Application of a CHILD WITH A DISABILITY, by her 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
Emily Stern, Esq., attorney for petitioner
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Blanche Greenfield, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied her request for additional related services for her daughter during the 1999-2000 school year, and which dismissed her request for extended school year services during the summer of 2000 as being premature. The appeal must be sustained in part.
There is an initial procedural question of whether to accept the Board of Education’s answer to the petition. Respondent sought and obtained an extension of time until February 18, 2000 for service of its answer. However, it did not serve its answer until February 23, 2000, and has not offered any explanation for its delay. In view of the briefness of the delay which did not affect my decision in this appeal, I will excuse the delay and accept the answer.
Petitioner's eight-year old daughter suffered a stroke at birth, resulting in cerebral palsy spastic left hemiplegia, (paralysis to the left side of her body), orthopedic and speech/language impairments, and a seizure disorder (Exhibit 23). The child has minimal use of her left hand and walks with a limp. She is bilingual in Portuguese and English. She was initially classified by respondent’s committee on special education (CSE) as orthopedically impaired and speech impaired in 1997 (Exhibit 2). That classification was apparently changed to just orthopedically impaired in the spring of 1999 (Exhibit 14). Her classification is not in dispute in this proceeding, and is therefore not reviewed (Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D. N.Y., 1987]).
The child entered kindergarten in the fall of 1997. She was placed in a regular education kindergarten. Her individualized education program (IEP) for the 1997-98 school year indicated that she was to receive consultant teacher services and have the assistance of an aide (Exhibit 2). The child was also to receive speech/language therapy, physical therapy, occupational therapy, and counseling. For the 1998-99 school year, the CSE again recommended that the child be placed in a regular education class with consultant teacher services and a full-time aide, as well as the related services of speech/language therapy and physical therapy (Exhibit 3). Her IEP for that school year indicated that she was to have an extended school year (ESY), i.e., receive services on a 12-month basis. Although her IEP for the preceding school year had not indicated an ESY for her, I note that at the hearing in this proceeding the CSE’s representative conceded that the child had previously received services on a 12-month basis (Transcript p. 82).
In the spring of 1999, petitioner sought to have the amount of her daughter’s consultant teacher services and her related services increased (Exhibit 9). On March 1, 1999, the child’s physical therapist reported that the girl was receiving 30 minutes of therapy twice per week and described the IEP goals which the child had met (Exhibit 10). The therapist suggested new annual goals for the girl, but did not indicate whether the amount of physical therapy should be increased. On March 9, 1999, the girl’s occupational therapist reported that the child was receiving 30 minutes of such therapy twice per week and described the progress the child had made (Exhibit 11). The therapist suggested new goals for the girl, but did not indicate whether the amount of the child’s occupational therapy should be increased. An educational evaluator assessed the girl’s progress on March 15, 1999 (Exhibit 12). He reported that the child was highly motivated, and described her letter identification, word recognition, sound-symbol association, writing, copying, spelling and math skills. He indicated that she had made progress since her last assessment, but that she continuing to have delays in her expressive writing, handwriting, word recognition, and listening comprehension. On March 22, 1999, the child was observed in class by a school social worker who reported that she appeared to need assistance in attending and focusing during a math class, as well as encouragement in verbalizing (Exhibit 13)
The CSE reviewed the child’s educational program with petitioner on March 24, 1999 and on April 21, 1999. On April 19, 1999, the child’s pediatrician wrote prescriptions for the child to receive 60 minutes per week of speech/language therapy, physical therapy, and occupational therapy (Exhibit 16). The IEP which the CSE prepared on April 21, 1999 for the 1999-2000 school year provided that the child was to be enrolled once again in a regular education class with consultant teacher services and a full-time aide (Exhibit 14). The IEP also provided that she would receive 60 minutes of individual speech/language therapy twice per week, 45 minutes of individual physical therapy twice per week, and 45 minutes of individual occupational therapy twice per week. The CSE denied petitioner’s request for three hours per week of each related service as not being consistent with what the student’s related service providers had recommended. The CSE recommended that the child not receive ESY services.
Petitioner objected to the IEP prepared by the CSE and sought a due process hearing to challenge the IEP. At her request, the hearing was adjourned until June 21, 1999, at which time the parties agreed on the record that the child would attend a summer reading program and "camp" at PS 234, and have the assistance of a consultant teacher and an aide. They also agreed that the contested IEP would be implemented at the beginning of school in September. Following two more adjournments and a brief hearing on petitioner’s attempt to subpoena certain records, the hearing was held on November 15, 1999. At that time, the issues for the hearing officer to determine were identified. Petitioner sought compensation for certain services provided to her daughter at summer camp during 1998 and 1999. She also sought an order increasing her child’s related services to three hours per week with the proviso that if they could not be provided during the school day respondent should be ordered to issue authorizations for private service providers known as "RSA"s. Petitioner also requested that the IEP be amended with regard to the locations at which her child’s related services were provided in school. She wanted the IEP to be further amended to provide for ESY during the summer of 2000, and to correct certain errors about which there was no dispute. Finally, she requested that a daily communication log be created to keep her apprised of what was happening in school. The hearing consisted of colloquy among petitioner, her attorney, a CSE representative, and the hearing officer, as well as telephone testimony by an expert in integrating related services into children’s educational programs. Petitioner submitted a number of documents. No documents were submitted on behalf of the CSE.
