The State Education Department
State Review Officer

No. 04-020

 

 

 

 

 

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 Buffalo

 

 

Appearances:
Bouvier, O'Connor, LLP, attorney for petitioner, Arthur H. Ackerhalt, Esq., of counsel

 

Hon. Michael B. Risman, Corporation Counsel, attorney for respondent, Denise M. Malican, Esq., of counsel

 

 

DECISION

 

Petitioner appeals from a decision of an impartial hearing officer which determined that respondent's Subcommittee on Special Education (subcommittee), which developed petitioner's son's individualized education program (IEP) for the 2003-04 school year, was improperly composed, but that the subcommittee's act of removing music therapy services from the child's IEP was not a denial of a free appropriate public education (FAPE), and ordered respondent's Committee on Special Education (CSE) to convene to devise an appropriate IEP without music therapy services. The appeal must be sustained.

 

Petitioner's son was born with Down syndrome. He attended preschool in the Baltimore County Public School System (Baltimore), where, in spring 2000, he was referred to their IEP team,1 and a series of evaluations was conducted (Exhibit 21). He was classified as developmentally delayed and provided with special education and related services pursuant to IEPs for two extended school years, which included physical therapy, speech therapy, and occupational therapy (Exhibits B, C, E). His classroom teacher found that when she sang directions to the child it assisted him in complying with the directions (see Exhibit 21, p. 1). A music therapy evaluation was performed (Exhibit 21), and in January 2002 direct music therapy services were added to the child's IEP in individual sessions once a week for 30 minutes (Exhibit B, p. 13).

 

According to the testimony later elicited at the impartial hearing, music therapy is a service provided by a board certified music therapist (Transcript I pp. 322-23, 121-22) that is most commonly used with children with developmental disabilities (Transcript II2 p. 6) as an alternative means of communication to uncover different learning styles (Transcript II p. 5). According to the American Music Therapy Association (AMTA), music therapy focuses on trying to improve the child's sensory motor skills, cognitive skills, communication skills, emotional skills and social development skills by having the child sing songs with the therapist and learn to play various musical instruments (see "Music Therapy and Special Education" and "Music Therapy and Young Children" at http://www.musictherapy.org; see also Transcript II p. 5). The song structure reportedly helps the child with developmental disabilities internalize information, retain it, then retrieve it (Transcript II p. 25). Other areas that reportedly can be improved through music therapy include eye contact, redirection, focus, and motivation (see "Music Therapy and Special Education" and "Music Therapy and Young Children" at http://www.musictherapy.org; see also Transcript II pp. 23, 8, 59-60; Transcript I pp. 259, 261, 314). Not all children with developmental disabilities are appropriate candidates for music therapy, and a proper music therapy evaluation is necessary to determine if the child will benefit from such services (see Carrollton-Farmers Indp. Sch. Dist., 25 IDELR 1232 [SEA TX 1997]; see also Transcript II pp. 10-11, 44-45).

 

In summer 2002, when petitioner's son was turning five years old, she and her son moved into respondent's school district (see Exhibit 15; Transcript I p. 196). In June 2002, petitioner referred her son to respondent's CSE, which classified the child as mentally retarded, and devised an IEP for him placing him in an additional year of preschool in a 6:1+2 integrated setting at the Westminster Presbyterian School, staffed by Heritage Educational Center (Heritage), for the rest of summer 2002 and the following 2002-03 school year (Exhibit 15). When respondent's subcommittee of the CSE originally drafted the IEP, although it noted that the child "benefited markedly to music as a prompt or facilitator" and found that "music is a wonderful assist to transition [the child] from one activity to another, to recapture his attention, and to provide support when addressing skill development" (Exhibit 15, p. 13), the subcommittee removed music therapy services from the child's IEP and developed goals and objectives more general than the Baltimore IEPs (see Exhibit 15, p. 21; Transcript I pp. 115-16). Petitioner objected to the removal of music therapy services and brought the matter to the full CSE (Transcript I pp. 115-16). The resultant 2002-03 IEP restored music therapy services to the child for summer 2002 and the 2002-03 school year once a week for 30 minutes in a direct individual session, restored the music therapy goals and objectives contained in the Baltimore 2001-02 IEP (Exhibit 14, p. 34; see Exhibit 15, pp. 6-10; Transcript I p. 311), and added a 30-minute music therapist-teacher consultation session once a week (see Exhibit 14, p. 34; Transcript I p. 292).

