The State Education Department
State Review Officer

No. 00-013

 

 

 

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 Wappingers Central School District

Appearances:
Shaw and Perelson, L.L.P., attorneys for respondent, Michael K. Lambert, Esq., of counsel

 

DECISION

        Petitioner appeals from an impartial hearing officer's decision dismissing some of petitioner's claims with regard to the payment of tuition and other expenses related to her son's placement in the Brehm Preparatory School (Brehm) for the 1999-2000 school year. Respondent cross-appeals from the hearing officer's decision, to the extent that he ordered it to reimburse petitioner for her expenditures in attending a parent and family weekend at Brehm in the fall of 1999. The appeal must be dismissed. The cross-appeal must be sustained in part.

        At the outset, I note that petitioner has attached a number of documents as exhibits to her petition, and that respondent objects to my consideration of them on the ground that they were not part of the record which was before the hearing officer. I agree with respondent that most of the documents could and probably should have been introduced at the hearing. However, both parties bear responsibility for proceeding in an informal manner at the hearing for much of their respective cases. I will consider petitioner’s documents to the extent that they are relevant and probative.

        Petitioner's son is 15 years old, and is classified as speech impaired (Exhibit H/O-14). His prior educational experience is set forth in Application of the Board of Education of the Wappingers Central School District, Appeal No. 98-36, and will not be repeated here. That appeal involved the student’s placement for the 1997-98 school year. He reportedly continued to attend respondent’s schools through the end of the 1998-99 school year. In August 1999, petitioner’s son entered Brehm, which is located in Carbondale, Illinois. He was apparently placed there upon the recommendation of respondent’s committee on special education (CSE) with the assistance of the State Education Department (Exhibit H/O-10).

        This proceeding was begun in the fall of 1998, when petitioner requested an impartial hearing to review the CSE's recommendation for her son's educational program during the 1998-99 school year (Exhibit H/O-1). The hearing in this proceeding began on December 23, 1998. The hearing was adjourned on a number of occasions, as the parties attempted to settle their differences. In the summer of 1999, the hearing officer attempted to close the proceeding because he believed all of the outstanding issues had been resolved. In a letter to the hearing officer dated September 22, 1999, petitioner indicated that her son had been placed at Brehm for the 1999-2000 school year, but identified eight issues which she believed to be unresolved (Exhibit H/0-10).

        Petitioner alleged that the Board of Education had not yet sent an application fee or an executed contract for tuition to Brehm. She also asserted that respondent was obligated to place money in her son's student account at Brehm "to subsidize access to all aspects of the student's program". Petitioner also claimed that respondent had failed to provide her son with specialized equipment which had been recommended by evaluators and by his current teachers, and had failed to fix the boy's malfunctioning laptop computer. In addition, petitioner contended that respondent had failed to guarantee her travel expenses to attend a parent and family weekend at Brehm, and further claimed that the CSE chairperson should also participate in the weekend activities to prevent miscommunications when her son's individualized education program (IEP) was updated. Petitioner also raised the issue of whether respondent should ensure that New York State would pay for the medical expenses which her son might incur while at Brehm because his parents' medical insurance reportedly did not cover those expenses. Finally, she asserted that respondent had failed to reimburse her for out-of-pocket expenses in taking her son to Brehm in August 1999.

        On November 17, 1999, petitioner submitted another hearing request, in which she asserted that the Board of Education had failed to implement certain recommendations for specialized equipment which had been made by the Brehm staff (Exhibit H/O-15). The next day, she submitted another request in which she asked that respondent be required to purchase a replacement airline ticket for her son's return home for Thanksgiving after the original ticket had been lost or misplaced (Exhibit H/O–16). By agreement, those hearing requests were consolidated with petitioner's prior request into this proceeding (Transcript p.12).

