The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Shenendehowa Central School District
Victor M. DeBonis, Esq., attorney for respondent
Petitioners appeal from the decision of an impartial hearing officer which held that respondent was not required to assign the individuals who served as the home teachers of petitioner's child during the 1994-95 school year as the child's mathematics and science teachers during the 1995-96 school year, or to employ petitioners as the child's English and social studies teachers during the latter school year. They also appeal from the hearing officer's refusal to require respondent to contract with the individual of petitioners' choice to provide counseling to the child and petitioners during the 1994-95 school year. Petitioners also challenge the hearing officer's denial of their request for reimbursement for education- related services which they had reportedly provided to the child since the 1991-92 school year. The appeal must be dismissed.
Petitioners' son is 16 years old. The child has been classified as other health impaired, since 1990. He has been diagnosed as having Tourette's Syndrome, and a related attention deficit disorder. A psychiatrist who examined the child in 1992 reported that the child manifested signs of high anxiety, phobic reactions, and some obsessive-compulsive behavior. The child's classification as other health impaired is not disputed.
The child entered respondent's school in September, 1985, when he was enrolled in a modified first grade program in respondent's Skano Elementary School. The child's academic achievement in elementary school was reportedly above average, although he reportedly had some difficulty with organization and some anxiety about school. In August, 1987, the child was evaluated by a psychologist, at petitioners' request, for the purpose of determining whether the child was eligible for enrollment in respondent's academic enrichment program. The private psychologist reported that the child achieved a verbal IQ score of 130, a performance IQ score of 112, and a full scale IQ score of 124. The child was enrolled in the enrichment program.
In December, 1989, when the child was in the fourth grade, petitioners met with the private psychologist to discuss their concerns about the child's difficulty in completing certain tasks in school, and his increasing difficulty with written expression. They informed the psychologist that the child had displayed motor tics since the age of four. At the psychologist's suggestion, the child was evaluated by a neurologist in January, 1990. The neurologist reported that he had not observed any motor tics, gross sensory abnormalities, or cerebellar signs in his examination of the child. He concluded that the child probably had Tourette's Syndrome with a related attention deficit disorder. In February, 1990, petitioners and the private psychologist met to discuss ways to reduce the child's stress in school, and to increase his organizational skills.
In a letter to the CSE chairperson, dated March 29, 1990, the private psychologist noted that the child's service needs were generally minimal, but petitioners felt that having the CSE identify the child as child with a disability could help the child and his teachers better understand his needs. On May 30, 1990, petitioners referred the child to the CSE, which classified the child as other health impaired. The CSE recommended that the child receive resource room services while in the sixth grade, during the 1990-91 school year. He reportedly received support services for organization, writing, and keyboarding, while in the sixth grade.
The child's annual review was conducted by the CSE on March 28, 1991. The CSE reviewed the results of an academic achievement test administered to the child in February, 1991, when he was in the sixth month of the sixth grade. He achieved grade equivalent scores of 4.3 in reading vocabulary, 6.4 in word attack, 6.2 in passage comprehension, 4.7 in spelling, 5.9 in mathematical calculation and 6.3 in mathematical applications. In a summary prepared for respondent, the CSE noted that the child had missed a considerable amount of school because of his allergies and asthma. For the 1991-92 school year, the CSE recommended that the child be mainstreamed in each of his seventh grade subjects, and that he receive one period per day of resource room services. The child's individualized education program (IEP) indicated that the child was to have the use of a calculator for mathematics tests, and could take all of his tests in an alternative location. Test time limits were to be waived for him.
When he entered respondent's Gowana Junior High School in September, 1991, the child increasingly manifested the symptoms of Tourette's Syndrome and his related disorders. The amount of the medication which he had been taking for Tourette's Syndrome was reduced in October, 1991, because the medication was making the child feel tired. In a note to the child's special education teacher, dated October 22, 1991, the child's mother expressed her appreciation for the teacher's help and the patience shown by all of the child's teachers. The child had numerous absences from school. In December, 1991, the Principal of the Gowana Junior High School informed petitioners that he would institute a Person in Need of Supervision (PINS) proceeding in the Family Court of Saratoga County, unless the child's attendance dramatically improved. Petitioners responded by requesting a CSE meeting for the purpose of revising the child's IEP, which they asserted was inappropriate for him. The child's report card as of the end of the first semester of the 1991-92 school year revealed that he had failed each of his courses during the second marking period, except science in which he received an "Incomplete", and that he had been absent from school a total of 54 days and had been tardy 21 times.
