The University of the State of New York Seal
The State Education Department
State Review Officer

No. 06-081

  

 

 

 

 

 

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 New York City Department of Education

 

 

 

Appearances:
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Joshua C. Chao, Esq., of counsel

 

 

DECISION

Petitioner appeals from the decision of an impartial hearing officer which ordered that her son be placed at respondent's intermediate school (I.S.) 72 for the 2006-07 school year, upon the condition that the cafeteria at the school be fully air conditioned by August 15, 2006, and if that condition was not met that the student be placed at the Michael J. Petrides I.S. (Petrides).  The appeal must be sustained in part.

 

            At the time of the June 29, 2006 impartial hearing, the student was ten years old and had just completed fifth grade in one of respondent's schools.  His eligibility for special education programs as a student with an other health-impairment is not in dispute in this appeal (see 8 NYCRR 200.1[zz][10]).

 

The student was diagnosed with Spinal Muscular Atrophy, Type II/III, at ten months old (Parent Ex. C).  He is unable to stand independently, roll, pull himself up to sit, or extend his arms against gravity (id.).  The student uses a power wheelchair for independent mobility and wears ankle-foot orthotics for proper foot alignment and lower leg positioning (Dist. Ex. 2 at p. 5).  The student's disability does not affect his cognitive ability (Parent Ex. B).  He receives occupational therapy, physical therapy and the assistance of a 1:1 health paraprofessional throughout the day (Dist. Ex. 2 at p. 16).  He has been in a mainstreamed, air-conditioned school since kindergarten (Parent Ex. B; see Tr. pp. 34, 36, 37).  His individualized education program (IEP), generated in January 2006, recommended a general education program with a "climate controlled environment"1 (Dist. Ex. 2 at p. 1).

 

The student was scheduled to transition from one of respondent's elementary schools to one of its intermediate schools in September 2006.  In June 2005, in anticipation of this transition, petitioner began to look for a school that could accommodate her son's needs, which include a "climate controlled environment" (Parent Ex. J; Tr. pp. 26, 38-39).  In June 2005, petitioner met with the principal of I.S. 75, the student's home-zoned intermediate school, to ascertain the likelihood of having air conditioning installed in that school.  I.S. 75 was eventually determined to be an inappropriate placement (Parent Ex. J at p. 1).  In October 2005, petitioner contacted respondent's regional administrator for special education (RASE) and suggested that her son attend Petrides, since it was the only intermediate school that was air conditioned (Parent Ex. J at p. 1; see­ also Tr. pp. 27, 64-65).  In December 2005, respondent's RASE advised petitioner that Petrides was the best fit for her son (Parent Ex. J; see­ also Tr. pp. 27, 83-84). Enrollment in Petrides is determined through a lottery process (Tr. pp. 48, 50-53, 69-71, 73-76). 

 

On January 13, 2006, respondent's committee on special education (CSE) met for the student's annual review and to develop his IEP for the 2006-07 school year (Dist. Ex. 2; Tr. p. 101).  Prior to the meeting, respondent's special education personnel had advised petitioner that Petrides was the logical placement for her son (Tr. p.  83).

 

Petitioner participated in the CSE meeting via telephone (Tr. pp. 101-02).  The CSE recommended that the student be classified as having an other health-impairment (Dist. Ex. 2 at p. 1).  According to the resultant IEP, the student's disability does not affect his academic performance and the student is on grade level socially (Dist. Ex. 2 at pp. 2, 3) and in all academic areas (Dist. Ex. 2 at p. 3).  The IEP indicates, among other things, that the student is non-ambulatory and requires a power wheelchair, maximum assistance for all transfers, and a "climate controlled environment" (Dist. Ex. 2 at p. 1).  The CSE recommended that the student be placed in general education with related services of occupational therapy and physical therapy (Dist. Ex. 2 at p. 1, Dist. Ex. 3).  In addition, the CSE recommended that the student receive a full-time paraprofessional (id.) and a 12-month school year for the purpose of receiving occupational and physical therapy (Dist. Ex. 3).  The IEP also contains numerous test accommodations (Dist. Ex. 2 at p. 16).

