Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Hewlett-Woodmere Union Free School District
Ehrlich, Frazer, and Feldman, Esqs., attorneys for respondent, Jacob S. Feldman, Esq. of counsel
Petitioner appeals from the decision of an impartial hearing officer which upheld respondent's determination to require the corporation with which it contracted to provide speech/language therapy to petitioner's son to replace the child's speech/language therapist with a licensed speech-language pathologist. The appeal must be dismissed.
There is little information about petitioner's son in the record which is before me. The child, who is 18 years old, was born in Guatemala, and was adopted by petitioner and his wife. The boy has been classified as multiply disabled. The child's individualized education program (IEP) indicates that his cognitive skills are in the retarded range, and that he has mild deficits in his expressive and receptive language skills. He reportedly has intensive management needs. The child's classification as multiply disabled is not disputed in this proceeding.
Petitioner's son was reportedly educated in a private school, until the school closed. Thereafter, petitioner elected to instruct the child at home. At the hearing in this proceeding, petitioner testified that he has employed tutors to provide basic instruction to his son. In addition, petitioner has paid for his son's instruction in music and tae kwon do. The chairperson of respondent's committee on special education (CSE) testified that the CSE has continued to conduct annual and triennial reviews of the child, and that respondent has provided the child with speech/language therapy, at his home.
For an unspecified number of years, respondent has contracted with New York Therapy Placement Services, Inc. (NYTPS) to provide speech/language therapy to petitioner's son. NYTPS employed a Ms. Williams, who reportedly was a teacher of "speech and language" in the Roosevelt Union Free School District, to provide speech/language therapy to the child. Ms. Williams did not testify at the hearing in this proceeding, and the record does not reveal what teaching certificate she may have held. The parties agreed at the hearing that Ms. Williams was not licensed as a speech-language pathologist under Article 159 of the Education Law.
On June 20, 1995, the CSE conducted its annual review to prepare the child's IEP for the 1995-96 school year. The IEP indicated that the child would be educated at home. The CSE recommended that the child receive one hour of individual speech/language therapy, three times per week, during the 1995-96 school year. The CSE did not recommend that the child receive any other special education service, nor did it identify the individual who would provide speech/language therapy to the child. The copy of the child's IEP which is in the record does not include any annual goals, or short-term instructional objectives for the child (cf. 34 CFR 300.346 [a] : 8 NYCRR [c]  [iii]). Petitioner had no objection to the CSE's recommendation.
In a letter to NYTPS, which was dated August 23, 1995, a representative of the State Board for Speech-Language Pathology and Audiology in the State Education Department opined that private agencies, such as NYTPS, could not legally contract with teachers of the speech and hearing handicapped to provide speech-language pathology services to preschool and school-age children, because of a statutory prohibition against the practice of speech-language pathology by individuals who are not licensed as speech-language pathologists (see Section 8202 of the Education Law). Individuals who are not licensed as speech-language pathologists, but who are employed as teachers of the speech and hearing handicapped or teachers of the deaf by school districts, are exempt from the statutory prohibition, while working in the course of their employment (see Section 8207  of the Education Law).
The CSE became aware of the August 23, 1995 letter to NYTPS. The CSE chairperson testified at the hearing that he had discussed the matter with a representative of the State Education Department's Office for Special Education Services, but had been unable to obtain a "variance" to allow the NYTPS to continue to employ Ms. Williams as the child's speech/language therapist. The CSE chairperson informed petitioner that respondent could not allow Ms. Williams to provide speech/language therapy to the child. In its memorandum of law in this appeal, respondent asserts that it asked NYTPS to replace Ms. Williams with an appropriately licensed speech-language pathologist.
In a letter to the CSE chairperson, dated September 21, 1995, petitioner asked for an impartial hearing to determine whether his son should continue to receive speech/language therapy from Ms. Williams. He asserted that the child's therapist had provided outstanding service, that the continuity of instruction should not be interrupted for his child, and that it was desirable " ... for students of a minority ethnic group, such as [petitioner's son], to have teachers of a minority ethnic group, such as [the therapist], as role models ... " Petitioner also requested that the services which were not being provided to his child at that time be made-up later in the school year. In a letter dated September 22, 1995, the CSE chairperson offered to provide the child with the services of an appropriately licensed therapist. Petitioner declined the offer of an alternate therapist, in his letter to the CSE chairperson which was dated September 28, 1995.