A New York City psychiatrist began treating the child for Tourette's Syndrome and related problems in December, 1991. In early January, 1992, the psychiatrist reported that the child's initial response to treatment with a new medication had been positive, but cautioned that the child would have considerable difficulty returning to school. She recommended that the child be "eased in slowly," and suggested that he attend school on a part-time basis at first. In March, 1992, the psychiatrist reported that the child was being treated with Clonidine, but that he could manage no more than one or two periods of school per day, "on most days". The psychiatrist recommended that the child be provided with the services of a tutor in school, which had originally been suggested by the child's private psychologist.
The CSE met on March 10, 1992, to discuss ways to increase the amount of time which the child spent in school. It was reportedly agreed that the child would attend school on a daily basis for resource room, mathematics, and lunch, and that thereafter he would be mainstreamed into other academic subjects. The handwritten notes attached to the CSE case summary which is in the record reveals that a tutor would work with the child in content areas of academic subjects, during the period of the child's transition back to school. However, there is no evidence in the record that the CSE formally recommended that a tutor be engaged for this purpose, since there is no IEP from the March 10, 1992 CSE meeting (cf. 8 NYCRR 200.4 [c]). The record includes correspondence between the child's mother and the principal of the Gowana Junior High School about the utility of providing a tutor for that purpose. The Principal opined that there would be no purpose in having a tutor for the child in school, because the child failed to come to school or to complete his homework.
On April 15, 1992, the CSE reviewed the child's program, and apparently proposed that the child's resource room services be increased incrementally to one and one-half periods per day. The CSE reconvened on May 12, 1992, when it and petitioners agreed that the child would begin to attend English and Physical Education classes. The CSE recommended that the child be provided with a 1:1 aide and that a structured written "notebook" be employed to provide daily communication between the school and petitioners.
On June 19, 1992, the CSE discussed whether the child should repeat the seventh grade during the 1992-93 school year, but it deferred making any recommendation until its next meeting. In a letter dated June 17, 1992, the child's psychiatrist recommended that the child not be held back in grade. She concurred with the child's mother, who asked that the child be allowed to attend mainstream classes on a full day basis. The psychiatrist did recommend that the child have resource room services, and the use of a tape recorder, computer, and books-on-tape.
At its meeting on July 2, 1992, the CSE recommended that the child be mainstreamed for all academic and non-academic subjects, as an eighth grade student. It further recommended that the child receive one and one-half periods per day of resource room services, and forty minutes per week of counseling, as needed. The child's IEP annual goals included attending school on a full-time basis, with an attendance rate of at least 85 percent, and passing his mainstream courses, with a grade of at least 80 percent. The CSE also provided that the child's program would be reviewed within five weeks to address any unanticipated needs. A copy of the completed IEP was not sent to petitioners until September 3, 1992.
The child continued to have problems getting to school at the beginning of the school year. In an October 2, 1992 letter to the child's teacher, the child's mother explained that the child's medication made him groggy in the morning, and suggested that he be allowed to start school later in the day. The record does not indicate whether respondent's staff responded to the mother's suggestion. In October, 1992, the Principal filed a PINS petition based upon the child's poor school attendance. The child had reportedly missed 14 days of school in September, 1992.
Petitioners asked for a meeting with the CSE. In a letter dated November 11, 1992, the child's psychiatrist asserted that she and petitioners had overestimated the child's emotional gains during the 1991-92 school year. She indicated that the child had not been able to deal with the stress of being in a regular education program. The psychiatrist opined that the PINS proceeding was inappropriate, because the child's absenteeism was the result of his school phobia and side affects of his medication. The record reveals that the child had been transferred to a special education class on an interim basis, with petitioners' consent, in the Fall of 1992.
