OT Services

1 ECLPR 221
Tennessee Department of Education
March 19, 1992
Tennessee Knox County Schools No. 91-39

Related Services
Free Appropriate Public Education
Local Education Agency/Preschool
Preschool Programs, In general

Summary

The parents of a six-year-old child with cerebral palsy and global delays alleged that the district failed to provide occupational therapy (OT) services pursuant to the child's IEP. The district maintained that a suspension of OT services had been unavoidable due to a shortage of qualified OT professionals. During the suspension, the parents independently located a qualified OT professional, but the district refused to contract with the therapist, contending that all OT services would be rationed on a priority basis, and not according to the needs of individual children. After two months, the district employed a qualified OT professional and resumed provision of OT services to the child.

HELD: for the parents.

The administrative law judge (ALJ) held that the district's prioritizing of OT needs was not a proper exercise of its discretionary authority in providing services, where the child was denied necessary OT services for a period of several weeks, and where the district refused to contract with any private OT professionals during the period until the personnel shortage was remedied. Thus, for the two months when services were suspended, the district violated the IDEA by failing to provide OT services as required by the child's IEP, and the ALJ ordered the district to compensate the child with additional, weekly OT sessions. Administrative Law Judge: James Stephen King.

Findings of Fact

The Child, born on March 12, 1986, has cerebral palsy and global delays. She functions at an approximate age of two and one-half years. She is educationally disabled pursuant to the Individuals with Disabilities Education Act, 20 U.S.C Sec. 1400 et seq (hereinafter "IDEA"). The Child resides with her parents in Knox County, Tennessee. The Child is currently enrolled in the preschool program at the University of Tennessee Child Development Lab in Knoxville, Tennessee ("UT preschool"). She was placed at UT Preschool pursuant to her Individual Educational Program (hereinafter "IEP"). The Child's IEP mandates that she receive occupational therapy (hereinafter sometimes OT) as a related service to benefit her education plan. (Exhibit 1). The child was to receive OT services once per week for twenty-five (25) weeks beginning September 16, 1991 and ending May 30, 1992, for forty-five (45) minutes of student contact per session. (Tr. at 82) (Exhibit 1). The Child's OT services were to be provided by an occupational therapist working directly with the Child. (Tr. at 82-84). Jill Farber, the occupational therapist assigned to the UT Preschool by Knox County Schools to provide occupational therapy to the child, resigned on October 9, 1991. (Ms. Farber provided weekly therapy for the Child pursuant to her IEP. (Exhibit 35)) Prior to Ms. Farber's resignation, the Child last received occupational therapy on September 20, 1992. There has been a nationwide shortage of trained professionals in the fields of occupational therapy and physical therapy. (Tr. at 275-276). Knox County Schools encountered difficulty in locating a replacement for the position vacated by Ms. Farber and another occupational therapist who resigned her position. During the period of time in which Knox County Schools attempted to locate a replacement, the Child did not receive occupational therapy from an occupational therapist. On October 31, 1991, the parents authorized a letter to be sent to the legal representative of Knox County Schools identifying two occupational therapists Kathy Boling and Melody Scott who were available and willing to contract with Knox County School System to provide occupational therapy for the Child. (Exhibit 4). Dr. Richard Yoakley, Director of Personnel at Knox County Schools, testified that the crisis caused by the