 

Half way through the school year, a mid-year progress report from January 2003 completed by the district's special education teacher indicated that testing on the social development component of the Developmental Assessment of Young Children (DAYC) administered in November 2002 yielded a standard score of 71 (third percentile), with an age equivalent of 34 months, compared to the child's actual chronological age at the time of 64 months (Exhibit 18, p. 3). The report noted that the child demonstrated delays in socialization skills and expressive language, and functioned at a preschool level (Exhibit 18, p. 4). The child was described as agreeable and responsive to direction and authority, but needing adult attention and supervision in most activities (Exhibit 18, p. 4). The report noted that new skills needed to be task-analyzed, and the use of positive reinforcement and verbal prompts were encouraged to help manage the child's behavior (Exhibit 18, p. 5). The child's management skills were reportedly still at a preschool level (Exhibit 18, p. 4).

 

On March 18, 2003 respondent's subcommittee convened to develop the child's extended year program for summer 2003 and the upcoming 2003-04 school year (Exhibits 17, 14; Transcript I pp. 303, 335). The IEP developed by the subcommittee at the March meeting recommended that the child remain at Heritage for the summer, then be placed in first grade in respondent's public school in an integrated classroom for the 2003-04 school year (Exhibit 14, pp. 1, 17). Music therapy services were originally recommended in the same frequency and duration as directed by the CSE in the 2002-03 IEP (Exhibit 14, pp. 18, 31, 34), consistent with the recommendation in the child's music therapist's report (Exhibit 20). The subcommittee decided to adjourn, allegedly because neither a physical therapy nor an occupational therapy evaluation had been completed,3 and to reconvene in August to discuss issues such as the continuation of music therapy and to finalize the IEP for the 2003-04 school year (Transcript I pp. 302-03, 335-37).

 

On August 27, 2003 the subcommittee reconvened (Exhibits 16, 13). According to the district's August 2003 IEP, the child was able to feed himself independently (Exhibit 13, p. 2), and was able to follow simple one- and two-step directions and use two-word sentences, but his articulation skills were described as severely delayed and he reportedly supplemented his speech with the use of some sign language (Exhibit 13, p. 2). The child's academic and social skills were also described as delayed (Exhibit 13, pp. 2, 3). The IEP noted that the child could greet peers by their first names, engage in parallel play and share materials with classmates, but he still required close supervision to participate in general education activities (Exhibit 13, pp. 3, 6). The subcommittee had before it the progress report from the child's current music therapist recommending continuation of music therapy services with suggested goals and objectives for the 2003-04 school year (Transcript I pp. 101, 103, 175-76, 298; Exhibit 20). The report noted that the child had made progress through music therapy (Exhibit 20). He followed start/stop directions when given musically and verbally with 80% accuracy, spontaneously created new lyrics with increasing accuracy and clarity (see Transcript I pp. 316-17), correctly counted from one to five (see Transcript I p. 339), learned the days of the week (see Transcript I p. 339), could identify weather (see Transcript I p. 339), counted out syllables with music, increased eye contact (see Transcript I p. 314), improved his pincer grip (see Transcript I pp. 314-15), and was naming shapes and colors with greater accuracy (see Transcript I pp. 313-314, 317; Exhibit 20). The therapist also noted that the child's motivation to learn and attention to tasks increased with music therapy (Transcript I p. 320). The therapist recommended that the child continue music therapy for the 2003-04 school year and developed a series of goals and objectives with progressive levels of difficulty including correctly naming five missing words in familiar songs in four out of five trials; initiating five consonant-vowel sounds during improvised songs with 85% accuracy; correctly following two to three step musical directives in three out of four trials; independently naming colors and shapes with 85% accuracy; and independently counting from 1-10 with 85% accuracy (Exhibit 20). The subcommittee also had before it an educational summary report from Heritage, which recommended the continuation of music therapy services (Exhibit 18, p. 2; Transcript I p. 299). The child's music therapist was not invited to attend the child's subcommittee or CSE meetings (Transcript I p. 319). The subcommittee's resultant 2003-04 IEP placed the child in first grade in respondent's public school system in a 6:1+1 integrated setting, continued to provide speech, physical, and occupational therapy services to the child, and added an individual aide (Exhibit 13); but, over the parent's objection (Transcript I pp. 97-99, 182, 183-84), removed music therapy services from the IEP (Exhibit 13, p. 15; Transcript I pp. 97-99). By letter dated September 26, 2003, petitioner again objected to the subcommittee's removal of music therapy from the child's IEP, and requested an impartial hearing (Exhibit 12). An impartial hearing officer was appointed, and requests for extensions prior to the start of the hearing were granted to both parties (Exhibit 7).

