97-013

      Petitioner appeals from the decision of an impartial hearing officer which dismissed petitioner's claims that respondent's committee on special education (CSE) had failed to act promptly to provide her son with occupational therapy during the 1995-96 school year, and that respondent had denied petitioner an opportunity to meaningfully participate in planning and administering her son's Advanced Placement (AP) examinations in May, 1996. The hearing officer also rejected petitioner's claim that respondent had discriminated against her son in the administration of those examinations. The appeal must be sustained in part.

        Petitioner's son, who is twenty-two years old, reportedly has a seizure disorder which has affected his education. He was initially classified as other health impaired while in the ninth grade during the 1989-90 school year (see Application of a Child with a Handicapping Condition, Appeal No. 92-18). He has reportedly remained classified as other health impaired, and his classification is not disputed in this proceeding.

        In November, 1993, the student's physician indicated that petitioner's son had a cognitive function which required that he be educated at home, and that he be given up to twenty-four hours to complete tests (Exhibit 6). Respondent reportedly provided instructional services to the boy in his home after he was classified. However, the parties became embroiled in a series of disputes about whether the boy should remain classified and what educational services he should receive. An action which petitioner and her son had initiated against respondent in the United States District Court for the Southern District of New York, involving respondent's alleged unilateral termination of the student's instructional program in his home was reportedly settled by the parties in July, 1995. Notwithstanding that agreement, the parties were engaged in another dispute in the Spring of 1995 about the school personnel who were assigned to teach petitioner's son in his home (see Application of a Child with a Disability, Appeal No. 96-51). I note from the decision in Appeal No. 96-51 that the parties had reportedly agreed on March 24, 1995 that petitioner's son would receive three hours of instruction per week at his home, which was reportedly consistent with the boy's last agreed upon individualized education program (IEP) for the 1990-91 school year. In any event, the adequacy of the boy's instructional program is not at issue in this appeal.

        The two versions of the student's IEP for the 1990-91 school year which are in the record before me (Exhibits N and O) indicate that petitioner's son was to have received occupational therapy once per week. However, he reportedly did not receive that related service. Nevertheless, that is a matter which is beyond the scope of this proceeding. On September 15, 1995, petitioner gave her written consent for her son to have an occupational therapy evaluation (Exhibit P). Petitioner's son was evaluated by Ms. Judith Poptanich on October 6, 1995. In her report of the evaluation, Ms. Poptanich indicated that the student had functional strength throughout both of his upper extremities, but that the boy had complained of pain in his right shoulder and back. She also indicated that petitioner's son had reported that he had difficulty coordinating both sides of his body and the finger movements necessary to keyboard a computer, and that he used a mouse to access his computer. Ms. Poptanich reported that the boy had evidenced signs of dyspraxia (poor motor planning). However, his visual motor skills were age-appropriate. Although the boy's handwriting skills were reported to be functional, Ms. Poptanich noted that the student's handwriting was time-consuming because of his concern about what he wrote. She recommended that the boy receive occupational therapy, initially once per week, to develop appropriate motor planning skills, so that he could learn to keyboard. She also suggested that he be referred to an outpatient facility to deal with the boy's complaints of shoulder and back pain, and persistent dislocation of his right wrist. Her recommendations ended with the statement that:

" Should concern over these recommendations be made, a referral to an outside agency specializing in accessibility for technology should be considered [Helen Hayes Hospital, Technical Educational Resources Center through BOCES]" (Exhibit 31).

        On October 27, 1995, the boy was evaluated by Alekandra Alderman, M.D., who is a pediatric physiatrist. She noted that occupational therapy had been recommended for petitioner's son in 1990, but he had apparently not received it. She reported that mild fixing dynamics were more prevalent in the boy's fine motor activities than had been the case when he was evaluated in 1990. Dr. Alderman also reported that the boy's keyboarding simulations were slow, but she opined that he evidenced a reasonable potential to improve his keyboarding skills with practice. She indicated that she would not have recommended that the boy receive occupational therapy because his "fixing dynamic quality" and decreased motor planning skills were not "functionally limiting", but she recommended that he receive occupational therapy once per week because writing was reportedly fatiguing for him.

