Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Hicksville Union Free School District
Skyer, Castro, & Foley, attorney for petitioners, Diana Gersten, Esq., of counsel
Guercio & Guercio, attorney for respondent, John P. Sheahan, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which found that the individualized education program (IEP) developed by the district's October 22, 2003 Committee on Special Education (CSE) offered their son a free appropriate public education (FAPE) for the 2003-04 school year. Specifically, petitioners contend that the IEP should have included therapeutic feeding as a related service and individual speech and language therapy sessions. The appeal must be dismissed.
Before addressing the merits of this appeal, I must address two procedural issues. Respondent raises an affirmative defense alleging that the petition was untimely (Answer ¶ 43). The decision of the impartial hearing officer (IHO) was rendered June 25, 2004 (IHO Dec. p.11) and included a signed cover letter dated June 30, 2004. In their reply, petitioners included a photocopy of an envelope from the impartial hearing officer postmarked July 2, 2004 (Pet. Ex. 5). Petitioners allege they did not receive the impartial hearing officer’s decision until July 6, 2004 (Reply ¶ 3) and argue that the petition was timely served upon respondent on August 12, 2004.
Part 279.2(b) of the Commissioner's regulations, as amended and effective January 1, 2004, provides that:
[t]he petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the…35-day period.
Part 279.2 of the Commissioner's regulations anticipates that an impartial hearing officer's decision will be mailed to the parties within a day or two of the date of the decision. In this case, petitioners did not receive the decision until 11 days after the date of the decision because it was not mailed in a timely manner. Petitioners' service of the petition on respondent occurred 46 days after the date of the decision. I will exercise my discretion and excuse the delay in service giving consideration to the fact that receipt of the decision was delayed because the decision was not mailed to petitioners in a timely manner relative to the date of the decision.
The second procedural issue is petitioners' request that I consider four documents attached to their petition that were not made part of the hearing record and are now offered for submission. Respondent objects to their submission because they were not introduced at the hearing and three of the documents relate to the CSE’s recommendation for the 2004-05 school year (Ans. ¶ 56). The documents are: a speech-language review with an initial test date of March 10, 2004 (Pet. Ex. 1); a Woodcock-McGrew-Werder Mini-Battery of Achievement test dated March 29, 2004 (Pet. Ex. 2); a letter dated July 22, 2004 from respondent school district regarding an approved recommendation for special education developed by the CSE which was attached to the child's 2004-05 IEP (Pet. Ex. 3); and a Nursing Progress Sheet dated June 18, 2004 (Pet. Ex. 4).
Documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision if such evidence were unavailable at the time of the hearing or when such evidence is necessary to enable a State Review Officer (SRO) to render a decision (Application of a Child with a Disability, Appeal No. 03-054; Application of the Bd. of Educ., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 02-098; Application of the Bd. of Educ., Appeal No. 02-024). The impartial hearings were held on five days from February 23 to April 2, 2004. The speech-language report with an initial test date of March 10, 2004 states that the testing was performed over nine testing sessions (Pet. Ex. 1 at p. 1). The record states that the CSE and parents agreed to update testing for speech and language services on March 9, 2004 (Tr. p. 127), testing was to start immediately (Tr. p. 133), and that the testing would not be concluded before the hearing was completed (Tr. p. 129). The dates of the sessions were not stated on the test report and petitioners state in their petition that the report was written after the close of hearings (Pet. ¶ 55), making the report unavailable at the time of the hearing. The second exhibit, with a test date of March 29, 2004, was stamped as received by respondent district on April 6, 2004, four days after the conclusion of the hearing. This report was not available prior to the conclusion of the hearings. The final two exhibits were dated June 18 and July 22, 2004, after the hearing concluded. Because none of the documents were available at the hearing and I find them necessary for my review, I will exercise my discretion and accept them.
At the time of the hearing in this proceeding, the child was eight years old and classified as other health impaired (OHI). This classification is not in dispute. The child has significant medical needs. Petitioners' son is diagnosed with Congenital Central Hypoventilation Syndrome (CCHS) (Tr. p. 148; Parent Ex. M), a failure of his autonomic nervous system to control breathing while he is asleep. He has been monitored since infancy by a pediatric pulmonary specialist (Parent Ex. M). The child has a full-time nurse at school (Tr. pp. 166-168; 397-98).1 He has a permanent tracheostomy and uses a Passy-Muir valve to assist in speaking (District Exs. 1, 2). He has also been diagnosed with Hirschprung's Disease (Tr. p. 147), a disease of the intestines.