 

In response to the child's mother's August 2003 request, the school psychologist on November 5, 2003 conducted a psychological evaluation of the child (Transcript I pp. 110-11, 155, 157; Exhibit G). Administration of the Stanford-Binet Intelligence Scale: Fifth Edition yielded a verbal IQ score of 44, a nonverbal IQ score of 47 and a full-scale IQ score of 43 (moderately impaired range) (Exhibit G, p. 2). Completion of the Vineland Adaptive Behavior Scale resulted in a standard score of 61, indicating a developmental age of one year and eleven months, compared to his actual chronological age of six years and four months (Exhibit G, p. 3). The psychologist described the child as moderately retarded (Transcript I p. 111), with expressive language delays (Transcript I p. 159).

 

Before the hearing began, petitioner requested an interim ruling determining the child's pendency placement during the course of the proceedings to be the program contained in the 2002-03 IEP, which included music therapy services (Exhibit 4). On November 18, 2003 the hearing officer granted petitioner's request (Exhibit 3). That decision was not appealed and is therefore final (34 C.F.R. 300.510[a]; 8 NYCRR 200.4[i][4][ii]).

 

The hearing commenced on December 9, 2003 and concluded on January 21, 2004. The hearing officer rendered his decision on March 5, 2004 finding that the subcommittee that met on August 27, 2003 was improperly composed, and that all actions taken by that subcommittee, including the creation of the August IEP, were "in violation of law" and therefore "null and void" (IHO Decision, p. 19). Nevertheless, the hearing officer went on to find that respondent had met its burden of showing that it had offered the child a FAPE for the 2003-04 school year, concluding that music therapy services were not necessary for the child to receive a FAPE (IHO Decision, p. 20). He then ordered the CSE to reconvene to "recommend an appropriate IEP consistent with the decision herein," and ordered that it include "an appropriate level of music content" (id.). He also ordered that respondent provide 11 weeks of compensatory music therapy services for the period prior to the interim ruling when the child did not receive music therapy services (id.).4 Petitioner appeals, arguing that the improper composition of the subcommittee alone amounted to a denial of FAPE; and, in the alternative, that denial of music therapy services to the child resulted in a denial of FAPE, and that the hearing officer improperly shifted the burden of proof to the parent and usurped the power of the CSE. Petitioner requests that I annul those portions of the hearing officer's decision which found that the district offered the child a FAPE and that ordered the CSE to reconvene to develop an IEP consistent with the hearing officer's finding that music therapy was not necessary for the child to receive a FAPE. Petitioner also requests that I order music therapy services to continue for the 2003-04 school year.5

 

First, I will address two procedural matters. I note that respondent admits it served its Answer on petitioner one business day late under the applicable regulatory provision (8 NYCRR 279.5) (see Malican Affirmation). Respondent asks that I excuse the delay because, since the Petition was served during spring break, no school personnel were available to respond to the Petition until five days later, and the superintendent was not available to verify the Answer until the day before it was served (see Malican Affirmation). I note that petitioner does not object to late service in her reply papers. I may accept a late answer where there is a reasonable explanation for the delay and the petitioner would not be prejudiced by the acceptance of the answer (Application of a Child with a Disability, Appeal No. 00-006 [one-week delay in service of answer excused for good cause]). Since the delay was of a very short duration and unlikely to prejudice petitioner, and I find respondent's explanation reasonable, I will exercise my discretion and accept respondent's Answer and Memorandum of Law (id.). Next, attached to its Answer, respondent offers for my consideration the child's progress reports for the first three marking periods of the 2003-04 school year, two of which occurred subsequent to the conclusion of the hearing (Answer, Exhibit A). The State Review Officer may consider additional evidence not available at the hearing if such evidence is necessary to enable him or her to render a decision (Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-098). To the extent that the child's progress reports for the three marking periods may indicate how the child progresses in the general curriculum, both with and without music therapy services, and such information may aid me in rendering a decision, I will admit them.

