The State Education Department
State Review Officer

No. 98-23

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

Appearances:
Peter G. Albert, Esq., attorney for respondent

 

DECISION

 

        Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent’s committee on special education (CSE) to remove a special transportation requirement from the child’s individualized education program (IEP). The appeal must be sustained.

        The child was 15 years old at the time of the hearing. He has Down’s Syndrome and is functioning in the moderate range of mental retardation. In April, 1983, when he was nine months old, the child underwent successful open heart surgery to repair an intracardiac defect. The child reportedly lived with his parents until he was approximately five years old, when his aunt and grandmother became his legal guardians. At the age of five, he attended a special education preschool at the Suffolk Child Development Center during the summer of 1987.

        The child was initially referred to respondent’s CSE in the fall of 1987 when he was in kindergarten. The CSE classified the child as multiply disabled, and recommended that he be placed in a Board of Cooperative Education Services -II (BOCES) program at the James E. Allen -Melville School (JEA-Melville) with related services of individual speech/language therapy five times per week, individual occupational therapy two times per week, and group physical therapy once per week. While there is little information in the record regarding the child’s early educational history, it appears as though he remained at JEA-Melville through the 1993-94 school year. The bus ride to JEA- Melville was approximately one hour long. In July, 1993, the district authorized a special transportation request for a chest harness for the child and an air-conditioned bus. These requirements were in addition to a group matron for all of the children on the bus.

        In August, 1993, the child’s cardiologist at Schneider Children’s Hospital completed a form developed by the American Heart Association Council on Cardiovascular Disease in the Young which lists various levels of a student’s participation in physical activity in school. The physician indicated that the child fit into the category "may participate in the physical education program except for restriction from all varsity sports and from excessively stressful activities such as rope climbing, weight lifting, sustained running (i.e. laps) and fitness testing. Must be allowed to rest when tired." The child’s cardiologist also indicated on the form that the child had been evaluated on August 22, 1993, and that he was to be evaluated every six months. In a letter dated October 18, 1993 to respondent’s Transportation Director, the child’s cardiologist indicated that the child was seen in August, 1993 for a cardiac consultation due to continued significant mitral valve regurgitation. The child’s cardiologist further indicated that it was in the child’s best interest to have transportation to school in an environment where the temperature remained constant, based upon the child’s medical condition and the guardians’ report that the child had frequent upper respiratory tract infections especially during the winter months. In October, 1993, respondent authorized the chest harness and air conditioning as had been requested in July, 1993, and additionally arranged the bus route so that the child would be the last student picked up and the first student dropped off (Last on/First off). However, in a letter of medical justification from a physician at The Rehab Center at St. Charles Hospital, in Port Jefferson, New York, the physician indicated that child had been diagnosed with retroversion bilateral hips, and that the chest harness was inappropriate for that medical condition. Rather, the child required a car seat for bus transportation to and from school. The physician further indicated that the child tired easily, suffered from a great deal of pain, and had decreased trunk and head control. While there is no indication in the record when the car seat was first provided, the requirement does appear on the child’s 1995-96 IEP.

        For the child’s 1994-95 school year, the CSE recommended that the child be placed at the AHRC Sagtikos Educare Center in Commack (AHRC Sagtikos) because the district did not have a program that could provide the level of services necessary to meet the child’s needs and because the distance that the child had to travel to BOCES was causing him unnecessary discomfort. The child apparently began attending AHRC Sagtikos in September, 1994. The child’s 1994-95 IEP is not part of the record which is before me.

        In November, 1995, the CSE met to prepare the child’s IEP for the 1995-96 school year. The CSE continued the child’s placement at AHRC Sagtikos. The transportation line of the recommendations section of the child’s IEP provided, "Door/door, A/C, First/Last and Matron." A note from the child’s pediatrician dated August, 1994 attached to the child’s IEP indicated that the child was not taking any medications and that he was not subject to any restrictions.

        In October, 1996, the CSE met to develop the child’s IEP for the 1996-97 school year. It continued the same placement. Under transportation, the IEP provided, "DR-DR/AC/Fir-Lst/Mat/Car Seat Stroll Fr." The transportation special needs section of the child’s IEP included a comment that the child required air conditioning, carry car seat with stroller frame, and wheel chair bus. A note from a physician at the Department of Pediatrics at the Children’s Medical Center at Stony Brook dated August, 1996 which indicated that the child had been diagnosed with mitral valve regurgitation and that he should be restricted from participating in vigorous or isometric physical activities, but that he could participate in non-strenuous activities, was attached to the IEP.

        In May, 1997, the CSE met to develop the child’s 1997-98 IEP which included the same transportation requirements as previously listed on the child’s IEPs, "Door/door,A/C,First/last and Matron." It also included the same note from the physician at the Children’s Medical Center at Stony Brook regarding the child’s restricted physical activities, as well as the same special transportation needs as set forth in the 1996-97 IEP.

