Application of the BOARD OF EDUCATION OF THE CARMEL CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Raymond G. Kuntz, P.C., attorneys for petitioner, Jeffrey J. Shiro, Esq., of counsel
Laviano Law Offices LL.C. attorneys for respondents, William M. Laviano, Esq., of counsel
Petitioner, the Board of Education of the Carmel Central School District, appeals from an impartial hearing officer’s determination that it was required to provide special education services, including aural rehabilitation and speech/language therapy, to respondents’ son either at the child’s home or at the private school he attended for kindergarten during the 2000-01 school year. The hearing officer also ordered petitioner to reimburse respondents for the expenses they may have incurred in obtaining those services for the their son prior to the date of the hearing officer’s decision. The appeal must be sustained in part.
Respondents assert that the appeal is untimely. A petition for review must be served upon the respondents within 40 days after the petitioner receives the challenged decision (8 NYCRR 279.2[c]). According to its verified reply, petitioner received the hearing officer’s decision on January 17, 2001. Respondents admit personal service of the petition on February 24, 2001. Since petitioner did serve its petition within the required period, I find that its appeal is timely.
Respondents’ son was five years old and a kindergarten student at Saint James the Apostle School (St. James) at the commencement of the hearing. Prior to his enrollment at St. James, the child attended private preschool programs. The child has profound deafness in both ears as a result of spinal meningitis when he was 14 months old (Exhibit 38). The meningitis also resulted in impaired balance and coordination, hypotonic diplegia, and hyperpronation deformities at both ankles (Id.). In May 1997, when he was approximately 23 months old, the child received a nucleus 24 cochlear implant in his right ear to address his complete hearing loss. Subsequent to that time, the child received needed physical therapy, speech therapy, teacher for the deaf, and/or aural rehabilitation services, and used orthotics while in the Putnam Count Early Intervention Program (EIP).
In 1998, an audiologist noted that the child had access to all of the sounds of speech through audition, and he was therefore not a candidate for sign language. She recommended that he be placed in a mainstreamed nursery school, while receiving speech/language services, aural rehabilitation services, and the services of a teacher of the deaf (Exhibit 35). The child came under the jurisdiction of petitioner’s Committee on Preschool Special Education (CPSE) for the 1998-99 school year, and remained under its jurisdiction for the 1999-2000 school year and the summer of 2000. In August 1998, the CPSE classified the child as a preschool child with a disability.
In April 2000, the child’s speech and language therapist reported that the child’s overall speech and language skills were delayed approximately 6 to 18 months. She noted that he had been receiving speech/language therapy three times per week in his home since the summer of 1999, and recommended that he continue to receive such therapy during the summer of 2000. The therapist also recommended that consideration be given to increasing the amount of therapy (Exhibit 26). The child’s teacher of the hearing impaired reported that the child’s expressive and receptive language skills were at the 48-month level, with some gaps (Exhibit 25).
On April 11, 2000, petitioner’s CPSE recommended that the child continue to receive speech and language therapy, aural rehabilitation, services of a teacher of the hearing impaired, and consultant teacher services from the teacher of the hearing impaired during the summer of 2000. The CPSE indicated on the child’s individualized education program (IEP) that his aural rehabilitation would be provided in a special class, while his speech/language therapy, the services of the teacher of the hearing impaired and consultant teacher services of such teacher would be provided in a "special location", which was not otherwise identified (Exhibit 24). The Putnam County Health Department subsequently advised the child’s service providers that their services were to be provided at the child’s home (Exhibits 16, 21, 22).
At the completion of the CPSE meeting, petitioner’s CSE met to discuss the child’s kindergarten program during the 2000-01 school year. The CSE classified the child as a student with a disability because of deafness (8 NYCRR 200.1[zz]), and recommended that the child enter a regular daily kindergarten program in his neighborhood school, petitioner’s Kent Primary School (Exhibit 23). Petitioner’s kindergarten program was a half-day program of 2.5 hours a day, or 12.5 hours a week. The CSE also recommended that the child receive 30 minutes of individual speech/language therapy in a blended setting four times per week, 45 minutes of individual aural rehabilitation in a special location twice per week, 45 minutes of individual service from a teacher of the hearing impaired in a blended setting five times per week, and 30 minutes of individual consultant teacher service from the teacher of the teacher of the hearing impaired in a special location.
A focus of discussion at the CSE meeting was when and where the child would receive his special education related services. Respondents were concerned that the 7.25 hours a week of recommended services would limit the child’s exposure to the kindergarten program, adversely impact his ability to absorb it, and impair his ability to develop peer relationships (Transcript pp. 71, 86; Exhibits C; 1, and 11). They requested that their child’s school day be extended to accommodate his need to receive special education service in addition to his kindergarten program (Transcript pp. 88, 173). The CSE did not agree to their request. However, the parents believed that the CSE had agreed to provide the child’s aural rehabilitation services at the child’s home (Exhibits 1, 11) and the provider of those services, who had attended the meeting shared the parents’ belief (Transcript pp. 165-166). Petitioner’s Assistant Director of Pupil Services testified that the parents were advised that there might be an opportunity to schedule services for the end of the school day, but they would not be provided in the child’s home (Transcript pp. 71-72, 74, 89).