As an infant, he received home-based Early Intervention Services (EIS) between the ages of three months to three years because of global developmental delays (see Tr. pp. 148-51). For the 2000-01 school year, when the child was approximately four years old, he attended a special education preschool program at the district's Dutch Lane School (Tr. p. 152) where he received physical therapy (PT), occupational therapy (OT), and speech and language therapy (Tr. p. 153). At the time, the child was not talking, which made it difficult for him to communicate with the other children (Tr. p. 153). For the 2001-02 school year, the child remained at the Dutch Lane School for attendance in a mainstream kindergarten class (Tr. p. 156) where he continued to receive related services of PT, OT, and speech and language therapy (Tr. p. 153). During the kindergarten year, the child was reportedly becoming more independent and was "talking very well" (Tr. p. 153). During the 2000-01 and 2001-02 school years, one of the district's speech and language therapists provided the child with oral motor therapy (see Tr. pp. 250-51; Parent Ex. D). During that time, the child’s speech therapist introduced feeding therapy (Tr. pp 154-55, 251-52), although the IEP did not include therapeutic feeding needs or goals.2 Attention was also paid to breath support, resulting in an increase in the child's mean length of utterance (MLU) (Parent Ex. C at p. 3). The therapist indicated that the student did not frequently eat solid foods, but consumed mashed, pureed types of foods (id).
For the first grade 2002-03 school year, the parent’s testimony indicates that the child began attending the Burns Avenue School, where he was enrolled in a full-day special education class (Tr. 156-57). The child continued to receive OT and speech-language therapy services, however, the parents discontinued PT services because the parent felt the child was doing well enough in karate classes (Tr. p. 157). Although the child continued his speech and language therapy services, the child's preschool and kindergarten speech therapist, who introduced feeding therapy as part of the child's speech therapy, left the district and a different speech therapist was hired to take her place (Tr. pp. 158-59). The child's mother testified that her child no longer received feeding therapy services after the new speech therapist was hired and that the new speech therapist told her that the feeding therapy "wasn’t on the child's IEP" (see Tr. pp. 159-60).
In April 2003, after a little over a year-and-a-half without receiving in-school feeding therapy for their son, the parents requested an evaluation for their child’s feeding abilities (Parent Ex. K). On August 5, 2003 an oral motor and feeding evaluation was performed by a speech pathologist hired by the district (Dist. Ex. 2). The evaluation concluded that the child’s current feeding impediments relate to medical issues and that feeding therapy should be provided according to a " medical model" (Dist. Ex. 2 at p. 4).3
For the 2003-04 school year, the child was attending second grade at the Lee Avenue School, in a 12:1+1 special class with related services of OT and speech-language therapy, and full-time nursing services (Parent Ex. H) when the CSE convened on October 22, 2003 to review the child’s IEP for the 2003-04 school year and the August 5, 2003 evaluation. The CSE recommended that the child’s placement remain the same. The IEP special alerts highlighted that the child required monitoring for aspiration during snack and lunch, that he had limited strength, vitality or alertness due to chronic health problems, and he required assistance with toileting and/or daily feeding (Dist. Ex. 3 at p. 1). Also, the IEP indicated that the child had a medical condition that required monitoring by the school nurse, a tracheostomy that required suctioning, and that he required an air conditioner in class (id.). Assistive technology listed on the IEP includes a cell phone and suctioning equipment for emergency use by the nurse to be available five days a week, all day, in the classroom, therapy room, outdoors and on school trips (Dist. Ex. 3 at p. 12). Specialized transportation was continued as "door to door" in an air-conditioned vehicle accompanied by a nurse (id.). The CSE did not recommend in-school feeding therapy (see Dist. Ex. 3). The parents disagreed with the CSE recommendation not to provide feeding therapy and contended that in-school feeding therapy was necessary and could be provided through individual speech-language therapy (Tr. pp. 496-97). On December 8, 2003 the parents requested a due process hearing stating that the district failed to offer their son a FAPE for the 2003-04 school year by not including feeding therapy as a related in his IEP to address a "significant difficulty in biting and chewing textured foods" (Dist. Ex. 1). The parents also asserted that the elimination of individual speech-language therapy and reduction of speech services to three group sessions a week by the CSE was inappropriate (Parent Ex. B).
