The State Education Department
State Review Officer

No. 96-67



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 City School District of the City of Beacon

RosaLee Charpentier, Esq., attorney for petitioners

Shaw and Perelson, LLP, attorneys for respondent, Garrett L. Silveira, Esq., of counsel



        Petitioners appeal from the decision of an impartial hearing officer which found that petitioners were precluded from challenging the appropriateness of their son's individualized education program (IEP) for the 1994-95 school year because they had knowingly waived their right to do so by entering into an agreement in which they had withdrawn a prior hearing request in return for respondent's agreement to provide the child with tutoring during that school year. The hearing officer also denied petitioners' request for an order requiring respondent to reimburse them for the cost of their son's tuition in a private post-secondary school during the 1995-96 school year because he found that the child had graduated from respondent's high school in June, 1995. The appeal must be sustained in part.

        Petitioner's son is twenty years old. He was initially determined to have a learning disability while he was enrolled in a Head Start (preschool) program in 1981. A private psychologist who had evaluated the boy reportedly concluded that he had an auditory processing deficit, with delayed receptive and expressive language skills. A neurologist opined that the child manifested a neurological impairment by his behavioral abnormalities, emotional immaturity, delayed language, and coordination difficulties. Petitioners' son was classified by respondent's committee on special education (CSE) as learning disabled. The boy was placed, at respondent's expense, in the Bishop Dunn School for kindergarten and the first grade. Bishop Dunn is a private school which has been approved by the State Education Department to instruct children with disabilities. The child reportedly received speech/language therapy and occupational therapy while in the Bishop Dunn School.

        The boy attended a local parochial school, the St. John's School, in Beacon, New York, at petitioners' expense, for the second through the eighth grades. He received remedial reading instruction from respondent while in the second through the sixth grades. However, such instruction was discontinued at the end of the sixth grade, at petitioners' request. At the hearing, the boy's mother testified that petitioners had the boy privately tutored while in the seventh and eighth grades. She further testified that the CSE did not meet with petitioners during the child's attendance at the St. John's School.

        In preparation for the child's return to respondent's schools, one of respondent's school psychologists evaluated him in February, 1991. The boy achieved verbal IQ score of 90, a performance IQ score of 84, and a full scale IQ score of 85. The school psychologist noted that the boy's performance on the various IQ subtests was comparable to that of his previous evaluations. In particular, his relatively low scores in certain areas were a manifestation of his deficits in eye/hand coordination, reasoning, and planning. The school psychologist opined that the child would require programmed approaches, drill and exposure over a longer period of time, in order to effectively learn new material. While concurring with the earlier diagnosis of a neurological impairment, the school psychologist suggested that the impairment could be addressed through developmental physical education. The results of the Bender Gestalt Test which had been administered to him suggested that the child had not only an eye/hand coordination deficit, but was experiencing stress and tension. Projective testing revealed that his self-concept was more negative than positive, and that the boy was significantly angry with himself. The school psychologist suggested that the child could benefit from individual counseling. He recommended that the boy be classified as learning disabled, and that he receive at least one period per day of resource room services. The school psychologist also made some suggestions for the testing modifications which should be employed with the child, and recommended that the child use keyboarding to assist in his eye/hand coordination. He indicated that emphasis should be placed on the child's ability as a visual learner, rather than the deficit in his ability to acquire information auditorily.

        In September, 1991, the boy entered the ninth grade in respondent's high school, where he was reportedly enrolled in regular education classes, but also received resource room services. The record reveals that the boy was initially enrolled in a non-Regents level English course, but eventually completed a ninth grade Regents English course. It should be noted that there was no Regents examination for the boy's English course. He passed each of his ninth grade courses, except for keyboarding. The boy also passed the Regents Competency Test in science, one of the State tests which a student must pass before he or she can obtain a high school diploma (see 8 NYCRR 100.5 [a][4]).

