95-054

        Petitioner appeals from the decision of an impartial hearing officer which found that petitioner's son had not been denied special education and related services despite not having received services on certain days, because the child's service providers had made up the lost services by providing extra services on other days. The hearing officer also rejected petitioner's claim that respondent's committee on special education (CSE) could not seek information about the child from the child's attending physician, without petitioner's consent, for the child's triennial evaluation, and his claim that respondent had not provided petitioner with reasonable access to his son's school records. The appeal must be dismissed.

        Petitioner's son is 19 years old. In March, 1991, the child sustained multiple trauma including a severe head injury in a automobile accident. The child has a tracheostomy to assist him in breathing, and he receives nutrition through a jejunostomy. A neurologist who examined the child in 1992 opined that the child was likely to remain in a persistent vegetative state, with little chance for meaningful recovery. In 1993, the child's physician reported that the child was unable to perform any meaningful movements or activities on command. In May, 1994, the child was evaluated by a physician who opined that the child had a post-traumatic brain injury with resultant persistent vegetative state. The child's present classification as traumatic brain injured is not in dispute.

        Respondent began to provide special education services to the child in 1992 at the Crouse-Irving Hospital. The child has remained at the hospital for treatment, and respondent has continued to provide him with services there. In April, 1992, respondent's committee on special education (CSE) recommended that the child receive special education, as deemed appropriate, and the related services of speech/language therapy, physical therapy, and occupational therapy, provided that such services did not interfere with the child's medical care. Respondent arranged to have the child's special education and related services provided by the Board of Cooperative Educational Services of Onondaga- Cortland-Madison Counties (BOCES).

        In November, 1992, petitioner requested that an impartial hearing be held to review respondent's alleged failure to provide the child with the special services which were indicated in the child's individualized education program (IEP). An impartial hearing officer found that the child's IEP did not include sufficient information to allow the service providers to plan appropriate programs and activities for the child, and he directed the CSE to prepare a new IEP for the 1993-94 school year. In August, 1993, petitioner's appeal from the hearing officer's decision was sustained (Application of a Child with a Disability, Appeal No. 93-34). Respondent was held to be responsible for the child's loss of services as a result of the BOCES' unilateral termination of the services of the child's special education teacher in December, 1992. The CSE was directed to recommend such additional services as would address any deficiency caused by respondent's failure to provide certain services to the child. Since then the parties have been involved in a number of impartial hearings and appeals to the State Review Officer (Application of a Child with a Disability, Appeal No. 93-47; Application of a Child with a Disability, Appeal No. 94-28; Application of a Child with a Disability, Appeal No. 95-10; Application of a Child with a Disability, Appeal No. 95-44; Application of a Child with a Disability, Appeal No. 95-51).

        In September, 1994, the CSE recommended a reduction in the amount of physical therapy and occupational therapy to be provided to the child. The CSE's recommendation was upheld by an impartial hearing officer, and petitioner's appeal from the hearing officer's decision was dismissed (Application of a Child with a Disability, Appeal No. 95-10). Petitioner has brought an action in the United States District Court for the Northern District of New York to review that decision. In accordance with the "pendency" provisions of Federal and State law (20 USC 1415 [e][3][A]; Section 4404 [4] of the Education Law), respondent has been required to provide the services set forth in the child's last mutually agreed upon IEP of April, 1992. The boy's 1992 IEP provided that he was to receive one 30-minute period per day of speech/language therapy, occupational therapy, and physical therapy, and two hours per day of special education.

        This proceeding arises from a series of hearing requests which petitioner made with regard to respondent's alleged failure to provide services to his son on specific dates. In a letter dated February 8, 1995, petitioner asserted that the child had not received all of his required services during the period from January 17, 1995 through January 20, 1995. He did not specify which services had allegedly not been provided. In a letter to petitioner, dated February 13, 1995, respondent's Director of Pupil Personnel Services informed petitioner that the services of the child's speech/language therapist and occupational therapist which had not been provided during the period in question had been subsequently made up.

