The State Education Department
State Review Officer

No. 01-031

 

 

 

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

Appearances:
Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Susan T. Johns, Esq., of counsel

 

DECISION

        Petitioners appeal from an impartial hearing officerís decision holding that it was for respondentís Committee on Special Education (CSE) to determine in the first instance whether petitionersí daughter should participate in a field trip with her kindergarten class. The hearing officer denied petitionersí request for an order requiring respondent to provide two and one-half hours of one-to-one special education instruction to compensate for the instructional time their daughter missed when petitioners kept her home on the day of the field trip. Petitioners seek an order requiring respondent to provide alternative educational services to their daughter whenever her class is on a field trip that petitioners deem to be not in the childís best interests. The appeal must be dismissed.

        At the outset, I note that petitioners object to respondentís answer on the ground that it is untimely. Their petition was served upon respondent on April 11, 2001. Respondentís answer was due by no later than April 23, 2001, but was not served until May 7, 2001. I note that there was some uncertainty about the validity of petitionersí service of the petition. As a result, the Office of Counsel of the State Education Department advised the parties on April 23 that respondent was not obligated to answer the petition. That matter was resolved thereafter, and the answer was submitted. Under the circumstances, I will exercise my discretion and accept the answer.

        Petitioners' daughter was a 6-year-old kindergarten student at respondent's Mott Road Elementary School during the 2000-01 school year. Prior to attending the half-day program at Mott Road Elementary, she attended a prekindergarten program at the Jowonio Enrich Program at Syracuse University. The child had been initially diagnosed with infantile autism in October 1997, and had been receiving services including special education, speech/language therapy and occupational therapy. She began attending the Mott Road Elementary School in February 2000 to enable her to be slowly acclimated to the surroundings of the school.

        On May 11, 2000, respondentís CSE prepared the childís individualized education program (IEP) for the 2000-01 school year. The CSE recommended that the child be classified as autistic, and that she be mainstreamed in a regular education half-day kindergarten class, with an individual teaching assistant. The IEP provided that the childís school day would be extended by one hour per day in order for her to receive special education, speech/language therapy and occupational therapy (Exhibit D-1). The IEP did not indicate any limitation upon the childís participation in the activities of the kindergarten class. Petitioners were reportedly not opposed to their daughterís participation in some field trips, and the child did participate without incident in a class field trip in the fall of 2000 (Transcript p. 32).

        On December 8, 2001 all kindergarten classes at the Mott Road Elementary School were scheduled to attend an hour-long performance of the "Adventures of Rudolph", a ballet to be performed at the Onondaga County Civic Center. Petitioners were concerned about their childís potential reaction to this field trip. On November 20, 2000, the childís father telephoned the principal of the Mott Road Elementary School to express his concerns and request that the school district provide an alternate in-school program during the time when the class would be on the field trip. In subsequent conversations with the principal on November 30, and the Assistant Superintendent for Special Services on December 1 and 5, the childís father was advised that the district would provide the extended day program on December 8, but would not provide instruction to the child during the time when all kindergarten classes were at the ballet. The Assistant Superintendent for Special Services advised the father that any change in the childís program should be discussed with the CSE (Transcript p. 63). However, the father declined to request a CSE meeting to discuss the matter.

        The school district made special arrangements for the child to attend the ballet by hiring a substitute teacher to be with the rest of the class so that the regular teacher and the teaching assistant could sit with petitionersí daughter, and by securing aisle seats for the performance. The district also arranged to have a small school bus standby at the Civic Center, and to have a separate room available at the Civic Center in the event the child reacted poorly to the event and needed to leave the performance (Transcript pp. 62-63). Petitioners found the districtís plans to be unacceptable, and kept their child home on the day of the performance.

        On the day of the performance, petitioners requested an impartial hearing for the purpose of revising their childís IEP to provide for an alternative in-school program for her on those occasions when petitioners believed that it would not be in her best interest to participate in a field trip (Exhibit D-2). They also sought an order requiring respondent to provide compensatory education to their child for the services she missed when her class went on the field trip on December 8, 2000. The impartial hearing was held on January 31, 2001. In his decision which was rendered on March 14, 2001, the hearing officer noted that pursuant to the Regulations of the Commissioner of Education the extent to which a childís disability affects his participation and progress in the regular education curriculum should be set forth in the studentís IEP. He found that field trips were an integral part of the regular education curriculum, and concluded that the CSE was the proper forum for determining whether the childís educational program should be altered.

        Petitioners are not challenging the recommendation of the CSE or the educational programs offered under their childís IEP. Rather, they are seeking a change in the IEP to afford them the opportunity to decide whether their daughter should participate in certain parts of respondentís curriculum. I agree with the hearing officer that this is a matter that should be first addressed by the CSE.

        Petitionersí daughter is mainstreamed and educational field trips are a component of her mainstreamed program. The Individuals with Disabilities Education Act, as amended in 1997, provides that a childís IEP shall include an explanation of the extent, if any, that the child will not participate with nondisabled children in the regular class activities (20 U.S.C. ß 1414[d][1][A][iv]; see also 8 NYCRR 200.4[d][2][vii][a). The IEP provides that the child is fully included in the kindergarten program and provides for no exceptions.

        Any change in the nature of a student's program must be recommended by the CSE (Application of a Child with a Disability, Appeal No. 93-30; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Handicapping Condition, Appeal No. 92-39; Application of a Child with a Handicapping Condition, Appeal No. 92-22; Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 52 [1989]). It must be noted that petitioners were offered an opportunity to meet with the CSE on an emergency basis prior to the field trip in question, but they declined to do so.

        I have considered all of petitionersí remaining claims and find them to be without merit.

 

        THE APPEAL IS DISMISSED.

 

 

 

Dated:

Albany, New York

__________________________

September 18, 2001

FRANK MUÑOZ