shortage of occupational therapists required Knox County School System to prioritize its limited resources. Knox County School System distributed a notification of program plans and shortages in occupational therapy services (Exhibit 8). The notification stated with regard to contracting that the OT contractor must comply with certain conditions and that "contracts will be for services using the Knox County School's prioritization system, not for individual children." (Exhibit 8, p. 3). (Emphasis added.). Kathy Boling testified that she had a meeting with the officials of Knox County Schools in which she advised that she would be available for four to five hours on Wednesday morning to provide occupational therapy services at the UT preschool and to the Child. (Tr. at 91-92). Boling further testified that the school system official stated that the school system had system-wide needs and that they probably were not going to contract for one individual child. (Tr. at 91). Melody Scott testified that she could only be available after 3:30 to provide occupational therapy. (Tr. at 225). The school system indicated that the occupational therapist would be required to observe the Child in the educational setting and that after 3:30, the Child was involved in unstructured free time. Ms. Scott stated that she would only be available to observe the Child in the classroom once or twice per year (Tr. at 227). On November 4, 1991, the parents requested a due process hearing concerning Knox County School System's failure to provide occupational therapy services to their daughter as mandated in her IEP. (Exhibit 6). At the time that the Parents requested the due process hearing, their daughter was not receiving OT services at her preschool. In order to receive the OT services mandated by her IEP, Knox County Schools stated that the Child would have to transfer to the Cedar Bluff Preschool program. (Exhibit 7). The Parents were concerned about Knox County's position that they would move the Child to another preschool to provide occupational therapy for their daughter. (Tr. at 28-30). On November 7, 1991, Dr. Yoder sent a letter to the parents indicating that the only OT services that would be provided to their daughter at her present placement was one hour of "consultative" OT for all educationally disabled students. Dr. Yoder again informed the Parents that their daughter could receive the IEP-mandated OT services at Cedar Bluff Preschool. (Exhibit 7). The Father testified that he was satisfied with his daughter's progress at the UT Preschool. He testified that the UT program was the only mainstream preschool program in Knox County. (Tr. 20). He testified further that he was concerned that, as she had in the past, his daughter would model inappropriate behavior from other children in the Cedar Bluff classroom who had disabilities. Finally, the Father testified that the Cedar Bluff preschool program was situated in a trailer-type classroom outside the regular school building. This required his daughter to leave the classroom to walk to the cafeteria and to the bathroom facilities. (Tr. at 29-32). The Knox County School System did not abandon their position that the Child would have to be moved to the Cedar Bluff Preschool to receive her IEP-mandated OT services until January 29, 1992. The Knox County School System eventually assigned Larry Ward to provide occupational therapy at UT Preschool. Larry Ward first visited the UT Preschool program on November 15, 1991. He did not provide services to the Child pursuant to her IEP on this date. (Tr. at 293) Mr. Ward first worked with the children at UT Preschool on December 6, 1991. Due to a number of factors including Christmas vacation and the child's absence from school, Mr. Ward did not again provide occupational therapy services to the child until January 10, 1992. (Tr. at 308). Mr. Ward next provided occupational therapy services to the Child on January 24, 1992, for one-half hour. (Tr. at 45, 46).

