93-033

Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) for the provision of occupational therapy and physical therapy to petitioner's child during the 1992-93 school year by therapists certified to provide their respective therapies using neurodevelopmental treatment (NDT) techniques, if available, and which held that the CSE substantially complied with the time limits for evaluating and providing services to children with disabilities set forth in State regulation. The appeal must be dismissed.

Petitioners' seven year old child, who was born prematurely, has cerebral palsy with spastic quadriplegia. The child has exhibited fine and gross motor delays and neurodevelopmental delays. In a physical therapy/occupational therapy evaluation performed in September, 1991, the child's range of motion was found to be within normal limits, but her abnormal muscle tone and reflexes reportedly interfered with her ability to move. The child also exhibited poor weight shifting ability, stability, and impaired fine motor and upper extremity mobility. In a December, 1992 evaluation, the child's conversational speech was reported to be severely unintelligible. Although the child was reported to be able to produce clear speech intermittently, she was found to lack adequate breath support and volume. At the age of three, the child received intensive speech/language therapy in Pittsburgh, and has received such therapy since becoming eligible to attend respondent's schools in September, 1991. The child is classified as multiply disabled (speech impaired/orthopedically impaired). Her classification is not disputed.

The record does not disclose what, if any, preschool special services the child may have received upon becoming a resident of respondent's school district in 1989. On August 12, 1991, the child was observed by respondent's school psychologist. However, the child was not referred in writing to the CSE until September 5, 1991, when the school psychologist completed the child's psychological evaluation. The school psychologist reported that her attempt to assess the child's cognitive skills with a standardized test had been unsuccessful because the child did not fully grasp the concepts of same and different. However, the school psychologist further reported that the child appeared to demonstrate age appropriate comprehension of questions taken from a standardized IQ test, and demonstrated rote counting skills and could identify colors. The school psychologist informally estimated the child's expressive language skills to be at an 18-24 month level.

Although the CSE arranged to have a local United Cerebral Palsy (UCP) organization assess the child's need for an augmentative communication device, and for the BOCES to perform occupational therapy and physical therapy evaluations, the results of such tests were not available to the CSE on September 13, 1991, when it initially met with petitioners. After discussing possible public and private school programs in the CSE meeting, petitioners expressed a preference for instructing the child at home, and requested that respondent provide the child with appropriate related services. On September 19, 1991, a combined physical therapy and occupational therapy evaluation was completed at the local BOCES. The BOCES evaluators recommended that the child receive thirty minutes of occupational therapy and thirty minutes of physical therapy each day.

On September 27, 1991, the CSE recommended that the child be classified as multiply disabled, and be provided with occupational therapy and physical therapy as recommended by the BOCES evaluators. In an evaluation completed on October 1, 1991, the UCP evaluator reported that the child did not require an augmentative communication device, but should receive computer assisted instruction and speech/language therapy three times per week, with an emphasis upon the child's expressive language skills. At a meeting of the CSE on October 11, 1991, the CSE agreed with petitioners' request to provide the child with one hour per day of speech/language therapy. The child's individualized education program (IEP) which was prepared on October 11, 1991, provided that the child would receive daily speech/language therapy, and that her physical therapy and occupational therapy would be interfaced, i.e., combined. The IEP further provided that the services would be provided on a 10-month basis and that the child's speech therapist would provide two hours per month of direct and indirect consultant services. On January 24, 1992, the child's IEP was amended to increase the amount of physical therapy and occupational therapy to 60 minutes each per day, and to eliminate indirect consultant services by the speech therapist. However, the CSE denied petitioners' request that the child be provided with a computer on the grounds that the child's physical therapy and occupational therapy IEP goals could be met without a computer and that the child was not attending respondent's schools. The CSE agreed to consider engaging the services of an NDT trained therapist, and shortly thereafter began providing such services for two hours per month.

In March, 1992, petitioners expressed dissatisfaction with the speech/language evaluation obtained by respondent, and reasserted their request for an augmentative communication device and a computer. They also requested that the child be provided the services on a 12-month basis and that the child's occupational therapy and physical therapy be provided by therapists certified in the NDT technique. At a meeting of the CSE held on March 27, 1992, petitioners' requests were discussed. However, the CSE did not change its prior recommendation of the services to be provided to the child. The record reveals that the related services of physical therapy and occupational therapy were provided to the child in respondent's middle school, while speech therapy was provided in the child's home. On or about April 1, 1992, petitioners unilaterally stopped bringing the child to school to receive physical therapy and occupational therapy.