On November 17, 1992, the CSE recommended that the PINS petition be withdrawn, based upon the recommendation of the child's psychiatrist. The CSE noted that the child's attendance while in the special education class was better than when he was enrolled in the regular education program, but that the child had still not attended school for an entire school day. The school psychologist recommended to the CSE that the child remain in the special class placement, while the CSE considered whether a residential placement would be appropriate for the child. A special education teacher was directed to assign work which was given to petitioners to have the child do at home. A program review was held on January 5, 1993. It was decided that the child's instructional needs were not being met by sending work home to be completed under parental supervision, because the child had reportedly not completed many of his assignments. A special education teacher was assigned to tutor the child for two hours per day five times a week.
On February 25, 1993, the CSE reviewed the child's program. His written work, English and social studies was described as excellent, but he reportedly failed to complete many homework assignments. The CSE decided to maintain the child's home instructional program, while the CSE considered alternate programs. In a letter to the CSE chairperson, dated March 8, 1993, petitioners acknowledged the work done by the child's special education teacher in school and his tutor. They also requested various services be provided to the child. Their request included that the child's special education teacher visit the child in his home one period per week; that respondent employ the child's private psychologist to provide petitioners with advice for modeling a home training program; that a communication link be established between the child and his special education teacher and his classmates, using a computer and modem; that appropriate computer software be provided to the child; and that in-service training be provided to respondent's staff with regard to Tourette's Syndrome and related disorders. The child's psychiatrist endorsed petitioners' requests.
In a psychological evaluation performed in March, 1993, the child achieved a verbal IQ score of 129, a performance IQ score of 111, and a full scale IQ score of 123. He also achieved standard scores of 122 in reading decoding, 125 in reading comprehension, 120 in math computation, and 130 in mathematical application. On April 1, 1993, the CSE conducted another program review. Although the child was then achieving passing grades in his academic subjects, he did not appear to be ready to return to school on either a full or part-time basis. It was agreed that the child's home tutoring services would be increased incrementally up to four hours per day five days per week. It was further agreed that the child and his special education teacher would communicate by use of a computer and modem.
The CSE conducted its annual review of the child's program on August 11, 1993. The child's tutor reportedly advised the CSE that the previous increase in the amount of tutoring had created some stress and anxiety for the child. The child reportedly scored in the mid- average range on eighth grade achievement tests which were administered to him in June, 1993. The CSE recommended that the child be transferred to respondent's Koda Junior High School, and that he be enrolled in regular education ninth grade classes. It further recommended that the child receive resource room services twice per day, and individual counseling on an as needed basis. The child's IEP provided that a peer would assist the child with note taking, and that the child would have the use of a calculator and a computer for written work. His IEP goals included attending school for the entire school day on a regular basis, and completing homework assignments and maintaining an assignment book in his regular education classes.
The child attended school for the first day of the 1993-94 school year. He was absent from school for much of September, 1993, because of illness. Although he returned to school in the latter part of September, he was unable to attend his regular education classes, and remained in a special education classroom. The child reportedly did not complete all of the school work which had been sent to him during his absence from school. The five- week review by the CSE was postponed at petitioners' request. When the CSE reconvened on October 20, 1993, it recommended that the child be provided with two hours per day of instruction at home. It also recommended that the child's counseling needs be assessed. Petitioners approved the CSE's recommendation.
In January, 1994, petitioners asked the Principal of Koda Junior High School to provide them with information regarding the ninth grade curriculum goals, respondent's policies pertaining to obtaining a high school diploma, descriptions of in-service training provided to respondent's staff about their child's needs, and copies of all of the school work which the child had completed. The CSE meetings scheduled for March and April, 1994 were apparently not held, while petitioners reiterated their request for information. The record reveals that on March 24, 1994, respondent's Director of Student Services invited petitioners to review their child's records. On May 6, 1994, the child's mother reviewed the child's file, which she believed to be incomplete. She requested that additional documents be gathered and be made available to petitioners in June, 1994.
