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Decision No. 12,551

Appeal of a CHILD WITH A HANDICAPPING CONDITION, by his parent, from action by Board of Education of the Northern Adirondack Central School District regarding eligibility for twelve month services.

Decision No. 12,551

(July 25, 1991)

North Country Legal Services, Inc., attorneys for petitioner, Stephen Baker, Esq., of counsel

Stafford, Trombley, Purcell, Lahtinen, Owens and Curtin, P.C., attorneys for respondent, Dennis Curtin, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's decision not to contract for the twelve month services recommended by respondent's committee on special education (CSE) for petitioner's son for the summer of 1991. Petitioner also seeks an interim order directing respondent to provide the summer school program recommended on his IEP while an impartial hearing proceeds to address the merits. The appeal must be sustained in part.

Petitioner's son is 10 years old and is classified physically handicapped and mentally retarded. The child suffers from congenital dysgenesis of both his pituitary gland and parts of his hypothalamus. As a result of his condition, he is of very short stature and suffers from an insatiable appetite and obsessive compulsive eating habits. During the 1990-91 school year, the student attended a BOCES Option II program. On May 6, 1991, respondent's CSE reviewed his placement and recommended twelve month services based, in part, on BOCES recommendation that he needed the services to maintain the academic gains he had made during the school year. In recommending a twelve month program, BOCES concluded that the student required repeated practice and review to retain newly acquired skills. The BOCES report also implied that a structured environment was necessary over the summer to prevent the severe behavioral regression the student experienced the prior school year when a summer program was not offered.

On June 24, 1991, petitioner was informed in writing by the chairperson of the CSE that the recommended twelve month program had not been approved by respondent board of education. The stated reason for the board's decision was its conclusion that the focus of the CSE recommendation was on the child's "behavioral and physical/medical needs and not his possible substantial developmental or academic regression as outlined in the 12 month programming eligibility guidelines of ... the Regulations of the Commissioner." In an affidavit submitted in opposition to petitioner's request for a stay, respondent's superintendent further stated that the board of education did not approve the recommendation of its CSE for summer school based on the board's consensus that "while the summer program might improve his behavioral and physical problems, . . . [the student] would not make significant academic progress." The parents requested an impartial hearing and such a hearing was scheduled to commence on July 15, 1991.

The recently amended regulations, relating to eligibility for twelve month services (8 NYCRR '200.6[j]) clarify that eligibility is based on a finding that such services are necessary to "prevent substantial regression." The regulation at 8 NYCRR 200.1(qq), as amended, defines substantial regression as follows:

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) (as amended, July 1, 1991).

By definition, a student who is eligible for summer services, if improperly denied such services, would suffer irreparable harm in that the total cessation of services over the summer months would result in substantial regression as defined above.

Upon review, I find that respondent's board of education applied an improper standard in making its decision to reject the recommendation of its CSE. Based on my determination that an improper denial of summer services would result in irreparable harm to a student who requires those services, petitioner's request for an interim order is granted.

The case is hereby remanded to the impartial hearing officer to render a final decision based on his/her findings regarding petitioner's son eligibility for twelve month services based on the regulatory standard cited above (see 8 NYCRR 200.6(j) and 200.1(qq) as amended). If petitioner disagrees with the decision of the impartial hearing officer, she has the right to appeal to the State Review Officer within thirty days of her receipt of that decision (8 NYCRR 279.2).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, pending a decision of the impartial hearing officer and any further proceedings on the merits, respondent immediately enroll petitioner's son in the summer program recommended by its committee on special education on May 6, 1991.

IT IS FURTHER ORDERED that the matter is remanded to the impartial hearing officer to render a final determination with respect to the eligibility of petitioner's son to receive twelve month services.

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