Application of the BOARD OF EDUCATION OF THE STARPOINT 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
Sargent, Alessi & Collins, attorneys for petitioner, Donald A. Alessi, Esq., of counsel
Chiacchia & Fleming, LLP, attorneys for respondents, Tiffany M. Kopacz, Esq., of counsel
Petitioner, the Board of Education of the Starpoint Central School District, appeals from an impartial hearing officer’s decision which determined that it had failed to provide a free appropriate public education (FAPE) to respondents’ daughter during the 2000-01 school year. The hearing officer ordered the Board of Education to reimburse respondents for the cost of vision therapy provided to their child from late 1998 through July 1999 by a local optometrist, and to pay for "cognitive vision therapy" by an optometrist in Washington D.C. that began in November 2000. She also ordered petitioner to reimburse respondents for private occupational therapy (OT) at a higher rate of compensation than authorized by petitioner, and to reimburse respondents for the cost of three independent optometric evaluations. The appeal must be sustained in part.
I will first address respondents’ assertion that the appeal is untimely because petitioner did not serve its notice with petition and petition upon respondents within 40 days from its receipt of the hearing officer’s decision, as is required by 8 NYCRR §279.2(c). Respondents have submitted an affirmation by the hearing officer, who asserts that she sent copies of her decision to the attorneys for both parties and to the chairperson of petitioner’s Committee on Special Education (CSE) on April 17, 2001, by return receipt mail. The hearing officer subsequently received return receipts from the U.S. Postal Service indicating that a secretary for the school attorney received the hearing officer’s decision on April 18, 2001. Petitioner attempted to commence this appeal by serving a copy of its petition upon the parents’ attorney by mail on June 1, 2001. After being informed by the Office of Counsel of the State Education Department that an appeal must be commenced by personal service of the petition upon the opposing party, the Board of Education personally served its verified petition upon the parents on June 16, 2001. Petitioner’s initial attempt to initiate this appeal was made on the 44th day after receipt of the hearing officer’s decision. It corrected its mistakes with regard to the verification and service of the petition a short time after being apprised of those mistakes. Under the circumstances, I will exercise my discretion and excuse petitioner’s brief delay.
When the hearing began on October 13, 2000, respondents’ daughter was 13 years old, and was being home-schooled by her mother for the second consecutive year. Respondents had rejected the individualized education program (IEP) that petitioner’s CSE had prepared for the child for the 2000-01 school year. The Board of Education was not providing any related services to the student at the time, because respondents had requested that private therapists provide services to their child at public expense, to which petitioner had agreed in large part (Exhibits Corr-209, 212, & 223). The student was receiving OT from a practitioner certified in the Feldenkrais method. The Board of Education had agreed that a private therapist could provide OT to the student, but it would not pay the therapist at a higher rate than it had authorized for district personnel. Respondents had also requested that petitioner pay for vision therapy by a local optometrist and "cognitive vision therapy" by an optometrist in Washington D.C. The Board of Education declined to pay for either service.
The student was born with lumbar myelomeningocele, a severe form of spina bifida, and is paralyzed from the waist down. She also has hydrocephalus, a growth hormone deficiency, and neurogenic bowel and bladder, for which she must be catheterized (Exhibit L-1). She was initially classified as orthopedically impaired while attending school in another school district, and continued to have that classification when she entered petitioner’s schools for the fourth grade during the 1996-97 school year (Exhibit IEP-22). Her classification was later changed to multiply disabled, and that classification is not in dispute (Exhibit CSE-47).
Petitioner’s CSE met for the first time on May 6, 1996, and recommended that the student be enrolled in a regular education fourth grade class, with the services of an individual classroom aide for academics and personal care. Based on an April 1996 OT evaluation that revealed that the student had good visual-perceptual and visual-motor integration skills, it recommended that she receive an OT consult once a month (Exhibit EVR-58). She would have physical therapy (PT) twice a week, and counseling once a week, but speech/language therapy was discontinued because of the progress she had made at the former district (Exhibits CSE-2 & IEP-22). The CSE also recommended use of an assistive device, an FM monitor, and various medical and environmental modifications, such as quad canes and a wheelchair, a special desk, a lift device, catheterization, shunt precautions, medications, and preferential seating. The school district constructed a special bathroom for the student, and added a lift to the district’s swimming pool (Exhibit Corr-43; Transcript 10/13/00 pp. 43-44). On October 8, 1996, four of petitioner’s staff members, including the CSE chairperson, attended a conference on spina bifida in order to assist with planning the student’s program (Exhibit CORR-226).