        While in the tenth grade during the 1992-93 school year, petitioners' son continued to receive resource room services. In May, 1993, he achieved grade equivalent scores of 5.6 for reading, 8.5 for spelling, 7.6 for language, 10.3 for mathematics, 5.4 for social studies, 7.2 for science, and 7.3 for study skills on the group administered Comprehensive Tests of Basic Skills (CTBS). He passed the Regents Competency Tests in mathematics and global studies during the 1992-93 school year. However, he failed the Regents level global studies, mathematics, and earth science courses which he had taken. Petitioners' son did pass the Regents English course, and certain local level courses. He reportedly passed the global studies and mathematics courses in summer school that year. I note that the child was reportedly allowed to take local examinations, in lieu of the Regents examinations in his Regents level courses.

        The child advanced to the eleventh grade for the 1993-94 school year. His IEP for that school year indicated that he would receive 30 minutes of resource room services five times per week, to supplement the instruction he was to receive in his regular education classes. The IEP included annual goals for improving his academic performance, and his reading, writing and study skills. One of his short-term instructional objectives which indicated that he was expected to pass teacher-made examinations, was reportedly placed in the boy's IEP to clarify that he was not required to take the Regents examinations for this Regents level course. During the 1993-94 school year, the child reportedly attended respondent's high school for one-half of the day to receive instruction in his academic courses. The remainder of the day he was enrolled in a Board of Cooperative Educational Services (BOCES) airplane mechanic course, which while designated in his IEP as a related service, was in fact a regular education course. Notwithstanding the IEP provision for resource room services, the child reportedly did not receive all of those services during the 1993-94 school year because his schedule allegedly did not afford him sufficient time to receive the resource room services. Petitioners reportedly agreed to forego the resource room services.

        In November, 1993, a BOCES administrator informed the boy's resource room teacher that the boy was not passing the BOCES course, and that he needed to develop his study and test taking skills. The record does not reveal what, if any, actions were taken to assist the boy in developing those skills. In June, 1994, the BOCES administrator reiterated her suggestion that the boy be tutored to develop his study, test taking, and vocabulary skills. In any event, the child passed his BOCES course, and received four high school credits for it. The boy initially failed the Regents Competency Test in writing in January, 1994, but passed that test, and the Regents Competency Tests in reading and U.S. History in June, 1994. He also passed Regents level courses in eleventh grade English, and American History. The boy's report card indicated that he had earned seven and one-half high school credits during the 1993-94 school year. On the CTBS in May, 1994, petitioners' son achieved a grade equivalent score of 9.0 for total reading.

        In February, 1994, a second school psychologist reportedly reviewed the child's prior psychological evaluations, as well as the results of his achievement testing in May, 1993, and she determined that he did not require additional testing as part of his mandatory triennial evaluation (8 NYCRR 200.4 [e][4]). She reported that the boy's significant strengths were in long-term and short-term memory, and that his significant weaknesses were in arithmetic skills, and visual motor coordination. The school psychologist further reported that the boy's teacher had indicated to her that the child was not using special education services. At the hearing, the CSE chairperson testified that the school psychologist had informed the CSE that the boy was not receiving resource room services because of a conflicting schedule with his BOCES class. In her report, the school psychologist reported that the child appeared to be learning at an average rate, and she suggested that the CSE consider whether he should be declassified or provided with transitional support services. Transitional support services are defined by State regulation as:

" ... those temporary services, specified in a student's individualized education program, provided to a regular or special education teacher to aid in the provision of appropriate services to a student with a disability transferring to a regular program or to a program or service in a less restrictive environment." (8 NYCRR 200.1 [pp])

        On May 16, 1994, respondent's CSE conducted an annual review of the child's educational program. The child attended the review, but petitioners were not present. Although a new IEP was not prepared for the boy, the CSE reportedly recommended that he remain classified as learning disabled. It also recommended that he receive no special educational services, other than transitional support services. In a letter dated June 13, 1994, the boy's mother expressed her concern about the adequacy of her son's triennial evaluation, as well as respondent's alleged failure to make testing modifications for the boy. The CSE reconvened on July 25, 1994, at which time it agreed to pay for an independent psychological evaluation of the boy.

