The State Education Department
State Review Officer

No. 96-3

 

 

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, Esqs., attorneys for respondent, Edward J. Sarzynski, Esq., of counsel

DECISION

Petitioner appeals from a decision of an impartial hearing officer which rejected petitioner's claim that the annual review and triennial evaluation of his son were improperly conducted by respondent's committee on special education (CSE), and which upheld the CSE's recommendation concerning the special education services to be provided to the child during the 1995-96 school year. Petitioner argues that the hearing officer was biased against petitioner, and deprived petitioner of the opportunity to present his case at the hearing which was held in this proceeding. The appeal must be dismissed.

Petitioner's son, who is 19 years old, sustained a severe head injury in an automobile accident, in March, 1991. The boy has been hospitalized since his accident, except for two relatively brief stays in rehabilitation facilities in 1992. He has a tracheostomy to assist in breathing, and he receives nutrition through a jejunostomy. A neurologist who examined the child in 1992 opined that the child was likely to remain in a persistent vegetative state, with little change for meaningful recovery. In 1993, the child's physician reported that the child was unable to perform any meaningful movements or activities on command. In May, 1994, another physician opined that the child had a post-traumatic brain injury with resultant persistent vegetative state. In 1992, the CSE recommended that the child be classified as other health impaired. Thereafter, the child's classification was changed to a child with a traumatic brain injury (see 8 NYCRR 200.1 [mm][12]). At the hearing in this proceeding, petitioner challenged the validity of the child's classification as a child with a traumatic brain injury, on the ground that the CSE had not conducted an appropriate triennial evaluation of the child to determine his needs and continued eligibility for special education (see 8 NYCRR 200.4 [e][4]). However, petitioner does not dispute the fact that the child has a traumatic brain injury, nor does he claim that the child is ineligible to receive special education. I find that the child is appropriately classified as traumatically brain injured.

Respondent has provided services to the child in the Crouse-Irving Hospital in Syracuse, New York, since 1992. The delivery of those services and related matters have been the subject of numerous impartial hearings and appeals to the State Review Officer (Application of a Child with a Disability, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 93-47; Application of a Child with a Disability, Appeal No. 94-28; Application of a Child with a Disability, Appeal No. 95-10; Application of a Child with a Disability, Appeal No. 95-44; Application of a Child with a Disability, Appeal No. 95-51; Application of a Child with a Disability, Appeal No. 95-54). In 1992, the CSE recommended that the child receive a total of two hours per day of services, including special education, speech/language therapy, physical therapy, and occupational therapy, so long as the provision of those services did not interfere with the child's medical care. The child's services were to be provided by the Board of Cooperative Educational Services of Onondaga, Cortland and Madison Counties (BOCES).

In the Fall of 1992, petitioner asked for an impartial hearing to review respondent's alleged failure to ensure that the child received the services which were indicated for him on his individualized educational program (IEP). Ultimately, the hearing officer found that the IEP was deficient, and directed the CSE to prepare a new IEP for use in the 1993-94 school year. Petitioner appealed to the State Review Officer from the hearing officer's decision. Petitioner's appeal was sustained in part upon a finding that respondent had failed to demonstrate that the child had received each of the services in the amounts set forth in his IEP for the 1992-93 school year (Application of a Child with a Disability, Appeal No. 93-34). However, his request for an order directing respondent to provide compensatory education, i.e., educational services after the child became ineligible because of his age to receive services, was denied because there was no basis for concluding that the child could not achieve his educational goals by the age of 21.

In his appeal, petitioner also sought an order requiring respondent to provide additional services during the 1993-94 school year to make up for the services which it had not provided during the preceding school year. However, the State Review Officer in that appeal found that there was insufficient evidence of the alleged harm to the child as a result of the withheld services, and insufficient information about the services to be provided in the 1993-94 school year, to afford a basis for him to fashion the remedy requested by petitioner. Instead, the State Review Officer directed respondent's CSE to review the child's program and to recommend whatever additional services were necessary to enable the child to address any deficiency caused by respondent's failure to provide services in the 1992-93 school year.