On June 19, 2000, petitioner approved the CSE’s recommendation for the child’s educational program during the 2000-01 school year (Exhibit 14), as well as the CPSE’s recommendation for his program during the summer of 2000 (Exhibit 15). On or about June 21, 2000, respondents advised school staff that their child would attend a full day kindergarten program lasting until 2 p.m. at Saint James. They chose to enroll their son in Saint James because of the longer school day at that school. The parents were initially advised that their son would be bused from Saint James to petitioner’s Matthew Patterson Elementary School to receive his special education services. However, on or about August 10, 2000, respondents were informed that the services of the teacher of the hearing impaired would be provided to their son at Saint James because those services were integral to the child’s on-site education (Exhibit 8; Transcript pp. 103-104). The other services recommended by the CSE were to be provided at the Matthew Patterson Elementary School.
Petitioner’s staff reportedly advised respondents in August that the school district would be willing to revisit the matter of providing the child’s related services over the course of an extended half-day public school kindergarten program and that an expedited CSE meeting could be held to discuss this (Transcript pp. 107, 111-12, 129-30; Exhibit 8). However, respondents reportedly did not wish to do this. In any event, an attorney wrote on their behalf to petitioner’s superintendent of schools on September 11, 2000, asserting that respondents had been promised that petitioner would provide their son’s services at Saint James, and requesting that they be provided to the child at that school (Exhibit C).
At the beginning of the school year, respondents requested a postponement in, and then in mid-September, the indefinite delay of, the provision of the related services which were not being provided at St. James (Transcript pp. 110, 111; Exhibits 7, 8). Respondents reportedly asked that the services not be provided because of concerns about the length of their child’s school day and the noise associated with being bused to the public school (Exhibits 1 and 11). Petitioner complied with respondents’ request, but its staff encouraged respondents to request a CSE meeting to review the child’s program (Transcript p. 112). On or about September 19, 2000, the parents requested a CSE meeting (Exhibit 9). The CSE met with the parents on October 4, 2000. Although an extended day program at petitioner’s Kent Primary School and the possibility of receiving the related services in the morning at the Matthew Patterson Elementary School were discussed, the parties were unable to resolve their differences (Exhibit 5).
Respondents requested an impartial hearing on October 10, 2000 (Exhibit 4). Respondents outlined their case in a follow-up letter to the impartial hearing officer (Exhibit 1). They asserted that petitioner’s CSE had not been responsive to their request at the April CSE meeting to provide the child’s related services over the course of an extended half-day kindergarten program, and that they had sent their child to St. James’ full day kindergarten program after being advised that his related services could be provided at that school. They requested that all services be provided to their son at St. James.
At the hearing on December 13, 2000, the parties agreed that respondents’ son should be classified as a deaf child, and that he should receive each of the related services that the CSE had recommended. They also agreed as to the amount of the recommended services. They did not agree whether the services should be provided during a half-day kindergarten program or an extended day kindergarten program. The parties also disagreed whether the boy’s aural rehabilitation and speech and language therapy should be provided at the school the child attended, or whether the child should be bused to a public school to receive them (Transcript pp. 8, 23-26, 148). Petitioner requested that the matter be dismissed on the basis that neither Section 3602-c of the New York Education Law nor the Individuals with Disabilities Education Act (IDEA) required the district to provide the child’s related services at the private school he attended.
The hearing officer indicated to the parties that as a matter of law, petitioner had significant discretion in determining the location of the child’s special educational services, but that the Board of Education had to meet a "low threshold" showing that it had a reason such as efficiency or cost to decide to provide the child’s related services at a public school rather than at a private school attended by the child. He indicated he would hear testimony relative to those issues. The hearing officer also stated his belief that the IDEA required the school district to offer the child related services in the location that was less restrictive to the child in circumstances where cost or convenience considerations are equal.
In a decision dated January 11, 2001, the hearing officer found that since the child’s parents had unilaterally enrolled him in a private program, the Board of Education was not required to provide the child with special education related services at St. James. However, he further found that since the child was a kindergarten student of less than compulsory school age, he had an independent right to receive the special education related services at the location of his private school if that was consistent with IDEA’s least restrictive environment (LRE) considerations. The hearing officer concluded that LRE considerations required that the child’s related services be provided either at St. James, or at the child’s home. The hearing officer also held that the child’s pendency placement was, at the discretion of the respondents, either at St. James or his home. Finally, the hearing officer held that because the student had not been receiving "pendency services", upon a showing to the school that the parents had paid for such services, the parents should be reimbursed by the Board of Education for such expenditures.
Petitioner challenges the hearing officer’s determinations. It argues that the fact that the child was enrolled in kindergarten did not confer any right to receive related services at his private school upon the child. The Board of Education asserts that it could offer to provide related services to the child at a public school instead of the child’s private school. Petitioner also appeals from the hearing officer’s determinations regarding the child’s pendency placement and his directive that the Board of Education reimburse respondents for any verified payments for related services they had obtained for their child.
