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 Ardsley Union Free School District
Regina Skyer & Associates, attorney for petitioners, Deusdedi Merced, Esq., of counsel
Jaspan Schlesinger Hoffman LLP, attorneys for respondent, Carol A. Melnick, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which determined that the transportation services provided by respondent were appropriate and denied their request for reimbursement for transportation expenses for the 2002-03 school year. The appeal must be dismissed.
At the time of the hearing, petitioners' son was 12 years old and attended a ten-month, 12:1+2 seventh grade class at the Summit School (Summit) located in Queens, New York. Summit is a private school approved by the Commissioner of Education to contract with school districts for the provision of special education services.
The student has a medical diagnosis of autism and is classified as emotionally disabled/learning disabled (Exhibit 6; Transcript p. 48). The student's program, placement and classification are not in dispute (Transcript p. 44). The sole issue before the impartial hearing officer was whether the transportation services provided by respondent were appropriate (Exhibits 8, 11, 12; IHO Decision p. 9; Transcript p. 46).
The Weschler Intelligence Scale for Children - III (WISC-III) was administered by respondent's school psychologist in January 2001, as part of the student's triennial review (Exhibit 1). The results yielded a verbal IQ score of 107, a performance IQ score of 77 and a full scale IQ score of 92, and identified significant weaknesses in processing complex visual information. Interview and projective testing also conducted during his triennial review suggested that the student expected schoolwork to be easy for him, and that he became angry and frustrated when it was not, resulting in performance anxiety. The student was described as "baffled" by social relationships, having difficulty reading facial expressions and interpreting gestures, and frequently misinterpreting social situations (Exhibit 1). Respondent's school psychologist opined that petitioners' son continued to require intense special education services and the support of a 1:1 aide.
The student's psychological evaluation was updated on November 26, 2001, while he was in sixth grade (Exhibit 2). Respondent's school psychologist stated that while the student continued to make academic progress, he had become increasingly agitated at school. She further noted that the student's agitation was often preceded by performance anxiety, and that "[a]t the slightest hint that a task might be difficult he becomes angry, makes self-deprecating comments, becomes alternately belligerent or hopeless, and it becomes difficult to maintain him in the classroom" (Exhibit 2).
By letter dated February 1, 2002, petitioners notified respondent's superintendent that their son was "in need of an out of district placement to better deal with his educational and emotional issues that have come into greater focus this past year" (Exhibit 4). This letter further stated that petitioners desired to send their son to Summit, but had learned that respondent had not sent an application to Summit due to the distance from petitioners' home and lack of available transportation. Petitioners' correspondence advised that the distance to Summit was 26 miles and reminded respondent's superintendent that respondent was legally obligated to transport their son (Exhibit 4).
Respondent's school psychologist visited Summit on February 8, 2002. In her report she stated, "[r]ound trip mileage from Ardsley Middle School to Summit in Queens is 60 miles and this should be considered, along with other factors, when placement decisions are made by the [committee on special education]" (Exhibit 5). Respondent's Committee on Special Education (CSE) met on April 10, 2002 to review the student's individualized education program (IEP) and recommended that the student attend a ten-month, 12:1+2 special class at Summit (Exhibits 6, N). The CSE also recommended 1:1 counseling once per week for 30 minutes, 5:1 speech-language therapy twice per week for 30 minutes, and transportation (Exhibits 6, N).
The student began attending Summit shortly after the CSE's recommendation (Petition ¶ 13). Respondent was unable to provide transportation until the start of the 2002-03 school year and arranged to reimburse petitioners for transportation costs incurred by them during the 2001-02 school year (Exhibit K). The record reflects that transportation remained an issue between the parties throughout the summer and into the start of the 2002-03 school year (Exhibits 8, 10, 11, 12).
By letter dated September 5, 2002, the second day of school, the student's treating psychiatrist notified respondent's superintendent that a bus trip in excess of one hour would jeopardize the student's emotional health (Exhibit 10). By letter dated September 13, 2002, petitioners advised respondent that they were refusing the transportation services arranged by respondent because of the duration of the bus trip, and that they would continue to provide their own transportation to and from Summit (Exhibit 12). In November 2002, respondent began transporting the student in the mornings (Transcript p. 46). Petitioners continued to provide their own afternoon transportation.