On September 23, 1993, within one month after receiving the decision in Appeal No. 93-34, respondent's CSE recommended that the child receive a neuropsychological evaluation. Until that evaluation could be completed, the CSE recommended that the child receive two hours per day of special education, plus 30 minutes each of speech/language therapy, physical therapy, and occupational therapy, five times per week. Respondent approved the CSE's recommendation. Although petitioner invoked the due process procedures, including an appeal to the State Review Officer, to challenge the accuracy of the CSE minutes of its September 23, 1993 meeting, he did not challenge the substance of the CSE's recommendation. Since that recommendation was the last mutually agreed upon placement for the child, it has been the child's "pendency placement" pursuant to 20 USC 1415 (e)(3)(A) and Section 4404 (4) of the Education Law, requiring respondent to maintain the level of services which the CSE had recommended on September 23, 1993.

The specialized facility which the CSE selected to perform the child's neuropsychological evaluation reportedly declined to perform the evaluation. Thereafter, petitioner and the CSE agreed to have the child evaluated twice, at respondent's expense. The first evaluation was performed on April 9, 1994 by Dr. Maria Labi of the Acute Rehabilitation Center of the Erie County Medical Center. Petitioner selected Dr. Labi to perform the evaluation. The second evaluation was performed on May 26, 1994 by Dr. Charles Sisung of the Rehabilitation Institute of Chicago. Dr. Sisung was selected for this task by respondent. Their reports were considered by the CSE when it made its recommendation for the child's educational program for the 1994-95 school year.

On September 20, 1994, the CSE recommended that during the 1994-95 school year the child receive two hours per day of special education, except when his body temperature was less than 96.5 or more than 100.5, or his respirations were more than 35 per minute, or he had active seizures or medical alerts as determined by the hospital nursing staff. It also recommended that he receive 30 minutes of speech/language therapy twice per week, and that the child receive 30 minutes of physical therapy and 30 minutes of occupational therapy, each on a consultant basis, once per week for eight weeks, and thereafter once per month for the remainder of the 1994-95 school year. At the suggestion of a representative of the Crouse-Irving Hospital, the CSE also recommended that the child be re-evaluated by Dr. Labi, at respondent's expense. However, petitioner subsequently withdrew his consent to having the child evaluated.

Petitioner requested a hearing to review the CSE's recommendation. The hearing began in October, 1995, and concluded in December, 1995. In her decision dated January 29, 1995, the hearing officer found that the child's needs were primarily medical, rather than educational. She based her finding upon the reports by Dr. Labi and Dr. Sisung, and the testimony of the child's personal physician, teacher and related service providers. She upheld the CSE's recommendation that the child receive two hours per day of special education, subject to the limitations set forth in the CSE's recommendation, except that she directed that the maximum temperature be increased from 100.5 to 101. The hearing officer found that the services of a speech/language therapist and an occupational therapist were unnecessary, and she directed that physical therapy be provided for evaluative and consultative purposes for 30 minutes per month. She also upheld the CSE's determination that the child did not evidence any deficiency as a result of respondent's failure to provide services during part of the 1992-93 school year, and did not require any additional services to make up for the loss of services.

Petitioner appealed from the hearing officer's decision. In Application of a Child with a Disability, Appeal No. 95-10, I found that the child's initial special education need was to respond in a consistent manner to visual, auditory and multisensory stimuli, and that his sensory stimulation need would be adequately addressed by the child's special education teacher. I also found that the IEP limitations upon the delivery of services, with the modification which the child's physician had recommended and the hearing officer had ordered, were appropriate. However, I found that the occupational therapy which the CSE had recommended was appropriate to maintain the child's range of motion in his upper extremities, and annulled the portion of the hearing officer's decision which had directed respondent not to provide occupational therapy to the child. I further found that the record supported the CSE's determination not to provide the child with additional services to make up for the loss of services during the 1992-93 school year. Petitioner has reportedly commenced an action in the United States District Court for the Northern District of New York to review my decision.

