03-053

       Petitioner appeals from an impartial hearing officer's determination upholding the decision of respondent's Committee on Special Education (CSE) to place her daughter in a wheelchair, rather than a car seat, in providing bus transportation to and from school. The appeal must be dismissed.

        At the time of the hearing, petitioner's daughter was ten years old and attending the third grade at respondent's Division Street Elementary School (Division School) (Transcript p. 50; Parent Exhibit 1). Petitioner's daughter was born with cerebral palsy and is subject to seizures (Transcript pp. 235-36, 240-41). She has motor deficits in both her legs and her right arm (Transcript p. 236). She is unable to ambulate without assistive devices, and uses a wheelchair at home and at school (Transcript pp. 237, 50). Respondent's CSE classified petitioner's daughter as a student with multiple disabilities, and for at least the last two years she has had an individualized education program (IEP) which directed that she be transported to and from school in a car seat on a wheelchair bus (see Parent Exhibit 1; Transcript pp. 51-52). The car seat instruction was added at the parent's request, and the parent provided the car seat (id.). The use of the car seat was continued, at the request of the parent, in the IEP developed for the child for the 2002-03 school year (Transcript p. 52; Parent Exhibit 1). Specifically, the 2002-03 IEP instructed that the child's transportation be by wheelchair bus, with the use of a car seat and an individual aide while on the bus (Parent Exhibit 1).

        When the 2002-03 school year began, respondent's director of transportation and director of pupil services both expressed concerns to the chairperson of the CSE about the child's continued safety in the car seat (Transcript pp. 51-53, 127-28). Specific concerns included the looseness of the straps (Transcript pp. 57, 112), the fact that the child exceeded the seat manufacturer's recommended height and weight limits (Transcript pp. 274, 129; District Exhibit 3, p. 4), the dangers involved in transferring the child from the wheelchair to the car seat and back (Transcript pp. 57, 103, 105), and the need for the aide to remain standing to monitor the child in the car seat while the bus was in motion (Transcript pp. 58, 101-02). In September 2002 respondent's physical therapist prepared a report for the director of pupil services in which she stated that the child's current car seat was not safe, and she suggested that transport by wheelchair would be safe and the simplest procedure to use (Parent Exhibit 4). Based on her belief that the parent would refuse this idea, the physical therapist alternatively suggested the possible use of a car seat appropriate to the child's weight, height and age if one existed (Parent Exhibit 4), which would require that one or more buses be retrofitted to meet all safety specifications of the car seat manufacturer and the Department of Transportation (DOT) (CSE Transcript pp. 33-34; see also Transcript p. 93). At a parent/team meeting on October 30, 2002, these concerns were discussed with the parent (Parent Exhibit 2; Transcript pp. 53-54). School staff recommended transportation by wheelchair as the best way to transport the child on the bus, while the parent expressed a preference for the car seat (Parent Exhibit 2; Transcript pp. 53-54, 265-66), claiming that it enabled the child to sit next to and socialize with other children while on the bus (Transcript pp. 54, 272, 309) and allowed better access to the child in the event of a seizure (Transcript pp. 56, 272-73, 298-99, 310). The team referred the issue to the CSE for review (Transcript p. 54; Parent Exhibit 2).

        A CSE meeting on the issue of the child's transportation was held on December 4, 2002 and continued on January 29, 2003 (Transcript pp. 58-59). At the January 29 meeting, the parent was informed that the child's measurements had been taken and a wheelchair suited to the child's transportation needs had been ordered (Transcript pp. 59, 77-81; District Exhibit 2). The wheelchair included a harness, padded headrest, leg pommels, and hipguards, and was designed to be compatible with bus transportation (Transcript pp. 79-82). The CSE recommended that the child's IEP be changed to specify use of a wheelchair instead of a car seat in transporting the child (Transcript pp. 271-72, 64-65). The parent rejected the suggestion to alter the child's method of transportation, and requested an impartial hearing on this issue and also requested that an independent educational evaluation (IEE) be performed, at the district's expense, to determine her daughter's special transportation needs (Transcript p. 275; see also Pet. ¶ 18).