        Respondent's CSE did not meet with petitioner to review Ms. Poptanich's and Dr. Alderman's reports until March 28, 1996. At the hearing, the CSE chairperson testified that the CSE had not taken up the issue of the boy's occupational therapy more promptly because the CSE wanted to consider the occupational therapy evaluation reports together with other evaluation reports for the boy's triennial evaluation, which had not been completed. He also asserted that it was unclear whether changes could be made in the boy's educational program while due process hearings were going on.

        At the CSE meeting on March 28, 1996, Ms. Poptanich noted that she had evaluated the boy approximately six months before the meeting. She requested that she be given an opportunity to observe how the boy functioned with his mouse and computer at home, in order to determine if her recommendation for one session of occupational therapy per week continued to be appropriate. Ms. Poptanich indicated that she needed to further evaluate the boy for the purpose of drafting IEP goals and objectives. She also indicated that if, after the boy had received adult rehabilitation for his shoulder and back pain, and had been given keyboarding training, " ... we can't find an answer there, then to go into an assistive technology referral" (Exhibit 35, pages 7 and 8). Ms. Poptanich recommended at the CSE meeting that the matter be brought back to Dr. Alderman. Petitioner expressed concern about the possible delay in obtaining occupational therapy for her son. She and Ms. Poptanich agreed that the latter would observe the child in his home on April 5, 1996.

        On March 29, 1996, Dr. Alderman concurred that petitioner's son should be further assessed by an occupational therapist to assess his keyboarding skills for the purpose of determining whether occupational therapy was necessary for the student to improve his keyboarding skills. Ms. Poptanich observed the boy using his computer at home on April 5, 1996. She reported that his finger movements seemed to be excessively awkward. While he achieved a score which was in the 70th percentile for accuracy, he typed in the two-to-four words per minute range, which Ms. Poptanich described as being nonfunctional. She recommended that the student receive occupational therapy twice per week for eight-to-ten weeks, to improve his word processing accuracy and speed.

        The CSE met with petitioner and her son on April 18, 1996, to discuss transitional planning for the boy. Although Ms. Poptanich attended that meeting, the results of her April 5, 1996 evaluation were not discussed. The CSE did not meet with petitioner and her son to discuss the boy's occupational therapy needs until June 25, 1996. Although respondent's attorney had offered on behalf of respondent to have the boy begin receiving occupational therapy on or after June 3, 1996 (Exhibit BB), petitioner did not accept that offer. At the CSE meeting, petitioner opposed the recommendation that her son receive occupational therapy twice per week on the ground that he could not receive an adequate amount of such therapy prior to his scheduled completion of high school in August, 1996. The CSE agreed to increase the amount of occupational therapy to three times per week, to be provided between July 8, 1996 and August 31, 1996. However, the boy did not receive occupational therapy reportedly because he was too busy with his high school studies.

        In May, 1996, petitioner's son took the AP examinations in English literature and biology. Those examinations, which are prepared by the College Entrance Examination Board (CEEB) of Princeton, New Jersey, are not required to obtain a high school diploma in New York. The English literature examination, which was given on May 8, 1996, consisted of four parts to be completed within one hour, two hours, one hour, and two hours respectively. The biology examination, which was given on May 14, 1996, consisted of two parts, each of which was to be completed within one and one half-hours. An excerpt from the 1996 AP Coordinator's Manual prepared by the CEEB with regard to administering tests to students with disabilities provided that:

"If required, students with special needs are permitted additional time for the exam. For untimed testing or extensive use of time however, contact AP services for approval. As a general guideline, AP Services recommends up to double the regular testing time. Students may work at their own speed. However, disabled students must be tested at the same time or later - not earlier - than other candidates... To avoid fatigue for the student, a testing day should consist of no more than six hours. If time is needed, the break at the end of the day should be between the multiple-choice and free-response sections, and the exam should be administered on consecutive days." (Exhibit G)

        At the hearing in this proceeding, Ms. Christine Chambers-Sexton, who is respondent's Coordinator of Special Education, testified that she had telephoned the CEEB on March 11, 1996, to discuss testing modifications for the AP examinations for petitioner's son. A CEEB representative reportedly advised her that students with disabilities who needed additional time to complete the AP exams typically took them for no more than six hours on two or three consecutive days. Ms. Chambers-Sexton asked the CEEB representative whether petitioner's son could have a 24-hour period in which to complete each AP examination. The CEEB representative agreed to her request.