        Most of the hearing in this proceeding on November 18, 1999 consisted of a colloquy among petitioner, respondent’s attorney and the hearing officer. Petitioner agreed that the issue of assistive technology for her son which she had identified in her September 22, 1999 letter had been resolved. She further agreed that the issues involving the repair of her son’s laptop computer and reimbursement of her expenditures in taking her son to Brehm in August had been resolved. She also conceded that Brehm had accepted a contract prepared by respondent for her son’s enrollment at Brehm (Transcript p. 47). Petitioner asserted that Brehm had not received payment for the application fee and for her son’s tuition as of October 28, 1999. Respondent’s attorney asserted that a check for those items had been made out to Brehm on or about September 28, 1999. With respect to the issue of funding the student’s personal account at Brehm, the hearing officer indicated that the school should provide an explanation of the activities to be funded before he could determine whether respondent was obligated to provide funding. He also suggested that petitioner contact the Dutchess County Department of Social Services about her son’s eligibility for health insurance coverage while attending Brehm, as a cost of his residential placement.

        In her November 17 hearing request, petitioner asserted that the CSE had disregarded the recommendations which Brehm made to it at the CSE’s October 25, 1999 meeting about assistive technology for her son. The CSE chairperson testified that an education coordinator and other Brehm staff had participated in the CSE meeting by telephone, and had discussed four assistive technology items. Two of the four, a Kurzweil reader, which is a program that allows a computer to convert written text into speech, and a computer program known as "Inspiration," were not listed as necessary assistive technology devices on the IEP which the CSE prepared on October 25, 1999 (Exhibit H/O-14). However, the IEP’s third annual goal indicated that the student would use Kurzweil Omni 3000 to improve his reading comprehension, and the fourth goal indicated that he would use that software and Inspiration to improve his written expression. The CSE chairperson testified that a Brehm administrator who participated in the CSE meeting had advised the CSE that the boy had access to appropriate software, including the Kurzweil reader, in the school’s computer lab, and did not require personal copies of the Kurzweil or Inspiration software (Transcript p. 87). Petitioner introduced a copy of a report dated October 29, 1999 from one of the boy’s teachers at Brehm, who indicated that the boy was performing independently with the ability to generalize on the Kurzweil (Exhibit P-2).

        The hearing officer advised petitioner that the teacher’s report did not refute the CSE chairperson’s testimony, and advised her to present other evidence, such as testimony by another participant in the CSE meeting. He also advised her that he would not direct respondent to purchase a replacement ticket for the boy’s flight home at Thanksgiving. The hearing officer reserved decision on petitioner’s request for reimbursement of her expenditures to attend the parent weekend at Brehm, and closed the hearing, subject to petitioner’s right to reconvene it if she had witnesses from Brehm to testify about her son’s assistive technology needs.

        The hearing did not resume. On January 6, 2000, the hearing officer rendered his decision. With respect to the first three issues involving payment of the application fee and tuition and a contract for the boy’s enrollment at Brehm, the hearing officer held for respondent. He ordered respondent to pay for whatever expenditures from the boy’s personal account at Brehm had been made for activities which the school notified respondent were mandatory parts of the boy’s academic program. The hearing officer ruled that the fifth and sixth issues involving petitioner’s initial request for assistive technology and the repair of her son’s laptop computer had been resolved. He upheld petitioner’s claim for reimbursement for the cost of attending the parent weekend at Brehm in October 1999 as being necessary to allow her to participate in her son’s education. However, he denied her claim to the extent that she sought reimbursement for her husband’s expenditures for participation in the same weekend. The hearing officer noted that the eighth issue had been resolved by an agreement to have petitioner seek health insurance coverage from the Department of Social Services, with assistance by respondent if necessary. He also noted that the ninth issue involving reimbursement of petitioner for her expenses in taking her son to Brehm in August had been resolved. With regard to the two issues raised by petitioner in her November 17 and 18 hearing requests, the hearing officer upheld the CSE’s decision not to recommend that the student have personal copies of the Kurzweil and Inspiration software, and declined to order respondent to provided a replacement ticket for the student’s flight home at Thanksgiving.