The hearing on this proceeding was held on October 11, 1995. At the outset of the hearing, respondent contended that the matter was beyond the hearing officer's jurisdiction, because the Board of Education has the discretion to assign individuals to provide services to children with disabilities, and because the hearing officer could not order the Board of Education to provide the services of an unqualified individual. It should be noted that the CSE chairperson acknowledged at the hearing that the CSE was satisfied with the quality of the services which Ms. Williams had provided to the child. The term "unqualified individual" in this proceeding refers to the fact that the individual was not licensed pursuant to Article 159 of the Education Law. Petitioner agreed with respondent's attorney that there was no disagreement between the parties with regard to the facts, rather they disagreed about the meaning and applicability of the portion of the Education Law to which the representative of the State Board for Speech-Language Pathology and Audiology had referred in her letter to NYTPS, dated August 23, 1995. Petitioner urged the hearing officer to construe the Education Law provision in such a way as to permit Ms. Williams to continue to provide speech/language therapy to his child.
In his undated decision, the hearing officer held that he could not order respondent to continue to use the services of Ms. Williams because of the statutory proscription against the practice of speech-language pathology by unlicensed persons. He also found that petitioner's contentions that it would be educationally unsound to replace Ms. Williams because the child reportedly had difficulty making transitions and because Ms. Williams' ethnicity was compatible with that of the child to be without merit.
Respondent has raised procedural questions which must be addressed before I consider the substantive issues in the appeal. Respondent argues that the appeal was improperly commenced because petitioner failed to serve valid copies of each of the required documents for an appeal to the State Review Officer upon respondent. The record reveals that by letter dated November 24, 1995, the Office of Counsel of the State Education Department rejected petitioner's appeal because there was no evidence that he had served a copy of a notice of intention to seek review and a copy of the appropriate notice of petition upon the Board of Education. He was advised that he must serve both of those documents upon respondent. In a letter dated December 1, 1995, petitioner indicated that he had complied with the instructions given to him by the Office of Counsel. In its answer, respondent does not claim that petitioner failed to serve a copy of petition upon it, but that petitioner failed to re-serve a copy of the petition with the corrected copy of the notice of petition. I find that there is no merit to respondent's argument that the appeal should be dismissed on that basis.
Respondent also argues that this appeal should be dismissed because of petitioner's failure to join the "Office of the State Education Department" as a necessary party to the appeal. Respondent is apparently referring to the Office for Special Education Services of the State Education Department (Paragraph 53 of the answer), which is responsible for the general supervision of educational programs for children with disabilities. As respondent notes in its answer, the State Review Officer is completely independent of that Office (8 NYCRR 279.1 [c]). A necessary party is a person who ought to be a party, if complete relief is to be accorded between the persons who are parties in the action or proceeding, or who might be inequitably affected by the judgment in the action or proceeding (Section 1001 of the Civil Practice Law and Rules). I find that there is no basis for concluding that the Office for Special Education Services of the State Education Department must be involved in this matter in order to accord complete relief, or that it would in any way be affected by my decision in this matter. Therefore, I find that respondent's argument is without merit.
Although neither party has explicitly raised the issue, I must note that the August 23, 1995 letter to NYTPS was written by the Executive Secretary of the State Board for Speech-Language Pathology and Audiology, who is an employee of the Office of the Professions of the State Education Department. I am also an employee of the Office of the Professions. However, my duties as Director of the Division of Professional Licensing do not involve defining the scope of professional practice, or enforcement of the prohibition against the unlawful practice of any profession, and I do not supervise, or report to, the Executive Secretary of the State Board for Speech-Language Pathology and Audiology. I have no personal or professional interest in the hearing which I have been asked to review (8 NYCRR 279.1 [c]). I must further note that 8 NYCRR 279.1 (c)(2) provides that:
"State Review Officers shall not have jurisdiction to review the actions of any officer or employee of the State Education Department."
In this appeal, the action to be reviewed is respondent's determination to require NTPS to replace the child's speech/language therapist with a licensed speech-language pathologist. Respondent was aware of the Executive Secretary's correspondence with NYTPS, when it made its determination to require NYTPS to replace the therapist. The threshold question is whether I am precluded from reviewing respondent's action because it was allegedly based upon its understanding of the Education Law or State Education Department policy, as articulated by an employee of the State Education Department. I recently addressed this issue in another appeal in which it was argued that the State Review Officer could not review a Board of Education action which was reportedly based upon State Education Department interpretation of the law, or the Department's policy. I noted that while the opinions of Federal and State educational agencies must be considered, they are not dispositive of the legal issues which the State Review Officer must determine upon his own analysis of statute, regulations and decisional law when reviewing the actions of a Board of Education or its CSE (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-76). I find that I have jurisdiction to review the hearing officer's decision, and respondent's underlying action, in this appeal.