On April 2, 1992, petitioners asked for a hearing to review the appropriateness of the services which respondent had provided. Respondent promptly appointed a hearing officer, who granted petitioners' request for a 30-day extension of the time limit for the completion of the hearing and rendering of the hearing officer's decision (34 CFR 300.512 [a]) so they could seek the assistance of an attorney. On May 26, 1992, the parties through their attorneys reached agreement that the child would receive services during the Summer of 1992 without prejudice to their respective positions regarding the child's entitlement to receive services on a 12-month basis. The parties further agreed that the child would be evaluated by the Department of Communicative Disorders and Sciences of the State University of New York at Buffalo (SUNY) concerning her need for speech therapy services, computer assisted technology and augmentative communication devices. The hearing was again deferred to allow the completion of the child's evaluation.

In June and July, 1992, petitioners submitted to respondent's superintendent plans for the child's instruction at home (See 8 NYCRR 100.10 [c]). In a letter dated August 8, 1992, petitioner's attorney advised respondent's attorney that petitioners intended to educate the child at home provided that they received the "necessary educational materials and equipment". At its meeting of September 3, 1992, the CSE prepared an IEP to provide speech/language therapy, physical therapy and occupational therapy to the child on a 10-month basis during the 1992-93 school year. All of the recommended services were to be provided in the middle school. The CSE did not recommend any educational program for the child, and noted on the child's IEP that petitioners had requested that respondent's superintendent approve their plan to instruct the child at home.

By letter dated September 9, 1992, petitioners informed the superintendent of schools that they were temporarily withdrawing their request for approval of their plan to instruct the child at home, until the hearing had been concluded, and they enrolled the child in the first grade in respondent's Heim Elementary School. On September 10, 1992, the child attended school, but has not attended school since then. On September 14, 1992 in New York City, the child underwent a rhizotomy, i.e., surgical severing of spinal nerve roots to relieve spastic paralysis, and on September 21, 1992, orthopedic surgery was performed on the child's hips and lower extremities. The child was placed in an extensive cast after her surgery.

In a letter dated September 30, 1992, the child's father informed the CSE chairperson that the child had returned home from New York City, and requested that the child be provided with daily home tutoring and speech/language therapy, as well as four hours per month of the consultant services previously approved by the CSE. On or about October 5, 1992, respondent began providing the requested services, but did not provide physical therapy or occupational therapy because of the child's physical condition. On November 6, 1992, the child's IEP was amended to reflect the child's placement in respondent's first grade class. On December 8, 1992, the CSE chairperson agreed to petitioners' request to increase the child's tutoring to two hours per day.

In its evaluation which was completed on or about December 7, 1992, SUNY reported that although the child had the potential to be an oral communicator, she required the assistance of augmentative communication technology for spoken communication. SUNY further reported that the child's limited hand function and difficulty with bilateral hand coordination necessitated the use of adaptive equipment with computers and appropriate computer software. SUNY recommended that the child be provided with a computer equipped with modifications which would permit the child to access the computer using a single finger.

The hearing in this proceeding commenced on December 22, 1992. At the hearing in this proceeding, respondent asserted that petitioners had waived their right to a hearing on the issues raised in their April request for a hearing, by agreeing in May to have the child further evaluated. Following a discussion off the record, the hearing officer stated on the record that petitioners had agreed to waive their right to contest the child's 1991-92 IEP, "without prejudice", and that the parties agreed to complete psychological and educational evaluations. The parties also agreed to have the CSE meet on January 15, 1993 for the development of a new IEP for the 1992-93 school year.

At the January 15, 1993 CSE meeting, the CSE recommended that the child be placed on a 12-month basis in a special education class in the Language Development Program (LDP), a State-approved private school for children with disabilities. Petitioners do not challenge the CSE's placement recommendation. The CSE also recommended that the child receive one hour per day of speech/language therapy and that an NDT certified therapist should provide four hours per month of consultant services to the child's speech/language therapist. For both physical therapy and occupational therapy, the CSE recommended that the child receive one hour per day of each therapy, ... " using an NDT approach by an NDT certified therapist, if available at LDP." The CSE also recommended that the child be provided with a "touch talker", which is an augmentative communication device. Notwithstanding the SUNY report recommending that the child be provided with a specially equipped computer, the CSE merely recommended that the child have access to a computer within the school setting.