By letter dated March 7, 1995, respondent's CSE chairperson informed petitioner that the CSE would arrange for the child's triennial evaluation, and that the CSE had asked Dr. David Dube, the child's personal physician, to provide an updated medical status report to the CSE. In another proceeding, petitioner challenged the right of the CSE to seek information about the child's physical condition from the child's physician. Although the CSE's right to seek such information was ultimately upheld in Application of a Child with a Disability, Appeal No. 95-54, the CSE did not obtain an update from the physician for use in its triennial evaluation.

The CSE's annual review, which included its review of the results of the child's triennial evaluation was scheduled to take place on May 2, 1995, but was adjourned when petitioner asked that the school physician attend the review meeting. The annual review was conducted on May 23, 1995. The school physician, the child's teacher, and the child's occupational therapist attended the CSE meeting, in addition to the other required CSE members. A representative of the Central New York Developmental Services Organization also attended the CSE meeting to assist the CSE in developing a transition plan for the child. The CSE reviewed the results of reports about the child's present levels of performance which had been prepared by his teacher, speech/language therapist, physical therapist, and occupational therapist. It also considered a report prepared by respondent's school psychologist. For the 1995-96 school year, the CSE recommended that the child continue to receive two hours per day of special education, except when his body temperature was less than 96.5 or more than 101, his respiration rate was more than 35 per minute, he had active seizures, or medical alerts as determined by the hospital nursing staff. The CSE further recommended that the child receive occupational therapy 30 minutes per week for eight weeks, and thereafter 30 minutes per month as a consultant service. It also recommended that he receive physical therapy 30 minutes per week for eight weeks, and thereafter 30 minutes per month as a consultant service. The CSE determined that the child's speech/language annual goals could be addressed by his special education teacher, and did not recommend that he receive any speech/language therapy. The minutes of the CSE meeting reveal that transition services would be "pursued" by the Central New York Developmental Services Organization and the Crouse-Irving Memorial Hospital, and that petitioner could receive a copy of his son's IEP and transition plan. The minutes also reveal that petitioner asked for another independent evaluation of his son, at respondent's expense, and was told by the CSE chairperson to put his request in writing.

In a letter to the CSE chairperson, which was dated May 23, 1995, petitioner requested that an impartial hearing be held " ... to address the violations of State and Federal laws and regulations which occurred at today's CSE annual review and triennial review." The hearing officer was notified of his appointment by respondent in a letter dated May 31, 1995. The hearing began on June 15, 1995, and concluded on September 6, 1995. At the hearing, petitioner asked the hearing officer to recuse himself on the ground that the hearing officer, who is an attorney employed by the Board of Cooperative Educational Services of Cayuga-Onondaga Counties, had represented school districts in other impartial hearings. The hearing officer denied petitioner's request. Petitioner identified three issues to be determined by the hearing officer: (1) whether the CSE validly denied petitioner's request for an independent neuropsychological evaluation; (2) whether the CSE had performed a valid triennial evaluation of the child; and (3) whether the child's IEP for the 1995-96 school year met the requirements of Federal and State law.

The hearing officer rendered his decision on November 15, 1995. He held that petitioner was not entitled to obtain an independent evaluation, at respondent's expense, because the triennial evaluation obtained by the CSE was appropriate. He also noted that petitioner had precluded the CSE from obtaining updated information about the child's physical condition from the child's physician, and he reasoned that petitioner could not simultaneously complain about the alleged inadequacy of the triennial evaluation which the CSE did perform. With regard to the adequacy of the CSE's triennial evaluation, the hearing officer found that the CSE was not required to obtain a physical examination of the child, in light of the child's fragile health and his physician's testimony at another hearing in December, 1994, and that it would have been unproductive to use standardized psychological tests with the child. He further found that the triennial evaluation had been conducted by the requisite multidisciplinary team, and that the team could rely upon the reports of the child's teacher and his related service providers, as well as the two independent evaluators (Drs. Labi and Sisung) and Dr. Dube's prior testimony about the child's condition with regard to the third issue, i.e., whether the child's IEP met the requirements of Federal and State law. The hearing officer found that the IEP would provide the child with a free appropriate public education.