Respondent argues that petitioner has no standing to challenge the replacement of his son's speech/language therapist, provided that the replacement therapist is appropriately qualified to perform his or her services. Respondent relies, in part upon, the decision in Application of a Handicapped Child, 20 Ed. Dept. Rep. 466, for the proposition that the reassignment of a child's teacher does not constitute a change in the child's placement or program, as those terms are defined in State regulation (8 NYCRR 200.1 [c] and [f]). While I agree with respondent that the replacement of the child's speech/language therapist is not a change in the child's program or placement, it does not follow that petitioner may not avail himself of the right to an impartial hearing to challenge what he perceives will be the provision of less adequate speech/language therapy to his son. However, petitioner's preference for a particular related service provider is not determinative of the matter (Application of a Child with a Handicapping Condition, Appeal No. 91-19; Application of a Child with a Disability, Appeal No. 94-12).
In his petition, petitioner concedes that respondent could have assigned an individual other than Ms. Williams to provide the child with therapy " ... if it had any reason for doing so." He contends that respondent acted arbitrarily and capriciously by merely acquiescing in NYTPS's assignment of a new therapist to the child, without adequate preparation for the transition to a new therapist. At the hearing, petitioner asserted that his child had difficulty making transitions. However, the CSE chairperson testified that the child had different tutors over the years, and interacted satisfactorily with a school district employee when he was tested by the employee. Neither petitioner nor the CSE chairperson could recall if the school district employee (Ms. Silver), who also tutored the child during the summer, had ever reported that the child had difficulty with transitions. The CSE chairperson acknowledged that the child's transition problems had been discussed at the CSE meeting, but opined that the transition to a new therapist was not a matter of concern, provided that the new therapist had reviewed the child's records and had a sense of the child's needs. Upon the record before me, I find no basis for concluding that a change of therapists would have been educationally unsound because of the boy's reported transition difficulties.
Petitioner next argues that it was arbitrary to change the child's therapist because the change was based upon what petitioner asserts was a misinterpretation of the provisions of Section 8207 of the Education Law, which reads in material part as follows:
"§ 8207. Exempt persons
This article [Article 159, which applies to licensing of speech-language pathologists and audiologists] shall not be construed as prohibiting:
(1) The practice of any other professions licensed or registered under this title.
(2) Any person employed by the federal, state or a local government or by a public or non-public elementary or secondary school or an institution of higher learning from performing the duties of a speech-language pathologist, an audiologist, a teacher of the speech and hearing handicapped, or a teacher of the deaf in the course of such employment ... "
As used in the statute, the terms "such employment" refer to employment by a school district or a private school. In this instance, Ms. Williams was employed by the Roosevelt Union Free School District, as well as by NYTPS. However, she did not provide therapy to petitioner's son in the course of her employment by the Roosevelt Union Free School District. Petitioner contends that the word "employed", as it appears in the statute, should be given the broad meaning of the terms "use" or "engage the services of," rather than the traditional legal meaning associated with an employer-employee relationship. Under both Federal and State decisional law, an employer-employee relationship exists when the purported employer exercises control and direction over the purported employee (Jacky W. v. NYC Bd. of Ed., 848 F. Supp. 358 [E.D. N.Y., 1984]; Matter of Baker, 617 NYS 2d 976 [A.D. 3rd Dept., 1994]). In this instance, the record does not afford a basis for determining the extent to which respondent exerts control or direction over the child's speech/language therapist. However, petitioner appears to concede that the therapist is in fact an independent contractor, rather than an employee, of respondent. His argument that the term "employed" should be given a different meaning would be more appropriately addressed to a court. Under the circumstances, I find that it was not arbitrary for respondent to conclude that it could not continue to contract with NYTPS for speech/language therapy services provided by Ms. Williams.
I have also considered petitioner's argument that respondent had an "affirmative constitutional duty" to take the minority background of the child into account when it assigned a speech therapist to him. However, I find that the extremely limited factual record which is before me does not afford an adequate basis for me to address petitioner's claim (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of the Board of Education of the City School District of the City of New York, Appeal No. 94-35).
THE APPEAL IS DISMISSED.