The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Springville-Griffith Institute Central School District
Hodgson Russ LLP, attorneys for respondent, Jerome D. Schad and Ryan L. Everhart, Esqs., of counsel
Petitioner appeals from an impartial hearing officerís decision denying petitionerís claims that the Springville-Griffith Institute Central School District (district) failed to offer a free appropriate public education (FAPE) to her child. The appeal must be dismissed.
The student was 17 years old at the time of the hearing and was residing with petitioner and five siblings. The student enrolled in the district on September 12, 2002 after transferring from the Barker Central School District, but she had been homeschooled by petitioner for several years (Exhibit 57). The studentís prior educational history is discussed in Application of a Child with a Disability, Appeal No. 98-49; Application of a Child with a Disability, Appeal No. 00-027; Application of a Child with a Disability, Appeal No. 02-047, and will not be repeated here in detail.
The student was classified as learning disabled while she was a student in the Barker Central School District. She has deficits in reading, spelling, and mathematics (Exhibit D 46). She also has a mild attention deficit hyperactivity disorder (ADHD), predominantly inattentive type. A slight to mild central auditory processing disorder (CAPD) was identified on one of four tests in a central auditory processing evaluation conducted in September 2000 (Exhibit D 59). Additionally, the student has mild deficits in sensory processing and motor coordination, and handwriting difficulties, which are described as fatigue while exerting excess pressure on the pencil when performing writing tasks (Application of a Child with a Disability, Appeal No. 02-047; Exhibit D 60).
The student attended seventh grade in the Barker Central Middle School during the 1998-99 school year where she received special education and related services, including counseling, pursuant to individualized education programs (IEPs) developed throughout the school year. Since the 1999-2000 school year, the student was homeschooled (see Application of a Child with a Disability, Appeal No. 02-047).
At the time of enrollment on September 12, 2002 petitioner informed the district that the student was disabled, and in need of special education and related services. The district arranged a meeting with petitioner on September 17, 2002 to discuss appropriate services and placement. The meeting was attended by petitioner, the student, the coordinator of special education services, the high school principal, a special education teacher, and a guidance counselor. The need for a reading teacher was discussed, and shortly thereafter, the principal arranged for a reading teacher, and for the student to attend the resource room five days per week (Transcript pp. 65-68, 239-241; Exhibit D 52).
On October 21, 2002 a Committee on Special Education (CSE) meeting was scheduled but was postponed at the request of petitioner. On October 29, 2002 another CSE meeting was scheduled. However, the CSE was unable to discuss the studentís IEP because petitioner was upset that the special education teacher brought two Barker IEPs to the meeting: the 2001 IEP that had been annulled, and a September 3, 2002 IEP (Exhibits D 66, 64). The special education teacher stated that the 2001 IEP was taken to the meeting because she assumed it was to be used to review and make changes "as we do with other students that come with an IEP from another school district" (Exhibit D 66; Transcript pp. 78-81). The CSE did not refer to the two IEPs, and the IEPs were never implemented (Transcript pp. 81, 550-551). The meeting was tabled until another meeting date could be arranged (Exhibit D 39).
Petitioner consented to testing of the student on October 30, 2002 (Exhibit D 48). After the CSE meeting, the special education teacher conducted achievement testing of the student on November 4, 2002 (Exhibit D 46). The student completed a questionnaire concerning transition planning on November 12, 2002 (Exhibit D 45). The special education teacher sought to obtain input from petitioner and to meet with her by sending a letter dated November 15, 2002. Petitioner responded by sending a letter dated November 18, 2002 that characterized the special education teacher as making threats, and she requested a CSE meeting (Exhibit D 40).
A second CSE meeting was scheduled on December 9, 2002 but was postponed until December 17, 2002. On December 17, 2002 petitioner attended the CSE meeting. The CSE recommended that the student be placed in regular education classes, with resource room services (Exhibits D 28, 32). The CSE held another meeting on February 14, 2003 that petitioner attended. The CSE developed an IEP that referred the student to Vocational and Educational Services for Individuals with Disabilities (VESID) for transition planning (Exhibits D 12, 15).
