The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Wappingers Central School District
Michael K. Lambert, Esq., attorney for respondent
Petitioner appeals from an impartial hearing officer's decision which found that respondent had failed to provide certain instructional services to her son during the 1995-96 school year, but which denied petitioner's request for an order requiring respondent to provide compensatory education to the young man, who is now 23 years old. The hearing officer also dismissed petitioner's challenge to the composition of respondent's committee on special education (CSE) when it determined that the young man had met the requirements for graduation from high school, and he declined to review the appropriateness of the CSE's determination. The appeal must be sustained in part.
At the outset, I will address respondent's request that I excuse its delay in serving an answer to the petition in this appeal. The petition was served upon respondent on February 4, 1998. Respondent's answer was served by mail on February 23, 1998, which was nine days beyond the ten day period prescribed by 8 NYCRR 279.5. Respondent is represented by a single, in-house counsel, who asserts that various professional and personal commitments precluded him from preparing the answer within the requisite period of time. I note that the petition is 172 pages, not counting the 26 exhibits which have been submitted with it. The record has more than 2700 pages of transcript, and at least 1000 pages of exhibits. Given the size of the record and petition, I find that respondent has offered a reasonable explanation for the brief delay in serving its answer, and I will excuse its delay.
Petitioner's son has been the subject of seven prior appeals (Application of a Child with a Handicapping Condition, Appeal No. 92-18; Application of a Child with a Disability, Appeal No. 94-39; Application of a Child with a Disability, Appeal No. 96-38; Application of a Child with a Disability, Appeal No. 96-51; Application of a Child with a Disability, Appeal No. 96-76; Application of a Child with a Disability, Appeal No. 97-13). The student was initially classified as other health impaired (see 8 NYCRR 200.1 [mm]) in May, 1990, when he was in the ninth grade. His classification was based upon the fact that he had been diagnosed as having epilepsy, and that he reportedly had other health problems which interfered with his ability to attend school on a regular basis. In any event, he remained classified as other health impaired through the 1995-96 school year, and his classification during that school year is not in dispute in this proceeding.
In an individualized education program (IEP) dated June 1, 1990, the CSE recommended that the child receive "homebound" instruction, i.e., instruction at home for three hours per day and up to 20 hours of lab time (Exhibit L, attachment). The parties thereafter became embroiled in a dispute about the child's IEP during the 1990-91 and 1991-92 school years. As a result of that dispute, the child reportedly did not receive any instructional services from respondent during the 1992-93 and 1993-94 school years. In July, 1993, petitioner and her son commenced a civil rights action against respondent in the United States District Court for the Southern District of New York. While that action was pending in December, 1994, the parties reportedly agreed to make arrangements to have the boy's triennial evaluation performed, and to have the CSE prepare a new IEP for him. The CSE met with petitioner and her son on March 24, 1995. It recommended that the boy's triennial evaluation be performed and that the boy receive home teaching for "3 hours per subject per week" (Exhibit L). The CSE did not prepare a new IEP, as will be discussed below, and it referred to the June 1, 1990 IEP as the boy's "status quo" IEP (see Section 4404  of the Education Law).
On or about June 28, 1995, the parties entered into a stipulation to settle the Federal Court action, which was approved by the Court. The stipulation provided, in material part, that:
"The School District shall provide the special education and related services that the Committee on Special Education has recommended for [the child] in his Individualized Education Program for the 1995-96 school year. The School District shall until August of 1996 or graduation, whichever comes first, provide [the child] with tutors for a homebound instruction program by re-hiring, if available, all of the tutors who previously taught [the child] in his homebound instruction at Roy C. Ketcham High School for the 1991-92 school year. The courses for the '95-'96 school year shall include the following teachers, as recommended by [petitioner], to correspond with the following course studies for [the child]: [Teacher names omitted]
-Advanced Placement English
-Grade 12 Social Studies
-One semester of Participation in Government and one semester of Economics
-Math Course IV
-Advanced Biology (significant lab work to be completed at school location)
-Computer Graphic Art Course (as required Elective)
-Health Course (as required for graduation)" (Exhibit 19)
I must note that although the stipulation referred to the boy's IEP for the 1995-96 school year, it also provided that respondent would adopt the recommendations which its CSE had made on March 24, 1995, which were reportedly set forth in Exhibit A to the stipulation. However, Exhibit A consists of a notice of recommendation dated March 27, 1995 and a letter dated April 17, 1995 from the CSE chairperson to petitioner indicating that further development of an IEP would be made " ... upon consideration of input from [the boy's] teachers after he has begun his program, and after completion of the triennial evaluation." The record reveals that the triennial evaluation was not completed because of a dispute between the parties (see Application of a Child with a Disability, Appeal No. 96-38). Consequently, the boy's 1990-91 IEP remained in effect as his "status quo" IEP.
The parties also agreed that certain grades which the child had received would be expunged from his record, and that he would retake certain Regents examinations, including those in Latin III, English, Math Course III, and American History. Respondent had reportedly agreed in March, 1995 to provide tutors to petitioner's son to prepare him to retake the Regents examinations. However, it reportedly failed to provide tutorial assistance in a timely fashion to enable the child to be prepared to take the Math Course III Regents in August, 1995. Therefore, when the 1995-96 school year began in September, 1995, the child had not completed that course, and did not begin the Regents Math Course IV which was to be provided to him during the 1995-96 school year pursuant to the 1995 stipulation settling petitioner's Federal Court action.
