The State Education Department
State Review Officer
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 Onteora Central School District
Anthony L. Polizzi, Esq., attorney for petitioner
Donoghue, Thomas, Auslander and Drohan, Esqs., attorneys for respondent, James P. Drohan, Esq., of counsel
Petitioner appeals from an impartial hearing officers decision which upheld the placement in the Onteora Junior/Senior High School that respondents committee on special education (CSE) had recommended for petitioners daughter, over petitioners objection that the recommended placement was environmentally hazardous to her chemically sensitive daughter. Petitioner asserts that the hearing officer failed to give appropriate weight to the testimony of petitioners expert witness, or to consider the childs best interests. The appeal must be dismissed.
At the outset, I note that respondent board of education argues that the petition to review should be dismissed as a matter of law because the petition is untimely. State regulation requires that a parent seeking review of a hearing officers decision serve a notice of intention to seek review upon the board of education within thirty days after receipt of the decision sought to be reviewed, and to serve the petition within forty days after receipt of the hearing officers decision (8 NYCRR 279.2 [b]). The hearing officer rendered his decision on March 25, 1997. On March 28, 1997, respondents counsel was notified that petitioner intended to seek review of the hearing officers decision. However, petitioners notice of intention to seek review and her petition were not served upon respondents district clerk until May 15, 1997. Although petitioner has not requested that I excuse her brief delay I will nevertheless do so, in the absence of any prejudice to respondent because of petitioners delay.
Petitioners daughter, who is seventeen years old, reportedly contracted bacterial meningitis at the age of five months. Approximately two months later, she was diagnosed as having a mild to profound hearing loss in the left ear, and a severe to profound hearing loss in the right ear. She has a hearing aid, but she reportedly did not like to use the device in school (Exhibit 17)). When her hearing with an aid was assessed in March, 1995, her word recognition score at normal conversational levels was reported to be 36 percent. The evaluator recommended that the child obtain a different type of hearing aid. At the time of the hearing in this proceeding she was classified as hard of hearing (see 8 NYCRR 200.1 [mm]). The child has also been diagnosed as having chronic rhinosinusitus, and bronchial asthma, and she has had a history of recurrent respiratory infections. The CSE has secondarily classified her as other health impaired. Her classification is not disputed in this proceeding.
The girl reportedly attended a special education preschool before beginning school in Florida. Upon her return to New York State, she was enrolled in the schools of the Wappingers Central School District. At or near the end of the 1989-90 school year, when she was in the third grade, the child became a resident of respondents school district. She was enrolled in an intermediate level self-contained special education class, with some mainstreaming. The girls triennial psychological evaluation, which was performed in May, 1993, indicated that the child had been in a self-contained program, with mainstreaming in mathematics and science, speech/language therapy and counseling, for the sixth grade. In that evaluation the psychologist reported that the girl relied primarily upon her residual hearing and lip reading cues, but that her receptive language skills improved when sign language was also used. Expressively, the girl relied upon oral language, and her speech intelligibility was reported to be fair to good. The psychologist indicated that the girls hearing impairment had adversely affected her verbal/language processes. On a standardized achievement test, the child achieved grade equivalent scores of end of third grade for reading, beginning third grade for spelling, and beginning fifth grade for arithmetic. Projective testing revealed signs of considerable tension and nervousness.
The record does not reveal the childs educational program during the next two school years, although she apparently continued to attend classes in respondents schools. The CSE chairperson testified that the childs absences from school because of illness increased during the 1995-96 school year, and that she had ceased attending school after the winter break in that year. Prior to that time, the child had reportedly been enrolled in special education classes, but also received home instruction to compensate for her absences. In March, 1996, petitioner and the CSE reportedly agreed that the child would continue to receive home instruction, and that additional information about her health would be obtained from the childs physician. In response to the CSEs request for information, the childs physician provided test results indicating that the girl had tested positive for one form of fungi (Candida), and for allergies to the pollen of certain trees and grasses, as well as household dust. She also tested positively for allergies to certain foods, such as eggs, milk, wheat, and peanuts. On June 27, 1996, a second physician informed the CSE chairperson by letter that the child had a wide variety of symptoms involving her respiratory, gastrointestinal, musculosketal, central nervous and immune systems. He indicated that the childs symptoms dated back to 1988, when the child had a "severe chemical exposure" due to an improperly functioning furnace in her home, which had damaged her immune system. The second physician stated that he believed that the childs condition had improved considerably while she remained at home.