An impartial hearing was conducted over five days to address petitionerís complaints about the interim services provided prior to the IEP, the goals and objectives and the provision of services in the IEP, and the issue of academic credits. The impartial hearing officer (IHO) denied petitionerís claims that the district failed to provide a FAPE for her child and granted no relief.
Petitioner contends that the IHO erred in his ruling on the following issues:
1. Whether the district properly provided services to the student prior to the creation of an IEP in a timely manner.
2. Whether the studentís IEP properly discussed the studentís participation in physical education classes.
3. Whether the CSE properly considered the provision of counseling services for the student when formulating her IEP.
4. Whether the district properly provided assistive technology to the student according to the studentís IEP.
5. Whether the district provided appropriate resource room services to the student.
6. Whether petitionerís allegations regarding the studentís annual goals and objectives are moot since the 2002-2003 school year has ended.
7. Whether petitionerís allegations regarding the provision of transition services to the student is moot.
8. Whether the district provided appropriate occupational therapy services to the student.
9. Whether the issue of academic credits is properly addressed during an impartial due process hearing pursuant to New York Education Law Section 4404(1).
On the issue of interim services prior to the completion of the IEP, the record indicates that immediately after the petitioner enrolled the student into the district, a meeting was scheduled to discuss the studentís special needs and the circumstances surrounding her transfer. Petitioner explained that her daughter received special education and related services from the prior district, but that the prior IEP had been annulled by an impartial hearing officer. The district determined that a new IEP would be developed, and during the discussion of the IEP in September 2002 the district agreed to provide resource room services and specialized reading instruction. Petitioner did not object to the provision of resource room services and specialized reading instruction prior to the creation of the IEP. The student received resource room services that began on September 23, 2002 (Exhibit D 1). From October 2002 to December 2002 the CSE attempted to create the IEP. As noted in the IHO decision at pages 10-11, the creation of the IEP was complicated by the homeschooling, the annulment of the prior IEP, the need for testing, and by petitionerís unwillingness to meet with the special education teacher prior to the second CSE meeting. The district began providing services to the student on September 23, 2002 without objection by petitioner, and the delay in creating the IEP is attributable to petitioner.
On the issue of the studentís participation in physical education, petitioner claims that the IEP failed to reflect her daughter's need for adapted physical education. Commissionerís regulations, 8 NYCRR Section 200.4(d)(2)(vii)(c), require that when a student with a disability does not participate in a regular physical education program, the CSE must develop recommendations for the IEP that provide "the extent to which the student will participate in specially-designed instruction in physical education, including adapted physical education." However, the district found no need for adapted physical education for this student. According to the statement of the studentís present physical development in her IEPs, the student demonstrates "age appropriate vitality, gross motor skills, and physical stamina in her academic courses and the course of physical education" (Exhibits D12 page 4, D 28 page 4). I find that petitionerís claim is without merit.
On the issue of the provision of counseling, petitionerís claim that the student requires counseling is based upon a psychological evaluation of the student in 2000 that recommended "counseling services to focus on issues of adjustment as she returns to public school placement" (Exhibit D 59). Petitionerís reliance upon the 2000 report regarding the need for counseling is misplaced, since it appears from the record that this recommendation was based on the student having negative experiences in her former school district. The CSE reassessed the issue of counseling. According to the studentís IEPs in December 2002 and February 2003 she transitioned well into the district, and seemed "happy and adjusted to the high school setting" (Exhibits D 12, D 28 at page 4). The special education teacher also found that the student was "doing extremely, exceptionally well," and the English teacher stated that the student was comfortable with the other students and willing to ask questions (Transcript pp. 52, 619-620). Also, the district had a counselor available to the student at any time, and the student could call home when she requested (Transcript p. 794; Exhibit D 12, p. 10 Supplementary Aids and Services). I find that this claim is without merit.
