96-010

         Petitioner appeals from the decision of an impartial hearing officer which found that respondent had failed to provide her child with all of the related services which were to have been given to him during the 1994-95 school year, pursuant to the child's individualized education program (IEP), but which denied petitioner's request that respondent be ordered to reimburse petitioner's insurance carrier for its expenditures to purchase related services for the child. She also appeals from the hearing officer's determination that her son did not require a twelve-month educational program, during the 1994-95 school year. The appeal must be sustained in part.

        At the outset, I note that respondent contends that the appeal should be dismissed as untimely. State regulation requires that the parent of a child with a disability serve a copy of his or her petition to review a hearing officer's decision upon the board of education within 40 days after the parent has received the hearing officer's decision (8 NYCRR 279.2 [b]). The hearing officer's decision in this proceeding was dated December 6, 1995. Respondent's attorney has submitted an affidavit in which she alleges that on December 13, 1995, petitioner attempted to discuss the hearing officer's decision with her, and petitioner shared her copy of the decision with respondent's attorney. The attorney also alleges that she also received a copy of the hearing officer's decision from respondent, on December 13, 1995. Petitioner served a notice of intention to seek review upon respondent on January 8, 1996. The record indicates that copies of the notice of petition and the petition were served upon respondent on January 25, 1996, or 43 days after the date on which petitioner is alleged to have received a copy of the hearing officer's decision.

        Petitioner concedes that she received a copy of the hearing officer's decision, on or before December 13, 1995, but alleges that she did not send her copy of the decision to her attorney because she believed that the hearing officer would provide a copy for the attorney. In an affidavit annexed to petitioner's reply to respondent's attorney, petitioner's attorney asserts that he received an incomplete copy of the hearing officer's decision by facsimile, on December 11, 1995, and that he did not receive a complete copy of the decision by mail until December 26, 1995.

        Given the fact that petitioner was represented by an attorney at the hearing in this proceeding, a copy of the hearing officer's decision should have been sent to her attorney. In any event, petitioner and her attorney apparently each received copies of the hearing officer's decision slightly more than 40 days before the petition to review the decision was served. However, respondent was put on notice that review of the hearing officer's decision would be sought, when it received the notice of intention to seek review. Respondent has not demonstrated that it would be prejudiced by petitioner's slight delay in serving her petition, which I will excuse (Application of a Child with a Disability, Appeal No. 95-20).

        Petitioner's son, who is seven years old, has been medically diagnosed as having 9-P Syndrome, which is a chromosomal abnormality. Symptoms of his medical disorder have included cranial facial dysmorphism (malformation), apnea (breathing irregularity), a heart defect, hernias, scoliosis and clubbed feet. Surgery has corrected his hernias and clubbed feet. The child formerly wore a back brace to correct his spinal curvature. The child has evidenced signs of mental retardation, delayed language, and deficits in his gross and fine motor skills. He has been classified for educational purposes as multiply disabled. His classification is not disputed in this proceeding.

        In January, 1990, when the child was nineteen months old, he began receiving speech/language therapy, physical therapy, and occupational therapy in the home-based program of the Special Children's Center of Cortland County (Center). In September, 1990, he began to attend a transitional classroom at the Center on a one-half day basis, three days per week. The child attended a center-based program at the Center on a daily basis, from February , 1991 through August, 1991. In September, 1991, the child entered Jowonio: The Learning Place, a private school for children with disabilities which is located in Syracuse, New York. He remained in Jowonio, through the 1993-94 school year. During the 1991-92 and 1992-93 school years, the child was reportedly enrolled on a twelve-month basis in an inclusive preschool class, consisting of "typical" i.e., non-disabled children, and children with special needs. He continued to receive speech/language therapy, physical therapy, and occupational therapy at Jowonio.

        In the Spring of 1993, as the child was completing preschool at Jowonio, his teacher reported to respondent's committee on special education (CSE) that the child had an attention span of five to ten minutes, and that he related better to adults than to children. The teacher further reported that improvements in the child's speech articulation and language skills had been reflected in the child's improved ability to interact socially. A Jowonio speech/language therapist indicated that the child's greatest gains had been in functional communication skills. The child, who was then five years old, reportedly exhibited approximately three year delays in his gross and fine motor skills. On a test of the child's adaptive behavior, he achieved standard scores of 73 in communication, 65 in daily living skills, 74 in socialization, and 57 in motor skills. The Jowonio psychologist reported that it was difficult to ascertain the level of the child's cognitive skills, because his language, articulation, and fine motor delays limited his ability to demonstrate things which he may know. She also reported that his language and motor delays affected the child's ability to function independently in the classroom.