Petitioners disagreed with parts of the CSE's recommendation. When the hearing reconvened on February 1, 1993, they agreed that the issues to be decided by the hearing officer were: whether the CSE's recommendation that physical therapy and occupational therapy be provided by NDT certified therapists, if available, was appropriate; whether the CSE erred in not recommending a specific computer and related equipment to be provided and in not recommending that the child have the use of a computer in her home; and whether respondent had adhered to the time limitations set forth in State regulation for evaluating and providing services to children with disabilities. In the event that the hearing officer found that respondent had not adhered to the regulatory time limits, the parties agreed the hearing officer should determine whether the child should receive compensatory education and whether petitioner should be reimbursed for the cost of therapies which they had provided to the child and for legal and other expenditures which they made.

In her decision dated May 5, 1993, the hearing officer held that the CSE's recommendation for the child's physical therapy and occupational therapy for the 1992-93 school year was appropriate. The hearing officer further found that the CSE should have provided specific direction in the child's IEP about the computer and related equipment for the child in accordance with the provisions of 8 NYCRR 200.4 (c)(2)(vi), and that the CSE did not have sufficient information to decide whether the child's program in the LDP would require the use of a computer at home. The hearing officer also found that the CSE failed to recommend a public school placement for the 1991-92 school year, notwithstanding petitioners' stated intention to educate the child at home. By agreement of the parties, petitioners' claim that respondent had not adhered to regulatory time limits was decided by the hearing officer upon the written submission of the parties after the close of the hearing. The hearing officer found that the CSE had completed its evaluation and made a recommendation for the child within 30 school days after its receipt of a petitioners' consent to evaluate the child, as required by State regulation (8 NYCRR 200.4 [c]). In view of her finding that respondent had provided the child with appropriate physical therapy and occupational therapy, the hearing officer further found that petitioners were not entitled to reimbursement for the cost of therapy which they provided for the child. The hearing officer also denied petitioners' request for reimbursement for legal fees incurred before the hearing commenced and other miscellaneous expenses.

Respondent asserts that this appeal is time-barred because the petition was served in excess of 40 days after petitioners received the hearing officer's decision (cf. 8 NYCRR 279.2 [b]). It further asserts that a copy of the hearing officer's decision was delivered to petitioners on May 5, 1993, and that the petition was served on July 9, 1993, which was 65 days after petitioners received the decision. Petitioners do not deny respondent's assertion that they received the hearing officer's decision on May 5, 1993. However, they assert that they were unaware of the 40-day time limit, and that they complied with the directions for bringing an appeal which are set forth in A Parent's Guide to Special Education for Children Ages 5-21, which is a publication of the State Education Department.

In order to appeal from the decision of a hearing officer, the parent of a child with a disability must first serve a notice of intention to seek review upon the board of education within 30 days after receipt of the hearing officer's decision and at least 10 days before service of the petition, and must thereafter serve the petition within 40 days after receipt of the decision (8 NYCRR 279.2 [b]). The service of petitioners' notice of intention to seek review on May 12, 1993 was timely. Respondent was promptly put on notice that there would be an appeal from the hearing officer's decision, and it has not demonstrated that it was prejudiced by the relatively brief delay in the service of the petition on July 9, 1993. Ignorance of the rules of the appeal process generally does not afford a basis for extending the time limits of such process (Appeal of Goldberg, 29 Ed. Dept. Rep.). Nonetheless, petitioners assert that they relied upon an Education Department publication which offers advice to parents on various subjects, including appeals from hearing officer decisions, and which in fact does not disclose that there is a 40-day time limit for service of petitions in such appeals. In view of the fact that petitioners did complete timely service of their notice of intention to seek review and may have relied to their detriment upon the information set forth in the publication, I hold that it would be inequitable to dismiss the appeal on the grounds of untimeliness (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-39; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-45). I will also ask the Education Department's Executive Coordinator for Special Education Services to have the Department's publication corrected.