The student’s triennial evaluation was performed on December 5, 1996. On the Weschler Intelligence Scale for Children-Third edition (WISC-III), she received a verbal IQ score of 105, a performance IQ score of 82 and a full scale IQ score of 93. She performed well on the Weschler Individual Achievement Test (WIAT), scoring in the average or above average range in every subtest except written expression. Her total composite score was in the 70th percentile. The CSE met on January 30, 1997 to discuss the student’s reported academic difficulties, and to amend her IEP by adding resource room services five times a week (Exhibits CSE-7 & IEP-33). On April 20, 1997, an OT reevaluation indicated that the student was functioning very well without direct OT intervention and suggested that her OT continue to be limited to a monthly consultation (Exhibit EVR-97).
The CSE met on April 23, 1997 to plan the student’s educational program for fifth grade during the 1997-98 school year. It recommended a 12-month program for her so that she could be provided PT twice a week for 30 minutes during the summer (Exhibits CSE-11& IEP-36). For the 10-month school year, the CSE recommended that she receive PT twice a week, OT on a consultant basis twice a month, adaptive physical education (ADP) twice a week, resource room once a day, and a teacher aide for personal care and academics while enrolled in a regular education class (Transcript 10/17/00 p. 166). In the fall of 1997, all relevant school staff met with a representative from the Spina Bifida Association for a consultation (Exhibit Corr-227).
The student received As and Bs on her report card in most subjects while in the fifth grade, but she was reported to have had difficulties in reading comprehension and mathematics (Transcript 10/17/00 at p. 33). A February 1998 speech/language evaluation by the University of Buffalo indicated that respondents’ daughter had mild receptive and expressive language delays, as well as problems with background noise (Exhibit EVR-121). In May 1998, the student scored in the average range on all subtests of the Woodcock-Johnson Tests of Achievement-Revised (WJ-R). She achieved grade equivalent scores of 6.5 for broad reading, 5.8 for broad mathematics, and 4.8 for broad writing (Exhibit EVR-118).
At its annual review on May 6, 1998, the CSE recommended that the student be enrolled in a regular education sixth grade class, with the services of a teacher’s aide, an OT consult twice a month, and ADP twice a week. The CSE added 80 minutes of consultant teacher services and recommended counseling by a social worker once a week (Exhibits CSE-19; IEP-61; Transcript 10/17/00 p. 251). Based on its own June 1998 speech/language evaluation, and the February 1998 report, the CSE recommended that she receive speech therapy twice a week for 30 minutes (Exhibit EVR-125; Transcript 10/17/00 pp. 237, 240). The CSE also recommended a 12-month program so that the student could receive PT twice a week over the summer.
During the summer of 1998, the parents obtained independent speech/language therapy for their daughter at the University of Buffalo (Exhibit EVR-121). Respondents also had their child tested by the Huntington Learning Center (HLC) on August 11, 1998 (Exhibit EVR-127). The brief report of that testing indicated that the student was reading at approximately the fifth grade level, and that her math skills were at the 2nd percentile. The CSE amended the student’s IEP on October 15, 1998 to add an additional 40 minutes of consultant teacher pull out services for individual remediation (Exhibit IEP-64; Transcript 10/23/00 p. 17). Her consultant teacher testified that the student was having the most difficulty with math (Transcript 10/23/00 p. 29).
During the 1998-99 school year, the student was evaluated by at least seven different practitioners. First, the district approved a parental request for an independent neuropsychological evaluation (Exhibits Corr 59 & 61; EVR 137). In a December 10, 1998 report, the evaluator, Dr. Keller, noted that on the WISC-III, the student achieved a verbal IQ score of 110, a performance IQ score of 70, and a full scale IQ score of 89. Her scores on the WIAT were all in the average range, except for mathematics skills which were at the fourth grade level. The psychologist reported that the student presented with a "nonverbal learning disorder," typical of many children with Spina Bifida, and with visuo-spatial weakness, which meant that she would learn best with a repetitive approach emphasizing her auditory modality. He opined that she did not appear to have an attention deficit disorder (ADD), but noted that organization was one of her deficits. He also noted that children with a nonverbal learning disorder often have trouble with computational arithmetic, and further opined that such children may become readily depressed and need to avoid anxiety.