On September 19, 1996, the CSE recommended that the child continue to receive ten hours of home instruction per week in tenth grade social studies, mathematics, science and English, pending receipt of specific information from the childs physician about the childs chemical sensitivities and hearing impairment. The CSE also recommended that an assessment of respondents junior/senior high school be conducted by an expert to ascertain what, if any, accommodations would be required to address the childs chemical sensitivities. In a letter dated October 16, 1996 to the childs lay advocate, the childs physician noted that the child was sensitive to multiple chemicals, and should avoid exposure to the odors she might encounter in a photo developing room, ink smells, chemicals from copying machines, computer ink, smoke, and recirculated air. He opined that the avoidance of these kinds of exposure " would be helpful due to this patients medical condition" (Exhibit 5).
The CSE chairperson arranged to have respondents school building tested by Mr. Michael ORourke, who was employed by the Ulster County BOCES as its environmental coordinator. On November 4, 1996, Mr. ORourke used a photoionization detector to test for the presence of volatile organic compounds (VOCs), in the school building. He reported that the peak levels of VOCs in the building ranged from 15 parts per million in one classroom in which several boxes of magic markers were stored in a closet down to 1.8 parts per million in another classroom. Mr. ORourke indicated that all peak levels were transient in nature, and that the VOC levels which had been ascertained in respondents building were typical of those seen in spaces without significant sources of volatile organics. He opined that theVOC levels recorded on November 4, 1996 in respondents building presented no undue health risks to the occupants of the building. On November 26, 1996, Mr. ORourke tested the building for the level of airborne fungi in various rooms which the child might enter if she attended school. He reported that there were no substantial differences between the airborne fungal conditions inside and outside the school building. At the hearing in this proceeding, Mr. ORourke testified that the level of airborne fungi inside the building was between 1/3 and 1/2 of the level of fungi in the air outside the building. Mr. O'Rourke also tested the level of carbon dioxide in three classrooms, as an indication of the ventilation rate and air quality in the building. He reported that all three rooms appeared to be adequately supplied with fresh air, but suggested that additional testing be done in one of the rooms.
On January 7, 1997, the CSE reconvened to discuss Mr. ORourke's report. He participated in the meeting by telephone. The CSE recommended that the child be returned to school for instruction in English, social studies and science in special education classes, and regular education general mathematics with the assistance of a consultant teacher. It further recommended that she receive resource room services five times per week, speech/language therapy in a group twice per week, individual speech/language therapy once per week and individual counseling once per week. In addition, it recommended that she receive additional instruction in respondents learning center five times per week. The CSE made its recommendation, "pending medical information to the contrary." It also recommended that the childs home instruction be increased to 20 hours per week, if petitioner challenged its recommendation and the child remained in her pendency placement.
At petitioners request, an impartial hearing was held on February 4, 1997. Neither petitioner nor her daughter attended the hearing. They were represented at the hearing by an advocate, who challenged the validity of the conclusion which Mr. ORourke had reached that the childs attendance at respondents junior/senior high would not be an undue risk to her health. The advocate asserted that the child had a history of having severe reactions upon entering the building, and he argued that the CSEs recommendation was therefore inappropriate. Respondents attorney indicated that there were two issues to be determined. In addition to the issue of environmental safety of the building for this child, the attorney sought an order from the hearing officer that the childs triennial evaluation should be conducted, notwithstanding petitioners alleged failure to allow her daughter to be evaluated. Testimony was taken from Mr. ORourke and an individual who identified himself as an environmental architect with regard to the environmental safety of the school building for petitioners daughter. The CSE chairperson also testified that the childs triennial evaluation should have been performed by no later than June, 1996, and despite discussion of that issue at the September, 1996 and January, 1997 CSE meetings, and an attempt to have it performed in November, 1996, the childs triennial evaluation had still not been performed.
In a decision dated March 15, 1997, the hearing officer, who noted that the child was exposed to many airborne contaminants at home, rejected petitioners challenge to the CSEs recommendation that her daughter return to school. He directed respondent to take steps, such as requiring that students not wear makeup or perfume in school, to minimize the childs exposure to contaminants in the air. The hearing officer also directed that the childs triennial evaluation be performed to ascertain her current special education needs.
In her petition for review, the childs parent does not specifically address the portion of the hearing officers decision which ordered the performance of the child triennial evaluation. I note that at the hearing, petitioners lay advocate asserted that the psychoeducational and auditory evaluations which the CSE sought to have done might be unduly burdensome on the child, or were unnecessary. However, a triennial evaluation is not optional. Federal and State regulations require that each child with a disability be re-evaluated at least once every three years to determine the childs individual needs and continuing eligibility for special education (34 CFR 300.534; 8 NYCRR 200.4 [e]). Consequently I find that the child should be re-evaluated immediately.