Conclusions of Law

The Individuals with Disabilities Act mandates that each handicapped child receive a "free appropriate public education" 20 U.S.C. Section 1400 et seq. The Supreme Court, in Board of Education v. Rowley 454 U.S. 176 (1982) stated that a local education agency has complied with the requirements of the Act where the program offered is reasonably calculated to offer some educational benefit to the handicapped child. Pursuant to the mandates of state and federal law, Knox County Schools developed an IEP for the Child which called for occupational therapy services. The Child was to receive occupational therapy once per week for 25 weeks beginning on September 16, 1991. Lynn Debolt was formerly employed by Knox County as an occupational therapist and was responsible for developing the occupational therapy section of the child's IEP. She testified that 25 weeks of occupational therapy was chosen because during the first few weeks of school and the last four weeks of school, it is difficult to see children because of the various administrative duties. Therefore, she subtracted eight weeks from the 36-week school year to work administrative duties and meetings. She also subtracted another three weeks from the planned occupational therapy for unplanned contingencies, such as the Child's possible illness, teacher workshops, and other administrative meetings that may interfere with the therapy sessions. Ms. Debolt testified that during the 25 weeks, the therapy was to be provided in continuous, consecutive weeks. After the designations of Ms. Debolt and Ms. Farber, the school system suffered a shortage of trained occupational therapists. During the period of October 9, 1991 through December 6, 1991, the Child did not receive occupational therapy as mandated by her IEP. The school system asserts that it did not violate the provisions of IDEA or Section 504 because it experienced a shortage of trained personnel due to no fault of the school system, that it rationed the available occupational therapists on a priority basis, and that regardless of the interruption in services, the IEP can still be completed by the end of the school year by providing the Child with two sessions of occupational therapy per week. The first two defenses can be disposed of jointly. In Hendrix v. Gilhool, 1988-89 EHLR Dec 441:352, the court observed that hard decisions of resource allocation are best left to the state in the first instance. In Barnett v. Fairfax County School Board, 927 Fed.2d 146 (4th Cir. 1991), a hearing-impaired student challenged his placement at a centralized high school that contained a "cued speech" program and requested, that the district offer the "cued speech" program at the high school closest to his home. The court in upholding the placement noted that in light of the finite resources available for the education of handicapped children, a school system is not required to duplicate small resource intensive programs at neighborhood schools. The cases listed above indicated the school systems are given much leeway in how they provide services to handicapped children. However, the school system must provide the services required by the Child's IEP. Here the Knox County School System prioritized students with regards to who would receive occupational therapy services. Apparently, under this prioritization, the Child was not to receive occupational therapy for a period of many weeks. Under the facts of this case, the Knox County School System's rationing of occupational therapy is not a proper exercise of the school system's discretionary authority in providing the services required by a Child's IEP. Although the Knox County School System was experiencing a shortage of occupational therapists, the parents had supplied the Knox County School System with the names of two occupational therapists who were willing to provide occupational therapy to the Child. The first, Melody Scott, was available only after 3:30 p.m. and the school system deemed that because of her schedule, she would not be suitable as an occupational therapist. Kathy Boling testified that she was available for four to five hours on Wednesday mornings. Through conversations with Ms. Boling and her superiors at Patricia Neal Rehabilitation Center, the school system learned that the rehabilitation center would be interested in providing "services in a place that was in close proximity to the hospital that could be relatively productive for a therapist to do that and then go back to the hospital base." (Tr. 94). The school system considered this an unacceptable option because it was unfair and prejudicial to some students while favoring others based on where they live and attend school. (Tr. 148). The school system also objected based upon the fact that private therapists would not be available to handle unexpected emergencies and complete various administrative duties. The reasoning given by the school system for refusing to engage the services of Ms. Boling to provide occupational therapy for the Child are fallacious. The evidence indicates that the school system did not intend to hire a private therapist for any individual Child. In fact, it was the school's position that contracts with private practitioners will be for services using the Knox County School's prioritization system and not for individual children. (Ex. 8, p. 3). The school system has strenuously argued that there was a shortage of occupational therapists, and that this is the reason the Child did not receive the occupational therapy required by her IEP. However, the clear evidence presented at trial indicates that Ms. Boling was available and willing to provide the required weekly 45-minute student contact required by the Child's IEP. The school system next argues that the IEP can be complied with by having two or more sessions of occupational therapy per week for the remainder of the school year. Although in this case extra sessions for the remainder of the school year may be a remedy for failure to provide services required by the IEP, it does not excuse the violation. Therefore, for a period beginning on October 9, 1991, and continuing through December 6, 1991, the Knox County School System failed to comply with the terms of the Child's IEP in violation of the "Free Appropriate Public Education" requirement of the Individuals With Disabilities Education Act. The parents assert that they are entitled to reimbursement for the portion of the cost of private occupational therapy which was not covered by private insurance. The father testified that upon moving to Knox County, the Child was enrolled in East Tennessee Rehab Center until December 24, 1991. (Tr. 57). The father further testified that since the Child was not receiving occupational therapy at school, the parents felt that she needed additional therapy and that their neurologist had recommended three hours of occupational therapy per week. (Tr. 58). East Tennessee Children's Rehab Center could not provide three