In a decision dated June 25, 2004, the impartial hearing officer determined that the IEP developed by the October 22, 2003 CSE met the procedural and substantive requirements of the Individuals with Disabilities Education Act (IDEA) and offered the student an educational benefit. He further determined that a FAPE "was not denied because of the district’s decision not to offer in-school feeding therapy or the changes made in the IEP’s schedule of speech and language therapy service" (IHO Dec. at pp. 10-11).
On appeal, petitioners assert that the impartial hearing officer erred by deciding that the 2003-04 IEP offered a FAPE despite recommending changes in speech and language therapy services and not providing for therapeutic feeding as a related service. Petitioners request that the State Review Officer annul the impartial hearing officer's decision and order the district to provide feeding therapy as a related service for the 2004-05 school year.
Respondent 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 ; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). In order to meet its burden, respondent 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 confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 ; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025). The educational benefit must be "meaningful" (Rowley, 458 U.S. at 192) and "more than mere trivial advancement" (Walczak, 142 F.3d at 130; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 [2d Cir. 1997]). It must be 'likely to produce progress, not regression' (Walczak, 142 F.3d at 130; M.S., 231 F.3d at 103). The recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
An appropriate educational 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. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child with a Disability, 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Federal and State regulations require that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a]; 8 NYCRR 200.4[d]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section 1, Question 1).
An IEP must also include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a]; 8 NYCRR 200.4[d][iii]). In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a]; 8 NYCRR 200.4[d][x]).
A review of the 2003-04 IEP (Dist. Ex. 3) reveals that there was adequate compliance with the procedural requirements of the IDEA and that the IEP was reasonably calculated to provide educational benefit to the child. Present levels of performance are listed, needs are established within academic, social, physical development, and management areas, with communication needs noted across the academic, social and physical domains (see 8 NYCRR 200.4 [d][i]). The goals and objectives were appropriately related to the child's needs in the various domain areas and were well written. As an example, the oral motor goal and objectives, which focused on strengthening the oral musculature so that the child could express himself, were clear and related to the child's communication needs in school (Dist. Ex. 3 at p. 8). One objective stated to, "Develop pre-articulative oro-facial skills, commensurate with available physiology" and was designed to develop the motor skills of the oral and facial muscles necessary for subsequent speech production and articulation (id). Another oral motor objective stated to, "Increase rapid movement and duration of movements," and related to the rapid movements necessary for coordinated speech sound production when a person speaks (id). Evaluation results were within appropriate time limits and indicate measured abilities in cognitive, reading, math, speech and language, and OT areas (Dist. Ex. 3 at p. 2). Special alerts, accommodations, and supports to maintain the child in his LRE are included (Dist. Ex. 3 at p. 1).
Petitioners assert that the district was required to provide feeding therapy as a related service in order to assure that a FAPE was provided. Petitioners assert that the service can be provided in school as a related service by a speech therapist. Respondent asserts that the service is not necessary to assist the child to benefit from special education, and, for safety reasons, if feeding therapy is to be provided it should be provided outside of school on an outpatient basis.4
The term "related services" means such developmental, corrective, and other supportive services "…as may be required to assist a child with a disability to benefit from education, and includes…medical services for diagnostic or evaluation purposes" and includes school health services (20 U.S.C. §1401 ; 34 C.F.R. 24 [a]; see 8 NYCRR 200.1 [qq]). The U.S. Supreme Court has established a three-prong test to determine whether a service must be provided under IDEA as a related service (Irving Independent School District v. Tatro, 468 U.S. 883 ). First, in order to be entitled to receive the service, the child must be a child with a disability, as defined by the Part B statute and regulations. Second, the service must be necessary to assist a child with a disability to benefit from special education. If the service could be given during nonschool hours, then the public agency is not required to provide the service, even if the public burden would be minimal.5 Third, the service need only be provided if it can be provided by a nurse or other qualified professional, not a physician. As applied to this appeal, the first and third prong need not be discussed in detail. As to prong one, there is no dispute that the child is eligible for IDEA services. As to the third prong, neither party is asserting that feeding therapy is a service to be provided by a licensed physician for diagnostic or evaluation purposes.6,7
The application of the second prong of Tatro requires a determination of whether feeding therapy is necessary to assist the child to benefit from special education. Petitioners allege that feeding therapy is necessary because it will allow him to receive educational benefit by appropriately socializing with peers. Petitioners assert that their son's socialization opportunities are adversely impacted because he must eat different textured food than his schoolmates and his recess time is reduced because he takes longer to feed himself at lunch (see Tr. pp. 165, 266-67, 380-81). In addition, petitioners argue that the child's mashed food does not provide him with proper nutrition and that the alleged improper nutritional impact of not eating solid foods would impact the child’s educational performance because the child would be lethargic later in the school day (see Tr. pp. 266-67, 322-23).