        Petitioner contends that the hearing officer erred in finding that the application and tuition fees had been paid to Brehm in a timely fashion, and that her son’s enrollment contract had been promptly prepared by respondent. Although she alleges that she was advised in September 1999 that her son’s placement at Brehm was "in jeopardy" because of respondent’s alleged non-payment of fees and tuition, petitioner does not allege that her son has suffered any harm as a result of respondent’s alleged delay. In view of the limited record with respect to these issues and the absence of any harm to petitioner’s son, I find that no useful purpose would be served by reviewing the hearing officer’s determination with respect to these issues.

        Petitioner also refers to the hearing officer’s decision regarding the issuance of a replacement airline ticket. I note that respondent asserts that the original ticket was found and used to transport the student home for Thanksgiving. Petitioner asserts that she "did not find the need to inform the Office of State Review that the misplaced ticket was found". I find that the issue is moot, and I will not review that part of the hearing officer’s decision (Application of a Child with a Disability, Appeal No. 95-52).

        Petitioner asks that respondent be directed to reimburse her for all out-of-pocket expenses relating to her son’s education, transportation, and social activities at Brehm because respondent has allegedly failed to comply with the hearing officer’s directive to obtain an explanation from Brehm of whether certain expenditures were program related. Petitioner is apparently referring to the fourth issue set forth in the hearing officer’s decision, relating to the use of her son’s personal account at Brehm to pay for activities which may have been related to the student’s educational program. In his decision, the hearing officer directed respondent to pay for those activities which were mandatory parts of the boy’s academic program, "upon receiving proper notification from [Brehm]". At the hearing, he suggested that either party could contact Brehm to obtain that information (Transcript p. 49). In essence, petitioner is not seeking review of the hearing officer’s determination, but is instead complaining that respondent has not adhered to it. In view of the ambiguity of the hearing officer’s remarks at the hearing, I will address the issue to the extent of directing respondent to obtain the information from Brehm. I have no reason to believe that it will not then adhere to the hearing officer’s directive to pay for the expenditures for mandatory parts of the student’s academic program.

        Petitioner seeks an order requiring the Board of Education to provide her son with the assistive technology hardware and software which were reportedly recommended by an assistive technology evaluator in September 1997 and the Brehm staff in 1999. The 1997 evaluation (Exhibit 22 to the Petition) was not in the record of the hearing. The evaluator indicated that a voice input system would permit the student to write more intelligibly, with less frustration and more speed, but she suggested that the CSE should consider whether it was the best approach in view of the boy’s learning style. She reached a similar conclusion with respect to a reading system, such as the Kurzweil. The evaluator therefore did not recommend that the boy be provided with specific devices.

        Petitioner alleges that the CSE chairperson unilaterally determined that the CSE would not recommend that her son receive the assistive technology devices recommended by the Brehm staff. The CSE chairperson testified about what happened at the October 25, 1999 CSE meeting. Although petitioner was offered the opportunity to refute the chairperson’s testimony, there is no evidence in the record which would refute that testimony. I have considered the single page report by a Brehm teacher which was introduced into evidence at the hearing (Exhibit P-2). The report indicated that petitioner’s son could independently perform certain functions when using the Kurzweil 3000. However, the teacher did not specifically recommend that the boy use the software, nor did she address the issue which the CSE chairperson had raised, i.e., did the student need a personal copy of the software installed in his computer. As noted above, two of the IEP annual goals indicated that the student would use one or both of the software programs at issue. That does not, however, resolve the question of whether the software needed to be installed on the student’s computer so that he could use it outside of school. While I am constrained to find on the limited record before me that petitioner’s request must be denied, I must note that it is imperative that the parties continue to work together to clearly identify the student’s assistive technology needs and to address those needs.