        The CSE recommended that the child remain in a twelve-month program at Jowonio, for kindergarten during the 1993-94 school year. The CSE also recommended that the child receive individual speech/language therapy twice per week, small group speech/language therapy three times per week, individual occupational therapy three times per week, individual physical therapy four times per week, and small group physical therapy once per week. At the hearing in this proceeding, the CSE chairperson testified that respondent had intended to establish an inclusive kindergarten class in its own school, for the 1993-94 school year, but was unable to do so. She further testified that petitioner wanted an inclusive placement for her son, and that the Jowonio staff had indicated that the child needed non-disabled children as peer models in order to learn appropriate school behavior. Therefore, the CSE had recommended that the boy remain in Jowonio.

        During the 1993-94 school year, the child was enrolled in a class of seventeen children, six of whom were identified as having special needs. In April, 1994, his teachers prepared their recommendation for the child's educational program for the 1994-95 school year. They reported that the child had become increasingly independent in performing simple tasks within a group, for as long as twenty minutes. His self-help skills, including eating and toileting, had improved, as had his positive interactions with peers. The teachers reported that the child often watched his peers, and modeled his behavior on that of his peers. They reported that the child continued to exhibit significant delays in developing his speech/language skills, motor skills, and knowledge of concepts. The teachers indicated that the child no longer needed to wear a back brace in class, and could sit for longer periods of time. They indicated that the child was better able to focus when seated in a special "cube" chair. Since many fine motor tasks were physically challenging for him, the child was reportedly resistant to trying those tasks. The child reportedly made academic progress during the 1993-94 school year, but continued to evidence approximately a two-year delay in the development of curriculum-based skills. The child's teachers described for the CSE various strategies which had worked well with the child in the classroom, and suggested annual IEP goals for the 1994-95 school year. They recommended that the child be educated in an inclusive class of predominantly non-disabled children, with instructional adaptations to simplify tasks or make them more interesting to the child. The teachers recommended that the child have access to individual adult assistance throughout the school day. They also recommended that the child be enrolled in a twelve-month program during the 1994-95 school year.

        The Jowonio psychologist, who retested the child in March and April, 1994, reported that the child had achieved a standard score of 35 on a vocabulary subtest the Stanford-Binet Test which assessed the child's fund of knowledge, long-term memory and word retrieval skills. On another test which reportedly reflected the child's long-term memory, visual recognition and recall of information, the boy achieved a standard score of 100. The psychologist also reported that the child's test performance was consistent with his performance in the classroom. She recommended that the child be enrolled in an inclusive program, with the assistance of a special education teacher to implement his IEP, and make curricular adaptations, during the 1994-95 school year. The psychologist indicated that the child should receive twelve-month programming.

        Respondent's CSE conducted its annual review of the child on May 19, 1994. The CSE recommended that the child be placed in an inclusive kindergarten class, with two hours per day of consultant teacher services, and the services of an aide, as needed, throughout the school day. It also recommended that he receive speech/language therapy on an individual basis once per week, and in a group of three children four times per week. The CSE recommended that the child receive occupational therapy on an individual basis once per week, and in a group of two children twice per week. The CSE reportedly concluded that the child needed to receive related services on a 1:1 basis to learn new skills, which were then to be practiced in small groups, or in the classroom. The CSE recommended that the child receive an adaptive physical education evaluation.

        The IEP which the CSE prepared at its meeting on May 19, 1994 did not provide that the child would receive any special services or programs on a twelve-month basis. At the hearing in this proceeding, the CSE chairperson testified that during the Summer of 1994 the child attended Jowonio, and received related services, pursuant to his IEP for the 1993-94 school year. When asked by petitioner's attorney why the CSE had not recommended that the child receive special education and related services during the Summer of 1995, the CSE chairperson testified that the CSE could not recommend a twelve-month program for a child who was enrolled in a regular education class, and that the issue had not been raised at the May 19, 1994 CSE meeting. In any event, petitioner did not immediately challenge the CSE's failure to recommend a twelve-month program for her child.

        In September, 1994, the child entered an inclusive kindergarten class in respondent's Barry Elementary School. A speech/language therapist employed by respondent reportedly provided that related service to the child. For the child's physical therapy and occupational therapy, respondent arranged to have the Board of Cooperative Educational Services in Onondaga, Cortland and Madison Counties (BOCES) provide those services to the child with BOCES employees. The record reveals that the BOCES discontinued the child's physical therapy on or about October 27, 1994, and the child's occupational therapy on or about November 30, 1994. In both instances, the services were discontinued because of staff changes in the BOCES, and the reported inability of BOCES to secure replacement therapists. In a memo to respondent's CSE chairperson, which was dated November 29, 1994, a BOCES representative indicated that the BOCES would resume providing related services, as soon as it could hire replacement therapists. However, respondent's supervisor of special education testified at the hearing in this proceeding that the BOCES representative had orally advised her that the BOCES was unlikely to obtain replacement therapists in the immediate future, and that respondent should try to obtain physical therapy and occupational therapy for the child from other agencies.