In his decision on December 22, 1999, the hearing officer addressed each of the seven issues which had been identified at the hearing. Only two of those are challenged in this appeal. The hearing officer denied petitioner’s request for an order amending the child’s IEP so that she would receive 60 minutes of individual speech/language therapy, physical therapy, and occupational therapy per week. He noted that at the hearing the CSE representative had offered to provide the additional related services requested by petitioner if the need for the additional services was established by independent evaluations. The hearing officer ordered the Board of Education to pay for such independent evaluations and to implement the recommendations by the persons performing those evaluations. He denied petitioner’s request to amend her daughter’s IEP for the 1999-2000 school year to include ESY services during the summer of 2000. He found that to do so would undermine the purpose of conducting the CSE’s annual review of the child’s educational program, and that the child’s needs for the summer of 2000 were yet to be determined.
Petitioner challenges the hearing officer’s decision not to increase the amount of her daughter’s related services. The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487 March 11, 1983). 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 (Board of Educ. v. Rowley, 458 U.S. 176 ), and that the recommended program is the least restrictive environment for the child (34 C.F.R. § 300.550[b]; 8 NYCRR § 200.6[a]).
As noted above, respondent offered no evidence at the hearing. The CSE’s representative indicated a willingness to increase the child’s related services if the need for an increase was demonstrated by independent evaluations. Petitioner contends that she submitted evidence of the need for more services at the hearing, in the form of an initial evaluation report dated April 21, 1999 by a physiatrist (Exhibit 20), and prescriptions from her daughter’s pediatrician for speech/language therapy, physical therapy, and occupational therapy, dated April 19, 1999 (Exhibit 16). The physiatrist, who is a physician, and the pediatrician each recommended that the child’s related services be increased to three hours of each related service per week. Petitioner also submitted a letter by the physiatrist dated July 21, 1999 (Exhibit 23) reiterating the recommendations in her April 21 evaluation report. In addition, petitioner offered copies of two "certificates of medical necessity" dated June 15, 1998 which indicated the child should receive three hours of physical therapy and three hours of occupational therapy per week (Exhibits 4 and 5).
Although I must find that respondent failed to meet its burden of proof with regard to the appropriateness of the related services which its CSE recommended, the question remains whether the amount of the child’s related services should have been increased to three hours per week. Related services must be provided by a board of education when they are necessary to assist a child to benefit from special education (34 CFR 300.24 [a]). In her July 21, 1999 letter, the physiatrist opined that the child required three hours of each related service " in order to benefit educationally from her specially designed instruction, in the least restrictive environment". She also explained what each of the related services was intended to accomplish. The record also includes progress reports from the child’s speech/language therapist during the 1998-99 school year (Exhibit 19), and as noted above her physical therapist (Exhibit 10) and her occupational therapist (Exhibit 11). The reports of all three therapists did not address the question of how much therapy the child should receive. Upon the record before me, I find that there is sufficient evidence to sustain petitioner’s position that her daughter required additional related services in order to receive a free appropriate public education during the 1999-2000 school year. Since that school year has concluded, I will direct respondent to increase the child’s related services during the current school year to make up for its failure to provide appropriate services during the preceding school year.
Petitioner’s challenge to the hearing officer’s refusal to direct that her child’s IEP include ESY for the 1999-2000 school year must be dismissed for two reasons. First, the question is moot with regard to the summer of 1999, since the child did receive services during the summer pursuant to the agreement the parties reached in June 1999. I agree with the hearing officer that petitioner’s claim for ESY services during the summer of 2000 was premature. The CSE must determine annually a child’s need for such services. The CSE had not yet conducted its annual review for the child’s program during the 2000-01 school year, which began on July 1, 2000 ( Section 2  of the Education Law).
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that it denied petitioner’s request for an increase in the amount of her daughter’s related services; and
IT IS FURTHER ORDERED that respondent shall provide additional speech/language therapy, physical therapy, and occupational therapy to petitioner’s daughter in an amount equal to the difference between the amount she received pursuant to her IEP during the 1999-2000 school year and the amount of three hours per week of each therapy during that school year.