        The hearing was held on three days: February 26, March 26, and April 3, 2003. On the first day of the hearing, the parent requested that the hearing officer order that transportation using the child's current car seat remain the "pendency placement" during the proceedings (Transcript pp. 3-15). The hearing officer recessed in order to personally view the child on the bus in the current car seat and in the wheelchair (Transcript p. 10). The hearing officer noted that the car seat was not secured tightly and directed that it be adjusted (Transcript pp. 10, 13). She also directed that adjustments be made on the wheelchair to the headrest and leg rest areas (Transcript pp. 11, 14). The hearing officer ruled that the pendency placement would continue using the current car seat, provided that the parent sign a release which limited the school's liability in the event of injury; petitioner signed the release (Transcript p. 14; see IHO Exhibit 1).

        On the second day of the hearing, respondent's director of transportation testified that he had observed the child in the car seat recently and was very concerned because "the seat was not secure at all, that it moved around significantly" (Transcript p. 131), and that if the bus braked suddenly, the seat would be thrown to one side (Transcript p. 129). A video tape of the child being transported using the current car seat in the bus was viewed (Transcript p. 132; District Exhibit 4 [video tape]), after which it was agreed by both parties that the straps on the seat were loose and should be tightened daily (Transcript pp. 137-38). The hearing officer also witnessed first-hand petitioner's daughter being positioned in the wheelchair, with the new headrest and leg pommel attachments; she then convened part of the hearing on the bus and observed the child being placed on the bus in the new wheelchair (Transcript p. 136).

        At the hearing, petitioner admitted that her daughter had outgrown the current car seat (Transcript pp. 273-74) but argued that the district should purchase a larger car seat (Transcript pp. 274-75, 215, 229-30). Petitioner introduced evidence of such a car seat, referred to as "the Columbia Orthopedic Positioning Seat 2000" (Parent Exhibit 3; District Exhibit 1). The manufacturer's instructions for the proposed car seat required that the bus be retrofitted to accommodate the seat, a procedure which would entail drilling holes in the floor of the bus (Parent Exhibit 3; District Exhibit 1; Transcript p. 64). Respondent's fleet maintenance manager testified that DOT requires the district to follow manufacturer's recommendations on car seats (Transcript p. 91), and that, in order to use the car seat, at least three buses would have to be retrofitted to make sure that the child could be transported on any given day (Transcript p. 93).¹ The district would need approval from both DOT and the bus manufacturer before retrofitting any bus (Transcript p. 93). The fleet maintenance manager testified that the district currently had ten to twelve buses equipped to transport students via wheelchairs, all of which were in conformity with DOT regulations for securement of wheelchairs on wheelchair buses, and that safety inspections are performed on these buses every six months by DOT (Transcript pp. 89-90, 93-94). At the time of the hearing, all mobility-impaired children, with the exception of petitioner's daughter, were being transported by the district via wheelchair in a wheelchair bus (Transcript pp. 61, 128).

        On May 1, 2003, the hearing officer rendered a decision finding that respondent's CSE acted properly in recommending that petitioner's daughter be transported to and from school using a wheelchair instead of a car seat. The hearing officer's decision did not address the IEE issue.

        Petitioner appeals, contending that the hearing officer erred by (1) refusing to admit the child's doctors' reports into evidence, (2) not ordering the district to pay for an IEE, and (3) finding that the use of a wheelchair was appropriate to meet the child's individual transportation needs.

