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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 Northport-East Northport Union Free School District


Ingerman Smith, L.L.P., attorneys for respondent, Jonathan Heidelberger, Esq., of counsel


         Petitioner appeals from an impartial hearing officer’s decision which denied petitioner’s request for an air-conditioned bus to transport her son to and from his summer day treatment program during the summer of 2001. The hearing officer found that the student did not require the use of an air-conditioned bus to and from the day treatment program in order to receive a free appropriate public education (FAPE). The appeal must be dismissed.

        Petitioner’s son is fifteen years old, and has been classified for educational purposes as a student with an emotional disturbance. At the time of the hearing in this proceeding, he was attending a day treatment program of the local BOCES at Brennan High School in North Babylon. The program is affiliated with the Sagamore Children’s Psychiatric Center. The student was diagnosed by a psychiatrist in March 2000 as having a "Major Affective Disorder", an Attention-Deficit Disorder with Hyperactivity, Obsessive-Compulsive Disorder, and a Conduct Disorder (Exhibit N). The psychiatrist noted that petitioner’s son was taking several medications, including anti-psychotic mood stabilizers and stimulant medication, yet he still continued to exhibit serious psychiatric symptoms (Exhibit N). Although that psychiatrist ruled out a Bipolar Disorder, I note that the student’s former psychiatrist opined in 1999 that the boy probably had that disorder (Exhibit 1).

        On March 19, 2001, respondent’s Committee on Special Education (CSE) conducted its annual review and prepared the student’s individualized education program (IEP) for the period from July 2001 to June 2002 (Exhibit E). The CSE recommended that petitioner’s son remain in the BOCES day treatment program at the Brennan High School during the regular school year and continue to attend that program during the summer of 2001. The CSE indicated on the IEP that the student required special transportation to the recommended program, which was about a 45-minute bus ride away from the student’s home (Transcript p. 24). At the CSE meeting, petitioner had requested that transportation on an air-conditioned bus during the summer be included on her son’s IEP. However, petitioner’s request for an air-conditioned bus for the summer was denied by the CSE (Exhibit E).

        In a note dated March 19, 2001, the student’s physician wrote "Due to [student’s] disability (heat intolerance), please transport him on air conditioned buses only" (Exhibit D). Another note was written by the student’s physician on March 22, 2001, which stated that petitioner had requested the use of an air conditioned bus for her son and that the student suffered from temperature dysregulation and the medication he was taking, Seroquel, "can cause excess sweating" (Exhibit G). It should be noted that the child’s physician had not prescribed that medication for him.

        The physician’s notes were sent to the school district physicians, who were asked to review the correspondence and make a recommendation to the CSE (Exhibit H). One of the school physicians responded on March 27, 2001, with a note indicating that he could not recommend that the request for an air conditioned bus be granted because he had been unable to speak to the student’s physician without petitioner’s consent (Exhibit I). However, he subsequently received permission to speak to the student’s pediatrician about his notes recommending an air-conditioned bus. On April 3, 2001, the school physician reported that he had spoken with the student’s physician, and that he could not find sufficient medical criteria for recommending the use of an air-conditioned bus by petitioner’s son during the summer. He indicated that he remained open to reviewing the student’s medical records and speaking with the prescribing physician if he were allowed to do so (Exhibit M).

        At petitioner’s request, an impartial hearing was held on April 30, 2001. A psychiatrist employed by the Sagamore Children’s Psychiatric Center who had prescribed Seroquel for the student testified about petitioner’s request for an air-conditioned bus. The psychiatrist stated that Seroquel was known to interfere with the regulation of body temperature (Transcript p. 21). However, he testified that he had no objective evidence about the effect of the medication on this student’s ability to regulate his body temperature, or of his need to have an air-conditioned bus in order to attend the day treatment program during the summer (Transcript pp. 22-23). The psychiatrist indicated that he would monitor the situation during the summer.

        The school district physician testified that he had spoken to the student’s physician, who had told him that "he didn’t necessarily feel that it was necessary or imperative to have an air-conditioned bus" (Transcript p. 31). Petitioner’s mother submitted several documents about Bipolar Disorder and the medication Seroquel (also known as Quetiapine) (Exhibits 8–14). Those documents stress the problems experienced by students with Bipolar disorders in regulating body temperature, and warn to avoid dehydration and overheating when taking Seroquel (Exhibits 8-14). The school physician testified that he had reviewed the documents, but had not changed his opinion that an air-conditioned bus was not medically necessary for the student (Transcript p. 32).

        Petitioner asserted at the hearing that her son would be unable to attend the day treatment program during the summer without an air-conditioned bus. She challenged the adequacy of the school physician’s knowledge of her son’s needs. In addition, she asserted that the psychiatrist who had prescribed Seroquel for her son was unaware of how the student acted during the summer.

        In his decision which was rendered on May 23, 2001, the hearing officer found that the use of an air-conditioned bus to transport the student to the day treatment program was not necessary for petitioner’s son to receive a FAPE. Therefore, he upheld the decision of the CSE not to include the use of an air-conditioned bus on the student’s IEP. The hearing officer noted that if new information about the student’s condition during the summer was received, the CSE should reconvene to discuss an amendment to the IEP.

        Petitioner contends that the school physician gave false testimony about his conversation with her son’s physician. However, I find that her allegations are not supported by any evidence that is before me. She simply states that the doctor’s testimony was false, but does not produce an affidavit or any evidence establishing such from her son’s physician. I must find that petitioner has not established that the testimony in question was untruthful.

        Respondent 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). The Board of Education is obligated to provide a FAPE to a child with a disability (34 C.F.R. § 300.300[a][1]). It has discharged that obligation when a student with a disability is provided with personalized instruction and sufficient support services that allow him or her to benefit educationally from instruction (Board of Ed. of the Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176 [1982]). In this instance, there is no dispute about the nature of the student’s educational program, which includes a summer component at the Brennan High School.

        Respondent is also required to provide "suitable transportation to and from special classes or programs" (New York Education Law § 4402[4][d]). It has offered to transport the student to and from his summer day treatment program. The narrow issue in this appeal is whether an air-conditioned vehicle must be used to transport the student. If so, an air-conditioned bus would be specialized transportation equipment (34 CFR 300.24[b][15][iii]), which must be included on the student’s IEP. The question here is whether it is medically necessary.

        It is well settled that a school district may rely on the opinion of its own physician with regard to medical determinations (Matter of Hauser, 14 Ed. Dept. Rep. 336; Application of a Handicapped Child, 25 id. 365; Application of a Child with a Handicapped Condition, Appeal No. 90-12). Respondent sought the medical opinion of the school physician to determine if an air-conditioned bus was medically necessary for petitioner’s son. The school physician reviewed the correspondence and spoke with the student’s physician, and therefore made an informed decision regarding the necessity of an air-conditioned bus for petitioner’s son. I have considered all of the testimony in the record, as well as the documentary evidence about Seroquel that petitioner submitted. I find that nothing in the record affords a basis for me to substitute my judgment for that of the physicians who testified at the hearing. Therefore, I must concur with the hearing officer’s determination that an air-conditioned bus was not necessary for this student to receive a FAPE during the summer of 2001.


Topical Index

Parent Appeal
Transportation ServicesEduc. Law § 4402(4)(d)