        On December 1, 1994, the CSE reconvened to revise the child's IEP for the 1994-95 school year. The minutes of the CSE meeting reveal that the CSE was aware that the child's physical therapy was no longer being provided, and that the BOCES was about to discontinue his occupational therapy. The CSE recommended that the child's physical therapy be changed from three times per week in a small group, and once per week individually, to just three times per week in a small group. However, it also recommended that the child receive adaptive physical education once per week, after the child had been evaluated for that service. The child was evaluated for adaptive physical education, during the month of January, 1995. The evaluator recommended that the child receive adaptive physical education once per week in a group of no more than two children, and once per week in a larger group of children, to develop his gross motor skills. The child reportedly began to receive adaptive physical education once per week, on February 3, 1995.

        At the hearing in this proceeding, respondent's supervisor of special education testified that she contacted various local agencies about providing related services to the child. An employee of the Cortland Memorial Hospital testified that she had been called by the supevisor in December, 1994, but that the hospital was unable to serve the child in school at that time. In December, 1994, the supervisor made arrangements with a private provider to have the child begin to receive physical therapy once per week, beginning on or about January 9, 1995. In May, 1995, the frequency of the child's physical therapy in school was increased to twice per week. On March 7, 1995, petitioner had the child evaluated for physical therapy and occupational therapy at the Cortland Memorial Hospital. Thereafter, the child received physical therapy twice per week, and occupational therapy twice per week after school, at the hospital. In May, 1995, respondent contracted with the hospital to have an occupational therapist provide services to the child in school, for the remainder of the school year.

        Petitioner initially requested a hearing regarding respondent's failure to provide the related services specified in the child's IEP, in a letter dated May 1, 1995 from her attorney to the supervisor of special education. The attorney reiterated his hearing request in a second letter to the supervisor of special education, which was dated June 5, 1995. Thereafter petitioner reportedly met with members of respondent's staff to discuss the matter.

        On June 15, 1995, petitioner also met with the CSE to discuss the child's educational program for the 1995-96 school year. The CSE recommended that the child be enrolled in an inclusive first grade class, with consultant teacher services for two hours each school day, and the services of a teacher's aide throughout the school day. The CSE also recommended that the child receive speech/language therapy individually once per week, and in a group four times per week. It further recommended that the child receive individual physical therapy three times per week, and adaptive physical education once per week. The child was also recommended to receive occupational therapy in a group five times per week. The CSE did not recommend that the child receive any instructional program, or related service, on a twelve-month basis.

        At the hearing in this proceeding, the CSE chairperson testified that after one of the required CSE members had left the meeting on June 15, 1995, petitioner suggested that her son should attend a regular education summer educational program which might be available in the neighboring Cincinnatus Central School District. On July 10, 1995, the CSE reconvened to consider petitioner's request for a summer program for her son. The CSE recommended that the child be enrolled in a BOCES special education class during July and August, 1995, and that he receive related services to be provided by respondent. Petitioner accepted the CSE's recommendation with respect to the child's related services, but rejected its recommendation that the child attend the BOCES program. Respondent contracted with the Cortland Memorial Hospital to provide related services to the child from July 18, 1995 until September 1, 1995. Although petitioner did not explicitly request that a hearing be held to review the appropriateness of the CSE's recommendation for services during the Summer, the parties agreed that petitioner could raise the issue in the hearing held pursuant to her two prior hearing requests.

        The hearing in this proceeding began on August 17, 1995. Petitioner asked the hearing officer to order respondent to reimburse her for the cost of the related services which she had obtained for her child at the Cortland Memorial Hospital during the 1994-95 school year. Respondent acknowledged its willingness to reimburse petitioner for the costs which she had incurred in obtaining services for the child, but asserted that petitioner had failed to disclose her net costs to respondent. While agreeing with the amount of physical therapy and occupational therapy which the CSE had recommended that the child receive during the 1995-96 school year, petitioner asked the hearing officer to order respondent to provide additional physical therapy and occupational therapy during school breaks to compensate him for the services which he did not receive during the 1994-95 school year. Petitioner also asked the hearing officer to find that the CSE's recommendation for the child's educational program during the Summer of 1995 was procedurally and substantively flawed. The hearing concluded on September 8, 1995.