Petitioner contends that the hearing officer was biased against him, and that the hearing officer's bias is reflected in the text of the hearing officer's decision. I have carefully reviewed the hearing transcript, as well as the hearing officer's decision, and I find no evidence to support petitioner's contention. Although petitioner disagrees with the conclusions reached by the hearing officer, that disagreement does not provide a basis for finding actual or apparent bias by the hearing officer (Application of a Child with a Disability, Appeal No. 95-75). The hearing officer's employment by a BOCES other than the BOCES to which respondent school district belongs does not disqualify him from serving as an impartial hearing officer (8 NYCRR 200.1 [s][1]), nor does the fact that he has represented other school districts in impartial hearings disqualify him (Application of a Child with a Handicapping Condition, Appeal No. 91-46). It should be noted that as of July 1, 1996, no individual employed by a school district may serve as an impartial hearing officer in any school district for a period of two years after he or she ceases to be employed by a school district (Section 4404 [1] of the Education Law).

Petitioner also contends that the hearing officer deprived him of the opportunity to present his case by refusing to issue subpoenas for certain witnesses whose testimony was sought by petitioner, and by allegedly failing to give petitioner adequate notice of the dates on which the hearing was to be held. Respondent concluded the presentation of its case on the second day of the hearing, which was July 20, 1995. The CSE chairperson and respondent's school psychologist testified on behalf of respondent regarding the CSE's recommendation for the 1995-96 school year, and the reports and other information upon which the CSE had relied in making its recommendation. When respondent rested its case, petitioner informed the hearing officer that he was unprepared to proceed with his case. He asked to have each member of the CSE, and each of the child's related service providers testify. In addition, petitioner asked the hearing officer to issue a subpoena to compel the child's personal physician to testify at the hearing. The hearing officer explained the procedure to be followed in requesting subpoenas, and adjourned the hearing.

By letter dated July 24, 1995, petitioner asked the hearing officer to issue subpoenas for Dr. Dube, who is the child's physician, and for Dr. Maria Labi and Dr. Charles Sisung, who had each independently evaluated the child in 1994. The hearing officer responded in a letter dated July 28, 1995, by expressing doubt about his jurisdiction to issue a subpoena for Dr. Sisung, who resides in Illinois, and questioning whether either Dr. Labi or Dr. Sisung could be compelled to testify as an expert witness. However, he asked petitioner and respondent's attorney to state their respective positions on the question. In a letter to both of them, which was dated August 8, 1995, the hearing officer declined to issue a subpoena for either Dr. Labi or Dr. Sisung, on the ground that neither physician had been involved in the CSE's meeting of May 23, 1995. He indicated that he believed that the two physicians had either appeared as expert witnesses in a prior proceeding, or provided reports on matters which were not before the hearing officer. The hearing officer did issue a subpoena for Dr. Dube, who testified by telephone on the third, and final, day of the hearing.

Petitioner points out that neither Dr. Labi nor Dr. Sisung testified in any prior proceeding, and that their respective reports of the independent evaluations which they each conducted were in the record before the hearing officer. The CSE chairperson, the school psychologist, the child's teacher, the parent member of the CSE, and the school district physician all testified at the hearing that they were familiar with the contents of the reports by Drs. Labi and Sisung, and had relied upon those reports in deciding upon the CSE's recommendation. Petitioner also points out that Dr. Dube, who was subpoenaed to testify, was not a participant in the May 23, 1995 CSE meeting. However, Dr. Dube is the child's physician, while Drs. Labi and Sisung are independent experts in the field of traumatic brain injury. Their only involvement in this matter was to evaluate the child, in 1994. Their reports were admitted without objection in this and in a prior proceeding.

