1993. On September 23, 1993, the CSE recommended that the child receive a neuropsychological evaluation. Pending its receipt of the results of the evaluation, the CSE recommended that the child receive two hours per day of special education, in addition to one-half hour each of speech/language therapy, physical therapy and occupational therapy five times per week. Respondent approved the CSE's recommendation in October, 1993. Petitioner did not challenge the CSE's recommendation, but he subsequently requested that an impartial hearing be held to review the minutes of the CSE's meeting on September 23, 1993. His appeal from an adverse decision by the hearing officer was dismissed (Application of a Child with a Disability, Appeal No. 94-28).

        The specialized facility which had been selected by the CSE to conduct the child's neuropsychological evaluation declined to do the evaluation. Petitioner and the CSE agreed that there would be two evaluations, which would be performed by Dr. Maria Labi of the Acute Rehabilitation Center of the Erie County Medical Center and by Dr. Charles Sisung of the Rehabilitation Institute of Chicago, respectively. Petitioner authorized the release of medical information about the child to Drs. Labi and Sisung, on March 29, 1994.

        Dr. Labi performed her evaluation on April 9, 1994. She reported that there was significant evidence that the child had some awareness of his external environment and that he was probably functioning at a "Rancho Level III," which the record does not define or explain. Dr. Labi opined that the child's level of arousal was probably depressed by his medication, recurrent infections, intermittent seizure activity, and general medical complications. She further opined that the child might benefit from a medical rehabilitation program to ascertain his functional potential and approximate level of cognitive functioning. Dr. Labi outlined a program of medical rehabilitation, which included the use of medication to improve the child's arousal, control his seizures, and deal with his spasticity, review of the child's therapeutic feeding program, and evaluation of the child for the selection of an appropriate communication device. Dr. Labi ended her report with the following statement:

" I believe this patient's needs are such that they require intensive medical rehabilitation services. In his present condition, I do not believe that educational services are appropriate or sufficient to address this patient's needs."

        Prior to conducting his evaluation on May 26, 1994, Dr. Sisung reviewed various medical records, including an electroencephalogram, a visual evoked response test, a brain stem auditory evoked response test and a somatosensory evoked response test, all of which were performed after Dr. Labi had conducted her evaluation. From his review of the child's medical records, he reported that the child had not made any significant progress in any disability area, and was perhaps less alert and aroused since suffering a seizure in January, 1994. Dr. Sisung reported that the child exhibited no social awareness cognitively, and had a persistent vegetative state. Dr. Sisung referred to a Rancho Level II, which is apparently a lower degree of cognitive awareness than Dr. Labi had found. He described six conditions which impaired the child's learning ability, including his persistent vegetative state, no obvious visual or auditory activity, his seizure disorder, his central automatic dysfunction with fevers and blood pressure changes interfering with his alertness, his dependence on others for all mobility and activities of daily living, and his poor handling of secretions. Dr. Sisung opined that the child's vegetative state was incompatible with the ability to process or acquire new learning, because the child was incapable of memory storage. He further reported that the child's responses to stimuli appeared to be reflexive, rather than learned, and opined that it was highly unlikely that the child would acquire the capability of new learning. He suggested that the child could benefit from some limited medical rehabilitation to assist in his discharge from the hospital to his home or to another facility, but described the goals of such rehabilitation as medical, rather than educational. He recommended that further educational programs be individualized, based upon any spontaneous neurorecovery observed in any future physical examinations.

        At the end of the 1993-94 school year, the child's special education teacher and related services providers prepared their respective reports for consideration by the CSE. The child's occupational therapist reported that the child's therapy goals had included increasing his responses to sensory stimulation, increasing his awareness of the environment, maintaining a passive range of motion in his upper extremities, and monitoring his use of hand splints. The therapist noted that in September, 1993, the child's eyes were open approximately 50 percent of the time, and that he had begun to focus on objects in his right field of vision and at the mid-line. From October, 1993 until January, 1994, the child appeared to make progress in focusing, visual alertness, and tracking, i.e., visually following a moving object. However, she reported that after the child's seizure in January, 1994, his level of alertness and responsiveness had declined to below the level at which he was functioning in September, 1993. The occupational therapist reported that the child's passive range of motion was within functional limits in his upper extremities except in some of his hand joints. The therapist, who had reviewed the reports of Drs. Labi and Sisung, recommended that the child's occupational therapy services be reduced from 30 minutes of direct service five times per week to 30 minutes on a consultant basis once per week for eight weeks, after which such consultant services would be reduced to 30 minutes once per month, for the 1994-95 school year.

