02-071

       Petitioner appeals from an impartial hearing officer's decision directing petitioner's Committee on Special Education (CSE) to amend respondents' daughter's individualized education program (IEP) for the 2001-02 school year by reinstating certain provisions that had been contained in the student's individualized health plan (IHP) and referenced in the IEP. The appeal must be sustained.

        Respondents assert in their answer that the appeal should be dismissed as untimely because the petition was not served within the time limitations set forth in the Regulations of the Commissioner of Education. State regulation provides that "[a] copy of the board's notice with petition, petition, memorandum of law and any additional documentary evidence shall be served on the parents within forty days after the board's receipt of the hearing officer's decision" (8 NYCRR 279.2[c]). Respondents state in their answer that they received the hearing officer's decision in this matter on July 10, 2002, and they were served with the notice of petition and petition on August 13, 2002. Accordingly, petitioner's appeal is timely.

        When the hearing began on May 8, 2002, the student was 15 years old, was in ninth grade in petitioner's high school, and was doing well academically and socially (Transcript p. 253; Parent Exhibit 9). During the 1997-98 school year, when she was in fourth grade, she was diagnosed with IgA deficiency, a medical condition that increases her susceptibility to upper respiratory and gastrointestinal infections, and causes fatigue (Transcript pp. 106-07, 289). Based on that diagnosis, petitioner's CSE classified her as other health impaired (OHI), and her classification is currently not in dispute (Transcript pp. 301-04; Parent Exhibit 9). In January 1998, an IHP was prepared for her by the school nurse teacher (District Exhibits 14A, 14B). The student's IHP contained four goals: to minimize bacterial/viral exposure through health education; to provide continuity of learning/instruction; to maintain an attendance rate of 75 percent; and to enhance social/peer relationships (District Exhibit 14C).

        Although the student was absent from school quite often in elementary school, her attendance improved as she progressed through junior high school (District Exhibits 9, 10, 11). The annual review for the student's ninth grade year took place on April 9, 2001 (Parent Exhibit 12; Transcript p. 316). The IEP provided that the student would receive one period daily of resource room and an additional one-to-one assistance in the resource room if she missed three days or more due to illness. It also provided that classroom materials would be sent home when she was absent, so that she could review the material she missed. The IEP contained several classroom and test modifications, and made reference to the IHP, which was kept on file in the health office (District Exhibit 1).

        On August 20, 2001, the CSE chairperson sent a letter to the parents suggesting another CSE meeting to update their daughter's IEP in light of her current medical condition, and requesting authorization for the school physician to speak with the child's pediatrician (District Exhibits 2, 3). On October 18, 2001, the student's mother signed the authorization (District Exhibit 5). On October 19, 2001, the mother sent a letter to petitioner claiming that her daughter was being denied a spelling waiver to which she thought her daughter was entitled, and asserting that such denial was in retaliation for her filing of a complaint against the district with the State Education Department (SED) (Parent Exhibits 7, 8, 15; Transcript p. 325).

        In a letter dated November 27, 2001, the student's mother claimed that several of her daughter's program modifications were not being implemented, including the provision of teacher or peer notes, study guides, and classroom notes, and the establishment of communication between school and parents (Parent Exhibit 5). She also asked that her daughter's grades be adjusted to reflect her spelling waiver. On December 11, 2001, the parents requested a CSE meeting to discuss the program modifications (Parent Exhibit 6). On December 14, 2001, the CSE amended the IEP to include the spelling waiver retroactive to August 21, 2001 (Parent Exhibit 4; Transcript p. 328).