        Petitioner first argues that the hearing officer improperly excluded the child's medical reports from evidence and asks that they be accepted now as part of the record on appeal. Respondent objects and requests that if petitioner's medical reports are admitted, the State Review Officer also admit affidavits from respondent's attorney and CSE chair and accompanying exhibits in response. At the hearing, the hearing officer decided to accept the medical records of the child proffered by petitioner for informational purposes only, precluding them from being submitted as evidence on the basis that none of the doctors who wrote the reports were called as witnesses to verify the records or be cross-examined (Transcript p. 156). While it is true that parties to an impartial hearing have the right to present evidence and to confront and question all witnesses who testify (34 C.F.R. § 300.509[a][2]; 8 NYCRR 200.5[i][3][xi]), it is also well settled that under certain circumstances hearsay evidence is admissible in an administrative proceeding (Gray v. Adduci, 73 NY2d 741, 742 [1988]; Bulger v. Safir, 300 AD2d 656, 657 [2d Dept. 2002]; Application of a Child Suspected of Having a Disability, Appeal No. 93-18). The fact that the physician who prepared the report was not physically present to testify at the hearing is not dispositive of the report's admissibility (see Application of a Child Suspected of Having a Disability, Appeal No. 93-18). The twin criteria for admission of evidence into the record in impartial hearings are relevance and reliability (Application of the Bd. of Educ. of Avon Cent. Sch. Dist., Appeal No. 02-076; Application of a Child with a Disability, Appeal No. 98-47; see Matter of Sowa v. Looney, 23 NY2d 329, 333 [1968]). Therefore, I find that, in the instant case, the hearing officer erred by not admitting the medical reports into evidence solely on the basis that the physicians who wrote the reports were not called to testify, without also making an independent finding as to the relevance and reliability of the reports.

        Both parties have submitted various documents with their pleadings and request that the documents be considered as additional evidence. Petitioner submits the precluded medical reports (Pet. Exhibit 8) and the parent's written request for an impartial hearing dated February 3, 2003 (Pet. Exhibit 7); respondent submits answering affidavits from respondent's attorney and the CSE chair which pertain to the CSE chair's conversations with the child's physician, as well as the full transcript of the January 29, 2003 CSE meeting. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time of the hearing or when such evidence is necessary to enable the State Review Officer to render a decision (Application of the Bd. of Educ. of the Pawling Cent. Sch. Dist., Appeal No. 03-022; Application of the Bd. of Educ. of the Hyde Park Cent. Sch. Dist., Appeal No. 02-024; Application of a Handicapped Child, 23 Ed. Dept. Rep. 390).

        In the instant case, to the extent that it verifies that petitioner requested an impartial hearing in writing five days after the CSE meeting, I will accept petitioner's original letter requesting an impartial hearing (Pet. Exhibit 7). Petitioner's daughter's medical reports contain a letter dated January 15, 2003 from the child's orthopedic physician stating that it is "medically necessary" that the child be transported in a car seat rather than a wheelchair (Pet. Exhibit 8, p. 1). I find this relevant in rendering a decision and will also accept that document. Respondent's answer includes a sworn affidavit from the CSE chair stating that she spoke to the same physician. She asserts in her affidavit that the doctor indicated that he had written the letter at the parent's request, that the child was "thoroughly healed" from her previous surgeries, and that there was no orthopedic reason why the child could not be transported via wheelchair (Farrell Aff. ¶¶ 8, 9). I will also accept that document on the same basis. I find the remainder of the child's medical reports to be largely a medical history of the child and not directly relevant on the narrow issue of transportation presented in this appeal. I also find the affidavit of respondent's attorney to be second-hand affirmations of CSE chair Farrell's affidavit, and as such duplicative and unnecessary; therefore, I decline to accept the attorney affidavit because it will not assist me in rendering my decision. As to the transcript of the January 29, 2003 CSE meeting, although both parties had a tape of the January CSE meeting at the hearing (Transcript p. 71), the hearing officer accepted it for informational purposes only (Transcript p. 74), and it was not admitted into evidence (Transcript pp. 69-75, 144-45). I find that the transcript of the January 29, 2003 CSE meeting bears directly on the issues raised herein; therefore, to the extent that the document will assist me in rendering my decision, I will accept the late submission of the CSE meeting transcript (hereinafter, CSE Transcript).

        Petitioner contends that the district erred in not performing a proper reevaluation of the child's transportation needs prior to recommending a change in the transportation arrangements contained on the child's IEP. Petitioner also requests that an IEE be performed at the district's expense. Based on the record before me, I find petitioner's arguments to be without merit.