        A note from another pediatrician dated September 2, 1997 indicated that the child had a cardiac condition as well as other medical problems and indicated that he should be "the last pick-up and the first drop-off on his bus route." By letter dated September 9, 1997, respondent’s Assistant Administrator for Special Education, Special Services wrote to the child’s pediatrician regarding his note that the child be Last on/First off the bus route because another student who rode that same bus had the same limitation. The letter was sent again on September 26, 1997. The Assistant Administrator for Special Education, Special Services testified that she did not receive a response from the child’s pediatrician. However, the record includes a note dated November 14, 1997, from the child’s pediatrician advising respondent that the child had mitral valve regurgitation, two side effects of which were occasional edema and lethargy. As a result, the pediatrician concluded that the child should continue to be the last student picked up and the first student dropped off on his bus route. The Assistant Administrator for Special Education, Special Services testified that she could not recall whether she saw that note. On December 1, 1997 the district’s Transportation Supervisor made a comparison of the times and distances if the child was Last on/First off, or second to last on and second off the bus. The direct route was 9.9 miles and 25 minutes long, while the route when the child was picked up second to last was 11.9 miles and 34 minutes long.

        The CSE met on December 12, 1997 to review the child’s transportation arrangements. The CSE removed the Last on/First off requirement from the child’s IEP. The child’s guardian requested a hearing on January 8, 1998. On February 23, 1997, petitioners’ attorney forwarded a January 27, 1998 letter to the CSE chairman from the child’s pediatrician indicating that the child had a history of cardiac problems, edema of his extremities and lethargy. The pediatrician stated, "According to his medical history, the child was spending a great deal of time sick from such illnesses as pneumonia, chronic bronchitis and otitis media accompanied by high fevers. It has been brought to my attention that since 1993, a plan has been implemented for a last pick-up, first drop off on his transportation route. [The patient] has done medically well with this arrangement, allowing him to maintain a daily attendance in school. Based upon this information, it is my medical opinion that this patient continue to have the advantage of this arrangement."

        The impartial hearing in this proceeding was held on March 5, 1998. The hearing officer found that there was no medical evidence that dictated the necessity of the Last on/First off bus arrangement. He further found that respondent provided a proper school program, including a suitable transportation proposal for the child. He held that the CSE could eliminate the Last on/ First off provision from the child’s IEP, and implement the new bus transportation arrangement. Petitioners appeal from the hearing officer’s decision. They request that it be overturned and that the original IEP be implemented.

        The sole issue in this appeal is whether it was appropriate for the CSE to eliminate the Last on/First off requirement from the child’s 1997-98 IEP. While I recognize that this proceeding is limited to the 1997-98 school year which has ended, I find that this case presents a recurring issue that I must address.

        The child’s 1997-98 IEP that was developed in May, 1997, included the Last on/First off requirement, as did the child’s 1995-96 and 1996-97 IEPs. The record shows that the Last on/First off requirement was first instituted in 1993, based upon a note from the child’s cardiologist indicating that the child required a temperature controlled environment. The record further shows that in his September, 1997 note to respondent’s Special Education Department, the child’s pediatrician indicated that the Last on/First off requirement should continue. Respondent’s Assistant Administrator of Special Education, Special Services testified that because the IEP of another student, who lived closer to the school, had the same transportation requirement, it was necessary to make the change in the child’s IEP to Second to last on/second off. She indicated that she attempted to contact the child’s pediatrician to obtain further clarification of the child’s medical condition, but was unsuccessful. She further testified that she interpreted the physician’s failure to reply as an indication that the child’s medical condition was not serious enough, and concluded that "a few minutes extra on the bus would not be detrimental to his health." Respondent is not bound by the recommendation of a child’s physician and may rely upon the advice of its own physician. However, the CSE failed to obtain a medical opinion from the school district physician supporting its position.

        Section 4402 (1)(b)(1) of the Education Law provides that a school physician need not be a member of the CSE, unless the parents, the pupil, or a member of the CSE submits a written request at least 72 hours in advance of a meeting that the physician attend such meeting. While no request for a physician was made, under the circumstances, I find that the judgment of the CSE’s physician as to the physical needs of the child would have been essential for the CSE to reach an informed decision with respect to the child’s transportation needs. The record contains credible evidence supporting the Last on/First off requirement from the child’s pediatrician. There is no evidence from a medical professional in the record to refute that position. Moreover, there is no indication in the record that the child’s medical condition changed after his IEP which included the Last on/First off requirement was developed in May, 1997. While I recognize respondent’s efforts to provide special transportation arrangements to the child, and to arrange a reasonable solution to the situation, I nevertheless find that the elimination of the special transportation requirement, without the supporting opinion by a physician, was inappropriate (Application of a Child With A Handicapping Condition, Appeal No. 90-12).

 

        THE APPEAL IS SUSTAINED.

 

 

Dated: Albany, New York __________________________
March 8, 1999 FRANK MUŅOZ