Respondent also asserts that the petition should be dismissed because it was not verified as required by 8 NYCRR 279.1 and 8 NYCRR 275.5. However, I find that the petition which was filed with the State Education Department in this appeal is verified. Although the copy of the petition served upon respondent should also have been verified, petitioners' failure to do so does not afford a sufficient basis to dismiss the appeal (Application of a Child Suspected of Having a Disability, Appeal No. 93-7).

Petitioners assert that their due process rights were violated by the delay of approximately 13 months between their request for an impartial hearing in April, 1992 and the hearing officer's decision in May, 1993, which they attribute to respondent's alleged failure to promptly obtain the evaluation by SUNY. Federal and State regulations require that a hearing officer render a decision within 45 days after the parent has requested a hearing, unless an extension of time is requested by either party (34 CFR 300.512 [a] and [c]; 8 NYCRR 200.5 [c][11]). The record reveals that petitioners initially sought an extension of time to obtain an attorney, and thereafter additional extensions were sought or acquiesced in by petitioners, as the parties awaited the results of the SUNY evaluation. The SUNY evaluation was conducted over an extended period of time, and the evaluation report was not given to the parties until December, 1992. The hearing began in December, 1992, but was adjourned to allow the CSE time to prepare a new IEP in January, 1993. The hearing was completed on February 2, 1993, although the parties agreed to submit post-hearing evidence and written arguments to the hearing officer by no later than February 22, 1993. The record does not reveal whether the parties and the hearing officer agreed upon a date by which the hearing officer was to render her decision. However, it is apparent that petitioners either requested or acquiesced in time extensions involving a substantial portion of the 13 month period.

Petitioners assert that the hearing officer erred in holding that respondent had substantially complied with State regulation time requirements for evaluating children with disabilities and providing them with services. In essence, petitioners assert that respondent failed to have an appropriate program available for the child at the beginning of the 1991-92 school year, despite having been advised by petitioners of the child's needs. In a letter dated February 15, 1989, the child's father advised respondent's director of pupil personnel services that he and his family were moving into the school district and described the special education needs of another child in the family. The father also advised that the child in this appeal, who was then two and one-half years old, had been diagnosed as having cerebral palsy. Although at the time when the letter was written respondent did not have responsibility to provide services to preschool children with disabilities, it acquired that responsibility in July, 1989, pursuant to Section 4410 of the Education Law. However, there is no evidence that the child was ever referred to respondent's committee on preschool education. Petitioners assert in their post-hearing documents that they discussed the child's needs with the CSE chairperson in April, 1991. The CSE chairperson has not denied petitioners' assertion. However, there is no evidence in the record that the child was referred to the CSE in April, 1991. Petitioners met with the CSE chairperson on August 12, 1991. In an affidavit, the CSE chairperson asserts that she discussed possible programs with petitioners, but advised them that no placement could be made until the child had been evaluated. Nevertheless, the child was not referred to the CSE until September 5, 1991, by the school psychologist.

A CSE's responsibility to perform an evaluation of, and make a recommendation for, a child begins with a written referral of the child to the CSE by the child's parent, a professional staff member of the school district, or certain other individuals (8 NYCRR 200.4 [a]). The CSE must make its recommendation for the provision of services within 40 days after the CSE's receipt of a referral or 30 days after a child's parent consents to the child's evaluation, whichever period ends earlier (8 NYCRR 200.4 [c]). I am constrained to uphold the hearing officer's finding that the CSE, after its receipt of a referral, did arrange to have the child evaluated and did make its recommendation within the State regulatory time limit. However, I find that respondent's delay in referring the child to the CSE sufficiently prior to the beginning of school in the 1991-92 school year to permit the CSE to perform its responsibilities before the opening of school is inexplicable. Nonetheless, in view of the unique circumstances of this case including the potentially significant change in the child's condition after her surgery and intensive rehabilitation, I find that it would be inappropriate to direct the respondent to provide the child with additional physical therapy and occupational therapy. I further find that petitioners' assertion that the CSE did not complete its evaluation of the child's speech needs on a timely basis to be without merit. They assert that the UCP evaluation of October 1, 1991 was incomplete because it did not assess the child's need for assistive technology, specifically the use of a computer. However, the report recommended that the child receive computer assisted instruction, and suggested contacting a resource person in the UCP for assistance in selecting appropriate computer hardware and software. Although the CSE subsequently agreed in May, 1992 to obtain a more comprehensive assessment of the child's need for technologically assisted speech, that fact does not afford a basis for concluding that the CSE failed to complete an evaluation of the child within the prescribed time period.

