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
Neal H. Rosenberg, Esq., attorney for petitioner
Hon. Jeffrey D. Friedlander, Acting Corporation Counsel, attorney for respondent, Antoinette W. Blanchette, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision holding that respondent was required to pay for the private speech/language therapy provided to petitioner's son at the beginning of the 1997-98 school year when respondent failed to provide such therapy to the boy, but it was not required to continue to pay for the private therapy after it had made speech/language therapy available to the boy at his school. The appeal must be dismissed.
Petitioner's son, who is six years old, has been classified as speech impaired. During the 1997-98 school year, the child was enrolled in kindergarten in respondent's P.S. 199. Respondent's committee on special education (CSE) had recommended that the child receive the related services of speech/language therapy and occupational therapy during the 1997-98 school year. Respondent made occupational therapy available to the boy at the beginning of the school year, but it was unable to arrange for him to receive speech/language therapy until the last week in September, 1997.
Petitioner's son had received speech/language therapy as a preschool child with a disability during the 1996-97 school year from a private speech/language therapist through what respondent calls a "related services authorization" (RSA) which enables a parent to obtain related services from a private provider at public expense. Since respondent had not made speech/language therapy available to her son at the beginning of the 1997-98 school year, petitioner asked the child's private speech/language therapist to continue providing services to her child. She also immediately requested an impartial hearing in order to obtain an order requiring respondent to pay for the private therapist's services for all of the 1997-98 school year.
By agreement of the parties, the hearing was adjourned on September 4, 1997 until September 30, 1997. On the latter date, petitioner's attorney and a representative of the CSE of Community School District #3 briefly appeared before the hearing officer. No testimony was taken, and no evidence was introduced. The CSE representative asserted that respondent had the right to decide whether to directly provide a related service, or to contract for the service with a private provider pursuant to a RSA. He further asserted that respondent should not be required to pay for the private therapist's services beyond the last week of September, 1997. Petitioner's attorney asserted that respondent should be required to pay for the private therapist's services for all of the 1997-98 school year in order to ensure the continuity of the child's speech/language therapy.
The hearing officer rendered her decision on October 21, 1997, and amended that decision on October 23, 1997. She found that respondent had satisfied its obligation to provide speech/language therapy to the child for the remainder of the 1997-98 school year, and it was therefore not obligated to continue to pay for the private therapist's services. She did order respondent to pay for the private therapist's services from the beginning of the 1997-98 school year until the date of her decision.
Petitioner asserts that she was advised in September, 1997 that a full-time speech/language therapist employed by respondent and assigned to her son's school would provide therapy to her child, but she further asserts that she was not told whether the therapist's caseload would or could be filled with other children. Whether other children could have been assigned to receive services from respondent's therapist is irrelevant. If petitioner is now questioning whether respondent' s therapist would in fact have been able to serve her child because of her caseload, I must point out that the issue was not raised at the hearing, where her attorney and the CSE representatives submitted the matter to the hearing officer on what was in essence an agreed set of facts. I have no basis on the limited record which is before me for concluding that respondent would not have been able to provide the boy's speech/language therapy because of its therapist's caseload.
Petitioner argues that respondent has offered no compelling reason for changing the boy's speech/language therapist from the individual who worked with him during the 1996-97 school year to its own employee for the 1997-98 school year. She contends that respondent made the change for "bureaucratic convenience". I agree with respondent that it may, in its discretion, select qualified school district employees or contract with qualified independent providers to provide related services to it students (Application of a Child with a Handicapping Condition, Appeal No. 90-4). I find that respondent was not required to offer an explanation for having a new service provider to provide service during the new school year.
Petitioner has the right to challenge a change in her son's speech/language therapist if she believes that he would receive less adequate speech/language as a result of the change (Application of a Child with a Disability, Appeal No. 95-81). However, her 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). At the hearing, petitioner asserted that the private therapist should continue to provide therapy to her son to assure continuity in his treatment. She now asserts that her son had developed a rapport with the private therapist, and that the private therapist was going to provide her son with a new treatment for a central processing disorder as part of the child's treatment plan. I must again note that the limited record before me does not afford a basis for making the kind of finding which petitioner seeks. I have no information about the child's specific education needs, or his annual goals and short-terms instructional objectives for speech/language therapy. Therefore, I have no way of determining whether the central auditory processing disorder treatment to which petitioner refers has been recommended by the CSE in this child's individualized educational program for the 1997-98 school year.
In view of the fact that the change of therapist was to have occurred early in the 1997-98 school year, I am not persuaded by petitioner's argument for continuity of service. Upon the record which is before me, I must uphold the hearing officer's determination.
THE APPEAL IS DISMISSED.