The child's report card for the 1993-94 school year reveals that the child failed to earn academic credit for either ninth grade English or global studies. He received a final grade of 87 in general science, and received academic credit for that course. The child received a grade of 98 on a Regents Competency Examination for mathematics, but did not earn credit for mathematics. The child's efforts in resource room was described by his teacher as "unsatisfactory". The child was absent 42 days during the 1993-94 school year.
In a letter dated August 22, 1994, the child's psychiatrist opined that the child was not ready to return to school for either a regular education or a modified special education program. She recommended that the child receive individual home instruction during the 1994-95 school year. In September, 1994, an attorney who had been retained by petitioners requested that the tutor who had taught mathematics to the child during the 1993-94 school year be assigned to teach the child during the 1994-95 school year. He also requested that petitioners be given input into the selection of a new science tutor for the child. The attorney further asked that respondent employ the child's father to teach English to the child, and that it employ the child's mother to teach social studies to the child. He requested that the child attend an appropriate school computer class, and be given unrestricted access to the computers at school in the afternoons. Respondent was also asked to pay for an out-of-school physical education program for the child, and to provide an integrated music and art program for the child.
On October 28, 1994, the CSE reviewed the child's program, and prepared a new IEP. The CSE recommended that the child receive instruction at home in ninth grade English and social studies, Regents biology, and the comprehensive mathematics-I course. It recommended that such instruction be provided for two hours each day. The case summary for the October 28, 1994, meeting reads, in material part; "If [petitioners] are approved by Shenendehowa Staff Services as tutors, they will be able to provide tutoring for English and Social Studies." The child's IEP indicated that he would be given access to books-on-tape and to a computer and computer software. His IEP annual goal was that he would successfully complete his academic course work, and receive high school credit for his courses. The IEP indicated that the CSE would meet again in March, 1995, to review the child's program. The CSE reportedly agreed to consider ways in which the child might earn credit for art, music, and physical education in non-district programs.
Although petitioner applied to respondents for employment as the child's tutors, they were apparently not selected to be the child's tutors. The record does not reveal who was assigned to tutor the child in English and social studies, or whether those services were in fact provided during the 1994-95 school year. In a letter to the CSE chairperson, dated November 30, 1994, petitioners asserted that the child's educational program was inappropriate because it did not include appropriate services for the child. By letter dated January 3, 1995, petitioners requested that an impartial hearing be held to review the CSE's recommendation. A hearing was scheduled to be held on February 1, 1995, but was adjourned at petitioners' request. The parties thereafter attempted to resolve the matter through their attorneys, but could not do so.
In a letter to the hearing officer, dated April 24, 1995, petitioners, who were no longer represented by an attorney, described their objections to the child's IEP for the 1994- 95 school year, and listed the relief which they wished the hearing officer to grant to them. As the hearing began on May 8, 1995, the child's father and respondent's attorney advised the hearing officer that they believed that many of the issues about the child's IEP which were raised in petitioners' April 24, 1995 letter could be resolved. It was agreed that the hearing would be adjourned until June 5, 1995, to afford the parties an opportunity to reach an agreement.
On June 5, 1995, the parties advised the hearing officer that they had reached an agreement. The agreement which the parties entered into the record of the hearing provided that a transition plan would be developed for the child prior to the end of the 1994-95 school year, and that the child would be recommended to receive special education services on a twelve-month basis. It was also agreed that the parties would identify academic areas where the child might earn units of credit without completing units of study, as authorized by Section 100.5 (d) of the Regulations of the Commissioner of Education, and that the CSE would establish alternate assessment methods and review the child's academic performance for the purpose of determining whether he was eligible to receive academic credit for work he had done. The parties also agreed that an independent mediator would be designated to act as liaison between petitioners and respondent. They also agreed that the child's triennial evaluation would include an independent educational evaluation and an independent medical evaluation, both of which would be performed at respondent's expense. The child's IEP was to be revised, and new information added after the triennial evaluation was completed. The parties also agreed that the child should receive direct and indirect consultant teacher services, and that the consultant should serve as the child's "case manager".