A reading of the entire record persuades me that respondent has demonstrated that it has met its burden of showing that it offered petitioners’ son a FAPE. Under the one-to-one nurse's supervision (see Tr. pp. 115, 163, 180), this medically involved child with a tracheostomy and a Passy-Muir valve (Dist. Exs. 1 at p. 1, 2 at p. 1) was eating a mashed/pureed diet (Tr. p. 162) with his friends in the lunchroom (see Tr. p. 479). He ate yogurt and pudding at snack time (Tr. p. 101). One of the nurses employed by the same health care agency that provides nursing services for the child (Tr. p. 397) and who has examined the child in the past (Tr. p. 459) testified that the child’s diet is similar to that of other eight year old children (Tr. p. 473) and that the child can "eat a regular diet as tolerated by mouth" (Tr. p. 472) and "can chew solid foods with a lot of help and coaxing" (Tr. p. 473). The director of special education for the district observed the child in the fall 2003 (Tr. pp. 478-79) and testified that the student was able to socialize with his classmates during lunch and was able to finish what he was eating in time to go outside with the class for recess (Tr. p. 479). She also testified that at the October 22, 2003 CSE meeting no one from the school support conference team objected to an evaluation that concluded that the child’s oral motor development was adequate for speech and language purposes and that his feeding needs were more of a medical related issue (see Tr. p. 530). The child’s second grade special education teacher testified about the impact of the child’s feeding process and stated, "I don’t think it’s something that affects him socially or academically" (Tr. p. 114). The special education teacher could only recall one instance where the child was brought back into the classroom to finish eating but testified that he usually eats right up until the end of the lunch period and then participates at recess (see Tr. pp. 100-101). She also testified that the other children are motivated to play with the child (Tr. p. 97) and that the child has friends in the class (Tr. p. 99). His IEP indicates that he has friends in school (Dist. Ex. 3, p. 3). Academically, as noted by the progress report, the child demonstrated progress on many objectives, across all domains for the first quarter of the 2003-04 school year (see Dist. Ex. 4). By the end of the first quarter, the child had already progressed in 60 percent of his overall IEP objectives (id). Specific to speech and language, which included oral motor objectives, the child demonstrated progress on 63 percent of his objectives (Dist. Ex 4 at pp. 12-18). Furthermore, there is nothing in the record to indicate that the child would not have continued progressing on the IEP objectives.
After a careful review of the record, I do not find that the addition of feeding therapy services is necessary to assist this child to benefit from special education. In this case, the child is able to eat his food within his lunch period and is benefiting socially and academically from his special education setting without the requested feeding therapy services. The record does not provide persuasive evidence that the child's diet keeps him from deriving educational benefit. Since the second prong established in Tatro has not been met, the district is not required to provide feeding therapy services to the child. The district’s decision not to provide feeding therapy services did not deny the child a FAPE.
I will now address petitioners' second substantive issue on appeal – the change in speech and language related services. At the October 22, 2003 CSE meeting the district recommended that the child’s 2003-04 speech and language sessions on the IEP be modified from individual to group sessions three times a week (Tr. p. 509). I find that the modifications in the child’s speech and language sessions were appropriate and such changes did not deny the child a FAPE.
The district speech pathologist testified that individual speech therapy services were not needed (Tr. p. 64) and that such services were too restrictive for this child (Tr. pp. 70-71). The district special education teacher testified that the child needed group sessions to work on his socialization skills (Tr. p. 111) and agreed with the change (Tr. p. 113). The child’s mother testified that when the CSE met in October 2003, the CSE told her they no longer felt individual speech services were warranted because they were not providing feeding therapy (Tr. p. 161). She also testified that the reason she requested individual speech therapy services was because she wanted the district to continue to provide the feeding therapy (see Tr. p. 207). The district's director of special education testified that the services were modified from an individual to a group setting so the child could emphasize vocabulary development and good communication with his peers (Tr. pp. 494-95). Further testimony supporting the CSE’s recommendation included the testimony of the child's former preschool and kindergarten speech therapist who testified that the child’s current speech and language skills "sounded great" (Tr. p. 279).