State regulation authorizes hearing officers to issue subpoenas to compel the attendance of witnesses in hearings conducted by those hearing officers (8 NYCRR 200.5 [c][1]). Any request for a subpoena must be considered in terms of the relevancy of the requested testimony or documents to the issues involved in the hearing (Application of a Child with a Handicapping Condition, Appeal No. 92-20). In this appeal, the central question is whether the child's IEP for the 1995-96 school year accurately identifies his educational needs and provides for the use of appropriate special education services to address his needs. The reports of Dr. Labi and Dr. Sisung helped the CSE to identify the child's educational needs. Although their reports are relevant, it does not follow that petitioner may compel them to testify at a hearing. In essence, petitioner seeks their expert opinions about his son's cognitive ability and needs. However, nonparty witnesses cannot be compelled to testify to matters of opinion (Wilson v. McCarthy, 53 AD 2d 860 [2d Dept., 1976]; Horowitz v. Upjohn Co. et al., 149 AD 2d 467 [2d Dept., 1989]). Under the circumstances, I find that the hearing officer did not abuse his discretion in declining to issue subpoenas for the testimony of Drs. Labi and Sisung.

I have also considered petitioner's argument about the notice he received of the dates on which the hearing was scheduled to take place. His argument appears to involve the scheduling of the third day of the hearing, which was held on September 6, 1995. By letter dated August 18, 1995, the hearing officer offered the dates of September 6, 12 or 14, 1995 to the parties. Petitioner was informed on or about August 28, 1995 that the hearing would take place on September 6, 1995. In a letter to the hearing officer, dated August 29, 1995, petitioner requested subpoenas for eight individuals. The hearing officer reportedly issued subpoenas for seven of the eight individuals. When the hearing reconvened on September 6, 1995, the child's teacher, his occupational therapist, his physical therapist, his speech/language therapist, the school district physician, the parent member of the CSE and Dr. Dube testified, at petitioner's behest. There is no indication in the record that petitioner sought an adjournment either before the hearing began on September 6, 1995, or during the hearing. Near the end of the hearing on that day, petitioner informed the hearing officer that he had been unable to serve a subpoena upon his child's case manager for the Central New York Development Services Organization to testify about the child's transition plan. He acknowledged that he had not contacted the case manager to have the latter appear voluntarily on September 6, 1995. The hearing officer directed petitioner to contact the case manager, and thereafter make a written offer of proof if he wished to have the case manager testify. Petitioner subsequently informed the hearing officer that he would not call the case manager as a witness. I find that petitioner has not shown that he was prejudiced in any way by the notice of the hearing which he received, or the hearing officer's issuance of the subpoenas which petitioner had requested.

Petitioner argues that the hearing officer erred in finding that he was not entitled to obtain an independent evaluation of his son, at respondent's expense. Petitioner challenges the adequacy of the triennial evaluation of his son by the CSE in the Spring of 1995. Federal and State regulations provide that the parents of a child with a disability are entitled to obtain an independent educational evaluation at public expense, if they disagree with the school district's evaluation. However their right to an independent evaluation is subject to the right of the school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If a hearing officer finds that the school district's evaluation is appropriate, the parents may have an independent evaluation, but not at public expense (34 CFR 300.503; 8 NYCRR 200.5 [a][1][vi][a]). Although respondent did not initiate the hearing which was held in this proceeding, the adequacy of the child's triennial evaluation was raised as an issue, and evidence was adduced about the evaluation. I find that respondent was not precluded from demonstrating the appropriateness of its triennial evaluation merely because it did not initiate the hearing (Application of a Child with a Handicapping Condition, Appeal No. 91-40).

As noted by the hearing officer in his decision, the Education Law and the Regulations of the Commissioner of Education were amended with respect to triennial evaluations, after July 1, 1995 (see Chapter 82 of the Laws of 1995). However, those changes occurred after this child's triennial evaluation had been completed, and the CSE had made its recommendation for the 1995-96 school year. I find that the statutory and regulatory amendments do not apply to the facts in this proceeding. The relevant portion of the Education Law at the time this child's triennial evaluation was performed read as follows:

" ... each child in a special program or a special class shall be reexamined by qualified appropriate school personnel at least once every three years" (Section 4402 [1][b][3][d] of the Education Law)

The relevant State regulation read as follows:

" A committee on special education shall arrange for an appropriate reexamination of each student with a disability at least every three years by a physician, a school psychologist, and, to the extent required by the committee on special education, by other qualified appropriate professionals. The triennial evaluation shall be sufficient to determine the student's individual needs and continuing eligibility for special education." (8 NYCRR 200.4 [e][4])

The relevant Federal regulation requires that each child with a disability be reevaluated every three years by a multidisciplinary team including at least one teacher or specialist with knowledge in the area of the child's disability (34 CFR 300.534; 34 CFR 300.532).