        In his decision, which was dated December 6, 1995, the hearing officer found that petitioner should not bear the cost of the related services which she obtained for the child at the Cortland Memorial Hospital, or the cost of transporting the child to receive those services. He directed respondent to reimburse petitioner for the cost of transporting the child to the hospital to receive his related services. However, he denied petitioner's request for an order requiring respondent to reimburse petitioner's insurance company for its expenditures in paying the Cortland Memorial Hospital for the cost of the child's physical therapy and occupational therapy, on the ground that petitioner had raised the issue for the first-time in a post-hearing memorandum of law. The hearing officer directed respondent to develop procedures to comply with requests for hearings on a more timely basis, and to have the CSE make decisions about the need for twelve-month programs on a timely basis. With respect to the appropriateness of the program and related services which the CSE recommended for the Summer of 1995, the hearing officer sua sponte found that the record did not demonstrate that a twelve-month program was warranted, or that the absence of a program would significantly impact upon the child's educational program during the 1995-96 school year.

        Petitioner challenges the hearing officer's refusal to consider her request that her insurance company be reimbursed on the ground that she failed to raise the issue during the hearing. However, she offers nothing to show that she did in fact explicitly raise the issue during the hearing. At the hearing, an employee of the Cortland Memorial Hospital testified that petitioner's insurance company had been billed for the services which the hospital had provided, and that the insurance company had already paid for most of the amount which it had been billed. The employee also testified that she expected that the insurance company would pay the remainder of the bill. Petitioner, who is employed by another school district, reportedly had a group health insurance policy. She admitted at the hearing that she had not paid any part of the hospital's bills for the services provided to her son, and she conceded that she was unaware of any increase in her insurance premium.

        The United States Education Department's Office of Special Education Programs has opined that a school district may use a parent's insurance benefits to pay for necessary special education services, provided that the parent would not incur a financial loss, such as a decrease in available lifetime coverage or any other benefit under the parent's insurance policy, an increase in premiums, or an out-of-pocket expense such as the payment of a deductible amount incurred in filing a claim (20 IDELR 627). That agency further opined that a school district must obtain parental consent to file an insurance claim for special education services, and must inform the parent of all of his or her rights in the process, including the potential loss of lifetime benefits.

        Petitioner has not asserted that she has, or will incur, any financial loss if her insurance company pays for the child's services. Instead, she asserts that she has been deprived of her option of declining to use her health insurance benefits to pay for her son's related services. However, she was not asked by respondent to use her insurance benefits for this purpose. She unilaterally sought to use those benefits. In the absence of any showing of financial harm to petitioner, I find that her interests are adequately protected by the hearing officer's determination that those services shall be at no cost to petitioner.

        Petitioner also challenges the hearing officer's determination not to order respondent to provide "compensatory" physical therapy and occupational therapy to her son during the 1995-96 school year. She requests that I order respondent to do so. At the hearing, petitioner conceded that she had not asked the CSE in June or July, 1995, to provide additional services to her son. She also testified that the amount of physical therapy and occupational therapy which the CSE had recommended that the child receive during the 1995-96 school year was satisfactory. However, she asked the hearing officer to direct respondent to provide additional physical therapy and occupational therapy on days when school is not in session to compensate the child for the loss of services during the 1994-95 school year.

        In his decision, the hearing officer found that respondent's provision of physical therapy during the Summer of 1995 was adequate compensation for the "inconsistent" provision of such therapy during the 1994-95 school year. Although he did not explicitly address the issue of compensation for the loss of occupational therapy during that school year, the hearing officer would presumably have reached the same result because the child also received that related service during July and August, 1995.

        Petitioner's request for additional related services during the 1995-96 school year may be an appropriate equitable remedy for respondent's failure to provide related services in the amount which its CSE had recommended, during the 1994-95 school year (Application of a Child with a Handicapping Condition, Appeal No 91-12; Application of a Child with a Handicapping Condition, Appeal No. 92-40; Application of a Child with a Disability, Appeal No. 93-34). Although the parties presented conflicting, and inclusive, evidence at the hearing concerning the amount of physical therapy and occupational therapy which the child missed during the 1994-95 school year, there is a more compelling reason why I cannot just simply order respondent to provide additional services. The record which is before me includes very limited information about the child's need for either physical therapy or occupational therapy during the 1995-96 school year. I have carefully considered petitioner's exhibit 16, the testimony by the therapists who have worked with the child in the last year, and the child's IEP. I note that the child's consultant teacher during the 1994-95 school year testified that the diminished amount of physical therapy and occupational therapy had been manifested in the level of the child's motor skills during the 1994-95 school year, but that the child's skills had been regained by the end of the school year. I further note that the record reveals that the child's motor skills were not formally evaluated during the 1994-95 school year. It is imperative that any additional services which the child might receive be meaningful, as well as compatible with the services he is receiving pursuant to his IEP for the 1995-96 school year. Therefore, I will direct the CSE to obtain current assessments of the child's motor skills, and to review the child's program. If the CSE concludes that additional services are needed to address any deficiency caused by the diminished amounts of physical therapy and occupational therapy which the child received during the 1994-95 school year, it shall revise the child's IEP accordingly.