        Petitioner asks me to determine that the medical expenses of a student placed in an out-of-state school by a school district must be borne by either the school district or by New York State if the expenses exceed, or are not covered by, the medical insurance policy of the student’s parents. This is an issue about which no sworn testimony was taken and no documentary evidence was introduced. In essence, petitioner asks for an advisory opinion. I am precluded from giving such opinions. I will note for the benefit of the parties that Section 4401 (3) of the Education Law defines the term "maintenance" to include not only the room and board of a residential student, but also such reasonable medical expenses as are actually incurred by a student while attending a residential school. Maintenance expenses are borne by local social services districts (Section 4405 [1]).

        Petitioner also appeals from the hearing officer’s decision limiting her recovery of the cost of attending the parent weekend at Brehm to the cost of her room, food, car rental, and travel, i.e., airfare. She contends that she should also be reimbursed for the expenses of her husband, who accompanied her and participated in meetings with the student’s teachers. Respondent cross-appeals claiming that it is not responsible for any of petitioner’s expenditures.

        The same issue was raised in another appeal which petitioner brought involving the same parent and family weekend at Brehm for another son who also attends that school (Application of a Child with a Disability, Appeal No. 00-010). As was indicated in the decision in that appeal, the Office of Special Education Programs of the U.S. Education Department has opined that the reimbursement of a student’s parents for transportation expenditure not involving transporting the student to and from school, such as to attend conferences at a residential school, must be determined on a case-by-case basis (EHLR 213:164). The opinion indicated that parental trips to and from school which could be considered to be contributing to the achievement of the student’s IEP annual goals would be included within the federal definition of the term "related services" to be provided at no cost to the parents as part of the student’s free appropriate public education (see also Application of a Child with a Disability, Appeal No. 98-43).

        I have examined the student’s IEP, which indicates that he is classified as speech impaired, and has significant deficits in his reading, math, spelling, and writing skills. His IEP annual goals include improving his reading, writing, spelling, and organizational skills, as well as his auditory memory and perception, language processing and conversational skills. In addition, he was expected to improve his awareness of the nature of his disability and his conflict resolution skills. There is no indication in his IEP of any specific need to involve his parents in his educational program in order to achieve his IEP goals. Exhibits 13-16 annexed to the petition indicate that some of the weekend’s activities were social in nature, involving the Brehm Parents and Alumni Association, but that petitioner had eight appointments on Friday, October 29 and six appointments on Saturday, October 30, 1999, with individuals who were apparently Brehm staff. I find that record before me lacks sufficient information to determine that petitioner’s participation in the weekend activities contributed to the achievement of the student’s IEP annual goals. Therefore, I cannot agree with the hearing officer’s determination and must sustain respondent’s cross-appeal, at least in part.

        The invitation which petitioner received from Brehm indicated that if she did not intend to participate in the weekend, she had to make arrangements for her son to go home because residential services would not be provided during the weekend (Exhibit 13 to petition). The relevant state regulation, 8 NYCRR 200.12, provides in part that in addition to transporting the student to and from school at the beginning and end of the school year, and a certain number of times during the year, a school district must also transport or pay for the transportation of the student during periods when residential care is not provided at the student’s school. I have already determined in petitioner’s other appeal that it would be equitable to require respondent to compensate petitioner in an amount equal to the cost of transporting her other son home during the weekend, since respondent would have incurred that expense if petitioner had not attended the weekend. I find that it would be equitable to do the same thing in this appeal.

        I have considered petitioner’s other contentions, which I find to be without merit.

        THE APPEAL IS DISMISSED.

        THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

        IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that he ordered respondent to reimburse petitioner for her expenditures in attending the parent and family weekend at Brehm in October, 1999; and

        IT IS FURTHER ORDERED that respondent shall pay petitioner the equivalent of a round-trip airfare and ancillary expenses between Brehm and the student’s home.

 

 

 

Dated: Albany, New York __________________________
January 26, 2001 FRANK MUŅOZ