The hearing officer, with the concurrence of the parties, identified four issues from petitioner's April 24, 1995 letter which the parties had not resolved, and which they asked the hearing officer to decide. Those issues were described as:
1. " ... the continuation of the present tutors and the hiring of [petitioners] as tutors in English and social studies for the 1995- 96 school year;"
2. " ... the providing of funds for continued therapeutic counselling service with [the child's] present psychologist to meet his emotional needs;"
3. " ... the providing of funds for parents to continue present outside counselling regarding issues relating to [the child's] education and social and emotional needs;"
4. " ... the reimbursement to the [petitioners] for education- related services and expenses in providing an education for [the child]." (Transcript, pages 107-108)
Respondent presented its case solely through the introduction of 20 exhibits. Petitioners introduced 62 exhibits, and submitted one post-hearing affidavit. Each petitioner briefly testified. However, they relied primarily on the documentary evidence, as did respondent.
The hearing officer rendered her decision on July 10, 1995. With regard to respondent's failure or refusal to appoint petitioners as the child's English and social studies tutors during the 1994-95 school year and their request that respondent appoint them as tutors for the 1995-96 school year, the hearing officer held that respondent had acted within its authority to determine the qualifications of its pedagogical staff. On the second issue to be decided i.e., whether respondent was required to pay for the child's counseling by the child's private psychologist during the 1994-95 school year, the hearing officer held that respondent had the right to select the person to provide counseling to the child. However, she did find that the child's IEPs for the 1992-93 and 1993-94 school years had provided that the child should receive counseling, but there was no evidence that respondent had provided counseling. She directed respondent to reimburse petitioners for the cost of counseling for no more than one hour per week which they had obtained for the child during the 1992-93 and 1993-94 school years. The hearing officer denied petitioners' request that respondent pay for family counseling by the private psychologist during the 1994-95 school year. She held that respondent could select the individual who was to provide the service, and was not obligated to employ the private psychologist for that purpose. With regard to the fourth issue, the hearing officer denied petitioners' claim for reimbursement for education-related expenditures which they had made for their son during the 1991-92 through 1994-95 school years. The hearing officer found that respondent had provided the child with an appropriate educational program during the school years in question.
Petitioners contend that the hearing officer failed to address each of the issues identified in their April 24, 1995 letter to the hearing officer, their opening statement at the hearing, and their post-hearing brief. Among the issues which petitioners assert the hearing officer should have addressed were CSE's alleged failure to identify their child's needs, and its failure to develop an IEP which "was in compliance with law and regulation", respondent's alleged failure to provide the child with a free appropriate public education in the least restrictive environment, respondent's alleged denial of access to their child's records, and alleged intentional discrimination against them by respondent's staff.
With one exception, I find that petitioner's contention is not supported by the record. This proceeding began with petitioners' January 3, 1995 letter to respondent's President in which they asserted that " ... we remain in disagreement with this IEP set forth by the CSE and approved by the board of Education (sic) on 12/13/94. Therefore we are requesting an impartial hearing to resolve this matter". Petitioner's April 24, 1995 letter to the hearing officer was written in response to the hearing officer's April 14, 1995 request to them to state their position with respect to the issues. Petitioners responded by indicating eleven specific objections to the child's 1994-95 IEP. They also listed ten distinct requests for relief which they wished the hearing officer to grant. At the hearing on June 5, 1995, the hearing officer and petitioners' discussed each of the eleven objections to the IEP and ten requests for relief. Petitioners advised the hearing officer that each of the objections or requests had been resolved, except the four issues identified by the hearing officer at the beginning and the end of the hearing, and petitioners' request for compensatory education for the child.
The parties represented to the hearing officer that the compensatory education request had been partially addressed by their agreement to provide the child with twelve- month programming. In their April 24, 1995 letter, petitioners indicated that the issue of their request for compensatory education would be more clearly delineated during the impartial hearing. However, they failed to do that at the hearing. Moreover, the hearing officer found that the respondent had offered an appropriate education to the child from the 1991-1992 school year through the 1994-95 school year. That finding, although made in the context of petitioners' request for reimbursement for the unspecified education-related services which petitioners had reportedly obtained for the child at their expense, was nevertheless determinative of their claim for compensatory education. Compensatory education is a permissible remedy under the Individuals with Disabilities with Education Act 120 USC 1400 et seq.) when a child has been excluded from school, or denied appropriate services, for an extended period of time (Burr by Burr v. Ambach, 863 F. 2d 1071 [2d Cir., 1988]; Mrs. C. v. Wheaton, 916 F. 2d 29 [2d Cir., 1990]).