        The child's physical therapist, who had also worked with the child for 30 minutes each day since September, 1993, reported that the child's recurrent high fevers had precluded him from doing range of motion exercises every day. Nevertheless, she reported that the child's range of motion had been maintained at functional levels, but that his muscle tone could not be maintained at a normal level through physical therapy. The physical therapist also reported that the child had become less responsive after his seizure in January, 1994. She recommended that the child's physical therapy be reduced from 30 minutes per day of direct services to 30 minutes per week of consultant services for eight weeks, and thereafter to 30 minutes of consultant service per month, for the 1994-95 school year. As had the occupational therapist, the physical therapist recommended that the CSE reconsider the level and nature of services to be provided, if any deterioration in the child's skills occurred during the course of the 1994-95 school year.

        The child's speech/language therapist, who had used various visual, auditory and tactile stimulation techniques with the child since February, 1994, reported that the child's responses to others, objects, and photos was inconsistent and often absent. She expressed uncertainty about whether the child had in fact responded to stimulation, or whether his behaviors were merely manifestations of his traumatic brain injury. For the 1994-95 school year, the speech/language therapist recommended that services be provided on a consultant basis for 30 minutes per week for eight weeks. If the child did not evidence a consistent response to stimuli during such period, the speech/language therapist recommended that the frequency of her service be reduced to 30 minutes every two weeks for an additional eight weeks, and then terminated if there was no evidence of a consistent response by the child.

        In her report dated July 25, 1994, the child's special education teacher, who had worked with the child, since July, 1993, reviewed her effort to evoke responses from the child on a consistent basis. The teacher reported that the child responded to the presence of others, objects, photos, and light sources presented either in front of him or in his right field of vision, in an undifferentiated and inconsistent manner. She further reported that the child periodically demonstrated an ability to focus on an object and track it as it moved in his right field of vision. However, she noted that his ability to do so had markedly decreased since the January, 1994 seizure. The teacher also reported that there was no evidence of the child's ability to process any information, and that she was unable to predict a pattern of cause and effect when visual stimuli were used with the child. The teacher also reported that the child's responses to auditory stimuli were unpredictable. She reported that the child received tactile stimulation throughout the day from the nursing staff, in addition to that which she provided in various activities including range of motion activities. She described the child's responses as varied, and often secondary, i.e., attributable, to his muscle tone and medical condition. The teacher opined that the child's reactions to his environment had decreased markedly in frequency, duration, consistency and predictability since the beginning of the school year. She further opined that the provision of special education for two hours per day without regard to the child's medical status or level of arousal was inappropriate, and urged that the CSE afford the child's teacher and related service providers with some discretion in determining the amount of educational services to be provided each day.

        On July 26, 1994, the CSE met with petitioner to prepare the child's IEP for the 1994-95 school year. The child's special education teacher, his speech/language therapist, his physical therapist, and his occupational therapist attended the CSE meeting, and each individual reiterated her prior written recommendation. Respondent's school physician discussed the results of the evaluations performed by Drs. Labi and Sisung with the CSE. The CSE recommended that the child received special education for one hour per day during the 1994-95 school year. It further recommended that the child receive 30 minutes of speech/language therapy on a consultant basis for eight weeks, then 30 minutes of such therapy every two weeks, and that the services then be discontinued, as the child's therapist had recommended. With regard to both physical therapy and occupational therapy, the CSE recommended that the child receive 30 minutes of each therapy on a consultant basis once per week for eight weeks, and once per month for the remainder of the 1994-95 school year.