The primary issue in this appeal is the appropriateness of the physical therapy and occupational therapy which respondent provided or offered to provide during the 1991-92 and 1992-93 school years. Although those school years have ended, petitioners seek reimbursement in the amount of $3268.96 for physical therapy during the 1991-92 school year and $5,326.74 for physical therapy and occupational therapy during the 1992-93 school year which they paid to have provided to the child, as well as $734.50 for transportation to and from such therapy. Petitioners initially requested that the child receive physical therapy and occupational therapy using the NDT technique at a CSE meeting held on September 13, 1991. Although the CSE recommended that the child receive physical therapy and occupational therapy during the 1991-92 and 1992-93 school years, it did not recommend that the NDT technique be used in providing such therapies until it revised the child's 1992-93 IEP at its January 15, 1993 meeting.

As described in the record, NDT is a series of different treatment techniques which are designed to inhibit abnormal patterns of posture and movement and facilitate innate normal basic motor patterns in some children who have cerebral palsy. Such techniques are often used by physical, occupational and speech therapists working as a team with a child's parents to provide treatment. A medical facility in which the child received treatment in 1989 recommended that the child receive a combined physical therapy/speech language program with an NDT focus. However, the facility did not recommend either the exclusive use of NDT techniques or that such services be provided only by NDT certified personnel.

Petitioners assert that the hearing officer erred by not finding that the NDT approach should have been the only technique to be used in providing physical and occupational therapy to the child. With regard to the 1991-92 school year, I find that there is no basis in the record for concluding that only physical and occupational therapy with an NDT approach would have been educationally appropriate for the child. The child was provided with physical therapy and occupational therapy by non-NDT certified personnel employed by the local BOCES. At the hearing in this proceeding, both individuals testified that they had employed the NDT approach although neither individual testified that the approach had been used exclusively. The occupational therapist testified that the child's needs could not be met solely using the NDT approach. Both witnesses testified that the child had met some of her IEP goals and was making progress toward achieving other goals, when petitioners unilaterally discontinued the therapists' services in March, 1992. Petitioners did not cross-examine either witness. In this appeal, they assert that they were precluded from challenging the therapists' testimony about the child's progress toward her IEP goals when they attempted to raise the issue during a subsequent day of the hearing. However, the record does not reveal that petitioners attempted to have the witnesses re-called, and I find that the hearing officer correctly determined that petitioners were precluded by the provisions of 8 NYCRR 200.5 (c)(9) from introducing certain documentary evidence about the matter. An NDT certified occupational therapist testified that an NDT approach to the child's physical therapy and occupational therapy was appropriate, but did not testify that it was the only appropriate approach. Therefore, I find that respondent met its burden of proof with regard to the appropriateness of the services it provided during the 1991-92 school year.

With regard to the 1992-93 school year, there is no evidence that the child received any physical therapy or occupational therapy offered by respondent. Indeed, in a letter dated September 30, 1992, the child's father advised the CSE chairperson that the child was "unable to use" physical therapy or occupational therapy. There is no evidence that petitioners thereafter requested that such services be provided. The record is particularly inadequate for making a determination about the appropriateness of the services offered by respondent for the 1992-93 school year, because the child underwent extensive surgery in September, 1992, and thereafter was to receive intensive rehabilitation services at the Pittsburgh Medical Facility. An occupational therapist who testified on behalf of petitioners opined that the child's physical therapy and occupational therapy goals would most likely have to be changed after her surgery and rehabilitation. I agree with the hearing officer, who directed respondent to provide an independent evaluation of the child's physical and occupational therapy needs for the remainder of the 1992-93 school year and to prepare the child's 1993-94 IEP. I find that petitioners are not entitled to reimbursement for their expenditures for physical therapy or occupational therapy during the 1991-92 and 1992-93 school years, because they have not met the three-pronged criteria for reimbursement established by the decision in School Committee of the Town of Burlington v. Department of Education, 471 U.S. 379, i.e. that the services offered by respondent were inappropriate, that the services they obtained were appropriate, and that equitable considerations support petitioners' claim.