At the hearing, petitioners also requested that the hearing officer rule upon respondent's policies with respect to records retention, parental access to records, and the timeliness of respondent's response to petitioners' request to review their child's records. The hearing officer did not address that issue, apparently because the parties had agreed that respondent's attorney would gather the child's records from various district offices, and make them available to petitioners. Since that agreement did not completely address petitioners' request to the hearing officer, I will address the issue, to the extent that it is possible to do so with the present record before me.
Petitioners contend that respondent denied them timely access to their child's educational records. In their letter to the Principal of the Koda Junior High School, dated January 31, 1994, petitioners asked for copies of all school records which had been maintained under the child's name and which had information added to them since April, 1993, copies of all work the child had completed with a list of modifications made to accommodate his disabilities, a list of times and dates in service sessions regarding the child's disabilities and needs, and a list of times and dates of all meetings held by the child's tutors. The record does not indicate that petitioners received any response by the Principal to their request. However, after they sent a copy of their request on March 7, 1994 to respondent's new CSE chairperson, the chairperson invited petitioners to call her office to arrange a time to review the child's records.
The relevant Federal regulation requires each school district to comply with a parent's request to review records "...without unnecessary delay and before any meeting regarding an IEP or any hearing relating to the identification, evaluation or educational placement of the child... and in no case more than 45 days after request has been made" (34 CFR 300.562). In this instance, the record reveals that petitioners' request was promptly addressed after it was made to the appropriate individual in the Shenendehowa Central School District.
Petitioners assert that they agree with the hearing officer's holding that the respondent has the ability to select the personnel who will provide services to children with disabilities. However, they contend that the hearing officer misapprehended the facts in her decision. They allege that the CSE recommended that they be employed as the child's English and social studies tutors during the 1994-95 school year, and that respondent approved the CSE's recommendation. They further allege that the Superintendent of Schools unilaterally determined that they would not be employed. However, the child's IEP which was prepared by the CSE on October 28, 1994, did not list the names of any of the child's tutors. The case summary of the CSE meeting clearly indicated that petitioners could provide tutoring, if they were approved by Shenendehowa Staff Services (the school administration). I find that the CSE did not expressly recommend that petitioners be the child's English and social studies tutors.
Since Federal regulations accord parents the right to initiate a hearing with regard to the alleged denial of a free appropriate public education to a child (34 CFR 300.504 [a]; 34 CFR 300.506 [a]), petitioners may challenge the appropriateness of the child's educational program for the 1994-95 school year by asserting that the program would not have been appropriate unless they were designated as the child's English and social studies tutors (Application of a Child with a Disability, Appeal No. 95-50). The record reveals that the child's father is certified to teach English and that the child's mother is a certified special education teacher. However, the relevant inquiry is whether the child's needs are so unique that no district teacher could have provided all those services to him. Upon review of the record before me, including the child's IEPs, the reports by the child's psychologist and his psychiatrist, and petitioners' testimony at the hearing, I am not persuaded that the child's educational needs are so unique that respondent could not have provided appropriate instruction in those subjects with its employees. The child did not earn academic credit in either English or social studies during the 1993-94 school year. However, there is no evidence in the record that the child's failure was due to inadequate instruction. Instead, the record reveals that the child did not complete his work in those courses. It is entirely speculative whether the child would have done his work, if his parents had been his tutors during the 1993-94 school year. Such speculation does not afford a basis for finding that the child would not have received an appropriate instructional program during the 1994-95 school year, unless his parents were employed as his English and social studies tutors. The question of who should be the child's tutors for the 1995-96 school year is prematurely raised, since his educational program for that year had not been prepared when the hearing was held.
