96-026

        Petitioner appeals from the decision of an impartial hearing officer which dismissed petitioner's claim that respondent had failed to provide his son with the amount of special education services specified in the child's individualized education program (IEP), on five days in June, 1995. The hearing officer also dismissed petitioner's claim that respondent had violated Federal and State law by not providing special education services to the child for approximately one week in October, 1995, when the child was in the Intensive Care Unit (ICU) of the Crouse-Irving Memorial Hospital. The appeal must be dismissed.

        Petitioner's extensive involvement with the CSE has been detailed in prior decisions of the State Review Officer (see e.g., Application of a Child with a Disability, Appeal No. 95-10), and will not be repeated in this decision. Petitioner's son is 20 years old. In March, 1991, petitioner's son sustained multiple trauma, including a severe head injury, in an automobile accident. Except for two relatively brief stays in rehabilitation facilities, the child has been hospitalized since his accident. In 1993, the child's physician reported that the child was unable to perform any meaningful movements or activities on command. In May, 1994, another physician opined that the child had a post-traumatic brain injury with resultant persistent vegetative state. In 1992, the CSE recommended that the child be classified as other health impaired. Thereafter, the child's classification was changed to a child with a traumatic brain injury (8 NYCRR 200.1 [mm][12]). The child's classification is not in dispute in this proceeding.

        In April, 1992, the CSE recommended that the child receive a total of two hours per day of services, including special education, speech/language therapy, physical therapy, and occupational therapy, to the extent that the provision of those services did not interfere with the child's medical care. The child's IEP also provided that he would have a twelve-month educational program. The provision of services pursuant to the child's April, 1992 IEP was the subject of a prior appeal (Application of a Child with a Disability, Appeal No. 93-34), in which the State Review Officer directed the CSE to review the child's program and to recommend whatever additional services were necessary to enable the child to address any deficiency caused by respondent's failure to provide services during a portion of the 1992-93 school year.

        In September, 1993, the CSE recommended that the child receive a neuro-psychological evaluation. Until that evaluation could be completed, the CSE recommended that the child receive two hours per day of special education, plus 30 minutes each of speech/language therapy, physical therapy and occupational therapy five times per week. The child was independently evaluated twice, during the Spring of 1994, and the CSE has recommended certain changes in the child's IEP. However, those changes have not been implemented because the parties have been involved in an almost continuous series of due process proceedings, including eight appeals to the State Review Officer. The recommendation which the CSE made in September, 1993 was the last mutually agreed upon placement for the child, and it has been the child's "pendency placement" pursuant to 20 USC 1415 (e)(3)(A) and Section 4404 (4) of the Education Law. Therefore, respondent has been required to maintain the level of services for the child which the CSE recommended in September, 1993.

        This proceeding began with four written requests by petitioner that impartial hearings be held. In a letter to the CSE chairperson, dated September 18, 1995, petitioner asked that an impartial hearing be held because respondent had allegedly failed to provide his son with the boy's IEP services on June 3, 1995. Petitioner's second request, which was dated October 5, 1995, asserted that respondent had failed to provide "2 services on June 22, 1995, and 4 services on June 23, 1995. Petitioner's third hearing request, which was dated October 6, 1995, asserted that respondent had not provided "1 service on June 12, 1995, and 1 service on June 16, 1995." His fourth hearing request, which was dated October 10, 1995, alleged that respondent had intentionally and maliciously violated the child's IEP by refusing to provide services to the child, as indicated in a letter which the CSE chairperson had written to the boy's attending physician, on October 6, 1995. In fact, the CSE chairperson's letter to which petitioner referred was dated October 3, 1995. In her letter, the CSE chairperson asked the physician to confirm that the child had been transferred from his regular care room to the ICU. The CSE chairperson indicated in her letter that in view of the boy's unstable medical condition and his presence in the ICU, " ... we understand that the school district service providers cannot provide educational programming .. ," and asked the physician to immediately advise her, "If our understanding is incorrect" (Exhibit 22). The child was reportedly in the ICU from October 2, 1995 through October 9, 1995. Respondent did not provide services to the child while he was in the ICU, nor did it "make up" the services not provided to him, after he was released from the ICU.

