The State Education Department
State Review Officer
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 City School District of the City of New York
Simonson, Hess and Liebowitz, P.C., attorney for petitioner, Dorothy A. Wendel, Esq.,of counsel
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Adam G. Kurtz, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision which granted petitioner's request for an order requiring respondent to provide a general reading program and resource room services, as well as occupational therapy, to petitioner's son during the summer of 1998, but which did not address certain other issues raised by petitioner. In particular, the decision provided that any disagreement with respect to the suitability of the boy's recommended placement for the 1998-99 school year would be the subject of a separate hearing. Petitioner contends that the hearing officer violated her due process rights by not going forward with a hearing on her claims that respondent had failed to provide certain services during the summer of 1997, or to reimburse her for the cost of private tutoring which she obtained for her son in March, 1998. She also challenges the hearing officer's determination not to consider her claims with respect to her son's placement for the 1998-99 school year. The appeal must be dismissed.
At the outset, I must address respondent's request that I accept its answer which was submitted approximately two months after it was due. Respondent's attorney asserts that he was assigned this appeal shortly after he became employed by the New York City Law Department, and that he unsuccessfully attempted to obtain the consent of petitioner's attorney to an extension of more than one week of his time to answer the petition. He further asserts that he worked diligently on the matter, and that respondent's delayed answer has not delayed the resolution of this appeal because the Office of State Review had obtained the consent of one party to an extension of time for me to render this decision (see 34 CRR 300.512 [c]). The issues in this appeal are almost exclusively legal. I find that the interests of justice require me to exercise my discretion and accept respondent's answer in order to ensure that I have adequate information to determine the issues which have been presented.
Petitioner's son, who is thirteen years old, has been classified as learning disabled since November, 1995. His classification is not in dispute. The boy reportedly began to receive resource room services shortly after his classification. In February, 1997, respondent's committee on special education (CSE) recommended that the child be placed in a self-contained modified instructional service-I (MIS-I) class and receive occupational therapy. Petitioner challenged the CSE's recommendation for placement in a MIS-I class.
An impartial hearing was conducted on May 14, 1997. The transcript of that hearing, which petitioner has annexed to her petition, reveals that a pre-hearing conference was held, and that an agreement was reached to have independent neuropsychological, educational, and speech/language evaluations performed. It was also agreed that respondent would prepare an interim service plan to provide the occupational therapy which the CSE had recommended but which had not been provided. On June 3, 1997, the hearing officer issued an order confirming the parties' agreement that the three independent evaluations would be performed, and that the CSE would meet to review the results of the evaluations and recommend a placement for the child for the 1997-98 school year. The hearing officer retained jurisdiction to resolve any dispute concerning the child's placement during the 1997-98 school year.
On November 6, 1997, the CSE reportedly recommended that the child be placed in a MIS-I class and receive individual occupational therapy twice per week. The child's independent speech/language evaluation had not yet been performed when the CSE made its recommendations. That evaluation was completed late in November, 1997, and the evaluator's report was not received by the CSE until December 15, 1997. The CSE reconvened on February 25, 1998. It again recommended that the boy be placed in a MIS-I class, with one period of resource room services per day, and that he receive individual occupational therapy twice per week and speech/language therapy in a group of no more than three twice per week. Petitioner apparently did not request a hearing to review the CSE's recommendations.
On February 25, 1998, petitioner received a "P3" letter from the CSE chairperson authorizing her to obtain one period per day of private tutoring in mathematics and reading for her son, at respondent's expense. I note that while respondent asserts that petitioner was also authorized to obtain private occupational therapy for the boy at its expense, the document to which it refers (Exhibit G to the petition) was limited to the provision of tutoring. In any event, petitioner asserts that she engaged the services of an individual whose name appeared on respondent's list of approved tutors (Exhibit H to the petition), but that respondent refused to pay for the tutor's services. The tutor reportedly stopped assisting the boy after one month. In June, 1998, respondent notified the tutor that it would pay her if she submitted her claim on respondent's invoice form (Exhibit I to the petition). The record does not reveal whether the tutor was, in fact, subsequently paid for the services which she briefly provided to the boy.
On June 28, 1998, the CSE recommended that petitioner's son be placed in a MIS-I class and receive one period per day of resource room services during the 1998-99 school year. It also recommended that he receive occupational therapy and speech/language therapy. The boy's IEP (Exhibit A to the petition) indicates that the CSE also recommended that he receive resource room services and occupational therapy "in July and Aug only 1998". Although the amount of resource room service during the summer months was not specified in the IEP or the CSE meeting minutes (Exhibit K to the petition), it was reportedly intended to be the same as during the regular school year, i.e., five periods per week. The boy's occupational therapy was to be provided individually three times per week. The CSE meeting minutes indicate that the parties also agreed that the boy would be enrolled in a general education summer reading program.