Petitioners concede that respondent has the authority to select the individual to provide individual counseling to the child and family counseling to them. However, they contend that in exercising its authority, respondent must consider the unique needs of their child. They assert that respondent's school psychologist and other employees do not have an adequate understanding of the child's unique needs, and that the child has established a relationship of rapport and confidence with his private psychologist. Petitioners also assert that they require the services of the private psychologist for family counseling. They argue that the hearing officer's decision is inherently contradictory because it required respondent to reimburse them for the child's individual counseling during the 1992-93 and 1993-94 school years, but did not require respondent to pay for the child's individual counseling during the 1994-95 school year.
The hearing officer's decision awarding reimbursement for the cost of the child's individual counseling during the 1992-93 and the 1993-94 school years was premised upon a finding that the child's IEPs for those school years indicated that he should receive counseling, and that respondent had failed to provide counseling to him. The CSE did not recommend that the child receive counseling during the 1994-95 school year. Respondent has offered no explanation for the CSE's recommendation not to provide counseling. The record reveals that the child has fairly well developed academic skills, and that his academic performance has been seriously impaired by his inability to attend school and to complete his schoolwork on a consistent basis. It is essential that the efforts of petitioners and respondent should focus upon reestablishing the child's relationship with respondent's educational program and improving his ability to attend school. I find that the respondent has not demonstrated how those ends can be achieved without providing counseling to the child.
A board of education may be required to reimburse parents for the cost of a child's educational services obtained by the parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim for reimbursement (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ). I have found that respondent failed to demonstrate that the program which it offered to the child during the 1994-95 school year would have been appropriate without providing counseling services to the child. However, petitioners bear the burden of demonstrating the appropriateness of the services which they obtained (Application of a Child with a Disability, Appeal No. 94-29). In this instance, there is no information on the record about the nature or the extent of the counseling which the private psychologist may have provided to the child during the 1994-95 school year. I am compelled to find that petitioners have failed to meet their burden of proof. In doing so, I note that the hearing officer's determination to reimburse petitioners for the counseling services which they obtained during the 1992-93 and 1993-94 school years has not been challenged, and therefore is not reviewed. With regard to petitioners' request for reimbursement for the private family counseling services which they obtained, I note that petitioners have indicated that such counseling was for "issues relating to [the child's] education and social/emotional needs." They have not demonstrated what services were provided, or how they related to the child's education. I find that the record before me does not afford a basis for concluding that such service was required in order for the child to receive a free appropriate public education.
Petitioners also challenge the hearing officer's decision denying their request for reimbursement for education-related expenditures which they have made for their child. Their reimbursement for those expenditures would be subject to the Burlington criteria. They have not identified what services were provided, or when they were provided. Consequently, there is no basis in the record for me to determine whether the services were necessary or appropriate. I find that petitioners are not entitled to reimbursement.
Petitioners contend that their child has been denied a free appropriate public education in the least restrictive environment for more than three years. They assert that respondent has not treated them as equal partners in the process of determining what would be an appropriate educational program for the child, and that it has not implemented agreed upon programs or services. Petitioners further assert that respondent has not provided the members of the CSE, or its staff, with adequate information about the child's disabilities, and has refused to provide the assistive technology which the child's independent evaluators have recommended for him. They request that the child be provided with compensatory education. In their opening statement at the hearing, they suggested that such compensatory education could include a community college art course, or computer software to provide the child with information which was not available to him in English or social studies during the 1994-95 school year as a result of the parties' disagreement about his tutors for those subjects.
As noted above, compensatory education is an appropriate remedy when a child has been excluded from school, or denied a free appropriate public education, over an extended period of time. In their petition, petitioners have referred to various events which have occurred since the 1991-92 school year. Although the record reveals that they have had legal assistance at various times since the 1991-92 school year, they did not challenge any act or omission by respondent prior to their January 3, 1995 request for an impartial hearing. They have not shown that the child has been excluded from school by any act of respondent. Although respondent's CSE has not always acted with celerity, it has generally recommended educational programs which were consistent with the advice and recommendations by the child's two private psychologists and his psychiatrist. Upon the record before me, I find that there is no basis in fact for awarding the remedy of compensatory education.
I have considered petitioners' other contentions, and find that they are without merit.
THE APPEAL IS DISMISSED.
|Dated:||Albany, New York||__________________________|
|September 27, 1995||ROBERT G. BENTLEY|