Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Roslyn Union Free School District
Long Island Youth Advocacy, Inc., attorney for petitioners, Sherrie Levine, Esq., of counsel
Jaspan, Schlesinger, Silverman and Hoffman, L.L.P., attorneys for respondent, Carol A. Melnick, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which held that they were not entitled to be reimbursed for the cost of an after-school program in which they had unilaterally enrolled the boy, and that the board of education was not required to transport the boy from the after-school program to his home. The hearing officer premised his decision upon findings that respondent had met its obligation under Federal and State law to provide an appropriate educational program to the boy, and that it had offered the child equal access to its after-school programs. The appeal must be sustained in part.
Petitioners' son, who is ten years old, was initially identified as developmentally delayed at the age of two, while receiving instructional services in the "Infants and Toddlers" program of the New York League for Early Learning, Inc. He thereafter came within the jurisdiction of respondent's committee on preschool special education (CPSE). For the 1990-91 school year, the CPSE recommended that the boy be classified as multiply handicapped because of his speech and orthopedic impairments. The CPSE also recommended that the child be placed in a preschool special education class in the North Shore Preschool Developmental Center on a twelve-month basis. However, his placement in that educational program was reportedly discontinued after one month, at petitioners' request. He was reportedly educated at home for the next two and one-half years.
The child's classification was reportedly changed to autistic, so that he could be admitted to the Martin C. Barell School, which he reportedly attended from January, 1993 to January, 1994. Petitioner reportedly preferred a different method of enhancing their son's language development than was provided by that private school, and they sought to have him placed in another private school. In January, 1994, respondent's committee on special education (CSE) recommended that the boy be instructed at home, pending his admission to the Eden II Institute for Autistic Children, which is located on Staten Island. He reportedly attended Eden II occasionally during the spring of 1994, but was not formally admitted into that facility's educational program until July, 1994. Petitioners' son attended Eden II on a twelve-month basis during the 1994-95 and 1995-96 school years. Although the boy had received occupational therapy while awaiting admission to Eden II, his parents asked that occupational therapy not be provided to him in Eden II, because they wanted to maximize the boy's time in the classroom. He did receive physical therapy and speech/language therapy while attending Eden II.
The child made progress in developing his self-help, speech/language, motor, and academic skills, while attending Eden II. In 1996, Eden II established the Genesis School in Plainview, New York, which is nearer to petitioners' home than the Eden II facility on Staten Island. In May, 1996, respondent's CSE recommended that the child be placed on a twelve-month basis in the Genesis School, as of July 1, 1996. The boy's individualized education program (IEP) which the CSE prepared provided that he was to receive 30 minutes of individual physical therapy twice per week, and 30 minutes of individual speech/language therapy twice per week, and 30 minutes of individual speech/language therapy five times per week. The IEP also provided that a matron would accompany the child on his school bus. Petitioners accepted their son's IEP.
On September 26, 1996, the CSE, which did not include the child's teacher (cf. 34 CFR 300.344 [a]), met with the child's mother to consider her request that respondent transport her son from an after-school program in which petitioners had enrolled the boy to his home. The boy was attending that program for two hours per day, at petitioners' expense, twice per week. The after-school program was located in the Sid Jacobson Jewish Community Center (JCC) which is in East Hills, New York. Respondent had been transporting the boy from his home to the Genesis School, and from the Genesis School to the JCC. The record reveals that the JCC program is for recreation/respite for autistic and developmentally delayed children between the ages of five and ten. It is partially funded by the New York State Office of Mental Retardation and Developmental Disabilities (Exhibit D-34).
The CSE declined to recommend that respondent transport the boy from the JCC to his home, because it concluded that the child did not need to participate in the after-school program in order to benefit from his instructional program in the Genesis School. The CSE and the child's mother discussed the suitability of respondent's two-day per week after-school program for the boy, but the CSE did not recommend that the child be enrolled in that program. The child's mother was reportedly told by the CSE chairperson that respondent's after-school physical education program, which met once per week, would be inappropriate for the child, but that respondent's arts and crafts after-school program which also met once per week, could be adapted to meet the child's needs.
Although the CSE's recommendation would have been a nullity because the CSE did not include the child's teacher (Application of the Board of Education of the Albion Central School District and a Child with a Disability, Appeal Nos. 97-92 and 97-43), I note that the CSE reconvened on December 11, 1996. The CSE chairperson testified at the hearing in this proceeding that the child's teacher in the Genesis School attended the meeting, and described the child's progress. Therefore, the composition of the CSE at its September 26, 1996 meeting is no longer a valid issue in this proceeding (Application of a Child with a Disability, Appeal No. 96-78). The teacher reportedly advised the CSE that the boy had successfully transitioned from the Eden II program on Staten Island, and was making progress in his new school. The CSE again declined to recommend that the boy be transported from the after-school program to his home.
At petitioner's request, a hearing was held on December 18, 1996 and January 21, 1997 to review the CSE's refusal to recommend that respondent transport the child from his after-school program in the JCC to his home. Petitioners asserted that respondent's arts and crafts after-school program was inappropriate for their child. They contended that respondent was obligated under the Individuals with Disabilities Education Act (IDEA), see 20 USC 1400 et seq., and its State counterpart, Article 89 of the Education Law, as well as Section 504 of the Rehabilitation Act of 1973 (29 USC 794), to transport the child to and from the JCC after-school program twice per week, and to pay for the cost of that program. They asked the hearing officer to order the CSE to add the JCC after-school program and the related transportation to their son's IEP. Respondent contended that there was no dispute about the appropriateness of the child's educational program in the Genesis School, and it argued that it had met its legal obligation to provide an appropriate education to the child. The board of education also argued that it was providing transportation to the child in a non-discriminatory manner in accordance with the board's transportation policy and Section 3635 of the Education Law.