 

The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 - 1451 [1997]) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. 1400[d][1][A]). A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. 1401[8]; 34 C.F.R. 300.13; see 20 U.S.C. 1414[d]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-092).

 

To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v Rowley, 458 U.S. 176, 206, 207 [1982]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see, W.A. v Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]).

 

In the instant case, petitioner argues that the August 27, 2003 IEP that discontinued music therapy services is invalid because the composition of the subcommittee that developed it did not comply with the procedural requirements of the IDEA, which consequently resulted in a denial of FAPE. Petitioner is correct in that assertion.

 

Under New York State Education Law, boards of education in city school districts in cities having in excess of 125,000 inhabitants, such as respondent's, can appoint subcommittees on special education to the extent necessary to ensure timely evaluation and placement of students with disabilities (N.Y. Educ. Law 4402[1][b][1][d]; 8 NYCRR 200.3[c]). Such subcommittees have the authority to perform the same functions as the CSE, with a few limited exceptions which are not relevant in this appeal (see N.Y.Educ. Law 4402[1][b][1][d]; 8 NYCRR 200.3[c][4]). The subcommittees are required to evaluate each child with a disability at least annually and report to the CSE (N.Y. Educ. Law 4402[1][b][1][d]; see 8 NYCRR 200.3[c][6]). In addition, the subcommittee must immediately refer to the CSE, upon written request of the parent, any matter in which the parent disagrees with the subcommittee's recommendation concerning a modification or change in the identification, evaluation, educational placement, or provision of a FAPE to the student (N.Y. Educ. Law 4402[1][b][1][d]; 8 NYCRR 200.3[c][5]). Each subcommittee is required to include as members: the student's parents; one regular education teacher of the student (if the student is or may be participating in the regular education environment); one special education teacher of the student, or, if appropriate, a special education provider6 of the student; a representative of the school district involved in special education; an individual who can interpret evaluation results; such other persons having knowledge or special expertise regarding the student as the school district or parents shall designate; if appropriate, the student; and a school psychologist whenever a new psychological evaluation is being reviewed or a change to a more restrictive program is being considered (N.Y. Educ. Law 4402[1][b][1][d]; see N.Y. Educ. Law 4402[1][b][1][a]; 8 NYCRR 200.3[c][2]). In addition, in determining the composition of such committees, "the committee shall invite the appropriate professionals most familiar with a student's disability or disabilities to attend any meeting concerning the educational program for such student" (N.Y. Educ. Law 4402[1][b][1][b] [emphasis added]; see N.Y. Educ. Law 4402[1][b][1][a][ix]; 8 NYCRR 200.3[c][2][vii]).

 