In November 1998, the parents had their daughter evaluated by a behavioral optometrist (Exhibit EVR-129). His testing revealed that the student had delays in tracking and focusing difficulties "consistent with a diagnosis of ocular-motor dysfunction and Convergence Insufficiency." He recommended that she receive "vision therapy" to improve her ability to pay attention and learn with less frustration. He also recommended various accommodations such as use of a slanted work surface, fewer distractions, reduction of copying work, and verbal instructions. He began providing vision therapy to the student at parent expense in December 1998.
The CSE chairperson sent the optometrist’s report to a BOCES teacher of the visually impaired for an opinion about whether educational vision services would be warranted (Exhibit EVR-145; Transcript 10/17/00 pp. 185-86, 190, 194). After meeting with the student on three separate occasions for an hour or more, the BOCES teacher concluded that the student did not need educational vision services (Transcript 10/17/00 pp. 194-95, 198). In her January 12, 1999 report, she recommended that classroom accommodations be made, and concluded that although the student had weaknesses in tracking, scanning and hand-eye coordination, "the classroom teacher and consultant teacher are currently meeting those needs" (Exhibit EVR-146). The district also arranged for an OT reevaluation of the student at the parents’ request. That evaluator determined that the student’s teachers were meeting her needs in the classroom, and that the amount of OT services should be decided by the CSE with input from the parents (Exhibits EVR-149 & Addendum EVR-160).
At the request of the parents, the CSE convened on January 28, 2000 in order to review the evaluations of the occupational therapist, the BOCES teacher, and Dr. Keller (Exhibits CSE-25, EVR-135, Corr-68; Transcript 10/13/00 p. 101; 106). At the parents’ request, the CSE recommended direct OT services 30 minutes once a week (Transcript 10/17/00 pp. 92-94, 138). Based on a recommendation from the social worker and the concerns of the parents, the CSE increased the child’s counseling to twice per week (Exhibits IEP- 80,81; EVR-165; Transcript 10/17/00 p. 257). The CSE also added the visual accommodations suggested by the BOCES vision specialist to the student’s IEP.
The next day the behavioral optometrist met with the team (Transcript 10/13/00 p. 108). A few additional vision accommodations were later added to the IEP, based on his report (Transcript 10/13/00 p. 108). However, petitioner denied the parents’ request that the cost of the optometrist’s vision therapy be reimbursed (Exhibit Corr-77). By letter dated February 22, 1999, petitioner’s CSE chairperson indicated to the parents that the vision therapy services were considered to be clinical/medical rather than educational, and that the district would be able to meet the student’s visual perception goals through the accommodations and modifications in the January 28, 1999 IEP, and through OT (Exhibit Corr-78).
Petitioner’s physical therapist reevaluated the student and recommended that PT be continued twice a week during the 1999-2000 school year (Exhibit EVR-153). Petitioner’s speech/language therapist evaluated the student on March 1, 1999. Her report indicated that the student had improved her receptive and expressive language skills since June 1998 (Exhibit EVR-178). In testing done on March 3, 1999, the student again scored in the average and above average range on the WJ-R, except for her writing skills, which were at an early fifth grade level (Exhibit EVR-167). On March 24, 1999, at the parents’ request and at district expense, the student was evaluated by an occupational therapist who specialized in sensory processing (Transcript 10/17/00 pp. 98-99; Exhibit EVR-169). The evaluator recommended an additional 15 minutes of OT each week so that the student could focus on vestibular movement (Transcript pp. 102-03).
A report by the student’s counselor on February 25, 1999 indicated that she was making significant progress and had "more friends than ever before" (Exhibit EVR-165). However, on March 23, 1999, the student’s mother wrote a lengthy letter to the CSE chairperson listing a number of grievances, but principally regarding an aide who was not working well with her daughter. (Exhibit Corr- 87). The school social worker testified that by April 1999, the student’s peer relationships were deteriorating as she reverted to her old defense mechanisms (Transcript 10/17/00 p. 265).
