The State Education Department
State Review Officer

No. 97-15

 

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 Lynbrook Union Free School District

Appearances:
Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, Laura A. Mongelli, Esq., of counsel

 

DECISION

        Petitioner appeals from the decision of an impartial hearing officer which found that respondent had proven the appropriateness of providing physical therapy to petitioner’s son during the school day, rather than before or after school, during the 1996-97 school year. The appeal must be dismissed.

        Petitioner’s child, who is twelve years old, has significant muscle motor difficulties as a result of a traumatic brain injury which occurred at birth. The child has experienced some academic delays because of deficits in his expressive language skills, visual motor integration difficulties and his impulsivity. Additionally, the child has a seizure disorder which has been treated with Tegretol. The boy’s classification as multiply disabled is not disputed in this proceeding.

        Prior to the 1991-92 school year, the child was enrolled in a preschool and kindergarten special education program at the School for Language and Communication Development, a private school for children with language impairments. In the fall of 1991, the child entered respondent’s Marion Street Elementary School, where he was placed in a self-contained special education class. The boy remained in a self-contained class at that school for the next four school years. During the 1991-92 school year, the boy received speech/language therapy four times per week, occupational therapy three times per week, and physical therapy three times per week. He has continued to receive those related services, although the frequency of the services has changed. While in elementary school, the boy’s speech/language therapy and occupational therapy were provided during the school day as "pull-outs", i.e., he was removed from class to receive those services. However, his physical therapy, which was reduced to twice per week for the 1992-93 school year and thereafter, was provided to him between 8:00 a.m. and 8:30 a.m. before the start of school throughout his elementary school career. At the hearing in this proceeding, it was stipulated that none of the boy’s individualized education programs (IEPs) for elementary school had indicated when the boy’s physical therapy would be provided to him.

        The child was assigned to respondent’s North Middle School for the sixth grade during the 1996-97 school year. Respondent’s Committee on Special Education (CSE) recommended that the child be enrolled in self-contained special education classes for English and social studies, and that he be mainstreamed for his other subjects, with resource room services. Related services to be provided included two sessions of speech/language therapy of forty-two minutes each, two sessions of occupational therapy of thirty minutes each, and one session of physical therapy of thirty minutes. The reduction in the amount of physical therapy from thirty minutes twice per week in the 1995-96 school year to thirty minutes once per week/cycle during the 1996-97 school year was by agreement of the parties. The amount of physical therapy which the CSE recommended is not an issue in this appeal, nor is any other portion of the boy’s education program. The sole issue is whether the child’s physical therapy should be provided before or after school, as had been done in prior school years, or whether he should receive physical therapy during the school day, as contemplated by respondent.

        The CSE made its recommendation for the 1996-97 school year on May 15, 1996. Although petitioner had raised the issue of when his son's physical therapy would be provided during a discussion of the boy's needs, the CSE's recommendation did not indicate whether the child's physical therapy would be provided during the school day, or at some other time. In subsequent conversations with the CSE chairperson which took place in late August and early September, 1996, petitioner was informed that his son's physical therapy would be provided during the school day.

        Petitioner requested that an impartial hearing be held to review the manner in which the child’s physical therapy services would be provided. At the hearing held on November 8, 1996, petitioner asserted that he had been promised by the CSE that physical therapy would be provided either before or after the school day. He contended that providing physical therapy to his son during the school day would adversely affect the child’s educational performance, and it would violate his son’s right to a free appropriate public education (FAPE). Respondent contended that no commitment to provide services before or after school had been given to petitioner, and that the child’s disability did not require that he receive his related services beyond the normal school day.

        In a decision dated January 23, 1997, the hearing officer noted that the CSE chairperson, the teacher member of the CSE, and the parent member of the CSE disputed petitioner’s contention that the CSE had agreed that the boy would continue to receive physical therapy beyond the school day. He found that the CSE had not promised that the boy’s physical therapy would be provided either before or after the normal school day. The hearing officer also found that there was no evidence that the child’s academic performance would be adversely affected by his removal from class to receive physical therapy, and he held that respondent had met its obligation of providing an appropriate educational program under the law.

        Although the dispute in this proceeding involved the provision of services to the boy during a school year which has now ended, I will not dismiss the appeal as moot. There is clearly a significant difference of opinion between the parties about the manner in which related services are to be provided to a child. The record also reveals that the parties could not agree upon whether the CSE recommended that the boy receive physical therapy once per week, as petitioner asserts, or once per six-day cycle, as respondent asserts. While I am inclined to agree with respondent that the CSE’s recommendation was made with knowledge of the fact that the middle school operates on a six-day cycle, I strongly recommend that respondent and its CSE be more explicit in communicating the CSE’s recommendations to parents.

        Having reviewed the record, I find that there is no evidence to support petitioner’s initial contention that the CSE had unanimously agreed to continue the arrangement of providing physical therapy to his son outside of normal school hours (see petitioner’s hearing request, Exhibit 8). At the hearing, petitioner testified that during the CSE’s annual review of his child on May 15, 1996, he had pointed out that since the school day began at or about 8:00 a.m. in the middle school, there might be a problem in continuing to provide physical therapy to the child in the morning before school, as had been done when the boy was in elementary school which started later in the morning. Petitioner testified that no one at the CSE meeting disagreed with his statement. From that, he apparently inferred that the CSE had agreed to provide physical therapy to the boy after school. The testimony of the CSE chairperson, the child’s teacher, and the parent member of the CSE was uniformly to the effect that no such agreement had been reached. I concur with the hearing officer’s determination that the CSE did not agree to schedule the child to receive physical therapy outside of the regular school day.

        Respondent bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-2; Application of a Child with a Disability, Appeal No. 93-11). At the hearing, respondent’s CSE chairperson testified that the boy’s physical therapy had been provided to him before the start of the elementary school day to accommodate his parents’ concern about the amount of time he would be removed from class to receive related services. She further testified that the amount of the boy’s related services had decreased by the time he entered the middle school, and that his speech/language therapy and occupational therapy were being provided as "push-in" services in his English and computer classes, respectively, during the 1996-97 school year. The CSE chairperson also testified that physical therapy could be provided as a "push-in" in the boy’s regular education physical education class. She opined that the child’s special education needs were not so great as to require that any special education service be offered to the child either before or after normal school hours.

        I find that respondent has demonstrated a rational basis for the manner in which it proposed to provide physical therapy to the child. Although petitioner and his wife were initially concerned about their son’s adjustment to middle school, they conceded at the hearing that he was doing well academically in the middle school. There is nothing inherently inappropriate in providing related services to a child during normal school hours, but care must be taken to minimize the impact of such scheduling upon the child’s academic instruction (Application of a Child with a Disability, Appeal No. 95-14). Respondent offered to provide physical therapy as a push-in service during the boy’s physical education class. This would have addressed any concern about a loss of educational programming for the child.

        To the extent that petitioner continues to argue that his son may not lawfully be removed from his regular education peers to receive a related service, I must point out that 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, 19 IDELR 787). Accordingly, I find that the hearing officer correctly dismissed petitioner’s complaint (Application of a Child with a Disability, Appeal No. 93-21). I have considered petitioner’s other contentions which I find to be without merit.

        THE APPEAL IS DISMISSED.

 

 

 

Dated: Albany, New York __________________________
September 23, 1997    ROBERT G. BENTLEY