        By letter dated July 24, 1994, petitioner requested that an impartial hearing be held to review the CSE's recommendation. On August 9, 1994, respondent's newly appointed Director of Pupil Personnel Services informed respondent that the child's teacher wanted to reconsider her recommendation for services, and urged that respondent return the CSE's recommendation to the CSE for further consideration. Respondent agreed that the CSE should reconsider its recommendation. A meeting of the CSE scheduled to take place on August 24, 1994, was subsequently rescheduled to be held on September 20, 1994, so that respondent's school physician could attend the meeting. In accordance with petitioner's request for an impartial hearing, the parties appeared before a hearing officer on September 8, 1994. They agreed to discontinue the hearing, pending the preparation of a new IEP for the child by the CSE at its meeting to be held on September 20, 1994.

        At the CSE meeting held on September 20, 1994, the CSE chairperson disclosed that a representative of the Crouse-Irving Memorial Hospital had written to the CSE with the suggestion that Dr. Labi be engaged to re-evaluate the child and that the cost of the re-evaluation be shared by respondent and the hospital. The CSE voted to recommend that respondent obtain a re-evaluation under the terms suggested by the hospital. The child's special education teacher advised the CSE that she believed that two hours per day of special education was more appropriate than the one hour of special education which she had previously recommended that the child receive. However, she explained that her recommendation at the July CSE meeting had reflected her concern that, on some days, it would not be medically appropriate for the child to receive two hours of special education. The CSE recommended that the child receive two hours per day of special education. To address the concern expressed by the child's teacher about the need for some discretion in providing services to the child, the CSE amended the child's IEP to provide that no services would be provided to the child if his body temperature was less than 96.5 or more than 100.5; his respirations were fewer than 35 per minute; or he had active seizures or medical alerts as indicated by the nursing staff. The CSE also recommended that the child receive 30 minutes of speech/language therapy twice per week, rather than the more limited amount of service which the child's therapist had recommended and the CSE had recommended at its July meeting. It did not alter its recommendation that the amount of physical therapy and occupational therapy be decreased, in accordance with the recommendations by the child's therapists.

        The last issue which the CSE addressed was the amount, if any, of compensatory services to be provided to the child in accordance with the decision of the State Review Officer in Application of a Child with a Disability, Appeal No. 93-34. The child's teacher reported that the child had not progressed in two years and opined that there was no deficiency as a result of respondent's failure to provide services during portions of the 1992-93 school year. The child's speech/language therapist, his physical therapist, and his occupational therapist expressed similar opinions about the child's lack of progress and the absence of any deficiency caused by respondent's failure to deliver services. The CSE recommended that no additional services be provided to the child to compensate for those which had not been provided during the 1992-93 school year.

        In a letter to the CSE chairperson, dated September 21, 1994, petitioner asked that an impartial hearing be held to review the September 20, 1994 recommendation by the CSE. The hearing began on October 11, 1994, and concluded on December 22, 1994. On October 31, 1994, petitioner's attorney, who is not representing him in this proceeding, but who is representing him in a Federal court action against the Canastota Central School District, advised the hospital and respondent's attorney that petitioner had withdrawn his consent to the child's evaluation. In a letter to petitioner's attorney, dated November 1, 1994, respondent's attorney represented that respondent would not proceed with the proposed re-evaluation by Dr. Labi. Respondent's attorney made a similar representation to the hearing officer during the hearing.

        In her decision dated January 29, 1995, the hearing officer identified the issues to be determined as whether the IEP prepared at the September 20, 1994 CSE meeting was appropriate, and whether respondent should provide compensatory, or additional, services to the child to address any deficiency caused by respondent's failure to provide services during part of the 1992-93 school year. The hearing officer held that the appropriateness of the child's IEP for the 1994-95 school year should be determined on the basis of the child's individual and unique needs. She found that the child's needs were primarily medical, rather than educational, based upon the reports by both independent evaluators and the testimony of the child's physician, teacher, and related service providers. Nevertheless, she found that educational services should be provided to the child for two hours per day "as tolerated by the child." The hearing officer further found that it was appropriate for the CSE to restrict the delivery of educational services to occasions when the child's temperature, respiration rate and medical condition were within the limits set forth in his IEP, except that she directed that the maximum temperature be increased from 100.5 to 101. Finding that the child's speech/language and occupational therapy IEP goals were essentially similar to the child's special education annual goals, the hearing officer held that the services of a speech/language therapist and an occupational therapist were unnecessary. She directed that such services not be provided and that the IEP goals for those services be combined with the sensory stimulation goals to be addressed by the child's special education teacher. She further directed that physical therapy be provided to the child for the evaluative and consultative purposes for one-half hour per month. Relying upon the testimony of the child's physician and his special education teacher, the hearing officer upheld the CSE's determination that the child did not evidence any deficiency as a result of respondent's failure to provide services during a portion of the 1992-93 school year. Consequently, the hearing officer found that respondent was not required to provide compensatory or additional services to the child.