        Respondent's attorney sought an opinion from the State Education Department's Counsel concerning respondent's obligation to provide an impartial hearing. On March 18, 1995, an Assistant Counsel opined that respondent was required to provide a hearing. Before respondent received the legal opinion, petitioner filed a second request for a hearing, which was dated February 23, 1995, about an alleged failure to provide one unspecified service each day during the week of January 30 through February 3, 1995. In a letter dated February 25, 1995, petitioner made his third request for a hearing with regard to an alleged failure to provide three unspecified services on February 6, 1995 and one unspecified service on February 7 and February 10, 1995. In a letter dated March 3, 1995, the Director of Pupil Personnel Services indicated to petitioner that since February 6, 1995 was a "snow day" for the district, no services were required to be provided on that day. She further indicated that the services which had not been provided on February 7 and February 10 had been made up on February 12. Petitioner made his fourth request for a hearing in a letter dated March 10, 1995. He asserted that respondent had failed to provide at least one unspecified service on February 27 and 28, 1995, and March 1 and 3, 1995.

        In a letter dated March 7, 1995 the Director of Pupil Personnel Services informed petitioner that the CSE had asked the child's attending physician to provide an updated medical status report with the purpose of completing the child's triennial evaluation. By letter dated March 27, 1995, petitioner asserted that he had previously withdrawn his consent for the CSE to obtain any evaluative information from the child's attending physician. He requested that an impartial hearing be held to address the CSE's alleged violation of his rights.

        On or about March 14, 1995, respondent appointed a hearing officer to conduct a hearing, which was tentatively scheduled to be held on March 23, 1995. By letter dated March 15, 1995, the Director of Pupil Personnel Services informed petitioner of the hearing officer's appointment and tentative hearing date. In a letter dated the next day, the Director of Pupil Personnel Services asked petitioner to indicate whether the tentative hearing date was convenient. By letter dated March 20, 1995, petitioner objected to the hearing date as being too soon to permit him to inspect his child's records in preparation of the hearing. He also objected to having a single hearing to determine the issues raised in his four separate hearing requests. A representative of the school district contacted the hearing officer, who agreed to hold the hearing on Saturday, April 1, 1995. The Director of Pupil Personnel Services informed petitioner of the new hearing date, in a letter dated March 21, 1995, and asked petitioner to advise her if the new hearing dated was inconvenient.

        The hearing in this proceeding began on April 1, 1995. The hearing officer denied petitioner's request that the hearing officer recuse himself on the grounds that he could be biased because petitioner was about to initiate an appeal from one of the hearing officer's prior decisions, and because respondent's Director of Pupil Personnel Services had reportedly been involved in the selection of the hearing officer. The hearing officer denied petitioner's request. Petitioner also asserted that the hearing officer had failed to consult him about a mutually convenient time for holding the hearing. The hearing officer offered petitioner the opportunity for an adjournment, which petitioner accepted. The hearing was adjourned until April 11, 1995.

        In a letter to the Director of Pupil Personnel Services, dated April 6, 1995, petitioner requested that an impartial hearing be held regarding the respondent's alleged to failure to provide the child with unspecified services on January 23 and 27, 1995. In a separate letter, also dated April 6, 1995, petitioner asked for an impartial hearing with regard to respondent's alleged failure to allow petitioner to inspect and review the child's school records on March 27, 1995. At respondent's request, the hearing officer consolidated the issues raised in petitioner's two hearing requests with the other issues raised in petitioner's prior hearing request.

        The hearing resumed on April 11, 1995 and continued on May 4, 1995. It concluded on May 16, 1995. During the hearing, each of the child's service providers was questioned about the services which she had provided during the period from January 23 through April 7, 1995. Each provider testified that although she had not provided the child with services for the specified time (either 30 minutes, or 2 hours in the case of the special educator) on each school day, she had made up the time by providing services during the weekend or providing more than the required amount of services on other days. In addition to the testimony of the service providers, respondent introduced into evidence a written log maintained by the service providers, which confirmed their testimony.

        In his decision, which was dated June 17, 1995, the hearing officer rejected petitioner's challenge to the validity of the hearing officer's appointment, upon a finding that the appointment had been made in accordance with Federal and State law and respondent's policy. The hearing officer found that there was no evidence in the record before him to support petitioner's claim that respondent had denied petitioner's reasonable access to his child's records. He noted that on the day in question, March 27, 1995, petitioner had reviewed his son's records, and that on March 28, 1995 received copies of 52 documents which he had requested. With regard to petitioner's claim that the CSE was precluded from contacting the child's physician without petitioner's consent, the hearing officer found that there was no evidence in the record that the CSE had violated the law or acted improperly. The hearing officer found that there was no merit to petitioner's claim that his son had been denied special education or related services during the period in question, because the testimony of the child's service providers that they had made up for lost services was uncontradicted. He held that there was no legal requirement that an IEP specify the days of the week when services were to be provided in a hospital setting. The hearing officer further found that there was no evidence of any harm to the child by not providing the IEP services for the specified amounts on a daily basis.