At its annual review on April 30, 1999 and May 3, 1999, the CSE considered reports by the classroom teacher, a consultant teacher, the social worker, the speech therapist, the adaptive PE teacher, the aide, and the sensory integration evaluator. Respondents requested that their daughter repeat the sixth grade during the 1999-2000 school year. The CSE agreed to their request, and recommended that she have the services of an aide for 300 minutes per week, 40 minutes of resource room services per day, individual counseling for 30 minutes twice per week, PT in a group for 30 minutes twice per week, 45 minutes of individual OT per week, as well as total of 30 minutes of consultant OT per week, and 30 minutes of individual ADP twice per week (Exhibits CSE-31; IEP 142). In addition, it recommended various modifications, including a peer advocate from the Independent Living Center, in-service training on disability awareness for staff and students, in-service training on the use of the student’s FM monitor, biweekly OT and PT progress reports to the parents, a list of accommodations for vision needs, and a secretary to record the student’s answers on tests. For the summer of 1999, the CSE recommended that the student receive OT once a week for 45 minutes and PT twice a week for 30 minutes (Exhibit IEP-156).
At the parents’ request, the CSE reconvened on June 17, 1999, when it was decided that a school bus with a lift would be provided for all field trips, and the student would have use of a reacher (Exhibit IEP 142). On August 8, 1999, respondents notified petitioner that the student’s mother intended to home school her daughter for the 1999-2000 school year (Exhibit D-1). The mother decided to home school her child because of frustration over her daughter’s treatment by her aide and trouble relating to peers (Transcript 11/17/00 pp. 109-10). The student did not receive any related services from the school district during that academic year, because her parents had not wanted to use the district’s personnel (Transcript pp.11/3/00 pp. 36-39).
During the course of the 1999-2000 school year, the student’s mother became concerned about her child’s academic performance. In the spring of 2000, respondents had their daughter undergo a series of independent evaluations, one of which is at issue herein. The first, on March 15, 2000, was an OT evaluation at The Children’s Hospital of Buffalo that revealed delays in the student’s fine motor and visual-perceptual skills. The evaluator recommended that the student receive 30 minutes of OT 1-2 times a week (Exhibit EVR-206).
On March 17, 2000, a speech/language therapist at the Hearing and Speech Center (HSC) of Western NY opined that gaps in the student’s receptive and expressive language skills could affect her academic performance, and recommended that a central auditory processing evaluation (CAPE) be performed (Exhibit EVR-209). A few weeks later, HSC performed a CAPE, paid for by the district, which indicated that the student’s decoding difficulty was "at the word level, rather than the phonemic level" (Exhibit EVR-221; Transcript 11/20/00 p. 39). In a May 1, 2000 letter, the mother notified respondent that she had identified an independent occupational therapist to work with her daughter and requested that those services be provided at district expense (Exhibit P-3).
In a May 22, 2000 letter, the student’s mother asked that the CSE hold its annual review earlier than the scheduled date of June 19, 2000. She requested that petitioner pay for a "vision and conceptual development assessment" by a behavioral optometrist in Washington D.C., and reimburse respondents for the cost of the March 2000 speech/language evaluation (Exhibits P-4 and Corr-160). On June 1, 2000, the mother wrote again to the school district to express her concern that the annual review was scheduled for the last week of school, noting that by regulation she only had until July first to decide whether to home school (Exhibits P-5; Corr-163).
On June 15, 2000, the student was evaluated by another one of petitioner’s occupational therapists, who conducted a brief and informal sensory evaluation. The therapist reported that the student had strengths in eye-hand coordination and visual motor speed, and weaknesses in position in space, visual closure and spatial relations. She noted that the weaknesses could affect the student’s ability to spell and provide the proper spacing between letters and words and her ability to read maps and texts. She concluded that OT activities could be combined with classroom concepts "to facilitate remediation in her deficit areas while enhancing her learning in the classroom." She suggested that OT be increased to three times a week for 30 minutes (Exhibit EVR-235).
The CSE began its annual review on June 19, 2000. It recommended that the student’s classification be changed to multiply disabled. It also discussed placing the student in a junior high school 15:1 special class for English, math, science, social studies and study skills during the 2000-01 school year. The minutes of the meeting indicate that the mother requested another sensory integration evaluation, this time by a private occupational therapist trained in the Feldenkrais method, in addition to the "vision and conceptual development" assessment to be done by an optometrist in Washington D.C. (Exhibits CSE-42, 48). She also requested an educational consultant and a speech therapist at public expense to consult with her on home therapy. The CSE authorized an orientation and mobility evaluation requested earlier by the mother (Transcript 10/13/00 p. 153).