In his decision which was rendered on March 30, 1997, the hearing officer rejected petitioners' claim that the CSE's recommendation was invalid because the school psychologist member had not met, tested, or observed the child, and because the CSE allegedly failed to ask certain questions about the child's ability to participate in respondent's arts and crafts after-school program. He noted that the child's teacher in the Genesis School had testified that the child's educational program was appropriate, and that the JCC after-school program was not necessary for the child's continued progress. The hearing officer held that the board of education had met its obligation to provide the child with an appropriate education. He further held that this child had been offered the same opportunity to participate in respondent's after-school program as had been offered to other students in the Roslyn Union Free School District, and that respondent was not obligated to pay for the JCC after-school program , or to transport the child from JCC to his home.
Respondent asserts that this appeal should be dismissed as untimely. The Regulations of the Commissioner of Education provide that a parent seeking review of a hearing officer's decision must serve a notice of intention to seek review upon the board of education within 30 days after receipt of that decision, and must serve his or her petition for review upon the board of education within 40 days after receipt of the decision (8 NYCRR 279.2 [b]). Petitioners' attorney alleges that she received the hearing officer's decision on April 4, 1997. Petitioners' notice of intention to seek review was served on May 14, 1997, and their petition for review was served on May 28, 1997. Although petitioners' attorney has not offered an explanation for her brief delay in serving both the notice of intention and the petition for review, I find that there is no evidence before me that respondent has been prejudiced by petitioners' delay, which I will excuse (Application of a Child with a Disability, Appeal No. 97-17).
I note that just before the hearing concluded in this proceeding, the parties agreed to hold an additional CSE meeting to consider whether the classification of autistic adequately addressed each of the child's needs. However, there appears to be no dispute that the child has autism. The child's father testified that his son also has congenital hypotonia, or muscle weakness, which affects the child's trunk muscles, as well as apraxia, which affects his motor/muscle planning. In any event, I find that the appropriateness of the boy's classification is not before me in this appeal (see Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]).
In essence, the question which petitioners have raised is whether a recreational program should have been included in their son's IEP for the 1996-97 school year in order for him to have the free appropriate public education to which he was entitled (see 20 USC 1412 [B]). The board of education 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 Child 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 ), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a]).
Petitioners contend that their son required the JCC recreation/respite program to meet his special education needs. In support of their contention, they have submitted a letter dated May 27, 1997, from the Executive Director of Eden II to respondent's CSE chairperson. The Executive Director asserted that the boy had made steady and consistent progress in all areas while in the Eden II and Genesis Schools, but that he continued to demonstrate severe deficits in the areas of leisure activities, recreation and any type of sports activities. The Executive Director also asserted that the Genesis School was unable to sufficiently address the boy's deficits in those areas. I must first note that the Executive Director's letter was written almost two months after the hearing officer had rendered his decision in this proceeding. At the hearing, petitioners did not challenge the appropriateness of the Genesis School's program. The boy's father testified that his son's needs were being met by the Genesis School (Transcript, page 200). However, he asserted that his son was benefiting from the additional socialization which the JCC program provided to the boy. In addition, I must also note that the boy's classroom teacher testified that the boy was appropriately placed in her classroom, and that each of the boy's IEP goals and objectives was being addressed in her classroom (Transcript, pages 147-148). The child's IEP for the 1996-97 school year (Exhibit D-27) indicated that the boy had severe problems relating appropriately to adults and/or peers. One of his IEP annual goals was that he would generalize learned skills and appropriate behavior in the community while on school sponsored field trips. A separate annual goal provided that he would improve his social skills by participating in structured language groups and structured play groups. While I have considered the testimony of the child's father and the post-hearing letter by the Executive Director of Eden II, I credit the testimony by the child's teacher that the boy was making slow progress toward achieving his IEP goals and objectives. The teacher testified that the boy could only remain in a "circle group" for about 15 minutes. She also testified that the child did not need to be in the JCC after-school program to benefit from instruction in the Genesis School program (Transcript, page 173). Upon the record which is before me, I find that respondent has met its burden of proving that it provided an appropriate educational program to the child during the 1996-97 school year, and I concur with the hearing officer's determination that the JCC program did not need to be added to the child's IEP.
Petitioners also argue that respondent should have been required to transport their son to and from the JCC program pursuant to the Federal and State regulatory provisions which require that the board of education afford its children with disabilities an equal opportunity to participate in extracurricular activities (see 34 CFR 300.306; 8 NYCRR 200.2 [b] ). I must note that respondent has not excluded the child from any activity, although the parties appear to agree that respondent's after-school physical education program would be inappropriate for the child. As noted above, the parties disagree about the appropriateness of respondent's arts and crafts program for the boy. However, the real issue here is whether respondent's transportation policy, as applied to the facts of this case, significantly limits the child's access to extracurricular activities. A board of education need not provide a child with a disability with each service which the board makes available to children without disabilities (Rettig v. Kent City School District, 788 F. 2d 328 [6th Cir., 1986]). Nevertheless, the record in this proceeding reveals that respondent provides late bus service to the children who attend its after-school program (Transcript, p. 53). In essence, petitioners were seeking to have their son receive late bus transportation from his after-school program on two days of the week. There is one additional trip involved here on those days because petitioner's son has been placed by respondent in the Genesis School, which necessitates a trip back from the school to respondent's district. However, the fact that the boy has been placed in a private school by respondent may not, in my judgment, be used to deny him the late bus service he would receive if he attended respondent's schools (Application of the Board of Education of the East Syracuse-Minoa Central School District, Appeal No. 92-11).
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the hearing officer, to the extent that he found that the child was not entitled to late bus service comparable to that which the board of education provides to other elementary school children, is hereby annulled.