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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 City School District of the City of New York


Ben M. Arai, Esq., attorney for petitioner

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Janice L. Birnbaum, Esq., of counsel


      Petitioner appeals from the decision of an impartial hearing officer which held that respondent had offered petitioner's foster child an appropriate educational placement for the 1996-97 school year in its specialized instructional environment-I (SIE-I) program at respondent’s P-811 X School. The hearing officer denied petitioner’s request that respondent be ordered to place the boy, at its expense, in a program of the United Cerebral Palsy Association (UCP) of Westchester County for the 1997-98 school year. The appeal must be dismissed.

        Petitioner's child, who is eight years old, has been classified as multiply disabled (see 8 NYCRR 200.1 [mm][8]). He has been diagnosed as having cerebral palsy with spastic quadriparesis, significant mental retardation with autistic features, and a seizure disorder. His cognitive, social, motor, and activities for daily living skills are all significantly delayed. At the time of the hearing in this proceeding, the child was taking one medicine to control his seizures, and a second medicine to moderate his behavior. There is no dispute about the appropriateness of his classification as multiply disabled.

        Petitioner’s foster child entered the Bronx Children’s Program of the UCP of New York City in September, 1991. In November, 1991, a UCP psychologist who had evaluated the child, who was then almost three years old, reported that the child’s mental age was equivalent to that of a three-month old child, and that the child’s adaptive behavior ranged from below one month for socialization to eight months for daily living skills. She further reported that the boy was basically non-reactive, i.e., he did not track with his eyes, or respond to sounds. When he was re-evaluated by the UCP in December, 1992, the child achieved essentially the same results for cognitive and adaptive behavior skills as he had achieved in November, 1991. In January, 1994, the child was re-evaluated by the UCP. On the Cattell Intelligence Scale, he achieved an IQ score of less than 20, and a mental age equivalent of two months. He achieved age equivalent scores of less than one month for communication and socialization, three months for motor skills, and eight months for daily living skills. He was five years old when tested.

        The child had extensive orthopedic surgery in May, 1994. He remained in the Blythedale Children’s Hospital for intensive rehabilitation following his surgery. After being discharged from Blythedale, the child entered his first public school placement in a SIE-I class at P.S. 152, which was under the jurisdiction of the Committee on Special Education (CSE) of Community School District 8. The child attended that school for two years. Petitioner reportedly became dissatisfied with the child’s placement in P.S. 152. Following a review of the boy’s placement by the CSE of Community School District 8 in 1996, the boy was reassigned to a SIE-I class in P-811 X, which is located in I. 84 in Community School District 12.

        In February, 1997, the child’s triennial re-evaluation was performed. A school psychologist who interviewed petitioner to obtain information about the child’s adaptive behavior reported that the child had achieved age equivalent scores of 26 months for communication skills, less than 20 months for daily living skills, and 43 months for socialization skills. Petitioner had indicated that the child responded to his name, and that he could eat finger food, and drink from a straw. The psychologist noted that the child could reach for objects, was aware of new people in his environment, and made brief eye contact. An educational evaluator who observed the child in his SIE-I class reported that the boy’s ability to maintain his attention was inconsistent, that he made some sounds, and that he tended to grind his teeth. She recommended that the child remain in the SIE-I program. The child’s speech/language therapist reported that in some instances, the child would respond to having his name spoken by turning his head towards the speaker. Although he was non-verbal, the child indicated his wants by gazing with his eyes, or reaching with his hands. The speech/language therapist indicated that the child did not yet display pre-conversational skills, and that he did not play with objects functionally. She recommended that the child continue to receive 30 minutes of individual speech/language therapy three times per week. The child’s occupational therapist recommended that the child continue to receive individual occupational therapy for 30 minutes twice per week. His physical therapist recommended that the child continue to receive 30 minutes of individual therapy twice per week. The child’s SIE-I teacher reported that the child was beginning to respond when he heard his name, and he was beginning to touch various classroom materials. She indicated that the child continued to require remediation in all areas of his individualized education program (IEP), and she suggested that the development of his fine motor skills be emphasized.