At the hearing in this proceeding, respondent's attorney acknowledged that respondent had not obtained any formal evaluation of the child since the two independent evaluations were done by Drs. Labi and Sisung in the Spring of 1994. Instead, respondent's school psychologist reviewed the reports of the two independent evaluators, and reports prepared in April, 1995, by the child's teacher, speech/language therapist, physical therapist, and occupational therapist. In a brief report to the CSE dated April 26, 1995, the school psychologist noted that he had evaluated the child on May 11, 1993. He opined that a psychological evaluation was inappropriate, and that the child continued to manifest profound cognitive deficits related to a traumatic brain injury. At the hearing, the school psychologist testified that he had based his opinion upon what he had observed when the child's related service providers attempted to interact with the child in 1993, and the reports by the child's current service providers, who reported that the child's responses to visual, auditory, and tactile stimulation were inconsistent. It was the school psychologist's professional judgment that formal psychological tests, which require that some kind of response be elicited from the test subject, were inappropriate for petitioner's child.

Petitioner contends that the child's triennial evaluation was inadequate because the school psychologist failed to administer any tests which had been validated for the purpose for which they were to be used (see 34 CFR 300.532, 8 NYCRR 200.4 [b][4]). However, neither Federal nor State regulation prescribes a particular set of tests which must be used in each evaluation (see 8 NYCRR 200.1 [w]). Petitioner has offered no basis in law or fact for disregarding the school psychologist's professional judgment that formal psychological testing of the child was inappropriate. What constitutes a suitable evaluation depends upon the nature of the child's disability (Application of a Child with a Disability, Appeal No. 93-22). Upon the record before me, I find that respondent's school psychologist conducted an appropriate evaluation of the child.

When this child's triennial evaluation was performed, the CSE was required to obtain a physical examination of the child at least once every three years. As I noted in Application of a Child with a Disability, Appeal No. 95-54, it was reasonable for the CSE to ask Dr. Dube to provide the CSE with updated information about the child's health, rather than to have the child re-examined. However, the CSE was precluded from obtaining that information, when petitioner objected to the physician sharing information with the CSE. Nevertheless, I find that the CSE had current medical information about the child because it had the reports by Drs. Labi and Sisung, which were prepared in 1994. Although both physicians referred to their reports as "educational" evaluations, they did not represent that they were educators, and their reports clearly deal with the medical aspects of the child's disability. Indeed, Dr. Sisung reported the results of a medical examination which he performed. It should be noted that when Dr. Dube testified at the hearing in this proceeding he indicated that there had been no changes in the child's physical condition, except that the child had grown. I find that the CSE's triennial evaluation was not defective because of its failure to obtain a new physical examination.

The purpose of a triennial evaluation is to determine a child's needs and continuing eligibility for special education. Having considered the reports by Drs. Labi and Sisung, the school psychologist's report, and the reports by the child's special education teacher and related service providers, I find that respondent's CSE had obtained adequate information about the child to determine his continuing eligibility to receive special education, and to plan a program to address his special education needs. I further find that petitioner is not entitled to receive an independent evaluation, at respondent's expense, because respondent has demonstrated the appropriateness of its evaluation.

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).