Neither party in this proceeding has raised any issue with respect to the individualized education program which the CSE prepared for the child on January 7, 1997, except the environmental safety for the child of the school building in which she would be educated. As with any IEP, respondent bears the burden of demonstrating the appropriateness of the educational services which would be provided pursuant to the IEP. Respondent relies upon the testimony and written reports of Mr. ORourke, as well as the descriptions of the childs medical conditions which were set forth in the report by her physicians. Petitioner contends that the hearing officer gave undue credence to Mr. ORourkes opinions and that he failed to recognize the technical expertise of her witness at the hearing. She further contends that the hearing officer failed to recognize the correlation which had been established between her daughters absences from school and her prolonged exposure to the school environment.
I have reviewed the testimony of the two witnesses who addressed the environmental safety issue at the hearing. I note that petitioner does not challenge Mr. ORourkes expertise to perform the tests which he conducted in respondents junior/senior high school. The record reveals that Mr. ORourke has a bachelors degree in biology, and a masters degree in environmental health/environmental planning. At the hearing petitioners expert witness testified that he did not question the accuracy of the testing data which Mr. ORourke had obtained. However, he did challenge the conclusions which Mr. ORourke had made about the data. In his written report with regard to VOCs in the building, Mr. ORourke indicated that the VOC levels which had been found did not present an undue health risk to the occupants of the building. At the hearing, he was asked whether he would reach the same conclusions with respect to petitioners child, given the fact that she has allergies and chemical sensitivities. He testified that he had been aware of the various statements by her physicians about her medical condition when he conducted his testing, and he again opined that the building was environmentally safe for petitioners child. After reviewing another letter from the childs physician which had been written after the environmental testing had taken place (Exhibit A), Mr. ORourke testified that he would not have altered his testing procedures in any way, if he had seen the letter before he performed the test. Although he had not been instructed to look for any specific chemical or fungus prior to doing his testing, Mr. ORourke noticed that most of the childs allergies were to foods and pollen which were common in any environment. With regard to the childs reported sensitivity to petrochemicals as a result of the home furnace incident, Mr. ORourke testified that she would not have any comparable exposure in respondents school unless she entered the schools boiler room.
Petitioners witness identified himself as an environmental architect, with a degree in architecture. However, he acknowledged that he had not been licensed to practice architecture pursuant to Article 147 of the Education Law, and that he had no formal training in either epidemiology or pathology. Nevertheless he opined that the levels of VOCs which had been found in respondents school could affect the health of an individual. He asserted that the level of formaldehyde which had been found in the school exceeded the levels which had been set by the Consumer Safety Projects Safety Commission and the Federal OHSA. However, those standards were not entered into evidence. Furthermore, I must note with regard to this individuals opinion about the allegedly excessive levels of formaldehyde and benzene which had been found in the school, that Mr. ORourkes report regarding the levels of VOC, in the school (Exhibit 1) did not differentiate between the different kinds of VOCs which had been detected, and that in any event, the combined VOC level did not exceed one-tenth of one part per million on a time weighted average. While conceding that the child smoked cigarettes, and was working outside her home on a part-time basis, he nevertheless insisted that it would be impossible for her to attend school because she would be exposed to chemicals in the school.
With respect to the alleged correlation between the childs sickness related absences from school and her exposure to the school environment, I noted that there was no testimony at the hearing to establish that correlation. The childs attendance report for the period from September 10, 1996 through January 24, 1997, when she did not attend any class in respondents school, indicate that she was nevertheless ill on at least eleven days.
Having reviewed the entire record, I must concur with the hearing officers determination that the respondent had met its burden of proof with respect to the CSEs recommendation that the child return to school for instruction. I am not persuaded by the evidence which has been adduced in this proceeding that there is a nexus between the childs health condition and her attendance in school. Most of the sensitivities which the child's physicians have identified, such as her allergies, were to substances which occur in the outside air, as well as in any inside space such as a school. The child's physicians have not identified any specific chemical compound which the child must avoid. The odors or substances which the child's physician listed in his letter of October 16, 1996 (Exhibit 5) are all things which can be avoided. Respondent, through its CSE chairperson, has pledged to take the appropriate steps to limit the girl's exposure to those odors or substances. Each child must be educated in the least restrictive environment. Absent a medical reason for her continuing to be educated at home, this child should be educated in the public schools. Respondents CSE has recommended that the child be educated in the least restrictive environment, which, on the record before me, does not appear to pose any greater threat to her medical condition than would her continued instruction at home. I concur with the hearing officers determination, and his direction to respondent to take reasonable steps to accommodate petitioners allergies and chemical sensitivities.
THE APPEAL IS DISMISSED.
|Dated:||Albany, New York||__________________________|
|October 6, 1997||FRANK MUÑOZ|