        The hearing officer rejected petitioner's contention that the child's teacher and related service providers had conspired with each other, or with others, to make recommendations for services which were not based upon the child's need. She also dismissed petitioner's assertion that Drs. Labi and Sisung had been improperly instructed by respondent to evaluate the child only with respect to any regression which he may have suffered as a result of respondent's failure to provide services, rather than to evaluate the child to ascertain his current needs.

        Petitioner does not address the hearing officer's decision in his petition for review. However, he challenges the appropriateness of the educational program recommended by respondent's CSE by asserting that the IEP which the CSE developed is not based upon the individual needs of the child, but is calculated to provide the child with the minimum amount of services required by the "attendance law." Petitioner contends that the IEP recommended by the CSE would provide an inadequate amount of occupational therapy and physical therapy for the child. Although petitioner does not assert that a specific amount of therapy must be provided to the child, he asks that respondent be ordered " ... to develop an IEP for [the child] that will give him the extensive rehabilitation program that Dr. Sisung and Dr. Labi recommended in their educational medical reports .... "

        The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSE v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of the evaluation to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        Although petitioner asserted through his advocate at the hearing that the evaluations had not been properly performed by Dr. Labi or Dr. Sisung, he has not raised that issue in this appeal. In any event, the contention that Dr. Labi and Dr. Sisung were asked to assess only the child's deficits for the purpose of determining whether compensatory education is without merit. I find that the two independent evaluations provided the CSE with adequate information about the child's abilities and needs to prepare the child's IEP. Upon review of this child's IEP, I find it accurately reflects the results of the evaluations performed by Dr. Labi and Dr. Sisung. The child's functional level of development is described in the IEP with the notation that he is inconsistently responsive to environmental stimuli. His physical development is described with the notation that he has no volitional movement, and that he is non-ambulatory. His IEP further indicates that it has not been possible to determine the extent of his auditory or visual skills, but that he appears to be at least partially sighted. With regard to the child's management needs, his IEP indicates that he is totally reliant upon adults for activities of daily living and that his extensive disability necessitates highly intensive supervision. The IEP descriptions are consistent not only with the reports of Dr. Labi and Dr. Sisung, but also with the hospital reports and the reports by the child's related service providers which are part of the record.

        Dr. Sisung reported that the child did not evidence signs of obvious auditory processing, purposeful movement, or social awareness, and that the range of motion within the child's joints appeared to be generally within functional limits. Based upon these functional levels, the CSE prepared annual special education goals for the child to respond in a consistent manner to visual, auditory, and multisensory stimuli, and prepared short-term instructional objectives to support those goals. The child's IEP also includes annual goals to include a functional range of motion in the child's upper and lower extremities. A child's IEP annual goals must be consistent with the child's needs and abilities, and must be sufficiently specific to provide direction to the child's teachers concerning the CSE's expectations (Application of a Child Suspected of Having a Disability, Appeal No. 93-9). I find this child's IEP goals are consistent with the descriptive information about the child provided by the two independent evaluators, his teacher, and his related service providers, and that they provide adequate direction to the individuals who must implement the IEP.

        The central issue in this appeal is whether the special education and related services which the CSE has recommended for the child, as modified by the hearing officer, are appropriate to meet the child's special education needs. Based upon the record which is before me, I find that the child's initial special education need is to respond in a consistent manner to visual, auditory and multisensory stimuli. To meet this need, the CSE recommended that a special education teacher present visual and auditory stimuli to the child to elicit responses for two hours per day. In addition to the services of a special education teacher, the CSE recommended that a speech/language therapist also present visual and auditory stimuli for two-30 minute periods per week, and that an occupational therapist present multisensory stimulation for one-30 minute period per week. After eight weeks, the occupational therapist's services would be reduced to 30 minutes once per month. The IEP reveals that the multisensory stimulation to be provided by the occupational therapist would include auditory, visual, and tactile stimuli.