        It should be noted that on the date of petitioner's first request for a hearing, September 18, 1995, the parties were engaged in another impartial hearing before a different hearing officer, involving petitioner's claim that respondent had failed to provide services to the child on various days in March, April, and May, 1995. On November 9, 1995, the hearing officer in that proceeding found that respondent had in fact provided all of the services which the child was entitled to receive. Petitioner's appeal from the hearing officer's determination was dismissed in Application of a Child with a Disability, Appeal No 96-2. In that appeal, I noted that petitioner had previously challenged respondent's alleged failure to provide the child with the services indicated on his IEP, on various dates in January, February, and March, 1995. In that prior proceeding, yet another hearing officer had found that respondent had fulfilled its obligation to provide services by having missed services made up at other times, or dates. Petitioner's appeal from that determination was dismissed in Application of a Child with a Disability, Appeal No 95-54.

        In a letter to the Office of Counsel of the State Education Department, which was dated September 25, 1995, respondent's attorney sought an opinion about the necessity for scheduling a hearing in response to petitioner's requests for hearings in this proceeding. In a letter to respondent's attorney, which was dated October 4, 1995, the Counsel to the State Education Department declined to render an opinion, since the matter could be the subject of an appeal to the Commissioner of Education, pursuant to Section 310 of the Education Law.

        Respondent's Director of Pupil Personnel Services, Ms. Sally Romano, is also the chairperson of the CSE. In a memorandum dated October 13, 1995, Ms. Romano informed respondent's president of petitioner's hearing requests, and the need to appoint an impartial hearing officer from respondent's rotational list of hearing officers (see Section 4404 [1] of the Education Law). By memo dated October 14, 1995, respondent's president asked Ms. Joanne Mitchell, who is an elementary school principal, and who is not involved in the education of petitioner's son, to contact the next available hearing officer on respondent's rotational list. By memo dated October 16, 1995, Ms. Mitchell informed respondent's president that Mr. Kevin Ratcliffe, whose name appeared next on the list, had agreed to serve as the hearing officer. In a letter dated October 20, 1995, the respondent's clerk informed Mr. Ratcliffe that he had been appointed to serve as the hearing officer.

        The hearing in this proceeding began on November 4, 1995, which was reportedly the earliest mutually convenient date for the parties and the hearing officer. At the outset of the hearing, petitioner asserted that he had not had adequate time to prepare for the hearing, and to inspect all of his child's records. The parties agreed that petitioner would review his son's school records, prior to the next day of the hearing, which occurred on December 4, 1995.

        At the hearing, the board of education responded to petitioner's claim that his child had not received all of the IEP services to which he was entitled, by having the CSE chairperson, the child's special education teacher, and his speech/language therapist testify about the services which had been provided to the child during the months of June and October, 1995. Respondent also offered documentary evidence, including the daily "log sheets" by each of the child's service providers about the child's services during those months. With respect to Saturday, June 3, 1995, the first date at issue, the record reveals that no services were provided to the child, nor were any provided to him on the Monday of that week, May 29, 1995, on which Memorial Day was observed. The child's teacher testified that she provided the child with ten hours of services per week, pursuant to his IEP, and that she ordinarily worked with the child for two hours per day, five days per week. During the week of May 29 through June 2, 1995, the teacher worked with the child for two hours on Tuesday, Wednesday, Thursday, and Friday. Since Monday, May 29, 1995 was a holiday, there was no service to be made up on June 3, 1995.

        The next day in question was Monday, June 12, 1995. The child's teacher acknowledged that she had not worked with the child on that day. However, she testified that she provided him with two and one-half hours of service on each of the remaining four days of the week, so that the child had in fact received ten hours of service during that week.

        With regard to the next day in question, Friday, June 16, 1995, the teacher provided two and one-half hours of service, but the speech/language therapist did not provide any service. In accordance with the child's "pendency" IEP, the child was to receive "one period" (30 minutes) of speech/language therapy, five times per week. The speech/language therapist testified that she made up the omitted services by giving the child thirty minutes of speech/language therapy on Saturday, June 17, 1995.

        The child's teacher and his speech/language therapist each testified that they had provided the child with the requisite amount of services on Thursday, June 22, 1995, which the next at issue in this proceeding. The record reveals that June 22, 1995 was the last day of the 1994-95 school year for the children attending respondent's schools. With respect to petitioner's claim that services were not provided to the child on Friday, June 23, 1995, both witnesses testified that they had not provided services because respondent's schools were not in session. It should be noted that Ms. Romano testified that the child also receives 30 days of special education services during the summer, pursuant to his pendency IEP.