        Under the Individuals with Disabilities Education Act (IDEA), all eligible disabled students are entitled to a free appropriate public education (FAPE). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-092). To meet its burden, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]), and that the recommended program is the least restrictive environment (LRE) for the child (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP formulated in accordance with the IDEA, which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of the Bd. of Educ. of the Rocky Point Union Free Sch. Dist., Appeal No. 00-090; Application of a Child with a Disability, Appeal No. 00-087; Application of a Child with a Disability, Appeal No. 99-98). The IDEA specifically identifies transportation, including any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[22]; 34 C.F.R. § 300.24[a], [b][15]). In addition, New York State law defines special education as "specially designed instruction…and transportation to meet the unique needs of a child with a disability" and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1], 4402[4][a]). Transportation includes transport to and from school, between schools, as well as travel in and around schools. It includes specialized equipment (e.g. special or adapted buses, lifts and ramps) if required to provide specialized transportation (34 C.F.R. § 300.24 [b][15]). Specialized transportation must be included on a child's IEP if required to assist the child to benefit from special education (34 C.F.R. Part 300, Appendix A, Section IV, Question 33). When making determinations about a student's transportation needs, CSE's are encouraged to include input from transportation personnel (34 C.F.R. Part 300, Appendix A, Section IV, Question 30). The nature of the specialized transportation required for a particular child depends upon the child's unique needs, and it must be provided in the LRE (34 C.F.R. § § 300.306, 300.533). Safety procedures for transporting students are primarily determined by state law and local policy (See OSEP Policy Letter to McKaig, 211 IDELR 161 [1980]).

        Under the applicable state and federal regulations, the district must perform a reevaluation of a student's needs "if conditions warrant a reevaluation or if the child's parent or teacher requests a reevaluation, but at least once every three years" (20 U.S.C. § 1414[a][2][A]; 34 C.F.R. § 300.536[b]; 8 NYCRR 200.4[b][4]). In conducting a reevaluation, the CSE must gather information to determine "whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the individualized education program of the child and to participate, as appropriate, in the general curriculum" (20 U.S.C. § 1414[c][1][B][iv]; 34 C.F.R. § 300.533[a][2][iv]; 8 NYCRR 200.4[ii][d]). As part of the reevaluation, members of the CSE and other qualified professionals, as appropriate, shall review existing data, including information provided by the parents and observations by teachers and other service providers; the group may conduct this review without a meeting (8 NYCRR 200.4[b][5][i]). Then, under state regulations, the results of any reevaluation "must be addressed by the committee on special education in reviewing and, as appropriate, revising the student's IEP" (8 NYCRR 200.4[b][4]). A parent is entitled to request that an IEE be done on their child at public expense "if the parent disagrees with an evaluation obtained by the public agency" (34 C.F.R. § 300.502[b][1]; see 20 U.S.C. § 1415[b][1]; 8 NYCRR 200.5[g]). An "independent educational evaluation" is "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" (34 C.F.R. § 300.502[a][3][i]; see 8 NYCRR 200.1 [z]). Once an IEE is requested, the district must, without unnecessary delay, either ensure that an IEE is provided at public expense, or initiate an impartial hearing to defend its reevaluation (34 C.F.R. § 300.502[b][2]; 8 NYCRR 200.5[g][1][iv]).

        In the instant case, the child's parent argues that the change from the use of a car seat to the use of a wheelchair while on the bus constituted a change that required the CSE to first conduct a reevaluation of the child's transportation needs. The district argues that a full "educational evaluation" was not required in this instance, and therefore was not done; hence the parent has no basis to request an IEE. I find that, while the district was not required to do a full "educational evaluation" on the child prior to changing her specialized transportation, it was required to conduct a reevaluation of her transportation needs prior to changing the services on her IEP. More specifically, the CSE was required to determine whether or not the modification to the specialized transportation was appropriate and consistent with the provision of a FAPE, [suitable in accordance with the applicable state and federal regulations noted above], and in conformance with all state and federal safety requirements. Based on the record before me, I find that the CSE has met this burden.

