92-022

Petitioner appeals from the decision of an impartial hearing officer holding that respondent unilaterally reduced the number of hours per day and the number of days in the instructional program of respondents' child during the Summer of 1991, in violation of Federal and State law which specifies the involvement of the school district's committee on special education (CSE) in amending a child's individualized education program (IEP), and with respect to the requirement that a child's then current placement be maintained during the pendency of any proceedings to challenge a change in the child's program. The appeal must be sustained in part.

Respondents' child, who is 12 years old, was diagnosed as having Purine autism, which is a metabolic disorder. The child was classified by the CSE as an autistic child in 1984. The child's classification is not in dispute. For a number of years, the child has received special education and related services on a twelve-month basis. The child's educational program during the ten-month period between September and June is not at issue in this appeal, which concerns the extent and duration of the child's program during July and August, 1991.

In a prior appeal to the Commissioner of Education involving the CSE's recommendation for the child's placement during the 1987-88 school year, the Commissioner determined that the child's pendency placement, for purposes of Section 4404 (4) of the Education Law, was a combination in-school and at-home program set forth in a 1985 memorandum of understanding between the parties (Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 323).

Respondents instituted an action in the United States District Court for the Northern District of New York, claiming that petitioner had not afforded the child a free appropriate public education. After a hearing on respondents' request for a preliminary injunction in that action, the Court rendered a decision and order on August 4, 1989. The Court found that petitioner had not fulfilled its obligation under the 1985 memorandum of understanding, and held that the child's last jointly agreed placement was a program of in-home instruction which had been provided prior to the 1985 memorandum of understanding. The Court ordered petitioner to hire staff so that there would be a special education teacher assigned to the child for the entire school day and an aide would be assigned for three hours each day. The decision and order did not define the terms "entire school day", nor did it specify the number of days of instruction to be provided to the child during the regular school year or the months of July and August. The Court further ordered that the child receive occupational therapy for ten hours per week and speech and language therapy one and one-half hours per day. In the Fall of 1991, respondents' action against petitioner was terminated by a settlement, the terms of which are not disclosed in the record before me.

In a prior appeal, I dismissed respondents' challenge of qualifications of the speech teacher employed by petitioner to provide speech and language therapy to the child during the 1989-90 and 1990-91 school years, upon a finding that the teacher, who held a permanent certificate from the State Education Department, was authorized to provide related services pursuant to Section 8207 (2) of the Education Law. I further found that there was no basis in the record for concluding that the teacher lacked the training or experience to provide an appropriate program, despite respondents' preference for a licensed speech therapist with a certificate of clinical competence issued by the American Speech-Language-Hearing Association (Application of a Child with a Handicapping Condition, Appeal No. 91-19). Although the prior appeal involved the child's speech and language therapy program during the traditional ten-month school year, the record in that appeal revealed that petitioner had not provided the child with speech and language therapy during the Summer of 1990. Petitioner's failure to provide a complete program and its attempt to rectify its omission are precursors of the present disagreement between the parties.

At the hearing in this appeal, petitioner's assistant to the superintendent of schools testified that petitioner advertised for, but was unable to obtain, the services of a speech/language teacher to provide speech and language therapy to respondents' child during July and August, 1990. The witness further testified that she made arrangements with the child's special education teacher to provide an additional one and one-half hours of special education to the child each day during July and August, 1990, in lieu of the speech and language therapy which petitioner did not provide. The record reveals that the child's program of special education and occupational therapy during July and August, 1990 began at 9:00 a.m. and continued until 3:50 p.m. (6 hours and 50 minutes). An additional three hours of occupational therapy were provided on Fridays from 4:00 p.m. to 7:00 p.m.

Petitioner initially intended to provide the child with a six-week instructional program, i.e., 30 days of instruction, during July and August, 1990. In a letter to petitioner, dated July 13, 1990, respondents asserted that the child had received 44 days of instruction during the five preceding summers, and requested that a hearing be held to review the decrease in the length of the child's program to 30 days. By letter dated August 10, 1990, petitioner's then counsel advised respondents that petitioner had agreed to provide educational services for a total of 44 days, in settlement of respondent's request for a hearing. Petitioner's former counsel asserted that petitioner's agreement involved only the provision of services during July and August, 1990, and did not signify petitioner's agreement that the child's current educational program involved more than 30 days of services during the months of July and August. Petitioner provided 34 days of services during July and August, 1990. The assistant to the superintendent advised respondents that the remaining 10 days of services would be provided to the child during the 1990-91 regular school year. The record does not reveal whether the child received the 10 additional days of educational services during that school year.

The assistant to the superintendent testified that she applied to the State Education Department in April, 1991 for approval of a summer program for the child (8 NYCRR 200.6 [j][2]). The witness further testified that, in the application for approval, petitioner represented that the child would receive instruction for 6 hours per day for a total of 34 days. By letter dated May 20, 1991, the assistant to the superintendent advised respondents that the child's summer program would begin on July 1, 1991 and continue through August 16, 1991, with the exception of the July 4 holiday, (34 days) and that the program would be conducted between the hours of 8:30 a.m. and 2:30 p.m. (6 hours).