        Some time after he had received his speech/language therapy early in the morning on October 2, 1995, petitioner's son was transferred from his room in the Crouse-Irving Memorial Hospital to the ICU of that hospital. The child's attending physician, Dr. David Dube, testified that the child was placed in the ICU because he was hypoxic, i.e. lacking oxygen because his lungs weren't working. Although the precise cause of the child's condition was not determined, Dr. Dube testified that it was either atelectasis (lung collapse), or pulmonary emboli (blood clots). The physician testified that the child was in a life-threatening situation, because his blood pressure had decreased and he had gone into shock. He further testified that the child continued to have "episodes" while in the ICU. Dr. Dube also testified that a pediatric neurologist who had seen the child at about the time of his transfer to the ICU had found that the child remained in a persistent vegetative state, and that a neurosurgeon who had seen the child in the ICU found that the child's "... level of function was only reflexive" (Transcript page 882).

        Ms. Romano, the CSE Chairperson, further testified that on October 4, 1995, Dr. Dube telephoned her with a suggestion that she talk to the nursing staff, because he felt that "...not providing services in intensive care unit really would come under the auspices of the nursing care program." Ms. Romano spoke with a nursing supervisor, Ms. Christine Rappas. Ms. Romano testified that she and Ms. Rappas concluded that ICU was not the place for teaching, and that respondent would not provide educational services until the child left the ICU. She explained that the provision of three and one-half hours of special education services each day " ... would impair providing what at that point was primary and certainly crucial medical attention" (Transcript, page 770). The record includes a copy of her letter of October 6, 1995 to Ms. Rappas stating the substance of their conversation, and asking Ms. Rappas to immediately advise her if Ms. Romano's understanding was inaccurate. Ms. Romano, who sent a copy of her letter of October 6, 1995 to petitioner, testified that Ms. Rappas had not responded to her letter. The child remained in the ICU until October 9, 1995. He was then transferred to a progressive care unit, where his special education services were resumed.

        The hearing in this proceeding concluded on December 30, 1995. The parties agreed that they would file their closing statements with the hearing officer by no later than February 9, 1996. The hearing officer rendered his decision on March 14, 1996. He found the respondent had delivered all of the required services to petitioner's child, in a responsible matter. Specifically, he found that respondent was not required to provide services on either June 3, 1995 or June 23, 1995, because respondent's schools were not in session on either day. He also found that the child had received each of his required services on June 22, 1995. The hearing officer noted that the child's teacher and his speech/language therapist had testified that they had made up the services which were not provided to the child on June 12, 1995 and June 16, 1995. With regard to petitioner's claim that the respondent had unilaterally withheld services from the child when he was in the ICU, the hearing officer found that the child was unable to receive educational services, "...due to a life and death situation." He held that respondent had acted prudently, and had not violated the child's IEP.

        Petitioner argues that the hearing officer deprived him of the opportunity to fully present his case at the hearing. In a letter which he sent to the hearing officer shortly before the hearing began, petitioner asked the hearing officer to issue 16 subpoenas for witnesses. Petitioner sought to subpoena respondent's president, respondent's clerk, Ms. Romano, the individual who contacted prospective hearing officers (Ms. Mitchell), and respondent's attorney, because they had allegedly participated in the selection and appointment of the hearing officer. Ms. Romano and Ms. Mitchell testified about the hearing officer's appointment at the hearing. The hearing officer declined to issue subpoenas for the other three individuals. Petitioner also asked that the child's teacher, occupational therapist, speech therapist, and physical therapist be subpoenaed. The child's teacher and speech therapist testified at the hearing. The hearing officer did not grant petitioner's request for subpoenas for the physical therapist or the occupational therapist, but their daily service logs detailing the services which they provided to petitioner's child were entered into evidence. With regard to the child's stay in the ICU, petitioner asked for subpoenas for Dr. Dube, Ms. Rappas, two other nursing supervisors, the hospital's director of medicine, an employee of the State Health Department, and petitioner's former wife. The hearing officer denied petitioner's request, except with regard to Dr. Dube, who did testify at the hearing. After Dr. Dube had testified, petitioner asked that a neurologist and a neurosurgeon to whom Dr. Dube had referred in his testimony by subpoenaed. His request was denied.