The meeting was adjourned so that the sensory integration evaluation could be done, and the CSE tabled the remainder of the recommendations until the parties met again. The mother testified that the school called her regarding OT services for the summer, but that she did not want to use the district’s OT provider (Transcript 11/20/00 pp. 66-68). On June 28, 2000, the CSE chairperson contacted the occupational therapist selected by the parent to request an evaluation of the student so that the CSE could review the results (Exhibit CORR-208). The requested independent OT evaluation was performed on July 5, 2000 (Transcript 11/20/00 p. 46). The independent evaluator recommended that the student receive ten hours of OT by a certified Feldenkrais practitioner during the summer, and for one hour per week during the fall of 2000 (Exhibit EVR-241).
On July 5, 2000, the mother wrote to the CSE chairperson stating her concern that no summer program had been arranged for her daughter (Exhibit P-6). She requested speech services from an independent provider since, in her opinion, the provider had identified problems the district’s therapist had not found. She further requested a reading assessment, payment for the vision and conceptual development assessment in Washington D.C., 30 more weeks of vision therapy with the local optometrist, independent speech therapy, independent OT, and summer services of PT, OT, and speech/language therapy. The mother indicated that she would provide the services herself if there was no response by July 11, 2000.
On July 17, 2000, the parents met with the Board of Education, which agreed to pay for the independent speech/language evaluation of March 2000, the private occupational therapist trained in Feldenkrais, an independent speech therapist, and an educational consultant to assist with home instruction. However, the Board of Education indicated it would pay for services at the level currently paid to district employees, and that the parents would be responsible for costs above that rate (Exhibit Corr-213). Petitioner denied reimbursement for a vision and conceptual development assessment in Washington D.C. upon the ground that it was a "developmental assessment" rather than an educational evaluation. Petitioner’s superintendent of schools asserted that cognitive vision therapy was not a "recognized related service as determined by NYSED" (Exhibit Corr-209).
The CSE met with the parents on August 29, 2000. Respondents submitted a transcript of their meeting with the optometrist in Washington, D.C., but were advised that a written report by the optometrist would be more helpful in ascertaining the child’s specific vision needs (Exhibit CSE-47). The parents’ private occupational therapist presented her report at the meeting, and the occupational therapist who had performed the sensory processing evaluation on June 15, 2000 participated in the CSE meeting by telephone. The CSE recommended that the student be enrolled in a 15:1 special education class for English, math, science, social studies, and study skills and that she receive ADP twice per week during the 2000-01 school year. The student was to be mainstreamed for other subjects. The CSE also recommended that she receive the services of a full time aide in the classroom, as well as 30 minutes of individual physical therapy twice per week, 30 minutes of individual occupational therapy three times per week, 30 minutes of individual counseling twice per week, 30 minutes of speech/language therapy in a group and 30 minutes of such therapy individually per week. The CSE included a number of modifications and adaptations on the student’s IEP. It noted on the IEP that the student would have services provided by BOCES in July and August (Exhibit IEP-185). The student’s parents received a copy of her IEP on September 1, 2000, four days before the beginning of school in petitioner’s district.
The CSE chairperson testified that the parents requested an impartial hearing at the end of the meeting (Transcript 10/13/00 p. 154). In their written request, dated August 29, 2000, the parents asserted that the CSE meeting had been improperly delayed, despite their several requests for a meeting. They objected to the district’s refusal to pay for evaluations at the Huntington Learning Center on August 11, 1998 and by the local optometrist on November 20, 1998 and the optometrist in Washington, D.C. on July 24, 2000. They also referred to petitioner’s refusal to pay for therapists, but did not name specific therapists.
On September 1, 2000, the parents mailed a notification of intent to provide home schooling in lieu of pendency placement (Exhibits P-11 and Corr-216). In a second request for impartial hearing dated September 7, 2000, they asserted that petitioner had failed to provide a FAPE. They claimed that the student should have been taught "at her developmental level", rather than placed at the 7th grade level; that the IEP did not include either of the two optometrists’ recommendations or the mother’s quarterly reports; that the CSE had not recommended vision therapy; and that it had not updated the performance and individual needs section of the student’s IEP (Exhibit PDN-49). They also requested reimbursement for the local optometrist’s services above the amount covered by their health insurance, and the cost of evaluations and therapy by the optometrist in Washington, D.C.
The parents also claimed numerous procedural violations, including but not limited to not scheduling a triennial review, not providing summer services, and not providing educational services on a timely basis. They requested that petitioner provide a teacher, teaching materials and related services to their daughter at her home, have a training plan for any staff participating in their daughter’s CSE meetings, pay for local vision therapy, and cognitive vision therapy plus reasonable travel expenses to Washington, D.C. They initially asked that the September 7, 2000 request serve as a separate impartial hearing request from that of the August 29, 2000 letter, but the issues were joined at the hearing (Transcript 10/13/00 p. 13).