        By letter dated April 22, 1996, Ms. Chambers-Sexton advised petitioner and her son that the CEEB had granted permission for the student to take both of his AP exams at home over a 24-hour period inclusive of breaks, "...at your request." She also indicated that:

"If these arrangements are acceptable, please contact my office by April 26, 1996. If we do not hear from you, we will assume that you are in agreement and will finalize the proctoring schedule so as to allow for the 24 hour testing periods on May 8, 1996 and May 14, 1996." (Exhibit 21)

        Ms. Chambers-Sexton testified that petitioner's son had telephoned her to ask what would happen if he felt ill at the conclusion of the first part of either AP examination. After conferring with the CEEB representative, Ms. Chambers-Sexton answered the boy's question. She testified that neither petitioner nor her son had objected to the arrangements for the AP tests. On May 8, 1996, petitioner's son did not feel well after completing part of the English literature exam. He asked to be allowed to complete the remaining part of the examination on another occasion. Since the seal had been broken for the remaining part of the English literature examination, Ms. Chambers-Sexton obtained a replacement for that part of the examination from the CEEB. The boy completed the examination on May 10, 1996. In a letter which was delivered to petitioner on May 9, 1996, Ms. Chambers-Sexton asked the student to indicate whether he preferred to take the biology AP examination in one continuous twenty-four hour period, or in two twelve-hour sessions on consecutive days (Exhibit 24). The boy indicated that he preferred the latter option. He took the biology AP examination on May 14 and 15, 1996.

        On April 2, 1996, which was five days after the CSE had met with her on March 28, 1996 to discuss her son's occupational therapy needs, petitioner requested that an impartial hearing be held because the CSE had allegedly ignored the recommendation by Ms. Poptanich and Dr. Alderson that her son receive an assistive technology evaluation, and because the CSE had not met on a timely basis to review Ms. Poptanich's and Dr. Alderson's evaluation reports. On June 11, 1996, petitioner requested that another hearing be held because respondent had allegedly discriminated against her son by denying him "equal access to accommodations" during his two AP examinations, and because petitioner had been denied an opportunity for meaningful participation in scheduling and administering the examinations. She requested that both hearings be consolidated into a single proceeding before the hearing officer who had been appointed in response to petitioner's April 2, 1996 request.

        The hearing in this proceeding began on July 3, 1996. After six additional days of hearing, it concluded on October 10, 1996. The hearing officer rendered her decision on January 10, 1997. She rejected petitioner's contention that the CSE had ignored a recommendation by either Ms. Poptanich or Dr. Alderman that the boy receive an assistive technology evaluation. The hearing officer found that neither individual had recommended that petitioner's son receive an assistive technology evaluation. With regard to petitioner's assertion that respondent had discriminated against the boy by failing to offer him the opportunity to take each AP examination for six hours per day for no more than four days, the hearing officer noted that neither petitioner nor her son had objected to the testing schedule which was set forth in Ms. Chambers-Sexton's letter of April 22, 1996, and that petitioner had read the CEEB's manual and was aware of the testing modification options which were available to her son. The hearing officer also dismissed petitioner's complaint that she had been denied the opportunity to meaningfully participate in the planning and administration of her son's AP examinations. She held that the term "meaningful parental participation", as used in State regulation (8 NYCRR 200.5 [a] [1] [iii]), applied to CSE meetings, and not to the scheduling and administering of tests, and that petitioner and her son had been consulted about the scheduling of the boy's AP examinations.

