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TAYLOR v. BOARD OF EDUC. OF THE COPAKE-TACONIC HIL

December 9, 1986

ADRIAN TAYLOR, by MARIE HOLBROOK and PHILIP TAYLOR, his parents, and PATSY SMITH, his family care provider, Plaintiffs,
v.
THE BOARD OF EDUCATION OF THE COPAKE-TACONIC HILLS CENTRAL SCHOOL DISTRICT, GERALD DUFFY, as Superintendent of the Copake-Taconic Hills Central School District; and GORDON AMBACH as Commissioner of the NEW YORK STATE EDUCATION DEPARTMENT, Defendants



The opinion of the court was delivered by: MCCURN

MEMORANDUM-DECISION AND ORDER

This action was brought on behalf of plaintiff Adrian Taylor by his parents, plaintiffs Marie Holbrook and Philip Taylor, and by his family care provider, plaintiff Patsy Smith. The complaint alleges that defendants Board of Education of the Copake-Taconic Hills Central School District (school district), school district Superintendent Gerald Duffy, and New York State Education Department Commissioner Gordon Ambach have, by their actions, deprived Adrian Taylor of his rights guaranteed him under the Education of All Handicapped Children Act, 20 U.S.C. § 1401 et seq. (EAHCA), Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, 42 U.S.C. § 1983, and Article 89 of the New York Education Law. The plaintiffs are seeking declaratory and injunctive relief, as well as reimbursement for transportation and other expenses and attorneys' fees. Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331 and 1343(3). A trial in this matter was conducted on September 3, 1986, and the following constitutes the court's findings of fact and conclusions of law in accordance with Fed. R. Civ. P.-52(a).

Background

 Adrian Taylor is a seven-year old boy with severe multiple handicaps. He is mentally retarded, cortically blind, and hearing impaired. He also has cerebral palsy, spastic quadriplegia, and seizure disorders. Although Adrian's natural parents, Marie Holbrook and Philip Taylor, have legal custody of him, they live in Bethesda, Maryland. They placed Adrian in the voluntary custody of Eleanor Roosevelt Developmental Services (ERDS), a branch of the New York State Office of Mental Retardation and Developmental Disabilities, when he was thirteen months old. Patsy Smith is an ERDS employee who has been Adrian's family care provider since 1979.

 Since 1982, Adrian has received special education and related services from the Cerebral Palsy Center for the Disabled (CP Center) in Albany, New York. In October of 1983, the school district's Committee on the Handicapped (COH) initiated a review of Adrian's educational needs and placement for the 1983-84 school year. In February of 1984, the COH recommended that Adrian's placement be changed from the CP Center to a severely multiply handicapped class of the Columbia-Greene-Rensselaer Board of Cooperative Educational Services (BOCES) located at the Red Mill School in East Greenbush, New York. In March of 1984, the school district's board of education approved that recommendation.

 The change of placement was opposed by Adrian's parents, hi family care provider, and the ERDS, and they requested a hearing so that the change could be reviewed. A seven-day hearing was held between the dates of October 29, 1984 and November 15, 1984. On December 16, 1984, the hearing officer upheld the recommendation that Adrian be placed in the BOCES class. That decision was appealed, and on June 24, 1985, Commissioner Ambach sustained the appeal and held that the Individualized Education Plan (IEP) that was developed for Adrian lacked specificity in certain areas and was incomplete in others. The matter was remanded to the COH for development of an appropriate IEP for the 1985-86 school year.

 On August 6, 1985, the COH met to insure that Adrian's IEP for the 1985-86 school year was in accordance with Commissioner Ambach's decision. The IEP was revised, and the COH once again recommended that Adrian's placement be changed from the CP Center to the BOCES class. A new hearing was requested to review the latest recommendation, and that hearing was held over five days between October 21, 1985 and November 4, 1985. The hearing officer was the same person that presided over the 1984 hearing, and on December 18, 1985, he upheld the COH recommendation that Adrian be moved to the BOCES class. An appeal to the Commissioner was then taken on February 1, 1986, and on April 7, 1986, he sustained in all respects the recommended placement and dismissed the appeal. Subsequently, the instant action was commenced, and on June 3, 1986, this court issued an injunction ordering the school district to pay Adrian's tuition and expense at the CP Center pending a determination on the merits.

 Discussion

 The school district readily admits that it had an obligation, when developing an IEP for Adrian, to give serious consideration to the opinions of persons who are knowledgeable about Adrian and his unique set of problems. The district asserts that it in fact did give serious consideration to those opinions. However, based on the record before the court, it is all but impossible to make a finding that the school district gave serious consideration to the opinions of those most knowledgeable about Adrian, because if it had, it could not have recommended that Adrian's placement be changed from the CP Center to the BOCES class.

 During the trial, the court heard several witnesses testify on behalf of Adrian; no witnesses testified on behalf of the defendants. Nancy Ames is a teacher at the CP Center and was Adrian's teacher from March of 1986 until June of 1986. She testified that there were always several therapists in the classroom working with Adrian and that it took a team of people to constantly reposition Adrian so that he would be comfortable. The child requires extensive physical therapy, and a variety of special chairs and boards are necessary when working with him. He also requires occupational therapy that concentrates on his upper body, and Ames testified that an occupational therapy assistant must be in the classroom with Adrian at all times. Adrian needs constant speech therapy as well.

 Ames stated that medical clinics should be immediately available to Adrian at his school as they should be integrated into his educational program. Such is the case at the CP Center Medical clinics are not available, however, at the Red Mill School where the BOCES class is held. Ames also stated that a program that did not provide Adrian with clinics, swimming, and a variety of therapeutic services would not be appropriate for him and that he could not have made progress similar to what he has made at the CP Center in a different type of learning environment.

 John Kastner has worked at the CP Center since 1979 and was Adrian's teacher for two and a half years. He testified that Adrian has made significant progress because he has been taught with a team approach with which he has received positive reinforcement on a consistent basis. He further testified that Adrian needs to be taught by using a functional curriculum so that he can learn basic skills that will let him survive in the real world.

 In the fall of 1985, Kastner visited the BOCES class where the defendants urge that Adrian be placed. He spent three hours in the classroom and saw no therapy being conducted nor any of the students being repositioned, which, as stated, Adrian needs in order to be comfortable. Kastner stated that the type of teaching being conducted in the BOCES class would be of little use to Adrian as it would not benefit him outside of the classroom. In conclusion, Kastner believes that the BOCES class would not be an appropriate placement for Adrian.

 Dr. Edwin Rosenblum is medical director at the CP Center an has known Adrian since the child was five years old. He testified that Adrian has so many medical problems that he definitely needs a program of which medical services are an integral part. He went on to testify that Adrian is not even close to being the type of borderline child who could possibly survive in the BOCES program and that a program that lacks medical integration would be completely inappropriate for Adrian. Rosenblum stated that Adrian needs physical therapy five ...


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