In the instant case, there is some question as to whether the meeting held on August 27, 2003 was to be a subcommittee meeting or a full CSE meeting. On August 14, 2003, the district sent two separate letters, one notifying the parent of the upcoming meeting and one notifying Heritage of the upcoming meeting (see Exhibit 16). State and federal regulations require that school districts must inform the parents of the name and title of those persons expected to attend the meeting (34 C.F.R. 300.345[b][1][i]; 8 NYCRR 200.5[c][2][i]; see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 7). The letter sent to the parent described the August 27 meeting as a "subcommittee" meeting, and listed the members as an educational specialist, a school psychologist, the parent, and, if the parent so requested, the child's physician (Exhibit 16, p.1). The letter sent on the same day to the principal of Heritage, however, referred to the August 27 meeting as a CSE meeting, and instructed Heritage to "[p]lease note that both the appropriate Special Education and Regular Education teachers must attend the meeting" (Exhibit 16, p. 2). It is uncontroverted that the only people present at the August 27, 2003 meeting were the chairperson, the school psychologist, an educational specialist, and the parent (Transcript I pp. 99, 103; Exhibit 13, p. 17). Initially, I note my concern that the letters announcing notice of the same meeting described it as a subcommittee meeting to the parent, but as a full CSE meeting to Heritage. Under state regulations, all notices of subcommittee meetings are required to alert the parent that if the parent disagrees with any recommendation by the subcommittee that, upon receipt of a written request by the parent, the subcommittee must refer the matter to the full CSE (8 NYCRR 200.5[c][2][vi]). This information was not included in the apparent form letter to the parent which referred to the meeting as a "subcommittee" meeting (Exhibit 16, p. 1). Second, I note that the letter to the parent was also improper notice in that it failed to notify the parent of two of the required members of the subcommittee that, under New York State law, must attend; namely, a regular education teacher of the child, and a special education teacher of the child, or if appropriate, a special education provider of the student. These two members were required to attend and participate regardless of whether the meeting was a subcommittee meeting or CSE meeting. As noted, the record indicates that neither of these required members attended the meeting. Hence, even if the August 27 meeting was intended to be a subcommittee meeting, I find that it was improperly constituted in that it lacked at least two of the mandated members (see Application of a Child with a Disability, Appeal No. 98-37).

 

The presence of the child's regular education teacher at the CSE meeting is particularly important in this instance because one of the reasons that the subcommittee claimed it removed music therapy from the child's IEP was that some members believed that the general curriculum would contain sufficient music content for the child (Transcript I pp. 97, 99, 100). I find that it was improper for the three school district members who were present to make this determination without the required regular education teacher member who would be teaching the child's class. In the official interpretation of the federal regulations, the U.S. Department of Education stresses that "regular education teachers [as members of the CSE] have an increasingly critical role (together with special education and related services personnel) in implementing the program of FAPE for most children with disabilities, as described in their IEPs" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 1). Thus, regular education teachers are included in CSE teams precisely because they "have important expertise regarding the general curriculum and the general education environment" (id.) and must participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement, progress, and participation (see 34 C.F.R. 300.346[d]; 8 NYCRR 200.3[d]; see also 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Questions 24, 26). In the instant case, the child's regular education teacher would have been able to illuminate the extent to which music content is offered as part of the general curriculum in the integrated classroom, and the likelihood that it would meet the child's specific needs (i.e., in following directions, refocusing, learning pre-academic skills). Therefore I find that the lack of such informed input from the regular education teacher amounted to a denial of FAPE for the child (see Arlington v. D.K., 2002 WL 31521158, at 9 [S.D.N.Y. 2002]; see also Application of a Child with a Disability, Appeal No. 98-37 [subcommittee meeting held without regular education teacher found to be a denial of FAPE]). Moreover, since one of the main purposes of the meeting was to decide whether or not to continue music therapy services, I find that the child's music therapist should have been invited to attend as "an appropriate special education provider to the student" (8 NYCRR 200.3[c][2][iii]; see N.Y. Educ. Law 4402[1][b][1][d], [a][iii], [a][ix] 8 NYCRR 200.3[c][2][vii]; see also N.Y. Educ. Law 4402[1][b][1][b]). The music therapist would have been able to add necessary and valuable insight into whether or not music therapy as a related service was required in order to assist the child in benefiting from his special education program (see Related Services, 64 Fed. Reg. 12547 at 12548 [Mar. 12, 1999]; Letter to Farbman, 34 IDELR 7 [OSEP 2000]; see also 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 34). Since the invalidly composed subcommittee ultimately removed music therapy services from the IEP, I find that the absence of the child's music therapist at the August 27, 2003 meeting, together with the absence of two other required members, resulted in a loss of educational opportunity for the child which denied the child a FAPE (see Application of the Bd. of Educ., Appeal No. 03-062 [where a CSE meeting that was missing two to three required members was found to result in a denial of FAPE]).