By letter dated September 10, 2002, petitioners requested an impartial hearing (Exhibit A). At the hearing, petitioners argued that the duration of their son's transportation services was inappropriate and sought reimbursement for transportation expenses. The impartial hearing began on March 26, 2003. In a decision dated April 28, 2003, the hearing officer found that respondent's transportation arrangements were appropriate and denied petitioners' request for reimbursement.
In this appeal, petitioners contend that the hearing officer erred in finding respondent's transportation arrangements to be suitable and in denying their request to be reimbursed for the transportation they provided for their son during the 2002-03 school year. With their petition, petitioners have supplied an affidavit stating that respondent began transporting their son in the afternoon on May 8, 2003 (Pet'r Aff. ¶ 15). Petitioners further aver that since their son began afternoon transportation, two incidents of inappropriate behavior by the student have occurred on the bus (Pet'r Aff. ¶¶ 20-25).
Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer's decision, if such evidence was unavailable at the time of the hearing, or when such evidence is necessary to enable me to render a decision (Application of the Bd. of Educ., Appeal No. 02-024). I find that the information in the affidavit submitted by petitioners with their petition and the accompanying bus conduct report were unavailable at the time of the hearing. Accordingly, I will accept petitioners' submissions (Application of the Bd. of Educ., Appeal No. 02-024; Application of a Child with a Disability, Appeal No. 02-009).
Boards of education are obligated to provide transportation to publicly placed private school students with disabilities (20 U.S.C. §§ 1401, 1412[a][B]; 34 C.F.R. §§ 300.24, 300.401; Educ. Law § 4402[a]). State law requires that such transportation be suitable, but neither federal nor state law provides specific limitations on duration of travel (Educ. Law § 4402[a]).
At issue in this appeal is whether the transportation arrangements respondent made for petitioners' son were appropriate to his needs. At the hearing, the bus driver testified that the transport time from home to school was "about an hour, an hour and ten minutes, depending on traffic" (Transcript p. 61). He also testified that he had never had any problems with the student and that, "he gets on, speaks in the morning, and that's it. Sometimes he goes to sleep. Sometimes he talks. Sometimes he doesn't. Most of the time, he doesn't" (Transcript p. 62). The driver further testified that the student's bus monitor had never indicated that the student was a problem on the bus, and that the student's behavior never changed even on days when traffic resulted in a longer transport time (Transcript pp. 62-63). The student's morning bus monitor also testified that the student is well behaved and stated that she had never observed him become angry or upset on the bus, even on days when the ride was longer than usual (Transcript pp. 108-10).
Respondent's school psychologist testified that during the student's fifth grade year, she had contact with him once per six-day cycle (Transcript p. 134). She further testified that she disagreed with the letter written by the student's treating psychiatrist, as the student exhibited inappropriate behaviors when he became anxious about his academic performance, and riding the bus did not exert any academic pressures on the student (Transcript pp. 131, 133). The school psychologist stated, "I do not believe that riding on a bus or in a car would be anxiety-provoking for [the student]. Changes in routine are anxiety-producing for him. Academic pressure is anxiety-producing. Some social interactions might be anxiety-producing, but riding in a bus or on a train or in a car would not be anxiety-producing" (Transcript p. 148). She also opined that transportation would not necessarily upset an autistic child unless it was out of his or her routine (Transcript p. 157).
The student's treating psychiatrist did not testify at the hearing, nor did a representative of Summit. The student's father testified and failed to proffer any evidence linking travel time to an adverse effect on his son's education (See Matter of Handicapped Child, 25 Ed Dept Rep 280 ). In addition, there is no evidence in the record that the student has ever arrived late to Summit, nor has he missed any class time as a result of respondent's transportation services. There is nothing in the record to indicate whether the two incidents of inappropriate behavior on the afternoon bus ride were due to the increased travel time, a change in the student's routine (Transcript p. 148), or other factors.
Based upon the foregoing, I find respondent's transportation services are suitable and appropriate.
THE APPEAL IS DISMISSED.
Albany, New York
July 14, 2003
PAUL F. KELLY