92-020

Petitioners appeal from the determination of an impartial hearing officer denying petitioners' request for reimbursement of their expenditures in having their child attend an approved private school for one week in August, 1991, after the summer instruction provided by respondent had ended. The appeal must be dismissed.

Petitioners' twelve year old child is autistic, and has been classified as autistic since his entry into public school. There is no dispute about the child's classification. The child functions cognitively within the retarded range. On a psychological evaluation performed in June, 1990, the child achieved scores comparable to an IQ of approximately 35. The child also has a seizure disorder, for which he receives medication on a daily basis. The record reveals that, over a period of two years, the child had approximately six seizures of short duration in school. Additionally, in order to properly align his thumbs, the child must wear splints on his hands.

The child began attending public school at P.S. 69. Since 1987, he has attended P.S. 37, where he has been enrolled on a twelve month basis in a specialized instructional environment III (SIE-III) program which has a child:adult ratio of 6:1+1. The child's individualized education program (IEP) provides that the child receive adaptive physical education, and have the services of a health aide to assist him in toileting. The child receives speech/language therapy individually three times each week, and in a group of two twice each week. He receives daily individual occupational therapy.

The record reveals that the child's regular school year SIE-III program ended on June 28, 1991. The summer portion of the child's SIE-III program began on July 8, 1991, and ended on August 16, 1991, for a total of 30 days of school. The Eden II School operated a summer program for a total of 35 days, ending one week after the public school program. The child's SIE-III class did not resume until the opening of the 1991-92 school year on September 11, 1991, which was 25 days after the end of the SIE-III summer session. The record further reveals that the child participated in a residential camping program of a local service agency during the week of August 26-31, 1991.

On August 15, 1991, the child's father telephoned the chairperson of the committee on special education (CSE) for Community School District 31, to request assistance in having the child enrolled in the Eden II School for the one week period of August 19 through August 23, 1991. The CSE chairperson testified that she contacted respondent's Central Based Support Team (CBST) and Office of Legal Counsel concerning petitioners' request, and also sent an assistant to confer with the staff of P.S. 37 concerning the child's needs. The chairperson further testified that she was advised by the CBST and Counsel that respondent was not obligated to provide the requested service. On August 16, 1991 the chairperson orally advised the child's father that nothing could be done on the basis of his oral request, but suggested that he make a written request. The chairperson testified that the CSE did not receive a written request from petitioners until September 12, 1991, at which time petitioners requested reimbursement in the amount of $703.33 for the child's tuition at the Eden II School for the week of August 19-23, 1991, and the sum of $9.60 for transportation, based upon the distance between the child's home and the Eden II School.

The CSE did not formally act upon either petitioners' request that the child be placed in the Eden II School or their request for tuition reimbursement. On October 1, 1991, petitioners requested an impartial hearing. The hearing was delayed, while respondent's counsel investigated petitioners' claim. The hearing commenced on January 30, 1992, and concluded on February 13, 1992. In a decision dated March 12, 1992, the hearing officer denied petitioners' request for reimbursement, upon a finding that respondent had provided the child with an appropriate program. The hearing officer relied upon the testimony of the child's present teacher and former teachers in the SIE-III program, in finding that the child would not have substantially regressed in his developmental levels because of the absence of a structured program between the end of the 1991 SIE-III summer program and beginning of the SIE-III program for the 1991-92 school year.

Petitioners assert that they were denied due process of law by the CSE because the CSE failed to consider petitioners' request for the one week placement of the child at the Eden II School and failed to promptly notify petitioners of its recommendation. The CSE has the responsibility to recommend an appropriate educational program for each child with a handicapping condition (Section 4402 [1][b][3][b] of the Education Law). Since petitioners' request involved a change in the amount of services to be provided, the child's IEP would have to be amended at a meeting of the CSE (Appendix C to 34 CFR Part 300, Question 51). In the event a CSE fails to make a recommendation on a timely basis, the appropriate remedy is to request that an impartial hearing be held (8 NYCRR 200.4 [c]; Matter of Handicapped Child, 22 Ed. Dept. Rep. 242; Matter of Handicapped Child, 22 id. 431). Even if a board of education concludes that it is not legally obligated to modify a child's IEP as requested by the child's parents, it must nevertheless afford the parents an impartial hearing (Matter of Handicapped Child, 24 Ed. Dept. Rep. 405). The record reveals that petitioners' initial request to place the child at Eden II was made on Thursday, August 15, 1991, four days before petitioners wished to have the requested services commence. Although petitioners' delay in making their request may well have precluded the CSE from making a decision before the child was to be enrolled in the Eden II School, the CSE was not relieved of its obligation to make a decision upon petitioners' request. However, I find that, in view of petitioners' failure to file a written request with the CSE until September 12, 1991 and their prompt request for a hearing 19 days thereafter, the CSE's failure to act on their oral request does not afford an adequate basis for providing petitioners with the relief which they seek.

