02-058

        Petitioner appeals from an impartial hearing officer's decision which determined that his son was entitled to six additional sessions of individual occupational therapy (OT) based on the respondent's failure to clearly identify the quantity of services the student was to receive during the summer of 2001. Petitioner requests that the hearing officer's order be increased to 40 additional sessions of OT. Respondent cross-appeals from the hearing officer's award of six additional sessions of individual OT. The appeal must be dismissed. The cross-appeal must be sustained.

        At the time of the hearing, petitioner's son was eight years old. Petitioner does not challenge his son's identification as a student with autism. During the hearing the student attended a 6:1+1 special class located at North Collins Elementary School, where he received special education and related services with some mainstreaming.

        On July 13, 2001, petitioner requested an impartial hearing regarding the summer program recommended for his son (District Exhibit 2). In the hearing request, petitioner asserted that he had not received a copy of his son's individualized education program (IEP), the recommended OT services were not as prescribed by the child's doctor, and the respondent had "failed to refigure" an IQ score. The impartial hearing in this matter was conducted on five separate days, the final day being November 20, 2001. When the hearing began, petitioner withdrew the issues pertaining to receipt of the summer IEP and the student's IQ score. Thus, the only issue before the hearing officer concerned the frequency and appropriateness of the OT services provided to the child during the summer of 2001. In her decision dated May 3, 2002, the hearing officer awarded petitioner's son six additional individual sessions of OT based on a lack of clarity at the Committee on Special Education (CSE) meeting regarding the number of weekly OT sessions recommended for the child. In addition, the hearing officer determined that the OT services that were provided to the child were appropriate "...and did inure to the benefit of the student."

        Petitioner asserts that the hearing officer failed to issue her decision in a timely manner. Notwithstanding respondent's receipt of petitioner's hearing request on July 13, 2001 and the hearing officer's receipt of all relevant post-hearing documents and submissions by February 2, 2002, the hearing officer did not render a decision in this matter until May 3, 2002. A hearing officer is required to render a decision within 45 days of the date a hearing request is received by the district, unless a specific extension of time is granted upon request of a party (34 C.F.R. § 300.511[a] and [c]; 8 NYCRR 200.5[i][4]). While the parties did agree to extend the time for the hearing beyond the 45-day limit, it appears that the extension was indeterminate rather than specific as required by 34 C.F.R. § 300.511(c) and 8 NYCRR 200.5(i)(4)(i) (Transcript pp. 114-18). However, the untimeliness of the decision does not provide a basis upon which to annul this decision (Application of a Child with a Disability, Appeal No. 99-48; Application of a Child with a Disability, Appeal No. 97-97).

        Petitioner contends that the OT services provided by the school district during the summer of 2001 did not appropriately meet his son's needs. Specifically, he challenges the frequency of the services, arguing that the student was to receive three individual sessions, one group session, and one consultation weekly,¹ rather than the two individual sessions and one group session included on the child's IEP (District Exhibit 5). Petitioner also challenges the methodology used by the therapist. He argues that his son regressed while receiving the summer OT services, and he seeks an order increasing the six additional sessions ordered by the hearing officer.

        Respondent asserts the OT services provided to the student were in accordance with the services recommended by the CSE at its May 29 and June 14, 2001 meetings. Secondly, respondent argues that the OT services were appropriate for the child, as he benefited academically from the sensory integrative approach employed by the therapists. Respondent asserts that the recommended program was reasonably calculated to allow the child to receive educational benefits and that the program was the least restrictive environment (LRE) for the child. Thirdly, respondent contends that there is no evidence the child regressed by not having increased OT services during summer 2001.

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 [2d Cir. 2000]; 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 Educ. Dept. Rep. 487 [1983]). To meet its burden of showing that it provided a free appropriate public education (FAPE) to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-207 [1982]). The recommended program must also be provided in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). 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. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IDEA requires school districts to make a FAPE available to each student with a disability who has not received a high school diploma through the age of 21 (20 U.S.C. § 1412 [a][1][A]; Education Law §§ 4402[2][a] and 4401[1]). Although students are generally not entitled to a public education beyond that age, compensatory education may be awarded beyond age 21 if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]).

