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Application of a CHILD WITH A DISABILITY, by her parents, 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


Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Celena R. Mayo, Esq., of counsel


          Petitioners appeal from an impartial hearing officer’s decision which denied their request that respondent be required to give a copy of their daughter’s individualized education program ("IEP") to all of her teachers and service providers; denied their request that the daughter’s teachers and therapists maintain and send home a daily log; and determined that the girl’s father had withdrawn his complaint concerning the size of his daughter’s classroom. The appeal must be dismissed.

        Petitioners’ daughter has been diagnosed with cerebral palsy and is classified as orthopedically impaired. There is no dispute about her classification. When the hearing began in July 2000, she was seven years old and soon to commence the second grade in a modified instructional services–IV (MIS-IV) class in respondent’s PS 55. In order to participate in a MIS-IV class, the student uses a wheelchair and wears orthotics. She needs assistance with all activities of daily living (ADL) and is not fully toilet-trained. She must use sunscreen because she has photosensitive skin, and must be reminded to drink fluids because she becomes dehydrated easily. The student is assigned a 0.8 paraprofessional to assist with ambulation and ADL skills. She also receives the services of a physical therapist, occupational therapist, and speech/language therapist (Exhibit 7).

        Respondent’s Committee on Special Education (CSE) met on June 19, 2000 to recommend a placement for the student during the 2000-01 school year. At petitioners’ request, the CSE discussed the possibility of maintaining a daily log of the services provided to the student and invited petitioners to draw up a proposed log for further discussion (Transcript p. 40). The CSE determined that a daily log monitoring the student’s intake and toileting should be maintained and placed that requirement in the student’s IEP (Exhibit 7). At the meeting, the child’s father also expressed his concern about the physical size of his daughter’s classroom for the coming school year, but the CSE did not address that issue (Exhibit 7). Petitioners do not contest any of the programs, evaluations, services or equipment provided for their daughter in the IEP. Instead, their appeal concerns communication of the IEP’s contents to the people who provide services to their daughter in school, daily communication with petitioners regarding the therapies their daughter receives in school, and the size of the child’s classroom for the 2000-01 school year.

        Petitioners assert that respondent should be required to give a copy of their daughter’s IEP to all of her teachers and service providers, and they argue that the hearing officer’s decision shifts the burden of informing staff members of their responsibilities related to implementing the child’s IEP. Respondent asserts that teachers and paraprofessionals already have access to the IEP, and that the child’s teacher goes over the IEP with the paraprofessionals assigned to work with the student. Respondent contends that this process meets the regulatory requirement while safeguarding the confidentiality of the student’s records.

        Federal regulations provide that a public agency shall ensure that:

(2) The child’s IEP is accessible to each regular education teacher, special education teacher, related service provider, and other service provider who is responsible for its implementation; and

(3) Each teacher and provider described in paragraph (b)(2) of this section is informed of –

(i) His or her specific responsibilities related to implementing the child’s IEP; and

(ii) The specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP (34 CFR Part 300.342[b]).

        Respondent’s supervisor of social workers and the student’s first grade teacher testified that the IEP is kept in both a central file room and a locked cabinet in the student’s classroom (Transcript pp. 7-9). They further testified that everyone who should have access to the IEP in the classroom knows where the key is located, and that the teacher goes over the IEP with paraprofessionals assigned to work with the student (Transcript pp. 18-19). Petitioners apparently remain concerned about the accessibility of the IEP because their daughter’s social studies teacher stated at a CSE meeting that she had not seen the IEP.

        Even assuming the truth of the statement attributed to the student’s social studies teacher, I cannot find that respondent failed to fulfill its mandate. There is no evidence that the IEP was not accessible to the social studies teacher, nor was there evidence that she had not been informed of her specific responsibilities or the specific accommodations, modifications, and supports that must be provided to petitioners’ daughter. While the hearing officer’s decision states that the parents may speak to their daughter’s teachers and therapists to make known their concerns, the decision does not shift the burden of informing staff members of their responsibilities related to implementing the student’s IEP. That responsibility clearly remains with respondent; however, I find that there is no legal basis for granting petitioners’ request to compel respondent to distribute copies of the student’s IEP to each individual who provides services to their daughter.

        Petitioners further assert that their daughter’s teachers and therapists should be required to maintain and send home a daily log. They argue that respondent agreed to have a log of information sent home on a daily basis, and that the hearing officer stated that he would make that agreement part of his decision. Respondent asserts that while there is no legal basis to mandate the maintenance of a daily log system, the parties have voluntarily agreed to a daily log system that is currently in place.

        Federal regulations provide that the IEP for each child with a disability must include a statement of how the child’s progress toward their annual goals will be measured and how the parents will be regularly informed of their child’s progress. The regulations indicate that the parents should be informed through such means as periodic report cards at least as often as parents are informed of their nondisabled children’s progress (34 CFR Part 300.347[a][7][i] and [ii]). In response to medical concerns of the student’s physician, the IEP does require monitoring of the student’s food and fluid intake and toileting. This information is charted on a daily basis and sent home with the student. Petitioners, however, seek a daily log concerning therapies performed at school as well as documentation addressing other concerns indicated on a proposed form they submitted at the hearing. The hearing transcript indicates that the parties had agreed to the maintenance of a daily log, the contents of which were to be worked out by the parties (Transcript p. 128). In his decision, the hearing officer denied petitioners’ request.

        I commend the parties’ voluntary implementation of a daily log as a means of maintaining open lines of communication between the school and the student’s home. However, I find there is no basis in the record for mandating the maintenance of a daily log beyond the medical information which is already required in the IEP, in order to assure that this child receives a free appropriate public education. If it is not required for that purpose, respondent cannot be legally compelled to honor petitioners’ request.

        Finally, the child’s father asserts that he did not withdraw his complaint concerning the size of his daughter’s classroom. He acknowledges in the petition that he has seen the child’s classroom and has stated that the class may work. However, he seeks an order compelling respondent to "cap", i.e., limit, the size of the class at no more than ten students. Although the supervisor of social workers testified that the child’s class could legally include as many as 12 students, the assistant CSE chairperson of Community School District 31 testified that it was district policy to cap that particular class at ten students (Transcript p. 102). In view of the capping of the classroom at ten students as a matter of policy, I find that the issue concerning the size of the classroom is moot.


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