Petitioner contends that the child's IEP for the 1995-96 school year is deficient because it fails " ... to define this child's status of post-traumatic brain injury." I disagree. The IEP not only identifies the child as traumatic brain injured, but indicates that he is unable to understand directions, is non-communicative, is totally reliant upon adults for his activities of daily living skills, and requires rehabilitation and treatment. It also indicates that the child has no volitional movement, and manifests inconsistent responses to environmental stimuli. The IEP notes that it is not possible to determine the extent of the child's visual and auditory skills. His health and vitality are described as poor. The reports of Drs. Labi and Sisung are incorporated by reference in the portion of the IEP which describes the child's present levels of educational performance. I find that the child's IEP accurately reflects the results of his evaluations, and describes his special education needs.

Petitioner also contends that the IEP annual goals for his child are inappropriate, and vague. The IEP includes separate goals for the child to respond to auditory, visual, tactile, proprioceptive and kinesthetic stimulation. I find that those goals would address the child's primary special education needs. Another IEP goal provides that he will benefit from occupational therapy and physical therapy consultation services. Although that annual goal is not as precise as the corresponding goal in his goal for the 1994-95 school year, I note that there is another annual goal in the 1995-96 IEP for the child to maintain functional range of motion at the current levels of performance. The short-term objectives for those two annual goals describe with more specificity the activities which the child's teacher and his related service providers will perform with regard to maintaining the child's range of motion and eliciting his response to various stimuli. The child's IEP annual goals and short-term objectives are substantially the same as the goals and objectives in his IEP for the 1994-95 school year, which I have previously found to be appropriate (Application of a Child with a Disability, Appeal No. 95-10). There has been no significant change in the child's condition. I find that the child's IEP annual goals and short-term objectives for the 1995-96 school year are appropriate to address his identified special education needs, and provide adequate direction to the individuals who must implement the IEP.

Petitioner further contends that respondent has failed to demonstrate the appropriateness of the program recommended by its CSE. In essence, he argues that the CSE has ignored the recommendations by Drs. Labi and Sisung. However, the record reveals that their recommendations were for possible medical rehabilitation. As was indicated in Application of a Child with a Disability, Appeal No. 95-10, this child's initial special education need is to respond in a consistent manner to visual, auditory, and multisensory stimuli. The CSE has recommended that the child receive two hours per day of special education designed to elicit consistent responses by the child to visual, auditory and multisensory stimuli, and to maintain his range of motion. The special education teacher will work closely with the child's physical therapist and occupational therapist to provide a suitable program for the child. I find that the proposed program would be appropriate to meet the child's special education needs.

Petitioner also challenges the child's IEP on the ground that the transition plan which the CSE prepared is allegedly meaningless. State regulation requires that the IEP of a child who is 15 years old include a statement of needed transition services, including, if applicable, a statement of the responsibilities of the school district and participating agency for the provision of those activities and services which promote movement from school to post school opportunities, or both, before the child leaves school. Activities are to be provided in the areas of instruction, community experiences, and the development of employment and other post-school living objectives, unless it has been determined that those activities are not needed in each area (8 NYCRR 200.4 [c] [2] [v]). I find that the transition plan which the CSE developed addressed the areas which are relevant for this child, given the nature of his present condition.

Petitioner argues that respondent failed to meet its responsibility to ensure that the hearing officer rendered his decision within 45 days after petitioner requested that a hearing be held (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c] [11]). The Federal regulation authorizes a hearing officer to grant specific extensions of time beyond the 45-day limit, at the request of either party. The record reveals that respondent appointed a hearing officer within eight days after receipt of petitioner's request for a hearing. The hearing appears to have begun on the first mutually convenient date for the parties and the hearing officer. The second and third sessions of the hearing were also held on mutually convenient dates. I must note that during the pendency of the hearing, petitioner commenced three separate appeals to the State Review Officer, from other hearing officer decisions, and appealed to the Commissioner of Education about the timeliness of certain hearing officer decisions. Respondent's attorney was also involved with defending the district in the Federal action petitioner commenced to review my decision in Appeal No. 95-10. Petitioner's assertion that respondent has "intentionally and maliciously "denied the child due process by delaying the hearing is disingenuous.

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

THE APPEAL IS DISMISSED.

 

 

Dated: Albany, New York __________________________
January 31, 1996 FRANK MUŅOZ