        As I indicated in one of petitioner's recent appeals, any request for a subpoena must be considered in terms of whether the requested testimony would be relevant to the issue involved in the hearing, and whether it would be redundant with other testimony (Application of a Child with a Disability Appeal No. 96-2). I also indicated that a hearing officer has the power to require a showing that the proposed witnesses would provide relevant testimony, and that their testimony would not be redundant, before he or she issues a subpoena. In that prior appeal, I upheld another hearing officer's denial of petitioner's request to subpoena respondent's president and clerk. The record in this proceeding revealed that the issue of the procedure by which the hearing officer was selected and appointed was extensively examined. Petitioner has offered no basis for me to find that the testimony of the respondent's president, respondent's clerk, or respondent's attorney would provide any additional useful information about the hearing officer's appointment.

        The child's teacher and speech therapist testified at the hearing because each of them had not provided services to the child on one of the days listed in petitioner's hearing requests. On the second day of the hearing, petitioner was asked by the hearing officer why he wanted to have the child's physical therapist and occupational therapist testify. Petitioner acknowledged that he had no information to indicate that those individuals had not provided their services, but insisted that he should have the opportunity to question the physical therapist and occupational therapist about whether they had, in fact, provided the services which they had indicated were provided in their daily logs for June, 1995. It should be noted that respondent conceded that neither individual provided services to the child while he was in the ICU. However, their testimony with regard to that matter would clearly be redundant. Absent any basis for suspecting that either individual failed to provide the child with her respective services during June, 1995, I concur with the hearing officer's determination not to issue subpoenas for their testimony.

        Petitioner requested that seven individuals be subpoenaed to testify about the child's condition during his stay in the ICU, in October, 1995. The hearing officer indicated that someone from the hospital should testify, but questioned the need for each of the seven individuals to testify. Petitioner noted that Ms. Romano had testified about her conversation with Ms. Rappas, the nursing supervisor, about providing educational services in the ICU. He agreed to forego having some of the seven individuals testify, but he reiterated his request for a subpoena for Ms. Rappas. It was agreed that the hearing officer would issue a subpoena, and that Ms. Romano would alert Ms. Rappas that she would be subpoenaed, and advise her to contact the hearing officer. When the hearing resumed on December 9, 1995, the hearing officer explained that he had spoken to Ms. Rappas, who told him that her contact with the child had been minimal. Ms. Rappas referred the hearing officer to her supervisor, who suggested that the child's attending physician would be the most knowledgeable witness. Over petitioner's objection, the hearing officer arranged for the hearing to be held on December 30, 1995, at the Crouse-Irving Memorial Hospital, where Dr. Dube testified.

        Petitioner challenges the hearing officer's refusal to compel Ms. Rappas to appear as a witness, in light of her alleged conversation with Ms. Romano about providing educational services in the ICU, and objects to the hearing officer's ex parte conversation with Ms. Rappas. However, I note that the somewhat unusual procedure which was followed in this instance was agreed to at the hearing. Although Ms. Rappas' testimony could conceivably have been used to impeach Ms. Romano's testimony about their alleged telephone conversation, I find that the hearing officer's failure to issue a subpoena for Ms. Rappas does not afford a basis for annulling the hearing officer's decision. The central question with regard to the ICU incident is whether the provision of educational services was appropriately withheld because of the child's medical condition. The most appropriate witness for the issue was Dr. Dube, who did testify. I find that the testimony of the other six individuals would have been redundant, at best. Additionally, I find that the testimony of the neurologist and neurosurgeon would also have been redundant. Petitioner also objects to three ex parte conversations the hearing officer had with Dr. Dube about scheduling the latter's testimony. While it would have been more appropriate for someone else to contact Dr. Dube, I note that the hearing officer was attempting to assist petitioner, and that Dr. Dube testified that only scheduling had been discussed.