Petitioners also assert that they were denied due process of law because respondent was represented by an attorney at the hearing. The child's father, who is an attorney, asserts that he was forced to act as an attorney, rather than as a parent, at the hearing. Petitioners' contention is without merit. State regulation permits each party to a hearing to appear pro se or to be represented by legal counsel (8 NYCRR 200.5 [c][5]). Petitioners' decision to appear pro se should not dictate or require respondent to waive its independent right to legal counsel. I find that petitioners have not demonstrated any infringement upon their rights by respondent's use of an attorney at the hearing (Application of a Child with a Handicapping Condition, 31 Ed. Dept. Rep. 21).

Petitioners assert that the hearing officer erred in denying their requests for three subpoenas, at the second day of the hearing. The first subpoena would have required respondent to produce all of the records in its possession which pertain to the child. When asked by the hearing officer for greater specificity in the records which he sought, the child's father stated that he sought additional daily toileting records of the child. At the first day of the hearing, petitioners had entered into evidence copies of the child's daily toileting logs for the period from April 15, 1991 through November 16, 1991. At the second day of the hearing, respondents attorney entered into evidence a second set of toileting logs covering the 1991-92 school year to the date of the hearing. The hearing officer denied petitioner's request as too broad. The second requested subpoena was directed to the CSE to produce copies of any professional or scholarly studies to support testimony given by a school psychologist and the child's teacher that the child loses skills slowly. The hearing officer denied petitioners' request upon the ground that petitioners' inquiry about the basis for the testimony of the witnesses should have been made during petitioners' cross-examination of the witnesses. The third subpoena requested by petitioners would have compelled respondent to have an employee testify at the hearing concerning the basis for the respondent's decision to adopt a summer session schedule of 30 school days, the criteria used by respondent to determine a child's eligibility for a 30 school day summer session, and the basis for determining if a child is eligible to receive instruction for more than 30 school days in a summer. The hearing officer reserved decision at the beginning of the second day of the hearing, and subsequently denied petitioners' request upon the ground that no further proof was needed.

Petitioners assert that the hearing officer's denial of the requested subpoenas precluded them from establishing that the length of the summer program offered by respondent was determined by administrative fiat, rather than the needs of the child. They further assert that requests for subpoenas should be liberally granted (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 138).

The child's father, who is an attorney, possessed the legal authority to issue the subpoenas himself that he requested of the hearing officer (Section 2302 [a] of the Civil Practice Law and Rules). Nonetheless, petitioners contend that the hearing officer should have issued the requested subpoenas. With regard to petitioners' request for all school district records pertaining to their child, I find that the hearing officer's conclusion that the request was too broad was reasonable and not an abuse of discretion. Moreover, in view of the admission by the child's father that he was an attorney who had been designated as a hearing officer by respondent, he should have been familiar with State regulation that permits parents to inspect school files, records and reports pertaining to their child (8 NYCRR 200.5 [a][1]). Given these unusual facts and petitioners' certain knowledge of their right to inspect and have copies made of relevant records well in advance of the hearing, I find that the hearing officer reasonably denied petitioners' unnecessary belated request for assistance.

I further find that the hearing officer properly denied petitioners' second subpoena request for copies of professional or scholarly studies. The basis for the opinions expressed by the respondent's witnesses in their testimony is clearly a matter to be addressed by petitioners in the cross-examination of the witnesses.

Any request for a subpoena must be considered by a hearing officer in terms of the relevancy of the requested testimony or documents to the issues involved in the hearing (Application of a Child with a Handicapping Condition, Appeal No. 92-18). In this instance, petitioners had the opportunity to question at the hearing the chairperson of the CSE, the head of the respondent's school-age placement unit within the CBST, and respondent's administrator of contracts with private schools about the procedures and criteria used by respondent in determining a disabled child's eligibility for summer programs and the procedure used to arrange for a child's placement by respondent in a private school. None of the witnesses addressed the first issue raised in petitioners' third subpoena request, i.e. why did respondent select 30 school days as the duration for the summer programs in its schools. However, the reasons why respondent established a 30 day session for its summer special education programs are not determinative of whether the specific program which respondent provided to this child is appropriate for the child. Given the practical opportunity available to the petitioners to issue their own subpoenas and the potential delay inherent in their subpoena request, I find that the hearing officer did not abuse his discretion in denying petitioners' third subpoena request.

On the merits, petitioners assert that the hearing officer's decision is against the weight of evidence and contrary to Federal and State law which require that the special education and related services which a disabled child receives are provided to meet the unique needs of the child.