 

In February 2006, petitioner learned that Petrides would not accept her son for entrance without participation in the lottery process (Parent Ex. J; Tr. p. 21).  The Petrides lottery was held in April 2006 and the student's number was not chosen (Tr. p. 21; see also Parent Ex. J).  In May 2006, the student was offered a placement at I.S. 24, another one of respondent's intermediate schools (Tr. p. 22).  The principal at I.S. 24 reportedly told petitioner that I.S. 24 could not accommodate the student's need for a "climate controlled environment" (id.).  Eventually the student was offered a placement at I.S. 72, which petitioner was reportedly told was 100 percent2 air conditioned (Parent Ex. J at p. 2).  However, when petitioner visited the school she reportedly learned that interior classrooms were air conditioned and the cafeteria, hallways, nurse's room, and auditorium were not (Parent Ex. J at p. 2; see also Tr. p. 23).  According to petitioner, the custodian at I.S. 72 also indicated that it would be nearly impossible to air condition the building (Parent Ex. J at p. 2; Tr. pp. 29, 40).

 

In early June 2006, petitioner was informed that no final decision had yet been made regarding the placement of her son at Petrides (Tr. pp. 23-24).  Petitioner was requested to provide further medical documentation to support her son's need for a "climate controlled environment" (Parent Ex. J at p. 2).  Petitioner obtained the requested documentation and forwarded it to respondent (Parent Exs. A, B, C).  The documentation was not reviewed by a CSE.  On June 2, 2006, petitioner requested an impartial hearing (Dist. Ex. 1, Parent Ex. J at p. 2).  On June 14, 2006, petitioner was reportedly advised that respondent would attempt to air condition I.S. 72 by September 2006 (Parent Ex. J).

 

The impartial hearing took place on June 29, 2006.  The impartial hearing officer rendered his decision on July 14, 2006.  He found that the IEP developed for the student on January 13, 2006 was appropriate and noted that the only issue before him was how to properly implement the IEP with respect to the "climate controlled air conditioned environment" (IHO Decision, at p. 5).  The impartial hearing officer determined that proper implementation consisted of two components: the scope and extent of the air conditioning and the timeliness of providing the service with respect to the beginning of the 2006-07 school year (IHO Decision, pp. 5-6).  The impartial hearing officer further determined that respondent needed only to demonstrate that it offered a satisfactory educational environment, including, in this instance, air conditioning sufficient to maintain the student's health and provide an environment conducive to learning (IHO Decision, at p. 6).  He further found that if the cafeteria were to be air conditioned, I.S. 72 would be a proper placement.

 

The impartial hearing officer denied petitioner's requested relief and ordered that the student be placed at I.S. 72 upon the condition that the cafeteria at I.S. 72 be fully air conditioned by August 15, 2006 (IHO Decision, at pp. 6, 7).  The impartial hearing officer further ordered, in the event it was determined by petitioner and respondent that the cafeteria had not been fully air conditioned by August 15, 2006, that the student be placed at Petrides for the 2006-07 school year (IHO Decision, at pp. 6, 7).  In reaching his decision, impartial hearing officer determined that respondent's I.S. 72 would have an air conditioning system in effect by the beginning of the 2006-07 school year that covers all of the areas where the student would spend the "great bulk" of his time.  He further noted that there was no testimony that moments in non-air conditioned hallways would endanger the student's health.

 

On appeal, petitioner asserts that the impartial hearing officer erred in ruling that respondent's I.S. 72 was an appropriate placement, because at the time of the decision I.S. 72 lacked the necessary air conditioning in all rooms and areas so as to afford her son a safe and healthy environment which could provide her son with a free appropriate public education (FAPE)3 in the least restrictive environment (LRE).  She further asserts that contrary to respondent's claims, I.S. 72 could not be brought up to the required proper standard before the school year started.  She further asserts that even if the air conditioning is in place by the promised date, I.S. 72 will not be an appropriate placement for her son as the building will not be 100 percent "climate controlled."4

 

Respondent does not cross-appeal any determination of the impartial hearing officer.

 

One of the main purposes of the Individuals with Disabilities Education Act5 (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320).6  "The core of the statute" is the collaborative process between parents and schools, primarily through the IEP process (see Schaffer, 126 S. Ct. at 532).

 

The first step is to determine whether the district offered to provide a FAPE to the student (see M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]).  A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) 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, 206-07 [1982]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  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]).

 

The IDEA directs that, in general, a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[3][E][ii]; see 8 NYCRR 200.5[j][4][ii]).  Also, an impartial hearing officer is not precluded from ordering a local educational agency to comply with IDEA procedural requirements (20 U.S.C. § 1415 [f][3][E][iii]).  The Second Circuit Court of Appeals has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression,'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], in other words, is likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120  [2d Cir. 1997]).  The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  The student's recommended program also must be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.114[a][2]; 8 NYCRR 200.6[a][1]).  Finally, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537).