        The CSE convened on January 31, 2002 to discuss the mother's concerns regarding her daughter's program modifications (District Exhibit 36; Transcript pp. 42, 341). At the end of that meeting, the parties scheduled a March 7, 2002 CSE meeting in order to discuss the student's IHP (Exhibit 15). By letter dated January 31, 2002, the CSE chairperson sought an opinion from an SED regional associate regarding the proper function of the student's IHP (Exhibit 15). In a response dated February 12, 2002, the regional associate wrote that an IHP is not required by law, but is customarily used in nursing practice, that an IHP should not be attached to a child's IEP and should not be considered part of the IEP (Exhibit 16).¹

        At the March 7, 2002 CSE meeting, a tape recording of which was made part of the record (Parent Exhibit 9), the student's teachers remarked favorably on the overall progress the student had made. The teachers noted that she seemed as healthy as any other student, no longer had excessive absences, and therefore no longer needed her IHP. They also maintained that she was doing very well academically and showed no signs of having a learning disability (District Exhibit 13; Parent Exhibit 9). One of the CSE members opined that the student should have had a plan developed pursuant to section 504 of the Rehabilitation Act of 1973 rather than an IEP, and the possibility of declassification was mentioned. Her parents asserted, on the other hand, that her health condition would never improve, that she did well in school only because of the accommodations she had been provided, and that she had learning disabilities in addition to her health condition. They therefore wanted every part of her prior program continued, and were opposed to removing the references on the IEP to her IHP (Parent Exhibit 9).

        Despite the parents' objection, the CSE decided to remove the references to the student's IHP from the IEP (Transcript pp. 51, 61). The parties discussed meeting in the future so that the school physician could discuss with the student's pediatrician whether and how to update the health plan (District Exhibit 18; Parent Exhibit 9; Transcript pp. 159, 259). They also discussed the possibility of testing the student for a spelling deficit and reevaluating her with a view toward reclassification or declassification (Parent Exhibit 9). The IEP was mailed to the parents on March 12, 2002 (District Exhibit 20).

        In a March 22, 2002 letter, the parents challenged the CSE's decision to delete the references to the IHP from the IEP. They claimed that in doing so, the CSE had removed provisions contained in the IHP that benefited their daughter. They also objected to the lack of consensus at the meeting and the lack of goals and objectives on the IEP (District Exhibit 22). An impartial hearing officer was appointed on or about April 2, 2002 (District Exhibit 23). In a letter dated May 1, 2002, the parents set forth the issues they planned to raise at the hearing, adding a claim that they were not adequately notified of the subject of the March 7, 2002 meeting (Parent Exhibit 3).

        The hearing was held on May 8, 10, and 28, 2002. In a decision dated July 8, 2002, the hearing officer found that when the CSE deleted the reference to the IHP from the student's IEP, it removed the program elements contained in the IHP and eliminated the educational services referenced in it. Since the parents had indicated they did not object to the CSE deleting the first goal of the IHP related to health education (Transcript pp. 21-22), the hearing officer ordered the CSE to reinstate provisions 2A, 2B, 2D, 2E and 4 of the IHP regarding gathering of classwork materials, providing a 1:1 home tutor after three days' absence, and enhancing social/peer relationships.

        Petitioner requests that the hearing officer's order to reinstate the provisions of the IHP be annulled. In its petition, the school district maintains that there were no changes to the student's program or services as a result of the March 7, 2002 meeting except to delete a reference to spellcheck. Petitioner also maintains that no goals or objectives were changed and that it continued to implement all the provisions of the IHP, even after the March 7, 2002 meeting (District Exhibits 1, 19; Parent Exhibit 4). Petitioner further argues that the hearing officer should not have permitted respondents to amend their hearing request and add documentation after their initial hearing request was submitted. Respondents request that the hearing officer's decision be affirmed.

        Respondents' daughter's IHP was not prepared by petitioner's CSE in accordance with the procedures required by the Individuals with Disabilities Education Act (IDEA), but rather by the school nurse, in conjunction with the student's pediatrician (Transcript pp. 36, 40). The issue presented in this appeal is whether removal of references to the IHP from respondents' daughter's IEP rendered her IEP inappropriate.