        At the outset, I note that petitioner has attempted to raise two issues in paragraphs 16 through 29 of the petition, which were the subject of another proceeding (Application of a Child with a Disability, Appeal No. 95-44). Those issues will not be addressed in this appeal.

        Petitioner asserts that the hearing officer's decision should be annulled because the Director of Pupil Personnel Services participated in the selection of the hearing officer. He points out that pursuant to respondent's policy for hearing officers, the school employee who receives a request for a hearing is required to forward the request to respondent's president. In this case, petitioner's request was directed to the Director of Pupil Personnel Services, who is also chairperson of respondent's CSE. Petitioner asserts that the Director of Pupil Personnel Services (CSE) chairperson who was a major witness for respondent at the hearing, selected the hearing officer. In support of his assertion he relies upon a letter which the Director of Pupil Personnel Services sent to respondent's president requesting that a specific individual be appointed as the hearing officer. The memorandum indicated that the individual was the next available person on respondent's rotational list of hearing officers. Petitioner contends that the participation of the Director of Pupil Personnel Services in the selection of the hearing officer creates an appearance of impropriety (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 195; Application of a Child with a Handicapping Condition, Appeal No. 92-25; Application of a Child with a Handicapping Condition, Appeal No. 92-46).

        Petitioner recently raised this issue in another proceeding, in which the Director of Pupil Personnel Services sent a similar memorandum to respondent's president. In that proceeding I held that there was no basis for invalidating the hearing officer's appointment because the Director of Pupil Personnel Services had not had any contact with the hearing officer in advance of the hearing. The prospective hearing officer had been contacted by another school district employee who had no involvement in the matter to be reviewed by the hearing officer, as provided by respondent's policy (Application of a Child with a Disability, Appeal No. 95-44). At the hearing in this proceeding, the building principal who had contacted the prospective hearing officers about their availability testified about the process by which the hearing officer was appointed. I find that there is no evidence that the Director of Pupil Personnel Services had any ex parte communication with the hearing officer. Therefore, I find that there is no merit to petitioner's assertion that the hearing officer's appointment was tainted. However, respondent would be well advised to completely remove the Director of Pupil Personnel Services from the appointment process, in view of her role as the CSE chairperson.

        Petitioner also asserts that the hearing officer colluded with respondent's attorney in scheduling the hearing, and agreeing to consolidate petitioner's several hearing requests into a single hearing. I find that petitioner's assertion is without merit. The record reveals that petitioner was offered an opportunity to indicate that the first two dates which were proposed for the hearing were inconvenient for him. When he objected to the first hearing date, a second date was established. He chose to wait until the hearing had actually begun on April 1, 1995 to assert that the second hearing date was not convenient. I find that the hearing officer acted well within his discretion in agreeing to consolidate the various proceedings. Petitioner's assertion that there should have been separate hearings, despite the common questions which were raised by each hearing request, is transparently without merit.

        With regard to petitioner's claim that he was not provided with all his son's records to prepare for the hearing, petitioner relies on the testimony of the Director of Pupil Personnel Services, who testified that petitioner did not see copies of the service providers' daily logs, or their monthly summaries of the information set forth in those logs, when he inspected the child's records on March 27, 1995. However, she also testified that copies of the daily log sheets were provided to petitioner at two to three-week intervals. Petitioner did not dispute her testimony. Petitioner also questioned her about the financial claim forms which the service providers submit for payroll purposes. However, those records are not part of the child's records. Upon the record before me, I find that petitioner has failed to establish that he was denied access to the child's school records.

        The central issue in this appeal is whether, as petitioner claims, the practice of not providing each of the services listed in this child's IEP on each school day constitutes a denial of services to his child, notwithstanding the fact that the services were made up on other school days, during school vacations, or on weekends. The petitioner contends that the child's IEP explicitly provides that his child is to receive each service on a daily basis, and the IEP makes no provision for making up missed services on other days. He asserts that it is respondent's responsibility to insure that either the regular service provider, or a substitute, is available each school day.