Neither Federal nor State statute specifies the duration of special education and related services to be provided to a child beyond the ten-month school year. Section 4402(2)(a) of the New York State Education Law requires boards of education to furnish suitable educational opportunities for children with handicapping conditions. The statute provides that special education and related services may be provided during the months of July and August, " ... with respect to students whose handicapping conditions are severe enough to exhibit the need for a structured learning environment of twelve-month duration to maintain developmental levels ..." The U.S. Department of Education has opined that a rule limiting eligibility to children who require a structured learning environment is inconsistent with the requirement of Federal statute that the individual needs of the child be considered (17 EHLR 419). State regulations were subsequently amended to require CSEs to consider the eligibility of children for twelve-month programs and services "in accordance with their need to prevent substantial regression," in addition to considering the programs such children are in during the ten-month school year (8 NYCRR 200.6[j]). The term "substantial regression" is defined by State regulation to mean:

"... a pupil's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year." (8 NYCRR 200.1 [qq]).

In this instance, there is no dispute that the child is eligible for a twelve-month program. The parties disagree about whether the child required a summer program of 30 or 35 days of special education and related services. Petitioners argue that the hearing officer inappropriately applied the regulatory standard to determine whether the child was eligible for a twelve-month program in determining whether the duration of the program provided by respondent was appropriate. I disagree. Although the ultimate issue is whether the program offered by respondent was appropriate, the purpose of providing an extended year program is to preclude the child's substantial regression in goals and objectives which he has mastered. Therefore, it was appropriate for the hearing officer to consider the effect which the absence of five days of special education and related services would have on the child's self-help skills, such as toileting; cognitive performance in such areas as his responses to simple commands; and his fine motor skills such as rolling clay; each of which appears as a goal or objective on the child's IEPs, in determining whether respondent's program was appropriate. The child's 1991-92 IEP goals appear to be based upon the progress which he achieved during the preceding school year, as measured on psycho-educational tests performed in October, 1991. The child's progress towards achievement of his IEP goals is evidence of the appropriateness of respondent's program. In addition to the child's educational progress, the hearing officer also considered testimony about the possible effect an extended absence from a structured environment could have upon the child's behavior.

The child's teacher for the 1990-91 and 1991-92 school years testified about the child's communications skills, mobility, social interaction and self-help skills. The teacher also testified that the child learns slowly by modeling, physical manipulation, i.e. hand-over-hand instruction, and much repetition. The teacher further testified that she had not observed regression in the child's skills after weekends or school vacations. The child's teacher for the 1987-88 through 1989-90 school years, who has continued to see the child in school on an almost daily basis, also testified that the child has made progress in a number of areas. That teacher could not recall if the child behaved differently after weekends or vacations, but stated that if there had been an extreme change in the child's behavior, she would probably have remembered such a change. Neither teacher supported the proposition that the extra five days of instruction which petitioners obtained at the Eden II School was necessary to prevent substantial regression by the child. Both teachers and petitioners testified about the effect that the child's extended absence from a structured program might have on the child's toileting skills. The child's current teacher testified that there did not appear to be any correlation between the child's vacations and a diminution of the child's ability to toilet at scheduled intervals. The toileting charts in the record confirm the teacher's testimony.

The child's parents testified that they had observed changes in the child's behavior during vacation periods, such as throwing food on the floor. However, there is no evidence in the record that similar behavioral changes were observed by the child's teachers upon his return to school after vacations. In essence, petitioners assert that the child requires a structured environment on a continuous basis because his handicapping condition of autism manifests itself in the home. However, school districts are not responsible for providing purely custodial care (Cordrey v. Euckert, 917 F.2d 1460). State regulation requires that programs for autistic children make provision for parent counseling and education for the purpose of enabling parents to perform appropriate follow-up intervention activities at home (8 NYCRR 200.13 [d].). If petitioners have not received such counseling and education, the CSE should make provision for such services in the child's IEP to assist petitioners in providing a structured environment away from school.

Upon the record before me, I find that respondent has met its burden of demonstrating the appropriateness of the program which it provided to the child during the Summer of 1991. Parents are entitled to tuition reimbursement and/or reimbursement for other services such as transportation, if the placement provided by a school district is inappropriate, the placement selected by the parents is appropriate, and equitable considerations support the claim for reimbursement (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359; Matter of Northeast CSD v. Sobol et. al., 170 A.D. 2d 80). Petitioners have not satisfied the first part of the Burlington criteria, because respondent's program was appropriate. There is insufficient information in the record to determine the appropriateness of the placement selected by petitioners. Consequently, I find that petitioners have not satisfied the second part of the Burlington criteria. Finally, equitable considerations do not support the claim for reimbursement.

THE APPEAL IS DISMISSED.