        The hearing officer noted that although respondent could not have unilaterally implemented occupational therapy for the boy during the pendency of other due process proceedings which were reportedly taking place in the Fall of 1995 and late Winter of 1996, it could have provided that service if petitioner agreed to have the boy receive occupational therapy. The hearing officer rejected petitioner's contention that respondent's CSE should have convened within thirty days after receiving the boy's occupational therapy evaluation reports, and that the CSE unreasonably delayed the provision of such therapy by agreeing to Ms. Poptanich's request that she be allowed to further evaluate the boy's need for occupational therapy. Finally, the hearing officer denied petitioner's request that respondent be ordered to provide occupational therapy to her son after his graduation from high school, as a form of compensatory education for his alleged deprivation of a free appropriate public education (FAPE). She found that no gross procedural or substantive violation had occurred with respect to providing occupational therapy to the boy.

        Initially, I note that petitioner challenged the validity of the hearing officer's appointment during the course of the hearing. Her challenge was based upon her perception that the hearing officer's appointment had been tainted by the fact that in June, 1995 respondent's then Coordinator of Special Education (Ms. Chambers-Sexton's predecessor) had recommended to respondent's Director of Instruction that five individuals (including the hearing officer in this proceeding) be recommended to respondent for appointment to respondent's list of potential hearing officers (Exhibit FFF). Respondent's Superintendent of Schools also recommended that the five individuals be added to respondent's list of hearing officers (Exhibit EEE). Respondent thereafter appointed each of the recommended individuals to its rotational list of hearing officers. There is no evidence in the record that respondent's former Coordinator of Special Education, or any school district administrator, had any discussion with the hearing officer in this proceeding which could support even the appearance of impropriety. I note that the hearing officer stated on the record that she had not been contacted by any school district representative, except the school district clerk. I find that there is no basis in the record for questioning the hearing officer's appointment (Application of a Child with a Disability, Appeal No. 96-38; Application of a Child with a Disability, Appeal No. 96-76).

        Petitioner contends that the hearing was unfairly conducted by the hearing officer because Ms. Judith Poptanich, the occupational therapist who had evaluated her son in October, 1995 and April, 1996, did not testify at the hearing. She also objects to what she asserts to be factual errors in the hearing officer's decision. The record reveals that in a colloquy with respondent's attorney at the hearing on July 16, 1996, petitioner indicated that she wished to have Ms. Poptanich and three other school district employees be made available to testify. Respondent's attorney stated that Ms. Poptanich was no longer employed by the district, and that respondent could not compel her to attend the hearing. However, he volunteered to write to her to explain that petitioner wanted her to testify. In response, petitioner indicated that: "At this point I will put it down and we will see." (Transcript, page 260). During a subsequent colloquy with respondent's attorney and the hearing officer on August 1, 1996, petitioner again raised the issue of having certain past or present school district employees testify on her behalf. Respondent's attorney again indicated that he would make the individuals who were still employed by respondent available. The hearing officer suggested that petitioner wait until the available witnesses had given their testimony before deciding whether to call additional witnesses (Transcript, page 399). Petitioner, who indicated that she was well aware of her right to present evidence and testimony (see 8 NYCRR 200.5 [c] [4]) did not disagree, nor did she ask the hearing officer to issue a subpoena to compel Ms. Poptanich to testify. She did not raise the issue again. I have reviewed the testimony of petitioner and her son with regard to the issue of what Ms. Poptanich may have said to them about the boy needing an assistive technology evaluation, and have compared that testimony with Ms. Poptanich's written evaluation reports and her remarks at the CSE meeting on March 28, 1996 (Exhibit 35). I find that petitioner was afforded a fair opportunity to present her case, notwithstanding the fact that Ms. Poptanich did not testify at the hearing.

        With regard to the alleged factual errors in the hearing officer's decision, petitioner complains that the hearing officer should not have stated that petitioner's son had met graduation requirements because that issue is now the subject of yet another due process hearing. I must note that on a number of occasions during the hearing petitioner, her son, and respondent's attorney referred to the boy's expected completion of high school in August, 1996. In any event, the hearing officer's error, if any, does not afford a basis for annulling her decision. The hearing officer's other alleged errors were in fact the inferences which she drew from the evidence before her. Although petitioner disagrees with those inferences, they were not factual errors.