        Under the circumstances presented here, a consideration of the appropriateness of the change in the designated method of transportation on the child's IEP required the CSE to obtain an opinion from a qualified health care provider as to whether this child could safely be transported in a wheelchair while on the bus (Application of a Child with a Disability, Appeal No. 98-23). Petitioner argues that the district was required, due to the child's orthopedic physician's letter of January 15, 2003, to continue to use a car seat in transporting the child. It is true that if a parent produces unrefuted, credible evidence of a physician's report that a certain mode of transportation is medically necessary, the district is bound to follow that recommendation (Application of a Child with a Disability, Appeal No. 98-23). However, in the instant case, the district not only provided a contrary opinion from its own physical therapist (Parent Exhibit 4; CSE Transcript pp. 7-8), but also raised serious questions about the opinion given in the letter written by the child's physician, as the child's physician subsequently informed respondent's CSE chair that the use of the wheelchair to transport the child on the bus was indeed medically safe for the child (Farrell Aff. ¶¶ 8, 9; CSE Transcript p. 17). In the instant case, I conclude that the CSE acted properly in relying on the opinions it had obtained which found that the child could be safely transported in a wheelchair while on the bus (see Application of a Child with a Disability, Appeal No. 01-042).

        The record reveals that the CSE also did a thorough investigation and reevaluation of the child's transportation needs to make sure that the proposed method of transportation was appropriate and complied with all state and federal safety requirements. The State DOT has promulgated various safety regulations that the district must comply with when transporting students by wheelchair or otherwise. The district must also abide by any manufacturer's instructions as to installations or height or weight limitations of car seats. Before recommending the change, the CSE did its own research, which included reviewing relevant literature (CSE Transcript pp. 9, 16, 26-27), having the child's transportation needs evaluated by the district's physical therapist (Parent's Exhibit 4), contacting the child's physician (Farrell Aff. ¶¶ 8, 9; CSE Transcript p. 17), discussions with other physical therapists and car seat vendors (CSE Transcript pp. 9, 13, 16), discussions with respondent's director of transportation (CSE Transcript pp. 20-21, 27, 45), a review of state and federal DOT safety regulations (CSE Transcript pp. 9-11, 44-45), measuring petitioner's daughter for the wheelchair (District Exhibit 2; CSE Transcript pp. 24-25), and direct observation of petitioner's daughter in the car seat (CSE Transcript pp. 9, 14-15, 17-18; Transcript pp. 52-53, 56-57, 128-29). The wheelchair ordered by the CSE complied with all DOT safety requirements for use on buses (Transcript p. 94). Moreover, the district followed correct procedures in formulating its recommendation. In the months prior to the recommended change, respondent's CSE chair, director of transportation, fleet manager, and physical therapist and the child's aide all had several discussions reviewing the child's transportation needs, personally observed her on the bus in the car seat, and gathered relevant information (CSE Transcript pp. 6, 9-10, 12, 17-18, 20-21, 26-27, 39, 41). A parent/team meeting was held, where the parent's input was considered, gathered information was reviewed, and a recommendation was passed on to the CSE (Parent Exhibit 2; Transcript pp. 53-54). Since the mode of transportation recommended by the CSE complied with all state and federal safety regulations and there is medical evidence that the method of transportation would be safe for the child, and the CSE having considered the child's special needs, I find that the method is appropriate. Under the circumstances of this case, I find that the CSE's recommendation to transport the child using a wheelchair in a wheelchair bus rather than using a car seat was done after a proper reevaluation of her medical, safety, and transportation needs, and did not constitute a denial of FAPE.²

        On the issue of the petitioner's request for an IEE, as noted, if a parent disagrees with a reevaluation, he or she has the right to request that the district pay for an IEE (20 U.S.C. § 1415[b][1]; 34 C.F.R. § 300.502[b][1]; 8 NYCRR 200.5[g]). The district must then either agree to fund the IEE, or commence an impartial hearing to defend its reevaluation (34 C.F.R. § 300.502[b][2]; 8 NYCRR 200.5[g][1][iv]). The minutes of the January 29, 2003 CSE meeting reflect that at the conclusion of the meeting the parent immediately requested both an IEE and an impartial hearing on the appropriateness of the change in mode of transportation on the IEP (CSE Transcript pp. 63, 61; see also Pet. Exhibit 7). Although the regulations state that it is the district that must, without undue delay, request the hearing to defend its reevaluation, I find that the parent's immediate request for a hearing on virtually the identical issue satisfied the purpose of the regulations. Having previously found on the record before me that the district's reevaluation was appropriate, I also find that petitioner is not entitled to an IEE at public expense (8 NYCRR 200.5[g][1][v]).

        I have considered petitioner's other claims and find them to be without merit.

THE APPEAL IS DISMISSED.