I concur with the impartial hearing officer that based upon the IEP developed at the October 22, 2003 CSE meeting (Dist. Ex. 3), the district met its obligation to provide the child with a FAPE. The IEP was reasonably calculated to enable the child to derive educational benefit in the least restrictive environment.
I have considered petitioners' remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
1 The child has a one-to-one nurse who "reports to the patient's home at 8 a.m. or 7 a.m. and prepares [the child] for school, rides the bus with [the child] and then accompanies him throughout the day in school. She then rides the bus back home again and attends to his needs at home after school" (Tr. p. 398). The nursing day shift for the child is from 8 a.m. to 5 p.m. (Tr. pp. 397-98).
2 The child's preschool and kindergarten speech therapist, who provided feeding therapy during school hours, testified that she provided the feeding therapy as part of his speech therapy as a way to strengthen the muscles to improve the child’s oral muscle weakness (see Tr. p. 265). Although she testified later that the child’s current "speech and language skills sounded great" (Tr. p. 279), she opined at the hearing that the child had current needs for feeding and oral motor therapy (see Tr. p. 282).
3 Respondent does not clearly explain what is meant by the term medical model. The August 5, 2003 speech pathologist’s evaluation refers to a "medical model" without stating what is meant by that term (Dist. Ex. 2). In her testimony, the pathologist discusses medical model in terms of a team of professionals including physicians, nutritionists, and a feeding therapist with a medical background and behavioral management abilities (Tr. pp. 26-27). In describing how a medical model would work, she testified that the child would participate in an intensive feeding program over five to ten days as an outpatient (Tr. pp. 43-44). A reason for her recommendation was her belief that the child had a tendency to aspirate (Tr. p. 35). She further indicated that feeding therapy is not usually done by a physician (Tr. p. 38).
4 There is conflicting evidence in the record as to whether feeding therapy could be provided safely to this child in the school setting. The child's pulmonologist opined in a brief letter dated March 24, 2004 that feeding therapy could be provided safely in school (Par. Ex. M, p. 2). However, the pulmonologist, in an earlier letter dated March 14, 2003, opined that the child needed support from a nurse with proper training to manage the child safely, given the child’s history of "serious cardiac arrhythmias" and the need for experienced handling of his ventilator and suctioning needs (Dist. Ex. 6). The speech pathologist opined that feeding therapy within the school district without medical support would not be advisable (Tr. p. 27). Neither professional was asked whether the nursing services provided in school and the type of assistive technology in use for suctioning provided appropriate medical support. Given the conflicting evidence, I find that the record is insufficiently developed on this issue and does not afford an adequate basis for me to resolve the dispute over safety concerns. Safety concerns are not dispositive in this appeal and my decision is based on whether the service is needed to assist the child to benefit from special education.
5 The parent testified that she was attempting to obtain a private therapist to provide feeding therapy at home and that she had been approved by her insurance company for six months of such services (see Tr. p. 237). The U.S. Department of Education has opined that public agencies may not require the parents of a child with a disability to use private insurance proceeds to pay for required special education and related services where the parents would incur a financial loss, such as diminution of lifetime benefits (Letter to Thompson, 34 IDELR 8 [OSEP 2000]). Given my determination in this appeal that feeding therapy services are not required to provide this child a free appropriate public education, there is no issue as to the parents paying for services that should be rendered at no cost to them by respondent.
6 Although respondent suggests that feeding therapy be provided through a "medical model," the record reveals that the feeding therapy envisioned by both petitioners and respondent is not a service to be provided by a licensed physician, or a health professional in consultation with or under the supervision of a licensed physician, for diagnostic or evaluation purposes (Tr. p. 38). It, therefore, does not fall within the definition of a medical service that a school district may be required to provide (34 C.F.R. § 300.24 [b]; see 8 NYCRR 200.1[ee])
7 The U.S. Department of Education has opined that training to reverse a child's pattern of aspirating, i.e., choking, during feeding could be considered a school health service as that term is used in the regulatory definition of related services, if the service is necessary to assist the child in benefiting from special education and is required to be performed during school hours (Letter to Johnson, 20 IDELR 174 [OSEP 1993]).