        On March 24, 1997, the CSE of Community School District 12 recommended that the child remain on a twelve-month basis in a class with a 12:1+4 child to adult ratio in the SIE-I program located at respondent's P- 811 X. It also recommended that the child receive two 30-minute sessions of individual occupational therapy per week, two 30-minute sessions of individual physical therapy per week, one 30-minute session of individual speech/language therapy and two 30-minute sessions of group speech/ language therapy per week. The CSE also recommended that an aide be assigned to ride with the child to and from school. Petitioner had received notice of the CSE meeting, but did not attend the CSE meeting. The record reveals that she and her attorney had attended two meetings held on March 13 and 17, 1997, and that the CSE attempted to contact petitioner by telephone on March 24, 1997 (see 34 CFR 300.346 [d]).

        An impartial hearing was held at petitioner’s request on April 11, 17, and 29, 1997, to review the CSE’s recommendation. At the hearing, petitioner testified that she did not believe that the child’s education was appropriate because it did not provide him with an adequate amount of therapy. She asserted that the child’s needs were primarily medical, rather that educational, and urged the hearing officer to order that the child be placed in the UCP program in Westchester County because that program would enable the child to receive more therapy, and because it was closer to petitioner’s home than respondent’s program was. She also objected to the fact that the child had not been toilet trained, and that he had reportedly been allowed to chew his clothing and a plastic safety harness, while attending school. In support of petitioner’s position, Mr. Stephen Hernandez, who is the Director of Programs of the UCP of Westchester County testified about the UCP educational program. Although he testified that the child could receive up to seven hours of therapy (occupational therapy, physical therapy, speech/language therapy, nursing services, psychological services and recreation therapy) per week in the UCP program, Mr. Hernandez did not opine that the amount of related services which the CSE had recommended that the child receive was inappropriate.

        Margery Miller, the administrative coordinator at P-811X, described the child's current program. She testified that a guidance counselor, three nurses, occupational therapists, physical therapists, vision teachers, hearing teachers, orientation teachers and mobility teachers were available to children in the program, and that many of the children at P-811 X have seizure disorders, cerebral palsy, semi-paralysis and other neurological disorders. Many children, such as petitioner's child, exhibit self-abusive behavior and need substantial assistance with daily living and motor skills. Ms. Miller opined that petitioner's child was appropriately placed with students having similar needs in the SIE-I class. Ms. Miller also discussed the boy's need for toileting assistance, and stated that the staff at P- 811 X is specially trained in toileting and that school has specially adapted toilets.

        The child's teacher, Magaly Claudio, testified with respect to the classroom services currently provided. She testified that lesson plans include work on color and number recognition, standing, and toileting. She opined that the child was not medically ready to be instructed on how to adequately use the toilet facilities, because he did not recognize when he needed to use a toilet.

        Evadne Clarke, one of the child’s classroom aides, testified about the child's toileting needs. She estimated that the child required 3-4 diaper changes per day, and she opined that he was not ready to learn toileting skills. Two other classroom aides also testified that the child was not ready to learn toileting skills. The child's physical therapist, Lukaz Jaruga, testified that he was attempting to improve the child's ability to hold himself in the quadruped position, and to balance and stand with assistance. The physical therapist testified that the child was not then capable of purposeful movement, and he opined that the child would not benefit from an increase in the amount of his physical therapy. The child's occupational therapist, Fiona Ainsley, offered the opinion that the child would never be independent in toileting. She worked primarily with the child in an effort to maintain his quadruped position, with the goal of having him learn to crawl. Ms. Ainsley testified that she had seen improvement in the child’s sitting and balance skills.