By letter dated July 7, 1998, petitioner through her attorney requested that an impartial hearing be held (Exhibit L to the petition). The attorney asserted that petitioner's son had been denied the right to a free appropriate public education, and that he required "a smaller class size not likely to be found in public school setting". The attorney further asserted that the boy had been denied several different types of related services which were necessary for him to receive some benefit from his education.
Petitioner and her attorney appeared before an impartial hearing officer on July 28, 1998. A CSE representative was also present. The hearing officer questioned the parties about the issues which were to be determined in this proceeding. Petitioner's attorney indicated that petitioner did not agree with the CSE's recommendation for the 1998-99 school year, and that she also sought redress for respondent's alleged failure to provide certain services to the boy during the summer. One of the issues which petitioners presented was respondent's failure to place the child in a regular education summer reading program, despite the CSE's agreement that the child should be in that program. The hearing officer orally ordered the CSE representative to place the child in the reading program within five days.
Petitioner also sought an order compelling respondent to provide the occupational therapy which the CSE had recommended but which had not been provided. The CSE representative conceded, that in June, 1998, the CSE had recommended that the child's occupational therapy be increased from twice per week to three times per week to make up for the therapy which he had not received during the 1997-98 school year. The hearing officer offered to require respondent to provide such therapy five times per week. Petitioner sought to have her son's occupational therapy provided in an in-school setting because prior attempts to have it provided by a non-school employee out of school had reportedly been unsuccessful. She asserted that she had an occupational therapist available, but the therapist would not begin providing services until she had obtained written authorization from respondent. The hearing officer indicated that he could only order that services be provided to the child at respondent's expense. He ordered respondent to provide, either directly or indirectly, occupational therapy to petitioner's son for the equivalent of five 30-minute sessions per week, and to reimburse petitioner for her transportation costs in obtaining the occupational therapy.
The next issue to be addressed was respondent's alleged failure to provide resource room services to the child. The CSE representative asserted that the CSE had recommended that the services be provided through a P3 letter, i.e., that petitioner select an approved private tutor who would be paid by respondent. He indicated that the CSE had agreed to recommend that the child receive five hours per week of such service during the summer of 1998 to compensate the child for services which had not been provided during the 1997-98 school year. The hearing officer agreed to order respondent to provide five hours per week of resource room instruction, either by one of its employees, or by a private provider selected by petitioner and paid by respondent. He further agreed to direct respondent to compensate petitioner for her reasonable transportation expenditures to obtain those services.
With respect to petitioner's challenge to the appropriateness of the CSE's recommended placement for her son during the 1998-99 school year, the CSE representative indicated that respondent was not ready to present its case, and requested an adjournment until September, 1998 when its witnesses would be available. Petitioner's attorney responded by asserting that she wished to have a hearing on respondent's failure to provide services to the child during the summer of 1998, and that if the hearing officer would not go forward on that issue, he should issue a final decision so that she could appeal from that decision. The hearing officer observed that since the orders which he had issued with respect to the child's summer program were consented to by the parties, they were not appealable. He agreed to issue a written final decision, but indicated that he would have to dispense with jurisdiction over petitioner's challenge of her child's 1998-99 placement to do so. Petitioner's attorney indicated that: " ... it's the parent's position that if this comes out as a final order, we accept it as such and move forward for another hearing based on the recommendation that the CSE made on 6/23/98 ... I will write the request tomorrow ... " (Transcript, page 30). Following a discussion about whether the hearing officer would describe his written decision as a statement of agreement and final order, the hearing officer indicated that it would not be called an agreement. Finally, petitioner's attorney indicated agreement with the hearing officer that the issues concerning the boy's placement for the 1998-99 school year would be litigated in a separate hearing. However, she stated that petitioner did not agree to give up her claim with regard to respondent's alleged failure to provide services to the boy during the 1997-98 school year.
On August 18, 1998, the hearing officer issued a "statement of agreement and order" which noted that the parties had agreed that the boy should have received services during the summer of 1998, and that those services had not been provided to him. He directed respondent to place the boy in a summer reading program, and to either provide or reimburse petitioner for two and one-half hours of occupational therapy per week and five hours of resource room instruction per week, with reimbursement for petitioner's reasonable and necessary transportation costs. He also provided that the issue of the appropriateness of the boy's recommended placement for the 1998-99 school year, or any other matters relevant to the boy's special education needs would be the subject of a separate hearing.