The hearing was held on 11 different dates between October 13, 2000 and December 18, 2000. The hearing officer rendered her decision on April 16, 2001. She ruled that petitioner did not provide a FAPE to the student in the 2000-01 school year, citing both procedural and substantive violations. She found that petitioner had disclosed the student’s records to non-employee witnesses without respondents’ consent, had failed to obtain their consent for certain evaluations, and had delayed the appointment of a hearing officer. The hearing officer further found that the student’s triennial evaluation was delayed and incomplete, and that the CSE’s annual review was late. She also found that the student’s IEP was defective because the CSE was not properly composed and had failed to consider certain evaluation reports and to update some of the student’s annual goals. In addition, she found that the Board of Education had failed to demonstrate that respondents’ daughter would have been suitably grouped for instructional purposes with the other students in the proposed 15:1 class.
The hearing officer further ruled that the parents had met their burden of proving that the independent occupational therapy had obtained was calculated to meet their daughter’s educational needs, and that petitioner should reimburse them for their expenditures which exceeded the rate that petitioner generally paid for such therapy. In addition, she ruled that petitioner should reimburse the parents for the vision therapy they obtained locally, and for six months of vision therapy to be provided in Washington, D.C. The hearing officer denied respondents’ claim that they be reimbursed for travel expenses and lodging for the vision therapy to be obtained in Washington D.C.
The hearing officer also ruled that respondents should be reimbursed for the expense of the behavioral optometrists’ evaluations dated November 1998, July 2000, and August 2000 because the evaluations produced new and significantly different information for the CSE’s use, and because the recommendations of the local optometrist were incorporated into the IEP for use in the classroom and ADP. However, she found that petitioner was not responsible for reimbursing respondents for the August 1998 HLC speech/language evaluation, because it seemed to duplicate information that was already available. Respondents did not cross-appeal. Therefore, the August 1998 evaluation is not at issue herein.
Petitioner asserts that the hearing officer did not conduct a fair and unbiased review of the evidence. It further asserts that it provided a FAPE to the student in 2000-01. It maintains that it should not have to pay for the independent evaluations of the behavioral optometrists because its own evaluations, by occupational therapists and the BOCES teacher of the visually impaired, were appropriate. The Board of Education objects to the ruling that it pay for OT services at a rate above its usual rate, and it argues that it should not have to reimburse petitioners for vision therapy or cognitive vision therapy, because there was no convincing evidence the therapies are linked to an improvement in learning skills.
I must first address petitioner’s claim of hearing officer bias. I note that at the commencement of the hearing, petitioner’s attorney stated that he had no concerns about the hearing officer’s impartiality (Transcript 10/13/00 p. 17). After a thorough review of the record, I find no evidence of bias in the hearing officer’s conduct of the hearing. She was fair in her treatment of witnesses, and unbiased in her rulings during the course of the hearing. Petitioner objects to certain statements the hearing officer made in her decision. While some of the statements do not appear to be germane to the specific issues that the hearing officer was called upon to decide, I am not persuaded that the statements are evidence of an animus or bias against petitioner.
Petitioner argues that even if true, the alleged procedural violations involving disclosure of the student’s records, obtaining consent to evaluate the student, and appointment of the hearing officer do not constitute a denial of FAPE. I agree with petitioner. However, I agree with the hearing officer’s determination that petitioner denied a FAPE to the student during the summer of 2000 because of its failure to have an IEP in place at the beginning of the summer. I recognize that respondents had requested a number of additional evaluations be performed at the June CSE meeting, but that did not afford a basis for the CSE to defer action on the IEP for the summer.
A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (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 ). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 ). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
The hearing officer made a number of findings with regard to the creation of the student’s IEP for the 2000-01 school year, as well as the contents of that document. While I do not agree with each of her findings, I find that it is not necessary to review them in detail because the Board of Education cannot meet its burden of proving that it had offered to provide an appropriate educational program to the student in the 2000-01 school year. A CSE that creates an IEP for a student who is, or may be, enrolled in a regular education environment must include "at least one regular education teacher of the child" (34 C.F.R. § 300.344[a]; 8 NYCRR 200.3[a][ii]). Since this student was being home instructed, petitioner’s CSE should have included a regular education teacher who might be responsible for implementing the student’s IEP during the 2000-01 school year. An IEP that was prepared by a CSE that lacked each of it required members is a nullity (Application of a Child with a Disability, Appeal No. 99-19).