Respondents contend that the hearing officer’s conclusion that petitioner’s staff agreed to provide the child’s speech/language therapy and aural rehabilitation at St. Joseph’s School should not be disturbed. They further contend that a refusal to provide the child with the speech and language therapy and aural rehabilitation services at his private school would violate the Free Exercise Clause of the First Amendment and the Equal Protection Clauses of the federal and state constitutions. Contrary to respondents’ claim, the hearing officer did not find that petitioner’s staff had agreed to provide the child’s speech and language therapy and aural rehabilitation services at the location of his private kindergarten program. Although respondents made that assertion at the hearing, they did not testify as to the alleged agreement, and petitioner’s witnesses denied any such agreement.
I agree with the Board of Education that the child’s status as a kindergarten student did not afford him any additional right to obtain related services at the private school he attended or at his home. In essence, the hearing officer found that since the child was not of compulsory school age, i.e. six years old, he was not required to attend school, but was old enough to attend kindergarten in New York. While that is correct, it does not follow that a five-year-old child attending kindergarten has greater right to receive services under the IDEA or the State Education Law than a six-year-old child in the first grade. The hearing officer’s contrary holding is not grounded in any statute, rule or regulation, and therefore may not be the basis upon which to decide this case. That, however, is not dispositive of the matter.
As amended in 1997, the IDEA provides that it "does not require a (local educational agency) to pay for the cost of education, including special education and related services of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility" (20 USC 1412[a][C][i]). If a school district has offered a free appropriate public education (FAPE) to a child whose parents enroll him in a private school, the school district has the discretion to determine not to provide the child’s special education services at the location of the child’s private school (Russman v. Board of Education of the City of Watervliet, 150 F.3d 219, 222 [2d Cir. 1998]; Jasa v. Millard Public School District No. 17, 206 F.3d 813, 815 [8th Cir. 2000]; Application of a Child with a Disability, Appeal No. 99-25; Application of a Child with a Disability,Appeal No. 98-3).
The issue that I must now decide is whether the Board of Education offered to provide a FAPE to respondents’ son for the 2000-01 school year. At the hearing, the child’s parents did not dispute the appropriateness of the special education services recommended by the CSE at its April 11, 2000 meeting. However, in demonstrating that it had offered to provide a FAPE to the child, the Board of Education must show that it had in place for the child at the beginning of the school year an IEP that was developed in accordance with the requirements of the IDEA (34 CFR § 300.342).
One of the IDEA’s requirements is that an IEP be developed by a multidisciplinary team that includes "at least one regular education teacher of the child" if the child is or may be participating in the regular education environment (34 CFR § 300.344[a]; 8 NYCRR 200.3[a][ii]). The CSE recommended that this child be enrolled in a regular education kindergarten class for the 2000-01 school year. The minutes of the April 11, 2000 CSE meeting and testimony at the hearing indicate that there was no regular education teacher member of the CSE on April 11, 2000 (Exhibit 23; Transcript pp. 64-65). An IEP which was prepared by a CSE that lacked each of its required members is a nullity (Application of a Child with a Disability, Appeal No. 99-54; Application of the Board of Educ., Appeal No. 99-38; Application of a Child with a Disability, Appeal No. 99-19). Under the circumstances, I must find that petitioner cannot demonstrate that it had offered to provide a FAPE to respondents’ son for the 2000-01 school year.
Even if the CSE had been properly constituted, I find that there is insufficient information in the record to afford a basis for concluding that petitioner has established the appropriateness of its recommended program (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 ). Although the parties agreed at the hearing as to the kind and amount of the child’s related services, they did not agree whether those services should be provided to the child as part of an extended educational program or during the district’s half-day regular kindergarten program. Respondents challenged the appropriateness of providing all of their son’s related service within petitioner’s half-day kindergarten program. Two of their witnesses testified about the educationally related difficulties and problems associated with providing all of the related services within petitioner’s half-day kindergarten program (Transcript pp. 160-62, 172-73, 175, 182-83). Petitioner did not refute their testimony, or otherwise demonstrate that providing so much related services within a two-hour school day would not have interfered with the child’s regular education program.
In determining what would be an appropriate remedy for the Board of Education’s failure to provide a FAPE to respondents’ son, I am aware of the fact that the 2000-01 school year is now over. An order directing petitioner to provide the boy’s services at St. James would be of no practical effect because the school year has ended. I will instead direct the Board of Education to reimburse the parents for the cost of the agreed upon related services, i.e., speech/language therapy and aural rehabilitation, that they may have obtained for their son during the 2000-01 school year, upon proof of payment for such services by the parents.
Under the circumstances, I find that petitioner’s appeal from the hearing officer’s determination with respect to the child’s pendency placement to have become moot. I have considered petitioner’s other contentions, which I find to be without merit.
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 premised the child’s entitlement to receive service at his private school upon the fact that the child was not yet six years old under the compulsory attendance law.
IT IS FURTHER ORDERED that the Board of Education shall reimburse the child’s parents for the cost of speech/language therapy and aural rehabilitation services they may have obtained for their son during the 2000-01 school year, upon respondents’ submission of proof of payment for such services.