        Despite petitioner's claims, and the testimony of its witnesses that no program changes were made after the March 7, 2002 CSE meeting (Transcript pp. 47-48, 74-75), I find that the CSE's removal of the references to the IHP effectuated a significant change to the student's program. The note on page one of the student's December 14, 2001 IEP (Parent Exhibit 4) providing for 1:1 assistance "as outlined in the Health Plan" effectively incorporated section two of the IHP into the IEP. That section of the IHP provided for "continuity of learning/instruction missed by absences." It set out the procedures for sending classwork home to the student on the first and second days of her absence and, if she received a physician's diagnosis, procuring a home tutor to provide one hour of services for each day of school she missed after the third day of absence (District Exhibit 14C). The March 7, 2002 IEP did not provide for home tutoring after three days of absence (District Exhibit 19).

        In deleting the reference to the IHP, the CSE removed from the student's IEP the provision of a home tutor for one hour a day for each day of school the student missed due to an illness of three days or more, a service that was clearly detailed in the IHP and incorporated by reference in the earlier IEP (District Exhibit 14C; Transcript p. 189). The director of special education explained that the home tutoring provision was based on the student's former rate of absence, and that since her attendance had improved significantly (District Exhibits 9-13), the home tutoring provision was no longer necessary (Transcript pp. 189-90). My review of the record confirms that the student's recent attendance was very good (District Exhibit 13; Parent Exhibit 9; Transcript pp. 252-53). I note that she was not absent for three consecutive days during her ninth grade year, except when her parents took her on vacation (District Exhibits 12, 32).

        An appropriate IEP must indicate the individual needs of the student, including the student's health, vitality, and physical skills or limitations that pertain to the learning process (8 NYCRR 200.4[d][2][i], 200.1[ww]). The March 7, 2002 IEP appropriately took into account the student's medical condition and addressed her related needs. The IEP continued to provide additional 1:1 catch-up assistance after absences of three days or more, to be provided in the resource room after the student's return rather than at home (Transcript pp. 75, 189). The IEP provided in addition that when the student was absent, class materials would be provided to her parents; that she could review with school staff material that she did not understand after being absent; that teacher or peer notes or study guides would be provided by teachers; and that her teachers would contact the parents if the student's grades dropped below a C+.

        Given the student's improved attendance, evidence that she was doing well academically, and the provision for sending classroom work home when she was absent, I find that the services recommended in the March 7, 2002 IEP would enable the student to make up missed work when absent and were reasonably calculated to provide her with educational benefit (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; Application of a Child with a Disability, Appeal No. 02-080).

        The hearing officer also directed petitioner to reinstate the fourth goal of the IHP related to enhancing the student's social and peer relationships. I find that this goal was not incorporated into the IEP in the same manner as the second paragraph of the IHP, and therefore its deletion did not alter the IEP. Moreover, I find that the March 7, 2002 IEP adequately addressed the student's social/emotional needs by providing that the student should be encouraged to participate in a club or community services project and to take risks.

        In sum, the March 7, 2002 IEP continues the same resource room services and program accommodations the student had previously received, and provides appropriate supports to enable her to catch up on work due to absences by providing 1:1 assistance in the resource room and by sending classwork home. Therefore, the CSE's removal of the reference to the IHP from the March 7, 2002 IEP did not deprive the student of an appropriate educational program. To the extent that the hearing officer ordered the district to amend the March 7, 2002 IEP by adding the provisions 2A, 2B, 2D, 2E and 4 of the IHP, his decision must be annulled, because the IEP was appropriate and reasonably calculated to enable the student to benefit from her educational program.

        I note that there was discussion at the March 7, 2002 CSE meeting about reevaluating the student to determine whether she should be reclassified or declassified, in light of her current medical condition and other needs. There is also discussion in the record of the need to review and revise her IHP. I encourage the parties to meet to review the student's IHP, following which the CSE should meet, if it has not already done so, to review her needs and to appropriately revise her IEP in light of those needs.

        Given my disposition of this matter, it is unnecessary to reach the other issues raised by petitioner.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's decision is annulled to the extent that it ordered the CSE to amend the student's IEP by inserting therein provisions 2A, 2B, 2D, 2E and 4 from the student's IHP.