        On August 20, 1994, the boy was evaluated by Dr. Elizabeth Peterson-Vita, who reported that he had achieved a verbal IQ score of 91, a performance IQ score of 91, and a full scale IQ score of 90. His lowest subtest scores were in comprehension, object assembly, and digit symbol. Dr. Peterson-Vita reported that the boy displayed the capacity to understand abstract concepts, but had difficulty with tasks which required vocabulary knowledge and usage, or social judgment. She noted that he evidenced signs of an auditory processing deficit, and she opined that his performance would have been better if he had been allowed to respond to written, rather than oral questions, and no time limit had been imposed on his responses. In general, the boy performed tasks requiring nonverbal deductive reasoning better than tasks which required him to use inductive reasoning skills. His short-term memory was reported to be in the low average range. On the Wide Range Achievement Test-3, the boy achieved grade equivalent scores of 10.8 in reading, 9.5 in spelling, and 10.8 in arithmetic. Dr. Peterson-Vita noted that the child's affect was somewhat constricted, and that he was sensitive to the reaction of authority figures. However, she indicated that his emotional functioning appeared to be quite good. Dr. Peterson-Vita opined that the boy was appropriately classified as learning disabled, and she recommended that he continue to take the BOCES airplane mechanic courses which would allow him to use his visual strength and improve his attention to detail. She also indicated that he should be placed in mainstream academic courses, but noted that he might require some assistance such as tutoring. She recommended that his academic performance be assessed with teacher-made tests, with extended time limits.

        Dr. Peterson-Vita's report of her evaluation was reviewed by the CSE on August 30, 1994. The CSE prepared the boy's IEP for the 1994-95 school year, which indicated that he would remain classified as learning disabled, but would be mainstreamed for all instruction. The boy's IEP also indicated that he would receive transition support services "as needed." At the hearing in this proceeding, the person who chaired the August 20, 1994 CSE meeting testified that a resource room teacher in respondent's high school was to have provided transition support services, but she could not specify what those services would entail, or the amount of those services. The CSE prepared two annual goals for the boy. The first goal was that he would develop and demonstrate the critical skills necessary to obtain personal support and assistance. The second goal was that he would explore various post-secondary education opportunities and participate in appropriate activities for those opportunities. The boy's IEP provided that various testing modifications be used, including extended time limits, alternative locations, revised test formats and test directions, and a reduction in the number of test questions to be answered. The minutes of the CSE meeting indicated that the boy would not be expected to take the Regents final examinations in his Regents level courses, but would take teacher-made tests.

        Petitioners reportedly did not object to the IEP which was prepared by the CSE on August 30, 1994. They engaged private tutors to assist their son in reading, and with the second year of his two-year BOCES airplane mechanic course. Petitioners met with the CSE again on November 16, 1994 to discuss their request that respondent assume financial responsibility for the cost of their son's tutoring. The CSE deferred a recommendation at its meeting. On November 30, 1994, the child's mother requested that an impartial hearing be held. The CSE chairperson for the 1994-95 school year testified that respondent's superintendent of schools directed her to review the child's educational record to determine whether there was any educational basis for providing tutoring. The CSE chairperson noted that there had been a number of changes in the school personnel who had been assigned to assist the child through high school. In any event, the parties reached an agreement on December 19, 1994, pursuant to which respondent agreed to pay for a reading tutor to work with the boy for up to three hours per week for twenty weeks, and an aviation mechanics tutor to work with the boy for up to three hours per week for twenty weeks. In return, petitioners withdrew their request for an impartial hearing on the matter of tutoring. The boy participated in his reading tutorial until March, 1995, when he reportedly stopped attending it for various reasons, including the fact that he chose to participate on respondent's baseball team. He reportedly continued to receive tutoring, in aviation mechanics for the rest of the 1994-95 school year, although his mother testified that he irregularly attended those tutoring sessions.