hours of occupational therapy per week. However, Patricia Neal Rehabilitation Center could provide the desired three hours of occupational therapy. (Tr. 58). In early December 1991, the Child was transferred to the Patricia Neal Rehabilitation Center. (Tr. 57). The parent's claim for any reimbursement for occupational therapy provided by East Tennessee Children's Rehab Center must fail. The occupational therapy provided by East Tennessee Children's Rehabilitation Center was part of an ongoing program that commenced at the time the parents moved to Knox County and was not a response to any failure of the Knox County School Systems to provide occupational therapy required by the Child's IEP. With regards to therapy provided by Patricia Neal Rehabilitation Center, it appears that by December 6, 1991, the school system had implemented a program of occupational therapy at the UT Preschool which would comply with the Child's IEP. Therefore, the parents are not entitled to reimbursement for sums extended at Patricia Neal Rehabilitation Center. The school system violated the provisions of the Act by failing to provide occupational therapy required by the Child's IEP, and the Child is entitled to a remedy for such violation. When discounting school holidays, it appears that approximately six weeks of occupational therapy was omitted by the school system. The Child is entitled to compensatory services to ensure that the Child receive the required 25 student contacts required by the IEP. Therefore, the Child is entitled to have two student contacts of 45 minutes each with the occupational therapist for the remainder of the school year or until such time as 25 occupational therapy sessions can be provided by the end of the school year with one student contact per week. If by May 30, 1992, the Child has not received 25 student contacts, the BI-weekly occupational therapy sessions will continue into the Summer session until such point as the Child has received 25 student contacts. This compensatory occupational therapy shall be in addition to any occupational therapy provided to the Child by the Knox County School System during the Summer months. "Student Contact" shall be defined as direct contact between the occupational therapist and the student either individually or in small groups. Student Contacts to be counted in determining whether the 25 required Student Contacts have been met shall be contacts of 30 to 45 minutes or more, as the testimony of Mr. Ward indicates that children on occasion are distractible which creates difficulty in providing the exact 45 minutes of therapy. Any Student Contacts of less than 30 minutes shall not be counted towards the cumulative total of 25 Student Contacts. The Act provides that "in any actual proceeding brought under this subsection, the court, in its discretion, may award reasonable attorney fees as part of the costs to the parents or the guardian of a handicapped Child or youth who is the prevailing party." 20 U.S.C. Section 1415(e)(4)(B). Under IDEA, the term "prevailing party" is given the same meaning as given by the United States Supreme Court in Hensley v. Echerhart 461 U.S. 424 (1983). Hensley stated that a plaintiff may be considered a prevailing party for attorney fee purposes if they succeed on any significant issue in litigation which achieves some benefit the party sought in bringing the suit. Id. at 433. In the case at hand, the parents stated that their objectives in the litigation was to prevent their Child from being transferred to the Cedar Bluff Preschool and to obtain reimbursement for sums expended on private occupational therapy. The underlying purpose of the parents' litigation was to ensure that their child receive the occupational therapy mandated by the Child's IEP. The parents were successful in preventing the Child from being transferred to Cedar Bluff Rehab and in obtaining occupational therapy for the Child. The issues in this case were not complicated, and the proof required by the parents to prevail in this cause was not particularly extensive. It appears that much of this litigation could have been avoided if the parties had made an honest effort to negotiate a resolution to this matter. The Knox County School System, when faced with a shortage of occupational therapists, was presented with the name of a private occupational therapist who was available to provide the Child with occupational therapy. Apparently, the school system refused to make necessary arrangements to hire a private occupational therapist to fulfill the requirements of the Child's IEP. After December 1991 and certainly in January 1992, it was evident that the school system was providing occupational therapy services for the Child when Larry Ward was assigned to the UT Preschool. At this point in time, the matter should have been resolved between the parties, however, this matter proceeded to trial, and the parents sought reimbursement for $113.20. By forcing this matter to trial, the parties incurred additional attorney fees and expenses, the total of which would have more than covered the costs of a private therapist to provide the Child with the occupational therapy mandated by the IEP. With these observations, I declare that the parents are the prevailing party.

IT IS THEREFORE ORDERED, ADJUDGED and DECREED, that:

1. The Child shall receive as compensatory services one additional session of occupational therapy per week lasting approximately 45 minutes each until the end of the school year, or until such time as 25 occupational therapy sessions can be provided by the end of the school year with one Student Contact per week. If by the end of the school year, May 30, 1992, the Child has not received 25 Student Contacts as previously defined herein, the school system shall continue to provide occupational therapy services of two Student Contacts per week until such required 25 Student Contacts are met. The parties are ordered within 10 days of the date of this order, to prepare and enter into a stipulation which sets forth as of the date of the stipulation the number of Student Contacts between the occupational therapist and the Child. The stipulation shall then be filed with the hearing officer. The hearing officer shall retain jurisdiction in this cause until such stipulation is filed with the hearing officer at which time this order shall become final.
2. The parents are the prevailing party.
3. Any party aggrieved by this decision may appeal to the Chancery Court for Davidson County, Tennessee, or may seek review in the United States District Court for the district in which the school system is located. Such appeal or review must be sought within 60 days of the date of the entry of this the final order in non-reimbursement cases or three years in cases involving educational costs and expenses. In appropriate cases, the reviewing court may order that this final order be stayed pending final hearing in this cause.

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