        Respondent argues that although Federal and State regulations require that an IEP specify the amount of services which a child will receive (34 CFR 300, Appendix C, Question 51; 8 NYCRR 200.4 [c][vi]), neither regulation nor decisional law requires that an IEP specify the days of the week when services must be rendered. It asserts that the record reveals that of the 38 instances of missed services during the period in question, the services were made upon 29 occasions by at least the weekend immediately following the week in which they were missed, and that the remaining 9 missed services were made up within a reasonable period of time. It further asserts that the nature of the services and the location in which they were rendered, i.e., a hospital, should be considered in determining the reasonableness of its effort to provide the child with his IEP services.

        Federal regulation requires that an IEP include a statement of the specific special education and related services to be provided to a child (34 CFR 300.346 [a][3]). The official interpretation of that regulatory requirement reads as follows:

"The amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members. The amount of time to be committed to each of the various services to be provided must be (1) appropriate to that specific service, and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of IEP.

Changes in the amount of services listed in the IEP cannot be made without holding another IEP meeting. However, as long as there is no change in the overall amount, some adjustments in scheduling the services should be possible (based on the professional judgement of the service provider) without holding another IEP meeting." (34 CFR Part 300, Appendix C, Question 51).

        State regulation requires that an IEP indicate the amount of time per day that a day that a child will receive each service (8 NYCRR 200.4 [c][2][iv]). Although educational services are normally provided to children only on days of the week when the schools are open, it does not follow that either Federal or State regulations explicitly preclude the practice of providing IEP services on Saturdays or Sundays. This child's IEP provided that he was to receive services for five days each week. For most of the weeks during the time period in question, petitioner's child did in fact receive services on five days. Certain services were provided on fewer than five days per week, but the amount of service per day was more than that specified in the child's IEP. The providers opined that the services which they provided were equivalent to the services which were specified in the IEP.

        I found that there is no evidence in the record that the scheduling changes were detrimental to the child. Notwithstanding the few instances in which missed services were not made up within the same week, I find that respondent has not withheld IEP services from the child. In essence, this proceeding involves scheduling changes, rather than changes in the amount of services to be provided (cf. Application of Bd. of Ed. Ellenville CSD, Appeal No. 92-22). I do agree with petitioner that respondent must ensure that substitute service providers are available, and I note that the Director of Pupil Personnel Services testified that substitute had been obtained for each of the service providers.

        With regard to the request by the Director of Pupil Personnel Services to the child's physician for medical information about the child's condition, I find that there is no merit to petitioner's claim that his rights were violated. State regulation requires that a CSE arrange for an appropriate re-examination of each child with a disability by a physician as part of the child's triennial evaluation (8 NYCRR 200.4 [e]). In view of the child's fragile health, I find that it was reasonable for CSE to request information from the physician, rather than obtain physical re-examination of the child. As was held in another recent appeal by petitioner, parental consent is not required for the reevaluation of the child who has previously been classified as a child with a disability (Application of a Child With a Disability, Appeal No. 95-51).

        Petitioner also challenges the timeliness of the hearing officer's decision. He asserts that respondent received his first request for a hearing on February 9, 1995, and that the hearing officer did not render his decision until June 17, 1995. Federal and State regulations require that a Board of Education ensure a decision by hearing officer be made to the parties not later than 45 days after receipt of a request for hearing (34 CFR 300.512 [a][1]; 8 NYCRR 200.5 [c][11]). In this instance, the first tentative hearing date was March 23, 1995, which was 42 days after respondent received petitioner's hearing request.

        In a previous appeal, respondent was cautioned about a delay in appointing a hearing officer, and was directed to adopt a corrective action plan to ensure that hearing officers are promptly appointed (Application of a Child with a Disability, Appeal No. 93-47). The record reveals that respondent has adopted a new procedure for appointing hearing officers. However, the delay in respondent's appointment of the hearing officer in this proceeding was occasioned by respondent's request to the State Education Department for a legal opinion. Given the unusual issues raised in this proceeding and the fact that there is no evidence of any harm to the child as a result of the delay, I will not require any further corrective action on the part of respondent.

        I have considered petitioner's other contentions, and find that they are without merit.

THE APPEAL IS DISMISSED.