        By letter dated March 9, 1995, the child's mother requested that an impartial hearing be held because her son's IEP allegedly had failed to address the boy's goal in becoming an independent learner, and it did not adequately describe his current level of functioning in the areas of his disability. When the hearing began on April 26, 1995, the parties agreed to adjourn the hearing in order to have certain evaluations performed, in contemplation of settling their dispute. The parties reappeared before the hearing officer on June 14, 1995, at which time they explained that the proposed evaluations had not been completed. Nevertheless, they requested and received an additional adjournment to afford them an opportunity to reach a settlement.

        In May, 1995, the boy was evaluated at petitioners' request by Dr. Miriam Lacher, a licensed psychologist. Dr. Lacher reviewed the results of the child's previous IQ tests, and she administered certain additional tests to him. She noted that the child was better able to copy block designs from a model, than he was able to assemble picture puzzles without models. On the Wide Range Achievement Test-3, the boy achieved percentile scores of 14 for single word reading decoding, 23 for spelling, and 42 for arithmetic. His corresponding percentile scores on that test in Dr. Peterson-Vita's evaluation in August, 1994 had been 39, 42, and 55. Dr. Lacher did not offer an explanation for the decrease in the child's scores during her evaluation. She noted that the boy read slowly, and that he substituted words which he knew for unknown words in the tests which he read. On the Gray Oral Reading Tests-3, the boy's reading comprehension skills were found to be at the thirty-seventh percentile. Dr. Lacher reported that the boy had difficulty composing even a short written essay. His receptive language skills were found to be at the thirty-second percentile, while his expressive language skills were at the twenty-first percentile. The boy manifested some difficulty maintaining his attention to complete certain tasks. He demonstrated a relatively high ability to immediately recall information in brief stories which had been read to him, but he confused the details of those stories. Dr. Lacher opined that the boy manifested deficits in his attending and organizational skills, and had below average fine motor coordination and graphomotor (handwriting) skills. In addition, she found that he had difficulty processing information. Dr. Lacher recommended that the boy be instructed in a structured, consistent and supportive environment, with additional assistance in reading, writing, study skills, organization, and problem solving skills.

        Petitioners' son received passing grades in each of his courses for the 1994-95 school year. He also obtained enough high school credit to graduate from high school in June, 1995. The CSE did not conduct its annual review of the child because of his eligibility to graduate from high school. At the hearing which was then pending, the parties agreed that the boy would participate in the graduation ceremony, but would not receive his diploma, in June, 1995.

        On July 24, 1995, the parties appeared again before the hearing officer. They agreed to further adjourn the proceeding to allow respondent to explore the possibility of creating an education program for the boy during the 1995-96 school year. Petitioners met with the CSE on July 31, 1995, to discuss the proposed education program. However, the CSE did not prepare an IEP for the boy. When the hearing resumed on August 25, 1995, the parties appeared to reach agreement on most, but not all, of the issues to be resolved. The hearing was briefly adjourned until August 30, 1995, at which time petitioners' attorney reportedly failed to attend the hearing.

        In September, 1995, petitioners enrolled their son in the Woodhall School, a private school for boys which is located in Bethlehem, Connecticut. Although the school is apparently approved by the Connecticut Department of Education, the record does not reveal whether it was approved by that entity to provide instruction who have disabilities. An administrator of the Woodhall School testified at the hearing that petitioners' son had received individualized instruction at the school in a post-graduate program, which he successfully completed in the 1995-96 school year. The boy is now reportedly enrolled in college.

        The hearing did not reconvene until November 1, 1995. At that time, respondent made a motion for the hearing officer to recuse himself from conducting the hearing on the ground that he was allegedly no longer impartial because of his involvement in the parties' settlement negotiations. The hearing officer denied respondent's motion. Respondent appealed to the Commissioner of Education pursuant to Section 310 of the Education Law for an order removing the hearing officer. On January 23, 1996, the Commissioner of Education sustained respondent's appeal, and removed the hearing officer from the hearing (Application of the Board of Education of the City School District of the City of Beacon, 35 Ed. Dept. Rep. 264). The Commissioner's determination is not reviewed in this proceeding (8 NYCRR 279.1 [c][2]).