A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 ). In view of my finding with respect to the composition of petitioner’s CSE, I find that respondents have prevailed with respect to the first of the three criteria for reimbursement.
Respondents bear the burden of proof with regard to the appropriateness of the services they obtained for their daughter (Application of a Child with a Disability, Appeal No. 95-57; Application of the Board of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, they must show that the alternate services were reasonably calculated to meet the student's special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 ; Application of a Child with a Disability, Appeal No. 94-29). However, I must first note that respondents seek reimbursement for, among other things, the vision therapy provided by an optometrist in Buffalo for 30 weeks beginning in December 1998. There is no evidence in the record that the parents challenged their daughter’s IEP for the 1998-99 school year by requesting an impartial hearing. The hearing in this proceeding was not requested until one year after the 1998-99 school year had been completed. Parents have an obligation to challenge the appropriateness of their child’s IEP within a reasonable period of time when seeking reimbursement for their expenditures (Application of a Child with a Disability, Appeal No. 01-019; Application of a Child with a Disability, Appeal No. 96-72). I find that respondents’ delay was unreasonable (Bernardsville Board of Educ. v. J.H., 42 F.3d 149 [3d Cir. 1994]). Moreover, reimbursement would require a finding that the Board of Education failed to provide a FAPE to the student during the 1998-99 school year. In the absence of such a finding, I must conclude that there was no legal basis for the hearing officer's determination to award reimbursement for the cost of the vision therapy provided to the student during the 1998-99 school year.
The parents also seek reimbursement for the cognitive vision therapy that was to have been provided by the Washington, D.C. optometrist beginning in November 2000. At the hearing, the optometrist described cognitive vision therapy as "a program of child development in the visual cognitive domain working with sensory motor and operational intelligence" (Transcript 10/26/00 pp. 14-15). When asked by the parents’ attorney to describe the methodology he used, the optometrist did not provide a responsive answer (Transcript 10/26/00 pp. 14, 26). He asserted that he would treat the deficiencies he noted in an evaluation that he conducted on July 24, 2000. A report of that evaluation (Exhibit C-13) indicates that the student was deficient in near visual acuity, visual thinking, graphic thinking, and logical thinking. The optometrist further testified that the proposed course of treatment would involve monthly visits over a period of two to three years at a cost of approximately $10, 000 (Transcript 10/26/00 pp. 25, 29).
Three expert witnesses who testified on behalf of the Board of Education expressed doubt about the efficacy of vision therapy in improving a student’s academic performance. The hearing officer accorded less weight to their testimony than that of the optometrist because the witnesses "knew little of optometrist-provided vision therapy". The witnesses were, however, experienced educators who were qualified to testify about educational needs and the ways in which those needs could be addressed. I need not, and do not, decide about the efficacy of vision therapy in general. Respondents have the burden of showing that the service in question would specifically address their daughter’s special education needs. A related service is by definition a service that is needed to enable a student with a disability to benefit from special education (20 U.S.C. § 1401). Having reviewed the extensive documentary evidence as well as lengthy transcript, I am unable to agree with the hearing officer that respondents have met their burden of proof with regard to the services that were to be provided by the optometrist in Washington D.C. (Application of the Board of Educ., Appeal No. 96-87).
Petitioner also appeals from the hearing officer’s determination that it would be appropriate for the student to receive an additional six months of vision therapy from the local optometrist who had provided such therapy to the student during the 1998-99 school year. The optometrist tested the student on November 4, 2000, and reported that she had demonstrated significant gains in abilities as a result of the vision therapy that she had received. He opined that he would expect her to achieve age appropriate abilities through continued vision therapy (Exhibit C-14). At the hearing, the optometrist testified that the student’s eye movement and focussing skills had improved, but that she still needed approximately seven to nine months of vision therapy from him to achieve better visual motor control, better tracking, better focussing, and better eye-hand coordination (Transcript 10/25/00 pp. 104, 155). He acknowledged that some of the student’s vision, i.e., perceptual, problems could be addressed by occupational therapy and certain classroom modifications, but insisted that she would nevertheless need to receive the vision therapy that he proposed to provide. He also opined that the student’s academic performance would improve if the therapy was provided (Transcript 10/25/00 p.142). Petitioner does not appear to dispute that the student has deficits in these areas, but appears to suggest that they can be addressed by other means. Upon the record before me, I concur with the hearing officer’s determination that such services should be provided at petitioner’s expense.