        In his decision which was rendered on July 2, 1997, the impartial hearing officer found that the child's special education needs were being adequately addressed by respondent's SIE-I program, and that the boy was suitably grouped for instructional purposes in his SIE-I class in P. 811X. He held that respondent had met its burden of proving that it had offered the child an appropriate educational program, notwithstanding the fact that the child might have received more services if he had been enrolled in the UCP program favored by petitioner.

        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 [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]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        Petitioner contends that the CSE failed to assess each of the child's unique needs. She notes that the boy's classification is based upon his profound mental retardation, orthopedic impairment, and a seizure disorder. Petitioner appears to base her contention that the boy was inadequately evaluated upon the fact that the CSE relied upon her to provide the results of the child's private medical evaluations, rather than having the child evaluated by a board of education physician. However, a board of education may rely upon the results of a private evaluation, in lieu of performing its own evaluation (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-12; Application of a Child with a Disability, Appeal No. 96-71). Petitioner alleges that she was told that respondent's CSE did not do medical examinations, which respondent denies in its answer. I must note that this allegation was not made at the hearing, and I must find that petitioner's allegation has not been substantiated. The record reveals that the CSE had the results of a physical examination of the child by his physician on November 23, 1996 (Exhibit 27), a letter dated April 22, 1996, by the child's pediatrician at the Albert Einstein College of Medicine (Exhibit 26), and various rehabilitation reports from the latter facility, all of which were less than one year old (Exhibit 28). Upon the record which is before me, I find that petitioner's contention that the CSE failed to adequately assess the child is without merit. I further find that the child's IEP which the CSE prepared at its meeting on March 24, 1997 accurately reflects the results of the child's evaluations.

        Petitioner challenges the adequacy of the child's IEP on the ground that it allegedly failed to include specific goals or objectives related to improving the child's toileting skills. I note that at the hearing, the CSE's representative asserted that the CSE was not required to include a specific goal or objective on the IEP because toileting was a component part of the child's SIE-I program. In any event, the CSE did include one annual goal and two short-term objectives relating to toileting on page 22 of the child's IEP (Exhibit 1), which I find were appropriate for this child. Accordingly I find that petitioner's challenge is without merit. While petitioner has expressed concern about the child's lack of progress in developing his toileting skills, there is nothing in the record which suggests that respondent's SIE-I program is inadequate for that purpose. Similarly, I have considered petitioner's assertions about the child chewing his plastic safety harness and jacket while in school. Respondent disputes her contention that these incidents occurred in school. I note that respondent has now provided a transportation aide for the boy to ensure that he does not have the opportunity to engage in these activities while traveling between home and school. I have also reviewed the child's other IEP goals, which I find to have been appropriate for him.

        Petitioner asserts that the CSE failed to recommend that the child receive an adequate amount of physical therapy. She contends that he should be receiving more than the amount recommended by the CSE because the child is growing, and his muscles require more stimulation since he is non-ambulatory. However, she has not offered any evidence to support her contention, while respondent offered the report by its physical therapist (Exhibit 16). In addition, the physical therapist testified that additional physical therapy would not benefit the child (Transcript, page 113). As respondent notes, the amount of physical therapy which the CSE recommended was consistent with the recommendations which were made by the child's physiatrist on August 6, 1996 (Exhibit 2 to the affidavit by Mark Parent). The physiatrist's recommendation, while strictly speaking was not a prescription for physical therapy, was nevertheless a physician's recommendation that the child receive physical therapy (see Section 6731 of the Education Law). Consequently, I am not persuaded by petitioner's assertion that the child's educational program is inappropriate because respondent lacks a physician's prescription for physical therapy. Upon the record which is before me, I find that respondent has met its burden of proof in demonstrating the appropriateness of its educational program for this child.


Topical Index

Annual Goals
CSE ProcessSufficiency of Evaluative Info
Educational PlacementSpecial Class
Parent Appeal
Related ServicesPhysical Therapy