        The hearing resumed before a new hearing officer on February 28, 1996. After an additional six days of hearing, it concluded on June 18, 1996. On August 11, 1996, the hearing officer rendered his decision. He noted that the boy's IEP for the 1994-95 school year left much to be desired because of an apparent contradiction between portions of the IEP with regard to the child's need for transition services (see 34 CFR 300.18; 8 NYCRR 200.1 [rr]), which are not to be confused with transitional support services. The hearing officer further noted a discrepancy with regard to the testing modifications in the IEP which allegedly could not be employed to test his achievement in the BOCES airplane mechanics course because of a Federal Aviation Agency rule (the exit credential for the course is certification by the FAA). However, the hearing officer declined to make a finding with regard to the appropriateness of the boy's IEP for the 1994-95 school year, on the ground that petitioners had knowingly waived any claim about their son's IEP when they withdrew their request for a hearing on December 19, 1994. He nevertheless considered petitioners' claim that respondent should pay for an additional year of the boy's instruction as compensatory education. The hearing officer noted that compensatory education may be awarded as a remedy to a student who has been deprived of a free appropriate public education while that student was entitled to receive such education. He found that respondent had provided an appropriate program of instruction to the child during the 1994-95 school year, and that the child had in fact met all of the requirements for high school graduation. The hearing officer rejected petitioners' claim for an award of compensatory education, or in the alternative for an award of tuition reimbursement at the private school in which they had unilaterally enrolled their son for the 1995-96 school year.

        Petitioners assert that their son's IEP for the 1994-95 school year was procedurally and substantively inappropriate. By implication, they also challenge the hearing officer's determination that they were precluded from challenging their son's IEP by agreeing to settle their dispute with respondent regarding the boy's tutoring during the 1994-95 school year. If the hearing officer's determination was correct, it would obviate my need to review the boy's IEP. Therefore, I shall consider whether the hearing officer's determination is supported by the record.

        A review of the documentary evidence regarding petitioners' November 10, 1994 request for a hearing, and their withdrawal of that request on December 19, 1994 (Exhibits 7, 8, and 9) leads me to conclude that the sole issue between the parties at that time was the matter of the boy's tutoring. I note that at the hearing, the child's mother testified that she had three reasons for requesting a hearing. The first reason was to obtain tutoring services, but she also wished to challenge the CSE's recommendation for the boy's transition services, and she had concerns about her son's curriculum for the 1994-95 school year. However, she further testified that she had not discussed either the boy's transition services, or his curriculum with the superintendent. Although an unambiguous settlement agreement may be enforceable, unless contrary to Federal law (D. R. by M. R. and B.R. v. East Brunswick Bd. of Educ.,___ F 3d___ [3d Cir., 1987], 25 IDELR 734). I am not persuaded by the record before me that the settlement agreement was intended to address any issue except petitioners' request for tutoring. Accordingly, I find that the hearing officer's decision is not supported by the record, and must be annulled.

        When this proceeding was commenced in March, 1995, petitioners challenged the appropriateness of their son's educational program for the 1994-95 school year. They sought the relief of one year of compensatory education for him. However, they now assert that since the hearing did not conclude until the end of the 1995-96 school year, they are entitled to seek reimbursement for their expenditures for the boy's tuition, maintenance, and related expenses at the Woodhall School during the 1995-96 school year. They rely upon two decisions of the U.S. Supreme Court which held that a board of education may be required to pay for educational services obtained for a child by the child's 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 (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]). In this instance, the CSE did not recommend an educational program for the 1995-96 school year because the boy was to graduate in June, 1995. If petitioners' son had in fact met all of the requirements for graduation in June, 1995, respondent did not have any legal obligation to provide post-graduate instruction to him during the 1995-96 school year pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq) (Wexler v. Westfall Bd. of Ed., 784 F. 2d 176 [3d Cir, 1986]; Gorski v. Lynchburg School Bd., 875 F. 2d 315, [4th Cir., 1989] unpublished opinion in EHLR 441:414]), or Article 89 of the New York State Education Law (Matter of Handicapped Child, 20 Ed. Dept. Rep. 368; Application of a Child with a Disability, Appeal No. 94-31). Absent that obligation, there would be no legal basis for an award of tuition reimbursement pursuant to the Burlington and Carter decision.