 

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Bd. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). An appropriate placement for a student must be identified based upon whether a school can meet the student's needs as identified on the IEP (see 34 C.F.R. § 300.116; 8 NYCRR 200.4[d][4][ii][a]).  The CSE must meet periodically, but not less than annually, to determine whether the annual goals for the child are being achieved (see 34 C.F.R. § 300.324[b][1][i], 8 NYCRR 200.4[f]).  The CSE must revise the IEP as appropriate to address information about the child provided to or by the parents concerning evaluations, or the child's anticipated needs, or other matters (see 34 C.F.R. § 300.324 [b][1][ii][C][D][E], 8 NYCRR 200.4[f][2][ii][iii][iv]).

 

The record demonstrates that, at the time of the January 13, 2006 CSE meeting, petitioner and respondent's personnel responsible for making placement decisions shared the same understanding that petitioner's son's IEP would be implemented at Petrides (Tr. pp. 21, 27, 83).  However, as noted above, petitioner's son was not accepted at Petrides.  The record shows that subsequently petitioner's son was offered an assignment to I.S. 24, which was thereafter determined to be inappropriate (Tr. p. 22).  Petitioner's son was then offered a placement at I.S. 72.  While it is uncontested that the student requires a "climate controlled environment" (Dist. Ex. 2 at p. 1; Parent Ex. A) and that Petrides would be appropriate (Tr. p. 83S), what constitutes a "climate controlled environment," and whether or not I.S. 72 would meet the student's needs is contested. Unfortunately, the record is poorly developed and does not shed sufficient light on what the CSE meant when it noted "climate controlled environment," nor does it shed light on what the student's specific needs are in that regard. I find that once the assignment to Petrides was not available, the CSE should have, given the circumstances herein, reconvened to determine the student's specific requirements with respect to a "climate controlled environment" and to recommend an appropriate program and placement.  As events unfolded, discussions and recommendations pertaining to placement of the student at I.S. 24 and I.S. 72, and whether the student's needs could be met, took place outside of the CSE process.  The record also reflects that subsequent to the January 13, 2006 CSE meeting there were miscommunications and misunderstandings regarding the student's environmental and medical and physical needs.  In light of changing circumstances regarding where the IEP was to be implemented, I find that petitioner's son was not offered a FAPE due to respondent's failure to reconvene a CSE meeting to determine an appropriate placement in the LRE consistent with the student's needs.

 

I have considered petitioner's remaining contentions and I find them to be without merit.

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that the impartial hearing officer's decision is annulled.

 

IT IS FURTHER ORDERED, that within 30 days of receipt of this decision, unless the parties otherwise agree, the CSE shall reconvene to fully identify and specify the student's needs and to determine an appropriate placement in which to implement his IEP.

 

 

Dated:

Albany, New York

 

__________________________

 

November 9, 2006

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1 The term "climate controlled environment" is used frequently during the impartial hearing process and in pleadings and correspondence in this appeal.  However, from the testimony it is clear that neither petitioner nor respondent agree on either a definition or the parameters of what constitutes a "climate controlled environment."  Petitioner asserts that the term "climate controlled environment" equates to air conditioning throughout the entire facility (Tr. pp. 31-32), while respondent's personnel assert that a "climate controlled environment" equates to air conditioning in the learning environment or classroom (Tr. pp. 67-68).

 

2 The IEP developed on January 13, 2006 provides for a "climate controlled environment."  There is no reference on the IEP to "100 percent" of anything quantifiable.  Only petitioner and her medical and related services providers (Parent Exs. A, B, C, D) utilize "100 percent" as any form of benchmark.

 

3 The term "free appropriate public education" means special education and related services that-

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. § 1401(9).

 

4 Petitioner submitted two additional documents after she filed her petition for consideration by the State Review Officer.  Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068).  I find that while the additional documents were not available at the time of the impartial hearing, the documents are not necessary for my decision, and I therefore decline to consider them.

 

5 On December 3, 2004, Congress amended the IDEA, and the amendments became effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [2004], Pub. L. No. 108-446, 118 Stat. 2647).  The relevant events in this appeal occurred subsequent to that date, and all references to the IDEA used herein refer to the newly amended provisions of the IDEA 2004, unless otherwise specified.

 

6 The Code of Federal Regulations (34 C.F.R. Parts 300 and 301) has been amended to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004.  The amended regulations became effective October 13, 2006.  In this case, none of the new provisions contained in the amended regulations are applicable because all relevant events occurred prior to the effective date of the new regulations.  However, for convenience, citations herein refer to the regulations as amended because the regulations have been reorganized and renumbered.