Respondent contends that this appeal should be dismissed because the only issues which were addressed and resolved at the July 28, 1998 hearing were the type and amount of services to be provided to the child during the summer of 1998, about which there is no dispute. In essence, respondent argues that petitioner is not aggrieved by the hearing officer's decision because she, through her attorney, agreed at the hearing to the provisions of that decision.
Petitioner asserts that the transcript demonstrates that respondent was not ready to proceed with its case regarding the 1998-99 school year, and that she was faced with the likelihood that the hearing officer would adjourn the hearing. She further asserts that she agreed to sever her claims with respect to the 1998-99 school year only upon condition that the hearing officer would render a final decision with regard to her claim for services during the summer of 1998. She sought to obtain a final decision because on January 1, 1998, Section 279.8 of the Regulations of the Commissioner of Education was amended to by the addition of a new subdivision (c) which reads as follows:
"Interim determinations. Appeals from an impartial hearing officer's ruling, decision or refusal to decide an issue prior to or during a hearing shall not be permitted, with the exception of a pendency determination made pursuant to subdivision 4 of section 4404 of the Education Law. However, in an appeal to the state review officer from a final determination of an impartial hearing officer, a party may seek review of any interim ruling, decision or refusal to decide an issue."
While petitioner obtained a final decision, the question remains whether she is aggrieved by that decision which ordered respondent to provide the services which she sought for her son during the summer of 1998. Petitioner contends that she is aggrieved because the hearing officer denied her request to order respondent to directly provide those services. She asserts that the only alternative to the direct provision of services by respondent is for her to pay for those services herself in the private sector and wait for respondent to reimburse her. Petitioner argues that poor parents like herself are unable to pay for services in advance, resulting in a denial of services to children like her son. She requests that I order respondent to directly provide services to her son. Petitioner also seeks an order requiring respondent to provide the boy with two years of compensatory education. In the alternative, she asks that the matter be remanded with a directive that respondent conduct a full evidentiary hearing.
Whatever her reasons for doing so, I find that petitioner's attorney did agree on petitioner's behalf to the severance of petitioner's claims regarding the 1998-99 school year from her claims for services during the summer or earlier periods of time. Therefore, I find that petitioner is not aggrieved by the hearing officer's decision to sever those claims. I note that the hearing on her claims for the 1998-99 school year has apparently begun. Any argument petitioner wishes to make about the timeliness of that proceeding should be made first to the hearing officer in that proceeding.
Petitioner, through her attorney, agreed to the kind and the quantity of the services to be provided to her son during the summer of 1998. From the limited record which is before me, it appears that the amount of some of those services was agreed upon to compensate for the lack or partial lack of services during the 1997-98 school year. Although petitioners' hearing request was so vaguely worded as to encompass issues arising during the preceding school year, I must note that when the hearing officer sought to identify the issues at the outset of the hearing, petitioner's attorney referred to the boy's placement for the 1998-99 school year and his services during the summer of 1998. Nevertheless, I find that petitioner should be afforded the opportunity to challenge the appropriateness of the services which were provided to her son during the 1997-98 school year. If she requests a hearing for that purpose, both parties will have an opportunity to establish what services were called for by the boy's IEP and what services were in fact provided to him. It is evident from the pleadings in this appeal that there is some disagreement about those matters, which I have no way of resolving given the limited record which is before me.
The remaining question is whether petitioner may appeal on this very limited record from the hearing officer's refusal to order respondent to directly provide services to petitioner's son. A school district which is obligated to provide a free appropriate education to a child doesn't necessarily have to use its employees to provide services to the child, so long as the individuals with whom the board of education contracts have the appropriate qualifications and credentials. However, I agree with petitioner that respondent may not discharge its obligation to provide special education services to her son by merely handing a P3 letter to petitioner, if that will not result in the child actually receiving appropriate services (Application of a Child with a Disability, Appeal No. 97-74). While I fully understand petitioner's concern about being able to obtain appropriate services for her son, I must point out that the record before me is too limited for me to draw any conclusion about the efficacy of a P3 letter in this case. If petitioner was unable to obtain services for the boy with the use of a P3 letter in the summer of 1998, she should raise that issue in another proceeding.
I have considered petitioner's other contentions which I find to be without merit.
THE APPEAL IS DISMISSED.
|Dated:||Albany, New York||__________________________|
|February 26, 1999||ROBERT G. BENTLEY|