On July 17, 2000, the Board of Education agreed to have a private occupational therapist trained in the Feldenkrais method provide OT to respondents’ daughter at district expense (Exhibit CORR-209). In a letter dated August 23, 2000, petitioner’s director of special programs advised respondents that the district would pay up to $35 per hour for OT (Exhibit CORR-213). The therapist selected by the parents charged $60 per hour for her services. She testified that her fee was based upon her understanding of what Erie County would pay for OT. The school district has refused to pay for the student’s OT at the rate charged by the therapist selected by respondents. The hearing officer ordered petitioner to do so.
Petitioner argues that it is fair and reasonable to limit reimbursement for this service to the amount that it pays by contract to other occupational therapists, and that the hearing officer had no basis in fact for reaching a different conclusion. I must first note that the efficacy of the Feldenkrais methodology is not an issue to be decided by either the hearing officer or myself. The Board of Education agreed to have OT provided by someone trained in that methodology, which apparently not all occupational therapists may be trained to provide. While petitioner may set a rate of compensation for OT generally, it must be able to show that respondents could have obtained the services of an occupational therapist with Feldenkrais training in order to justify its decision to limit reimbursement to that rate. I find that petitioner has not done so, and must affirm the hearing officer’s finding that petitioner should pay for the student’s OT at the rate charged by the private therapist.
The law provides that a parent of a child with a disability is entitled to obtain an independent educational evaluation at public expense, if the parent disagrees with a school district's educational evaluation. If the parent requests an independent educational evaluation at public expense, the school district "must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria" (34 CFR §300.502; 8 NYCRR 200.5[g][iv]). If the school district demonstrates at the hearing the appropriateness of its own evaluation, the parent may obtain an independent evaluation, but not at public expense.
The hearing officer concluded that respondents were entitled to three different behavioral optometry evaluations at public expense: the November 1998 evaluation by the local optometrist, the July 24, 2000 evaluation by the optometrist in Washington, D.C., and what she refers to as an August 2000 evaluation by the local optometrist. The hearing officer was presumably referring to an August 28, 2000 letter to respondents by the local optometrist (Exhibit CORR-214). I must note that the local optometrist testified that the last time he saw the student was on February 7, 2000 (Transcript 10/25/00 at p. 86). Although he described the student as being greatly improved, the local optometrist did not testify that he had formally evaluated the student on February 7, 2000, and there is no proof that he evaluated her at any other time in the year 2000. Under the circumstances, I find that there is no factual basis for the hearing officer’s finding that petitioner should pay for an alleged evaluation in August 2000.
It is not clear from the record whether or when the parents requested payment for the November 1998 evaluation. In February 1999, they requested reimbursement for the vision therapy provided by the local optometrist. In any event, petitioner has not alleged that the parents never asked for payment for such evaluation. Under the circumstances, I will not set aside the hearing officer’s finding that petitioner should pay for the evaluation, since petitioner was required to either pay for the evaluation or promptly initiate a hearing to prove that it had adequately evaluated the student.
While petitioner did not request an impartial hearing regarding the parents’ request for payment of the July 2000 evaluation by the Washington D.C. optometrist, the issue was raised in the hearing below and is properly part of this proceeding that was commenced by the parents in August 2000 (Application of a Child with a Disability, Appeal No. 00-093). I have examined the report of that evaluation (Exhibit C-13), and I find that its cursory statements involving esoteric concepts that may or may not be directly related to the student’s educational needs did not provide useful information to petitioner’s CSE for the purpose of planning the student’s educational program. In addition, I note that the CSE had already obtained much information about the student’s visual motor and perception skills in a series of evaluations that had been performed at the Children’s Hospital in Buffalo and elsewhere. Therefore, I cannot agree with the hearing officer’s finding that petitioner should pay for the cost of the July 2000 evaluation by the optometrist in Washington, D.C.
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 ordered petitioner to pay for the vision therapy provided during the 1998-99 school year, the cognitive vision therapy provided during the 2000-01 school year, the July 24, 2000 evaluation by the optometrist in Washington D.C., and the alleged evaluation by the local optometrist in August 2000.