 

Because I find that the lack of required members of the subcommittee meeting in this case resulted in a denial of FAPE, I need not address the issue of whether or not this child requires music therapy in order to benefit from his special education program. I leave that determination to a full and properly composed CSE with the child's music therapist present as a member. However, I do caution the CSE to carefully consider all relevant information in making their decision, including the fact that respondent's own progress reports over the 2003-04 school year indicate that when the child's music therapy was discontinued for the first marking period the child appeared to make less progress in the general curriculum than when music therapy was reinstated for the last two periods under the hearing officer's pendency ruling (see Answer, Exhibit A). The CSE should also consider the fact that the child's progress reports from both the music therapist and personnel at Heritage, as well as respondent's own prior IEPs, all consistently noted that the child responded well to music therapy and recommended it be continued for the 2003-04 school year (see Exhibit 20; Exhibit 18, p. 2; Exhibit 15, pp. 2, 3, 6-7, 9, 13, 14; Exhibit 14, pp. 18, 31). In addition, although when the school psychologist evaluated the child in November 2003 (after music therapy had been discontinued for two months) the child reportedly could not count or identify colors and needed a lot of redirection (Transcript I pp. 162, 163, 166, 168, 169; 326), anecdotal evidence from the music therapist's report and testimony indicated that when the child was receiving music therapy the child evidently had been able to learn to count, follow directions, name days of the week, and distinguish shapes and names (Transcript I pp. 339, 313, 317, 320, 326; Exhibit 20), and had reportedly been able to carry over some of these skills into other settings (id.; Transcript I pp. 339-42, 165; Exhibit 20; see also Transcript II pp. 20-26, 51-52;).

 

In remanding the matter to the CSE, I remind it that, although the special education teacher and the school psychologist opined that the child had made "some slow progress" in some areas in his ten weeks without music therapy services (Transcript I pp. 89, 154), petitioner is correct in her assertion that, under the Rowley standard, it is the district's burden to show that it offered a program which provided the child with meaningful access to an education with "sufficient educational benefit" (Rowley, 458 U.S. at 202), which constitutes "more than mere trivial advancement" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 [2d Cir. 1997]; see Walczak, 142 F.3d at 130; see also M.S., 231 F.3d at 105). Although the IDEA does not require school districts to maximize the potential of each child with a disability (Rowley, 458 U.S. at 199), or provide the best possible program (see Walczak, 142 F.3d at 130), school districts must provide access to specialized instruction and related services which are individually designed to provide educational benefit to the child (Rowley, 458 U.S. at 200-201). The U.S. Department of Education addresses the issue of music therapy in the Federal Register, noting that the list of related services contained in 34 C.F.R. 300.24(a) is not exhaustive, and that for some children it is appropriate to specifically identify music therapy services as a related service on the child's IEP "if they are required to assist a child with a disability to benefit from special education in order for the child to receive a FAPE" (Related Services, 64 Fed. Reg. 12547, at 12548; see, e.g. Jefferson Parish Sch. Bd. v. Picard, 1998 WL 66105 [E.D. La. 1998]; Capistrano Unified Sch. Dist., 38 IDELR 166 [SEA CA. 2002]; Joseph L. v. Boston Pub. Schs., 501 IDELR 133 [SEA MA. 1979]; compare Wickenberg Unified Sch. Dist., 38 IDELR 148 [SEA AZ. 2002]; Application of the Bd. of Educ., Appeal No. 02-026). While one of the reasons7 the district removed music therapy from the child's IEP was that it thought music could be provided successfully to the child in the general curriculum without the use of a music therapist (Transcript I pp. 97, 99, 100), the Office of Special Education Programs (OSEP) notes that there is an important distinction between music therapy provided by a board certified music therapist as a related service versus simply including music in the classroom curriculum (Letter to Farbman, 34 IDELR 7 [OSEP 2000]). The child's music therapist and regular education teacher, neither of whom was present at the last IEP meeting, should be able to provide necessary information pertaining to the appropriateness of music therapy services for this child. With these considerations in mind, I will order the full properly composed CSE to convene, including the child's music therapist, to formulate a new IEP, giving due weight to the child's most recent music therapy evaluation as well as to the child's progress in the general curriculum both with and without music therapy services, and the extent to which music is used in the general curriculum, in order to determine whether music therapy services are required to assist the child to benefit from his special education program and receive a FAPE (see Related Services, 64 Fed. Reg. 12547 at 12548 [Mar. 12, 1999]; Letter to Farbman, 34 IDELR 7 [OSEP 2000]; see also 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 34).