        At the hearing, the child's speech/language therapist testified that the child's speech/language goals were the same as his special education goals, and that the child's teacher used the same techniques and activities as did the speech/language therapist. The speech/language therapist also testified that she had initially recommended that the speech/language therapy be discontinued after approximately 16 weeks during the 1994-95 school year, unless the child responded consistently, but that she had altered her recommendation to provide for two-30 minute periods of speech/language therapy because she believed that State regulation (8 NYCRR 200.6 [e][3]) required that such amount of service be provided. The auditory and visual stimulation to be provided by the occupational therapist are also indistinguishable from the stimulation to be provided by the teacher. Although the IEP indicates that the occupational therapist would also provide tactile stimulation, the therapist testified that various individuals, including the child's nurses, provide such stimulation every day. Noting that the child's teacher testified that the child could tolerate up to two hours per day of stimulation, the hearing officer found that the services of the teacher were adequate to address the child's needs, and that the services of a speech/language therapist and an occupational therapist were unnecessary. Upon the record before me, I must concur with the hearing officer's findings about meeting the child's sensory stimulation needs.

        In addition to providing sensory stimulation, occupational therapy was recommended by the CSE so that the child could maintain a functional range of motion in his upper extremities, notwithstanding his physician's testimony that such therapy was medically futile. However, the issue to be determined is whether the IEP goal of maintenance of functional range can be achieved with the level of occupational therapy recommended by the CSE. At the hearing, the child's occupational therapist testified that the child had the full range of motion in each of his upper extremities, except his left wrist. She further testified that surgery, rather than occupational therapy, would be required to improve the range of motion in the child's left wrist, and that his present level of range of motion could be maintained with therapy once per week for eight weeks and thereafter once per month, as she had recommended and the CSE had approved. The child's physician testified that the nursing staff has continued to provide the child with range of motion activities. The therapist testified that the primary purpose of having the child seen by an occupational therapist once per month would be to measure the child's range of motion, and report any changes to the CSE. In the absence of any evidence to the contrary, I find that the CSE's recommendation that the child receive the services of an occupational therapist once per month to monitor the child's range of motion in his upper extremities is appropriate to address the child's maintenance and evaluation needs. The hearing officer did not address the provision of occupational therapy to maintain the child's range of motion in his upper extremities. I find that her decision directing that no occupational therapy be provided must be modified to authorize respondent to provide such therapy for this purpose.

        The child's IEP also provides that the child would receive physical therapy once per week for eight weeks, and thereafter, once per month, to maintain his current range of motion at the knees. Pursuant to his prior IEP, the child has been receiving physical therapy five times per week. His physical therapist from September, 1993 until September, 1994 testified that the child's knees had become more flexible and his range of motion at the knees had improved during that period. However, she testified that she recommended that the child's physical therapy be reduced to the level which the CSE recommended in the IEP because she believed that the child's range of motion could be maintained with 30 minutes of physical therapy per month, during which the therapist would provide some exercises and would measure the child's range of motion. The child's physician testified that the continued provision of physical therapy on a daily basis would not achieve any advancement in the child's abilities, and that he did not believe that more physical therapy was medically indicated. In her decision, the hearing officer expressed her belief that range of motion and flexibility exercises were part of the child's nursing care plan. However, she did not direct the CSE to delete the related service of physical therapy from the child's IEP. I find that the physical therapist's testimony, which was not contravened by any other evidence in the record, affords a reasonable basis for concluding that the physical therapy service recommended by the CSE is appropriate. I further find that the physical therapy and occupational therapy which are to be provided as consultant services pursuant to the child's IEP are all that are " ... required to assist [the] child to benefit from special education ... " (20 USC 1401 [a][17]).