        The two principal issues in this proceeding involve the testing modifications which were employed when petitioner's son took his AP examinations in May, 1996, and the delayed provision of occupational therapy to the boy. It should be noted that State regulation requires that a student's testing modifications be described in the student's IEP (8 NYCRR 200.4 [c][2][viii]). This boy's alleged "pendency" IEP from the 1990-91 school year indicated that he could take tests with flexible scheduling and settings, and that revised test formats would be used. However, the IEP did not indicate that extent to which test time limits would be waived. In a prior proceeding involving the time limits for petitioner's son to complete his Mathematics Course III and Latin III Regents examinations in June, 1996, I found that a stipulation which the parties had entered into on March 24, 1995, and which provided that petitioner's son was to be afforded a total time extension of twenty-four hours to complete an examination, was dispositive of the issue (Application of a Child with a Disability, Appeal No. 96-76).

        I need not determine whether that stipulation was also controlling with respect to the boy's AP examinations. The record reveals that the twenty-four extension of time had been employed on prior occasions, and that respondent's Coordinator of Special Education initially proceeded on the assumption that petitioner and her son would want the same arrangements for the AP examinations. In her April 22, 1996 letter to petitioner and her son (Exhibit 21), Ms. Chambers-Sexton expressed what she believed to be the wishes of petitioner and her son, but she clearly invited them to contact her if there was any disagreement. Neither petitioner nor her son did so with respect to the issue of having the examinations extend beyond the time periods which were indicated in Ms. Chambers-Sexton's letter. Consequently, I find that petitioner's contentions that she was denied an opportunity to participate in the decision-making regarding the scheduling of her son's examinations, and that respondent discriminated against her son in the way the AP examinations were administered to be without foundation in fact.

        With regard to the delay in providing occupational therapy to petitioner's son, I concur with the hearing officer's determination that the thirty-day time limit which appears in 8 NYCRR 200.4 (c) may not have strictly applied to the facts in this proceeding. The thirty-day time limit applies to a child who has previously been identified as a child with a disability and who is referred to the CSE for review. The regulation requires that the CSE make a recommendation with regard to the child within thirty school work (see 8 NYCRR 200.1 [m]) days after receipt of a referral. Although the regulation may not have literally applied, I am compelled to conclude that the CSE's delay in this case was unreasonable. I am aware that the CSE chairperson testified that the CSE preferred to wait until the boy's triennial evaluation had been completed before reviewing the results of Ms. Poptanich's and Dr. Alderson's physical therapy evaluations. However, as petitioner points out, the parties were engaged in an impartial hearing in the fall of 1995 with regard to the boy's triennial evaluation. That matter was not concluded until another State Review Officer rendered her decision in Application of a Child with a Disability, Appeal No. 96-38, on September 11, 1996, which was one year after petitioner had consented to having her son evaluated for occupational therapy.

        Federal and State law provides that during the pendency of any due process proceeding, unless the school district and the parent otherwise agree, a child shall remain in the child's then current educational placement (20 USC 1415 [c][3][A]; Section 4404 [4] of the Education Law). Since petitioner ostensibly wanted her son to receive occupational therapy, that service could have begun reasonably soon after the two evaluators' reports have been received, if the CSE had met promptly.

        Although petitioner could have requested that a CSE meeting be held, her failure to do so does not, in my opinion, relieve respondent's CSE of its responsibility to recommend appropriate special education services for petitioner's son. In this instance, there was no dispute about the boy's need for occupational therapy. Both parties must share blame for the delays which occurred subsequent to the March 28, 1996 CSE meeting. Nevertheless, the fact remains that two qualified professionals recommended that this young man receive occupational therapy as part of his free appropriate public education during the 1995-96 school year. He did not receive that related service. I will sustain petitioner's appeal to the extent of granting her request that I direct respondent to provide her son with thirty sessions of occupational therapy, each session to consist of thirty minutes.

        I have considered petitioner's other contentions which I find to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision, to the extent that it denied petitioner's request for the provision of occupational therapy, is hereby annulled; and

IT IS FURTHER ORDERED that respondent shall provide the child with thirty sessions of occupational therapy, each session to consist of thirty minutes, for the purpose of improving the student's keyboarding skills.