        Petitioner asserts that the hearing officer exceeded his jurisdiction by finding that her child did not require a twelve-month program, i.e., instruction and related services during July and August, 1995. She contends that the hearing officer could not reach the issue of the child's need for a twelve-month program because neither petitioner nor respondent had raised the issue at the hearing. Petitioner relies upon the decision in Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 (N.D. N.Y., 1987), which held that the Commissioner of Education was precluded from reaching the issue of a child's classification in a review of a hearing officer's decision because the parties had not raised the issue. However, that decision was premised upon the Federal statute which provides that a hearing officer's decision shall be final, unless appealed. Nevertheless, I have previously held that a hearing officer's jurisdiction is limited to the portions of a child's IEP which are in dispute between the parent and the CSE (Application of a Child with a Disability, Appeal No. 95-85; see also Application of the Bd. of Ed. of the Liverpool CSD, 25 Ed. Dept. Rep. 145).

        In this instance, petitioner has challenged the CSE's recommendation, which is embodied in her son's IEP, that the boy should have been enrolled in the BOCES special education class during July and August, 1995. However, both petitioner and the CSE believed that the child needed to have an instructional program during the Summer of 1995. The parties differ as to the nature of the program the child should have received. I must observe that the hearing officer correctly noted that there was little evidence in the record before him about the child's need in 1995 for a twelve-month instructional program in accordance with the applicable "substantial regression" criteria (8 NYCRR 200.1 [j][1]). Indeed, the CSE chairperson testified that the possibility of the child's academic regression wasn't addressed by the CSE at its meeting on July 10, 1995. In the future, the CSE should more carefully consider the nature of the child's needs. Nevertheless, I find that the hearing officer was precluded from reaching the issue of the child's need for a twelve-month program because that issue was not disputed.

        Respondent bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Chid with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]).

        Petitioner contends that the BOCES special class which the CSE recommended for her son was inappropriate because it was not the least restrictive environment in which the child could have been instructed during the summer. She argues that her child needs to be instructed with children who do not have disabilities, so that he can model his behavior after the behavior of those children. The class which the CSE recommended for the child consisted exclusively of children with disabilities. It should be noted that the child's IEP indicated that a self-contained special education class would be too restrictive a placement for this child.

        The concept of placement in the least restrictive environment applies to summer instructional programs for children with disabilities, but neither Federal nor State law requires school districts to establish programs during the summer if the districts do not offer programs to children without disabilities during the summer (Rausch et al. v. Fountain et al., 21 IDELR 1107 [U.S. D.C. Md., 1994]). However, the Office of Special Education Services of the United States Education Department has opined that a school district may have to pay for a child's placement in a private, regular education setting during the summer, if the child's IEP requires that he receive instructional services in the summer (16 EHLR 290).

        The child's IEP contained three "inclusion" annual goals: to maintain effort on developmentally appropriate teacher-structured tasks; to expand his social interaction skills; and to expand his (academic) readiness skills. The BOCES summer site supervisor testified that all of the child's IEP goals could have been addressed in a BOCES class. The child's consultant teacher conceded that modeling might have been difficult for the child in the BOCES class, but that the child's other IEP goals could have been achieved in the BOCES class. The CSE chairperson testified that the summer program at BOCES was the only program which was available, because respondent and other school districts in the area did not offer elementary level regular education programs during the summer. The child's former teacher in Jowonio testified that the CSE could have created an instructional program for the child in a summer camp or recreation program, but did not explain how that could have been done. Upon the record before me, I find that respondent has met its burden of proof with respect to the appropriateness of the summer program recommended by its CSE.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is annulled to the extent that it found that the child did not require a twelve-month program, and that it dismissed petitioner's request for a remedy for respondent's failure to provide all of the child's IEP services during the 1994-95 school year; and

IT IS FURTHER ORDERED that the CSE obtain an assessment of the child's motor skills, and review his program, to determine if he requires additional amounts of physical therapy and occupational therapy, in accordance with the tenor of this decision.