        Petitioner also challenges the hearing officer's refusal to allow him to enter into evidence various documents, and he contends that the hearing officer failed to fulfill his responsibility to ensure that petitioner had the opportunity to fully present his case (see Application of a Child, Appeal No. 94-39). I find that petitioner's claim is without merit. The record in this proceeding includes almost 1000 pages of transcript, and a substantial number of exhibits. Many of the documents which petitioner unsuccessfully sought to introduce related to the extensive prior proceedings involving these parties. The hearing officer agreed to take various decisions of hearing officers and the State Review Officer to obtain some background information. However, it does not follow that he was obliged to accept documents which had no direct hearing on the specific issues presented in this proceeding. Indeed, much of the written evidence in the record is, at best, tangentially related to the issues in this proceeding. I have carefully reviewed the transcript of the hearing in this proceeding, and I find that petitioner was afforded a reasonable opportunity to present his case.

        Petitioner contends that the hearing officer's determination with regard to the cessation of IEP services to his son while he was in the ICU was contrary to law, because it, in effect, imposed a benefit/eligibility requirement for the receipt of special education services, in violation of his son's statutory right to receive a free public education (see 20 USC 1401[a][18]). He argues that a child does not have to demonstrate that he or she could educationally benefit from special education, in order to be entitled to receive special education services ( see Timothy W. v. Rochester New Hampshire School District, 875 F.2d 954 [1st Cir., 1989]). However, the issue in this proceeding is not whether the child would benefit educationally from receiving the services listed in his IEP, but whether the provision of those services conflicted with his immediate health needs. To suggest, as petitioner apparently does, that the child's IEP services should have been provided without regard to the child's health condition is untenable.

        As noted above, Dr. Dube, the child's physician, testified at the hearing about the child's medical condition at the time of his admission to the ICU. He testified that he had attempted to contact petitioner, and had spoken with the child's mother because the child had a life-threatening illness. While he could not recall whether he had spoken to Ms. Romano, Dr. Dube testified that he had spoken to someone from the school district about providing educational services, and that he had indicated that the nursing supervisor should be consulted. He also testified that "I also indicated my bias...that teachers were really out of place in an ICU setting...and...I didn't see any reason why the teaching needed to be provided." (Transcript, pg. 867). I find that Dr. Dube's testimony provides sufficient justification for respondent's temporary cessation of providing IEP services to the child.

        Petitioner also contends that the CSE chairperson's "unilateral termination" of IEP services to his son violated the Individuals with Disabilities Education Act (20 USC 1400 et seq.). He asserts that the CSE chairperson had no authority to make a "medical decision," and at the very least, should have held a CSE meeting to discuss a significant change in the child's educational program. The United States Department of Education has opined that the termination of all, or a significant portion, of a child's IEP services should be viewed as a change in the child's placement, and that the public agency must provide written notice to the child's parents a reasonable time before the agency proposes to change the child's placement (EHLR 211:282). In this instance, the CSE chairperson testified that she sent petitioner a copy of her letter of October 3, 1995 to Dr. Dube. Given the urgency of the situation, and the limited time during which services were withheld, I decline to find that respondent violated either Federal or State law by not holding a CSE meeting prior to temporarily discontinuing services to the child.

        Finally, I note that petitioner asks me to consider documents which he filed in connection with an appeal to the Commissioner of Education pursuant to Section 310 of the Education Law concerning the delay in holding the hearing in this proceeding. The record indicates that the Commissioner dismissed petitioner's appeal, on April 29, 1995 (Application of a Student with a Disability, 35 Ed. Dept. Rep. 477) upon a finding that he had no jurisdiction since the hearing officer had rendered his decision. Federal and State regulations require that a hearing officer render his or her decision within 45 days after a school district has received a request for a hearing, provided that the hearing officer may grant specific extensions of time at the request of either party (34 CFR 300.512 [a] and [c]; 8 NYCRR 200.5 [c] [11]). The record reveals that respondent requested an extension on November 4, 1995, but the hearing officer declined to grant an extension. In this instance, the initial delay in the hearing was attributable to respondent's attempt to obtain an opinion from the Office of Counsel of the State Education Department, prior to scheduling a hearing. In the future, respondent would be well advised to schedule a hearing, and to raise any objection it may have by requesting that the hearing officer dismiss the proceeding. Nevertheless, I must note that after the hearing in this proceeding was scheduled, petitioner professed to be unprepared and in need of additional time to review his child's records. The hearing did not resume until more than 45 days after his request for time to inspect the records.

        I have considered petitioner's other arguments, and I find that they are without merit.

THE APPEAL IS DISMISSED