        At the hearing, petitioner challenged the portion of his child's proposed IEP which indicated that no services would be provided if the child's temperature was below 96.5, or above 100.5; if his respiration rate exceeded 35; if he had active seizures; or if the nursing staff indicated there were medical alerts. Respondent's Director of Personnel Services testified that respondent's school physician had advised the CSE about the medical condition under which services should not be provided to the child. The child's physician testified at the hearing that the limitations which the IEP placed upon the delivery of services to the child were prudent, but opined that the upper limit for the child's temperature be raised to 101. I find that the IEP limitations upon the delivery of services, with the modification recommended by the child's physician, are appropriate, and they do not infringe upon the child's right to receive a free appropriate public education.

        Petitioner also challenges the CSE's recommendation that no compensatory, or additional, service should be provided to the child because he had not incurred any deficiency in his skills as a result of respondent's failure to provide all of the services included in the child's IEP during the 1992-93 school year. The hearing officer upheld the CSE's recommendation with respect to compensatory services. The record in Application of a Child with a Disability, Appeal No. 93-34 revealed that a BOCES teacher began to provide special education to the child in July, 1992. However, the BOCES unilaterally discontinued the teacher's services in December, 1992, because it was reportedly concerned about the child's health. There was no evidence in the record of the prior appeal about the speech/language therapy, physical therapy, and occupational therapy which the child was to receive during the 1992-93 school year. Petitioner's request for an order directing respondent to provide compensatory educational services to the child after he attained 21 years of age, and was no longer eligible to receive services from respondent, was denied by the State Review Officer. With respect to petitioner's request for an order directing respondent to provide additional services to the child during the 1993-94 school year, the State Review Officer held that the record did not afford a basis to ascertain the extent of the deficiencies caused by respondent's failure to provide services, nor did it reveal the nature of the child's educational program for the 1993-94 school year. The CSE was directed to review the child's 1993-94 IEP, and recommend additional amounts of services to address any deficiency caused by the failure to provide all of the services in the child's 1992-93 IEP.

        In September, 1993, the parties agreed that two independent evaluations would be performed. The CSE proposed to reconvene after the two evaluations had been performed to review the child's program. The evaluations by Dr. Labi and Dr. Sisung were not completed until late in the 1993-94 school year. Their reports, as well as those by the child's special education teacher, his speech/language therapist, his physical therapist and his occupational therapist, were used by the CSE to prepare the child's IEP for the 1994-95 school year, and to ascertain the extent of the deficiencies in the child's skills which resulted from respondent's failure to provide special education and related services during portions of the 1992-93 school year.

        In her evaluation, Dr. Labi focused upon the child's current condition, but did report that a CT (brain) scan performed in January, 1994 showed that no changes had occurred since a CT scan performed in December, 1992. Dr. Sisung, who reviewed the child's medical records, reported that the child had made no significant progress in any disability. He also opined that the child lacked the ability to acquire new learning because of his "incapability of memory storage". At the hearing, the child's special education teacher for the 1992-93 and 1993-94 school years testified that prior to the September 20, 1994 CSE meeting, she had reviewed her notes about the child's level of awareness and ability to respond in July, 1992, and had tried to repeat in September, 1994 the activities which she had done with the child in July, 1992. After comparing his level of awareness and ability to respond in July, 1992 and September, 1994, the teacher opined that the child had neither progressed nor regressed since July, 1992, and that there was no deficiency which could be attributed to the interruption of, or failure to provide, educational services to the child in either the 1992-93 or 1993-94 school years. The child's occupational therapist during the 1993-94 school year reviewed occupational therapy reports prepared in 1992, and similarly testified that the child had not progressed since 1992. His physical therapist during the 1993-94 school year similarly testified that she had found no evidence of any deficiency as a result of respondent's failure to provide services. Upon the record before me, I find that there is no evidence of any regression or deficiency as a result of respondent's failure to provide services during portions of the 1992-93 or 1993-94 school year, each of which was discussed at the hearing. Accordingly, I find that there is no basis for ordering respondent to provide the child with compensatory, or additional services.

        I have considered petitioner's other assertions, which I find to be without merit.

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

        IT IS ORDERED that the hearing officer's directive that respondent not provide any occupational therapy to petitioner's child is hereby annulled. Respondent shall provide occupational therapy to the child as recommended by the CSE, for the purpose indicated in this decision.

 

Dated: Albany, New York __________________________
April  6, 1995 FRANK MUŅOZ