        State regulation requires that a student must have earned at least 18 1/2 units of credit and have passed certain Regents Competency Tests or Regents course examinations, in order to receive a high school diploma (8 NYCRR 100.5 [a]). The record reveals, and petitioners do not dispute, that the boy had earned the requisite units of credits, and had passed the required Regents Competency Tests, by June, 1995. At the hearing, the child's mother nevertheless insisted that respondent had failed to prepare her son to be an independent learner. Ms. Pearl Glassman, an educational consultant employed by petitioners, testified that she believed that petitioners' son had earned his units of high school credit because of his effort rather than his achievement. However, she had not spoken to the boy's high school teachers, nor did she reveal any factual basis for her opinion, which in my judgment was purely speculative. While petitioners may not agree with the standards which the State has set for receipt of a high school diploma, a proceeding of this nature is not the proper vehicle to challenge those standards (Application of a Child with a Disability, Appeal No. 94-31). In any event, I find that the child met the criteria for receipt of a high school diploma. The fact that he chose not to receive the diploma does not serve to impose a liability upon respondent which it would not otherwise have. Since this proceeding was instituted before the boy became eligible to graduate, respondent was obligated to offer a pendency placement (20 USC 1415 [e] [3]; Section 4404 [9] of the Education Law) which it in fact did offer. I find that petitioners' decision to reject the offered placement, and to unilaterally enroll the child in the Woodhall School did not confer upon them the right to seek tuition reimbursement under the Burlington and Carter decisions.

        Although the boy's eligibility to receive special educational services terminated under Federal and State law when he had earned a high school diploma, petitioners are nevertheless not precluded from seeking an award of compensatory education. The courts have concluded that compensatory education, i.e., special education services to be provided to a child after the child is no longer eligible because of age to receive such services, is a permissible remedy under the Individuals with Disabilities Education Act, when the child has been excluded from school, or denied appropriate educational 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 69 [2d Cir., 1990]; Lester H. v. Gilhool, 916 F. 2d 865 [3d Cir., 1990]; Miener v. State of Missouri, 800 F. 2d 749 [8th Cir., 1986]). Compensatory education is an equitable remedy for the failure of a school district to provide that which it was obligated to provide, but failed to provide (Miener v. State of Missouri, supra). Compensatory education may be awarded when a child has been denied a free appropriate public education (FAPE) which he or she is entitled to receive. The term FAPE has been defined as special education and related services which are provided without charge to the child's parents, and meet with standards of the state educational agency, and which are provided in conformity with the child's IEP (20 USC 1401 [a][18]).

        Petitioners contend that their son was denied a FAPE during the 1994-95 school year because of various procedural and substantive defects in his IEP for that school year. Initially, I note that petitioners had questioned their son's triennial evaluation by respondent's school psychologist. However, whatever the shortcomings of that evaluation, I find that they were redressed by the independent evaluation which was performed in the summer of 1994. Although petitioners were not present at the CSE's annual review of their son in May, 1994, they do not claim that they were not notified of that meeting. Furthermore, they attended two additional CSE meetings in July and August, 1994, at which the boy's IEP was discussed and prepared. They object to the IEP on the ground that it allegedly failed to adequately describe the boy's present levels of performance, as required by 34 CFR 300.346 (a)(1) and 8 NYCRR 200.4 (c)(2)(i). The boy's IEP listed his grade equivalent scores for reading comprehension and total reading, indicated that his mathematics skills were at the tenth grade level, and that his writing skills were at the eighth grade level. In addition to reporting his IQ test scores for 1991, the IEP also indicated that the boy's learning rate was in the average range. I find that the IEP should have included the results of the boy's 1994 independent evaluation, and that it should have provided some information about the nature of his auditory processing deficit to assist his regular education teachers in meeting his needs. However, I note that the CSE meeting minutes which were annexed to the boy's IEP indicated that he was a visual learner, and he needed questions and directions redefined and repeated. In any event I am not persuaded that this defect in the IEP is indicative of the denial of a FAPE to the child.