On June 3, 1991, respondents requested a hearing to review what they asserted was a reduction in their child's summer program from 44 days to 30 days. On June 28, 1991, respondents requested a hearing to review what they asserted was a unilateral action to reduce the number of hours in the child's program, which they explained in a subsequent letter as a reduction in the special educator's day from 6 hours and 50 minutes to 6 hours.

Respondents' two hearing requests were consolidated, and a hearing officer was appointed to determine their claims with respect to the number and length of days on which services were to be provided to the child during the months of July and August, 1991. The hearing commenced on July 24, 1991 and concluded on November 18, 1991.

By decision dated April 10, 1992, the hearing officer found that the duration of the child's program had always been included in the child's IEP, developed after a CSE meeting in prior years, and that the child had received services for 6 hours and 50 minutes per day for 44 days in the summers prior to the Summer of 1990. The hearing officer held that petitioner could not legally have reduced the child's 1991 summer program to 6 hours per day for 34 days, without a recommendation to do so by the CSE and without according respondents their rights of notice of and participation in revising the child's IEP. The hearing officer further held that, once respondents challenged the proposed alteration of the child's program by requesting a hearing, the pendency provisions of Federal and State law obliged petitioner to provide a program of 6 hours and 50 minutes of educational services for a minimum of 44 days during July and August, 1991.

The hearing officer further found that respondents were entitled to reimbursement for their expenditures to provide the child with services which petitioner should have provided in the Summer of 1991, but conditioned their right to reimbursement upon their cooperation in providing petitioner with evaluation data about the child.

Petitioner asserts that the hearing officer erred in finding that no CSE meeting had been held to discuss the child's summer program, prior to the implementation of that program in 1991. Petitioner further asserts that respondents should not be allowed to invoke the protection of the pendency provisions of Federal and State law because of their alleged failure to cooperate with petitioner in having a triennial evaluation of the child performed. Petitioner has annexed to its petition a copy of another hearing officer's decision directing respondents to sign a consent for evaluation form which the proposed evaluator requires. Petitioner asserts that if respondents would cooperate with petitioner, sufficient information about the child's present needs could be obtained to plan an appropriate twelve-month program for the child.

The issue of the re-evaluation of the child and respondents' alleged lack of cooperation with petitioner is not properly before me, and is not determinative of respondents' rights with respect to the pendency provisions of Federal and State law. At the hearing, which is the subject of this appeal, the parties alluded to an appeal to the Commissioner of Education with regard to the re-evaluation of the child. In Application of a Child with a Handicapping Condition, 31 Ed. Dept. Rep. 337, that appeal was dismissed as moot, because the parents had consented to the re-evaluation. I also note that the hearing officer conditioned respondents' right to receive reimbursement upon their cooperation with petitioner in the child's re-evaluation.

The central issue in this appeal is whether petitioner violated the pendency provisions of Federal and State law, with respect to the child's 1991 summer program. The United States District Court found that, in this instance, the pendency provisions should have attached when the parents presented their complaint about the child's program in November, 1985. The record before me does not reveal the nature and duration of the child's summer program in 1985. The Court's August 4, 1989 order directs petitioner to provide the child with special education and related services, but does not address the issues of the length of the child's school day nor the number of days on which services are to be provided during the summer.

Federal and State regulations require that a child's IEP specify the amount of services which a child will receive (Appendix C to 34 CFR Part 300, Question 51; 8 NYCRR 200.4 [c][2][v]). In his decision, the hearing officer stated that:

"one must look to the IEPs prior to the summer of 1990 under which the 44 days and 6 hours and 50 minutes were given the child."

The record before the hearing officer did not, however, include any IEP of the child. Respondents offered into evidence a petition to the Ulster County Family Court under the former section 236 of the Family Court Act for a program of nine and one-half hours per day for 44 days for the Summer of 1986. Although no evidence was introduced at the hearing to prove that the Family Court granted the 1986 petition, petitioner's director of pupil personnel testified, on cross-examination, that a 44 day summer program had been available under the Family Court Act. The director of personnel further testified that the child's program had been reduced to 30 days when petitioner became responsible for the child's summer program in the Summer of 1987 (Chapter 683 of the Laws of 1986), and that respondents were provided with notice of a CSE meeting at which such reduction had been made. Although the director of personnel asserted that he could produce evidence of the notice of the meeting, no evidence was introduced. This testimony is inconsistent with petitioner's agreement to provide 44 days of program in 1990, although it, in fact, provided only 34 days and agreed to make up the remaining 10 days.

I find that petitioner had the burden of demonstrating that the child's summer program had been reduced from 44 days, either with respondents' consent or failure to timely challenge such reduction, and that petitioner failed to meet its burden. Although petitioner, in fact, provided only 34 days of services during the Summer of 1990, it recognized its obligation and agreed to make up an additional 10 days during the 1990-91 school year.