On the issue of assistive technology, petitioner contends that the district violated her daughter's right to a FAPE by requiring that petitioner sign an agreement before providing her daughter with a computer. On February 14, 2003 the CSE discussed what assistive technology devices would be beneficial to the student, and petitioner requested a laptop computer and respondent agreed. However, when respondent tried to provide the laptop to the student, petitioner refused to sign a "Student Laptop Sign-out Agreement," and took a copy of the agreement for her attorney to review. The "Student Laptop Sign-out Agreement" is a simple consent form that acknowledges that the borrower is responsible for theft, damage, and loss of parts (Exhibit D 68h).
It is clear that the district acted reasonably and that the agreement holding a borrower of property responsible for theft or damage is consistent with federal regulation. The relevant issue is addressed in 34 C.F.R. Part 300, Appendix A, Question 36, which provides in part that: "Any assistive technology devices that are necessary to ensure FAPE must be provided at no cost to the parents, and the parents cannot be charged for normal use, wear and tear. However, while ownership of the devices in these circumstances would remain with the public agency, State law, rather than Part B, generally would govern whether parents are liable for loss, theft, or damage due to negligence or misuse of publicly owned equipment used at home or in other settings in accordance with a childís IEP."
I find that the districtís requirement that the borrower sign an agreement does not improperly deprive the student of the right to assistive technology.
On the issue of the resource room, petitioner contends that the IEP does not accurately describe the manner in which the student would receive mathematical instruction, and only identifies one named teacher as the provider. However, the IEP states that a special education teacher and a math teacher would provide support to the student in achieving her mathematical goals. There is no requirement that the manner be specified or that the names of the studentís providers be included on an IEP.
On the issues of goals and objectives and transition planning, although the hearing officer found that the issues were moot, I find that these issues must be addressed.
Petitioner asserts that the IEP does not include appropriate goals and objectives specific to the student's needs. Goals and objectives should relate to a student's areas of need identified in the evaluation process (34 C.F.R. ß 300.347[a]; 8 NYCRR 200.4[d][iii]). The goals and objectives were specific and appropriate to the studentís skills based upon the studentís levels of performance, and the goals addressed the weaknesses that the student was experiencing based on the results of the November 2002 testing in the areas of math, reading and spelling (Exhibit D 46).
The next issue to be determined was whether the CSE failed to meet its obligation to do transition planning and to include a statement of needed transition services on the student's IEP, as required by 8 NYCRR 200.4 (c)(2)(v). The studentís IEPs contained transition services, and the February 2003 contained additional information that listed VESID as the participating agency (see Exhibit D 28 page 6 Section II, page 10 Sections VI, VII; Exhibit D 12, page 6 Section II, page 11 Sections VI, VII). The special education teacher testified that the transition planning activities on the IEPs were appropriate for the student and were based upon the studentís responses to a transition questionnaire (Transcript pp. 38-42). The student was working on her diploma, taking driverís education, and was interested in college.
Petitioner claims that the transition services were not complete. The development of a statement of transition services requires the cooperation of a parent, student, and the CSE. It is clear from the record that the student completed the transition questionnaire but that petitioner delayed the discussion of transition services during the CSE meetings and declined to meet with a VESID representative (Exhibits D 15, 32, 45; Transcript pp. 28-29, 131-132). In this context, petitioner was sent a packet concerning transition planning, but failed to respond (Exhibits D 68A-G; Transcript pp. 29-35, 994). I find that respondentís IEPs appropriately addressed transition services, and petitioner failed to cooperate in proposing any changes to those services.
Petitioner argues that respondentís CSE should provide occupational therapy based upon a statement in the studentís IEP that she "needs assistance with fine motor tasks when requested" (Exhibits D 12, 28). However, petitioner stated during the February 14, 2003 CSE meeting that occupational therapy could not be fitted into the studentís schedule and that she would accept the omission of occupational therapy (Exhibit D 15).
On the issue of course credit, this issue is not properly raised or addressed in an impartial due process hearing. Impartial due process hearings are limited to issues concerning the identification, evaluation and educational placement of the student according to 34 C.F.R. Section 300.507(a)(1).
Petitionerís complaints are without merit and respondent provided a FAPE for the student and tried to implement the educational program for the student.
I have considered petitionerís remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
Albany, New York
October 31, 2003