Petitioners assert that the hearing officer erred in directing the CSE to reconsider its recommendation regarding the child's use of a computer to facilitate her written expression. In her decision, the hearing officer found that the child's IEP inadequately described the child's need for specialized equipment and adaptive devices needed for her to benefit from education (8 NYCRR 200.4 [c][2][vi]). The hearing officer also found that any computer to be provided to the child should have the adaptive equipment and software recommended by the SUNY evaluation. However, the hearing officer further found that the CSE had not consulted with the LDP staff to determine the child's need for adaptive equipment in meeting her IEP goals and objectives within the LDP curriculum. The hearing officer reached a similar conclusion with regard to petitioners' request that respondent be directed to provide the child with a portable computer for her use in school and in her home. The hearing officer held that respondent must provide the requested computer, if the child's educational program requires that she have it available at home to prepare homework assignments or other work related to her instructional program or to enable her to benefit from such program. The hearing officer remanded this issue to the CSE.

Petitioners assert that the child's need for an appropriately customized computer was extensively documented in the SUNY evaluation, and that the hearing officer should have simply ordered respondent to immediately provide the child with an appropriately equipped, portable computer. Petitioners also seek an order directing respondent to provide the child with intensive training in the use of the computer, to compensate for respondent's failure to provide the child with a computer during the 1991-92 and 1992-93 school years.

A board of education must provide assistive technology devices to a child with a disability, if the devices are required for the special education, related services, or supplementary services to be provided as part of the child's free appropriate public education (34 CFR 300.308). State regulation provides that a child's IEP must describe any specialized equipment and adaptive devices needed for the child to benefit from education (8 NYCRR 200.4 [c][2][vi]). I find that the hearing officer correctly determined that the child's entitlement to the use of specialized equipment, such as a computer, should not be determined in the abstract, but should be based upon the achievement of IEP goals in an instructional program. In the hearing in this proceeding, the parties and their witnesses presented little, if any, information about the nature of the LDP's instructional program recommended by the CSE for the 1992-93 school year. With regard to petitioners' assertion that respondent should have provided the child with a computer during the 1991-92 school year, when the child was instructed at home by petitioners, there is no evidence of the child's instructional program in the record. Consequently, I need not reach the issue of under what circumstances a board of education must provide assistive technology devices to a child whose parents have opted to educate the child at home rather than place the child in an educational program of the board of education. In view of my findings with regard to the provision of a computer to the child during the 1991-92 and 1992-93 school years, there is no basis for awarding the compensatory computer training sought by petitioners.

Petitioners asked me to determine whether or not the CSE made its decisions on the basis of prejudice, rather than the expert evaluations which it had secured. They assert that the child has been discriminated against on the basis of her sex, disability, and her national origin. Although the record in this appeal demonstrates that there has been a serious breakdown in the relationship between petitioners and the CSE, and that there are sharp differences of opinion about the services to be provided to the child, I find that petitioners have offered no proof to support their assertion of discrimination.

Finally, petitioners seek reimbursement in the amount of $3,450 for fees which they paid to an attorney who assisted them from April, 1992 through November, 1992, and the award of the sum of $46,022.45 to petitioners to compensate them for the time which they have spent in the due process proceedings. Federal statute provides, in part, that:

"In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorney's fees as part of the cost to the parents or guardian of a child or youth with a disability who is the prevailing party." (20 USC 1415 [e][4][B]

The hearing officer in this proceeding ruled that only a court could award attorney's fees to petitioners. I agree with the decision of the hearing officer (Application of a Child with a Handicapping Condition, Appeal No. 90-18). With regard to petitioners' claim for compensation for their time spent pursuing this matter, I find that there is no basis in Federal or State law for such an award, and I note that at least one court has held that attorney's fees are not available to pro se litigants (Rappaport v. Vance, 812 F.Supp. 609 [D.Md., 1993]). I have considered petitioners' other assertions and find them to be without merit.

THE APPEAL IS DISMISSED.