        Petitioner does not claim any procedural violations in the formulation of the IEP. The central issue he presents is whether the summer 2001 program was reasonably calculated to provide educational benefits to his son and, if not, was the child denied or excluded from educational benefits for a substantial period of time.

        An OT report indicates the child was evaluated in January 2001 when he was seven years five months of age, at which time the Bruininks-Oseretsky Test of Motor Proficiency, Beery Developmental Test of Visual-Motor Integration, Motor-Free Perceptual Test and Draw a Person Test were administered (District Exhibit 8). The child's scores were within the five and six year chronological age range on all of the tests administered. A progress report was developed for the 2000-01 school year (District Exhibit 26). The report indicated the child showed improvement during the school year in his ability to write his name on lined paper and group letters properly. The child's writing tasks and shoe tying were apparently frustrating for the child, but he did not experience difficulty with gross eye-hand tasks presented to him.

        Petitioner's son's summer occupational therapist testified that the goals she worked on with the child during the summer of 2001, included appropriate responses to sensory input; imitating horizontal and vertical writing strokes to copy designs, shapes, letters, or numbers; and increased use of eyes and hands in a coordinated manner during large and small manipulative tasks (Transcript p. 487; District Exhibit 27, see also District Exhibit 5). The therapist testified that she used a sensory integrative approach, in an effort to address the child's sensory processing deficits (Transcript p. 487). She further testified that a trampoline was used simultaneously with the child spelling his name aloud in order to use rhythm and sensory input to help the child recall the academic skill of sequencing letters accurately (Transcript p. 492) and that a cooking program and shoe tying exercises were used to address the child's activities of daily living (ADL) (Transcript pp. 497-98). She also testified that stilts were used as a method to provide the child with proprioceptive and vestibular input, and to improve bilateral coordination. These areas of instruction reflect the child's gross and fine motor needs and the supplementary aids, services, and supports reflected in the record (District Exhibit 5). The OT service that was provided also targeted the child's reported need to improve upper body control during activities involving eye-hand coordination while interacting with presented manipulatives (District Exhibit 27).

        Petitioner asserts that the OT services provided to his child were inappropriate, as the related skills which were addressed during the therapy sessions (walking on stilts, roller racing, jumping on a trampoline) were non-educational and as a result, the child regressed in his educational areas. The record indicates regression was not noted by the child's therapist. Rather, the therapist testified that the child maintained his motor skills and showed progress in writing his name (Transcript p. 486). On the record before me, I find no evidence of regression having occurred as a result of the level of OT services provided to the child. Rather, consistent with the finding of the impartial hearing officer, the record indicates that the services provided to petitioner's son during the summer of 2001 were appropriate to his needs (Transcript pp. 486-508).

        Petitioner contends that the CSE should have recommended the five weekly sessions of OT prescribed by the child's doctor (District Exhibit 11). Although a CSE is required to "obtain, review and evaluate all relevant information, including but not limited to that presented by the parent…" (Education Law § 4402[1][b][3][a]), it is the responsibility of the committee to recommend for each child with a disability the services it considers appropriate for such child (Education Law § 4402[1][b][3][b]). There is no indication in the record that the CSE failed to consider the doctor's prescription, and I have found the OT services offered to the child for the summer of 2001 were appropriate. Accordingly, I find no basis to set aside the CSE's recommendation.

        I have considered petitioner's other arguments and find them to be either unsubstantiated or otherwise without merit.

        Respondent cross-appeals from the hearing officer's award of six additional individual sessions of OT to petitioner's son. During the summer of 2001, the child received two individual sessions of OT and one group session each week. At the CSE meetings on May 29 and June 14, 2001, there was discussion about the frequency of the services petitioner's son was to receive. I agree with the hearing officer that the minutes of those meetings are confusing, and that there does not appear to be a clear resolution of the issue of the frequency of the summer OT services for the child (District Exhibit 28 pp. 39, 47, District Exhibit 29 pp. 40-45; Transcript pp. 400-06). However, the resulting IEP clearly indicated that petitioner's son was to receive two individual sessions of OT and one group session each week (District 5 p. 4). Having concluded that petitioner's son received appropriate OT services during the summer of 2001, and that the child benefited from the services, as opposed to having regressed, the hearing officer erred in awarding the six additional OT services.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled to the extent it required respondent to provide six additional sessions of OT to petitioner's son.