 

Lastly, I note that federal and state regulations require that each child with a disability be re-evaluated at least once every three years (34 CFR 300.536[b]; 8 NYCRR 200.4[b][4]). Petitioner's child was due for his triennial evaluation in June 2003 (see Exhibit E, p. 1). The record contains no indication that a triennial was performed; in fact, the record contains very few evaluations on petitioner's son conducted by respondent, and the March and August 2003 IEPs make no reference to any recent evaluative data on which to base present levels of performance or to establish his current needs (see Exhibits 13, 14). Moreover, according to the school psychologist who attended the August 2003 IEP subcommittee meeting, he was not aware of any testing done by the district in the spring or summer 2003 prior to the development of the 2003-04 IEP (Transcript I p. 113). A subcommittee must obtain sufficient current information about the child to prepare an IEP which will address the child's present needs (see Application of a Child with a Handicapping Condition, Appeal No. 91-25). I find that the 2003-04 IEP did not adequately describe petitioner's son's current needs because it did not include the results of his triennial evaluation (Application of a Child with a Disability, Appeal No. 00-020). Hence, I will also direct the CSE to immediately perform a triennial evaluation of the child, if it has not already done so. Because these evaluations will be completed at or near the end of the 2003-04 school year, I will direct the CSE to immediately use these evaluations to develop an appropriate extended-year IEP for the child for the summer of 2004 and the 2004-05 school year. Until the CSE reconvenes to properly address the issue, I will order that the child continue to receive music therapy services in the degree indicated in the earlier pendency determination.

 

 

THE APPEAL IS SUSTAINED.

 

IT IS ORDERED that the hearing officer's decision is hereby annulled; and

 

IT IS FURTHER ORDERED that, if it has not already done so, respondent's CSE shall immediately conduct a triennial re-evaluation of the child, including physical, occupational, speech, and educational evaluations, to be completed within 30 calendar days of this decision; and

 

IT IS FURTHER ORDERED, unless the parties otherwise agree, that within 45 calendar days of this decision, after completion of the above evaluations, a properly constituted full CSE shall convene with the child's music therapist to develop a new IEP for the child for the summer of 2004 and the 2004-05 school year, that identifies the child's current needs and includes appropriate present levels of performance based on the triennial evaluations, as well as goals and objectives, and related services, including, if appropriate, music therapy services, in accordance with the tenor of this decision; and

 

  IT IS FURTHER ORDERED, unless the parties otherwise agree, that the child shall continue to receive music therapy services as per the pendency determination until the CSE meets again in 45 days and develops the new IEP for the summer of 2004 and the 2004-05 school year.

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

June 2, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1 An IEP team in Maryland is equivalent to a CSE team in New York (see Maryland Educ. Code 8-405[b] [2003]).

 

2 "Transcript I" refers to the bound volume including hearing testimony from December 9, 2003 and December 10, 2003. "Transcript II" refers to the bound volume of hearing testimony from the January 21, 2004 hearing date.

 

3 There is no mention in the August 2003 IEP of any new occupational or physical therapy evaluations (Exhibit 13), and none are included in the record. Furthermore, neither the August 2003 IEP nor the March 2003 IEP contain references to any past evaluations or standardized test results (Exhibits 13, 14).

 

4 That portion of the hearing officer's decision which awarded 11 weeks of additional music therapy services has not been appealed and is therefore final (see 34 C.F.R. 300.510[a]; 8 NYCRR 200.5[i][4][ii]).

 

5 Respondent stated in its papers that it is continuing to provide petitioner's child with music therapy services during the course of this appeal (see Respondent's Memorandum of Law, p. 1).

 

6 A "special education provider" is defined by state regulations as an individual qualified to provide related services (8 NYCRR 200.1[xx]).

 

7 The school psychologist who was one of the three school district members who attended the August 27, 2003 IEP meeting stated that the documentary basis for the subcommittee's decision to remove music therapy services from the child's IEP was that the child was not meeting his music therapy goals and objectives (Transcript I pp. 297-98). Without commenting on the veracity of this assertion, I note that I find this reason to be improper grounds for terminating a related service.