        Petitioners also challenge the IEP's description of the transition services which their son required. Transition services are defined by Federal regulation as:

"(a) ... a coordinated set of activities for a student, designed with an outcome-oriented process, that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.

(b) The coordinated set of activities described in paragraph (a) of this section must...

(1) Be based on the individual student's needs, taking into account the student's preferences and interests; and,

(2) Include needed activities in the areas of:

(i) Instruction;

(ii) Community experience;

(iii) The development of employment and other post-school adult living objectives; and

(iv) If appropriate, acquisition of daily living skills and functional vocational evaluation." (34 CFR 300.18 [a]+[b])

        The boy's IEP indicated that as a result of a previous transition planning meeting and assessment results, he should participate in a coordinated set of activities to develop plans for addressing career exploration, post-secondary education, vocational needs, employment, residential options, community experience, and daily living skills. It also indicated that because of the prior meeting and assessment results, the child did not need to engage in transitional planning activities. Respondent's witnesses could not explain the apparent discrepancy in the language of the IEP. However, I must note that by the end of the tenth grade, petitioners and school staff had arrived at some conclusions about the child's career goals, and his interest in taking the two-year BOCES aviation mechanics course. While the IEP could certainly have been clearer with regard to the transition services to be provided, I am not persuaded upon the facts of this case that this defect in the boy's IEP afford the basis for finding that he was denied a FAPE (Chuhran v. Wald Lake Consolidated School, ___F. 3d ___, [6th Cir., 1995] reported at 22 IDELR 450).

        I have also considered the boy's IEP annual goals and objectives. I must note that despite the erroneous reference to a minimum group size of five on the first page of the IEP, it is clear from both the IEP and the testimony of various witnesses that the CSE did not recommend that the child receive resource room services. Instead, it recommended that he be provided with transitional support services on an as needed basis. The annual goal which was to be implemented by the resource room teacher assigned to serve as a consultant teacher was for the child to develop and demonstrate the critical skills necessary to obtain personal support and assistance. I find that the goal and its objectives were consistent with at least one of the child's identified special education needs. I find that the consultant teacher's testimony about the nature and extent of his meetings with the boy and the boy's teachers were sufficient in my judgment to support a finding that respondent adequately implemented this annual goal. The second IEP annual goal provided that the boy would explore various post-secondary education opportunities, and participate in appropriate activities for eligibility. At the hearing, the consultant teacher testified that these activities were to be pursued through respondent's guidance department. The consultant teacher testified that he had conferred with the guidance department to ensure that this activity was being undertaken. The annual goal itself was certainly consistent with the transition services requirement of the IEP.

        The primary defect which I find in the boy's IEP is that it did not provide for him to receive specialized instruction to address his reading deficit. While the results of his various evaluations are entirely consistent, it would appear that he continued to have difficulty reading at an appropriate grade level. Nevertheless, respondent ultimately paid for additional tutoring for the boy during the 1994-95 school year, and that matter has been laid to rest by the parties' settlement agreement. Upon consideration of the entire record which is before me, I find that petitioners have not demonstrated that their son was denied a FAPE during the 1994-95 school year. Consequently, their request for one year of compensatory education, either at the Woodhall School or elsewhere, must be denied.




        IT IS ORDERED that the decision of the impartial hearing officer, to the extent that it found that petitioners' claim for compensatory education was barred by the settlement agreement, is hereby annulled.



Dated: Albany, New York __________________________
May 7, 1997 FRANK MUŅOZ