With regard to the issue of the alleged diminution in the amount of special education provided to the child each day, I find that the hearing officer erred in concluding that the child's instruction had been diminished. At the hearing, respondents contended that their child had previously received six hours and fifty minutes of instruction prior to the Summer of 1991 and that instruction had been reduced to six hours of instruction during the Summer of 1991. However, a comparison of the teaching schedules for the 1990 and 1991 summer programs, which are in the record, does not support respondents' contention. Although the child's school day in 1990 started at 9:00 a.m. and ended at 3:50 p.m., the child's special education teacher was not scheduled to teach the child for a one hour period of lunch and "transition", nor did the special education teacher instruct the child during the period when the child received occupational therapy. From Monday through Thursday, the child received at least one hour of occupational therapy. On Fridays, the child received three hours of occupational therapy after school. However, the special education teacher taught for no more than five hours and fifty minutes on Fridays. Included within the hours of instruction provided by the special education teacher were one and one-half hours of extra instruction provided because petitioner was unable to provide the child with speech therapy. In the Summer of 1991, the child received special education instruction from 8:30 a.m. to 10:15 a.m. and from 11:45 a.m.to 2:30 p.m. (four and one-half hours) each day. The child also received one and three-quarter hours of speech therapy every day. Three hours of occupational therapy were provided each week before 3:00 p.m. An additional seven hours of occupational therapy were provided after 3:00 p.m. In essence, the special education teacher's instructional time was not reduced, but was rescheduled to accommodate the provision of speech therapy which the child was required to receive pursuant to the order of the U.S. District Court. In addition, more of the child's occupational therapy was provided later in the day during 1991. In sum the schedules, while not identical, are substantially equivalent, and given the practical realities of scheduling, petitioner must be given some reasonable flexibility in providing the services. In this case I conclude that the daily schedule was not diminished by the petitioner's scheduling adjustment. Therefore, I find that petitioner did not violate the pendency provisions of Federal and State law with regard to the amount of special education provided to the child.

Finally, I now turn to whether petitioner implemented changes in the child's program without conducting a CSE meeting. The hearing officer found that petitioner had not conducted a CSE meeting. Petitioner asserts that the hearing officer erred, in view of the testimony at the hearing by petitioner's assistant to the superintendent, who testified that a CSE meeting was held on or about June 20, 1991. The assistant to the superintendent further testified that the child's father and respondents' attorney attended the meeting at which the child's 1991 summer program was discussed, and had not objected to the child's 1991 summer program.

The assistant to the superintendent's testimony came at the end of the third day of the hearing. On the fourth day of the hearing, the hearing officer announced that the issues raised by respondents were matters of law, and suggested that the parties submit memoranda of law, rather than continue with testimony. Respondents sought to cross-examine the assistant to the superintendent. After reviewing their proposed questions, the hearing officer determined that the questions were irrelevant. Although not testifying, the child's father disputed the testimony given by petitioner's witness that the length and schedule of the child's summer program had been discussed at the June 20, 1991 CSE meeting, and offered to introduce a tape recording of the meeting. The hearing officer expressed his preference for a transcript of the meeting. Respondents subsequently withdrew their offer of the recording. The hearing closed without any testimony by respondents, who were not represented by counsel at the hearing.

I find that the hearing officer erred in not requiring further proof on an obviously disputed question of fact about the June 20, 1991 CSE meeting, especially in light of the fact that respondents were not represented by an attorney. It is not possible on the present record to conclude whether respondents received the appropriate notices before and after the meeting (8 NYCRR 200.5 [a]), although they conceded at the hearing that the father and attorney had attended the CSE meeting. At best, the hearing officer's finding that the changes in the child's summer program were not discussed at any CSE meeting requires further factual development through respondents' testimony or the proffered tape recording. There would be no purpose in remanding the matter to the hearing officer, in view of my finding that petitioner violated the pendency provisions of Federal and State law with regard to the number of days in the 1991 summer program.

Although changes in the amount of services listed in an IEP cannot be made without holding another CSE meeting, some adjustments in scheduling of services may be made without a CSE meeting (Appendix C to 34 CFR Part 300, Question 51). The scheduling changes that were made in the child's 1991 summer program did not require another CSE meeting. Although petitioner was not legally obligated to discuss the scheduling changes involved in the case with respondents at a CSE meeting, the CSE should display sensitivity in dealing with respondents, by keeping them fully informed of such changes. The poor relationship between the parents and the staff which I noted in the decision in Appeal No. 91-19 is much in evidence in the events which led to the present appeal. I strongly urge the staff of the petitioner's school district to demonstrate greater sensitivity to the respondents so that a spirit of trust will develop and work toward the benefit of the child.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that so much of the hearing officer's decision that found that petitioner had violated respondents' rights with regard to changing the child's daily schedule during the 1991 summer instructional program be, and the same hereby is, annulled.