The next administration of the Regents Math Course III took place in January, 1996. However, petitioner's son declined to take the examination at that time because of a dispute about the testing modifications which were to be used for the examination. The dispute was whether the child could have more than 24 hours in which to complete each Regents examination, as was the case when he took Regents examinations in August, 1995, or whether he must complete each examination within a 24-hour period, inclusive of resting periods. An impartial hearing officer agreed with respondent that the child's "pendency", i.e., June 1, 1990, IEP did not address the issue, and declined to order respondent to allow the child to have 24 hours, exclusive of resting periods, to complete Regents examinations. On February 28, 1997, I dismissed petitioner's appeal from that determination, upon the ground that respondent's interpretation of the June 28, 1995 stipulation providing that Regents examinations " ... must be administered, even if in several sessions, over a period of one day" was correct (Application of a Child with a Disability, Appeal No. 96-76).
On March 28, 1996, the CSE met with petitioner and her son to discuss the results of the boy's occupational therapy evaluation and to discuss transitional planning for him. The occupational therapy evaluation, which had been performed six months before, had resulted in a recommendation that the boy receive occupational therapy once per week. The CSE deferred making a recommendation, so petitioner instituted a due process proceeding. In Application of a Child with a Disability, Appeal No. 97-13, I agreed with petitioner that the CSE unreasonably delayed in recommending that the related service be provided, and ordered respondent to provide 30 sessions of occupational therapy to the student. At the March 28, 1996 CSE meeting, the acting chairperson asked the boy to discuss his goals upon graduating from high school, to facilitate the CSE's transitional planning for him. The boy disclosed that he wished to go to college. However, petitioner and her son objected to considering transitional planning because there was no representative of an agency likely to be responsible for providing or paying transition services, (cf. 8 NCYRR 200.4 [c]). The CSE agreed to invite a representative from the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (VESID) to attend a CSE meeting to discuss the boy's transitional plans.
The CSE reconvened on April 18, 1996. A representative of VESID attended the meeting. After describing the process for applying to VESID for services, the representative questioned the boy about his intention to go to college. He indicated that he had not yet applied to any college, and was waiting to see how well he did on certain upcoming examinations, including two advanced placement tests, before applying to any school. The boy further indicated that he was not seeking to enter college in September, 1996, but would perhaps enter college in January, 1997. The VESID representative described the financial assistance which VESID could provide for tuition, fees, books, and transportation to a student who met VESID's economic "guidelines." She further indicated that VESID did not provide medical services, and explained that there was no one agency responsible for IEPs and the like at the college level. The VESID representative explained that specific accommodations for a person's disability, such as testing modifications, or the use of adaptive technology, were arranged by the college which the student attended. Petitioner questioned why her son should provide medical and educational records to VESID, if that agency didn't pay for all of the services which her son might need in the future. The VESID representative asked petitioner's son about his vocational interests, but the boy demurred, suggesting that it would be more appropriately discussed with a counselor than at the CSE meeting. It was agreed that respondent would provide a copy of the boy's unofficial transcript and a copy of a letter from a State Education Department employee about the boy's testing modifications to petitioner during the week after the CSE meeting.
On June 25, 1996, the CSE met again with petitioner and her son to discuss the provision of occupational therapy to the boy and to continue its discussion of transitional planning. The CSE chairperson distributed an outline of the transitional planning topics which had been discussed at the April 18, 1996 CSE, and asked petitioner and her son to express their concerns. Petitioner and her son acknowledged that they had received copies of the boy's unofficial transcript and the testing modification letter which were to be used in filing an application for VESID services. They also acknowledged that they had received a list of colleges with programs for students with disabilities from the boy's guidance counselor. One of the boy's home tutors reported that his grades for the first three quarters of the school year were "straight 100's," and that she didn't foresee any problem in the boy finishing his coursework for graduation at the end of August. The CSE chairperson questioned the boy about his transportation needs and leisure activities, as well as what accommodations he might require in his college program. The boy indicated that he wished to have testing modifications, the use of a tape recorder, and an opportunity to make up work and receive remediation if he missed classes because of seizures. The CSE chairperson explained that the CSE could recommend that these accommodations be made for the boy, but it could not compel a college to do so, at which point petitioner questioned " ... why are we doing this?" (Transcript of June 25, 1996 CSE meeting, page 18). The boy acknowledged that he had not applied to VESID , nor had he applied to any college. Petitioner and her son insisted that it was the CSE's responsibility to provide them with information about what adaptations colleges were required to make under the Americans with Disabilities Act (ADA), and expressed their dissatisfaction with the VESID representative's presentation at the April 18, 1996 CSE meeting.
During the June 25, 1996 CSE meeting, petitioner asserted that her son had not yet begun to study Regents Math Course IV because instruction in the preceding course, Regents Math Course III, had been delayed by the home instructor's allegedly irregular attendance. She also asserted that her son's economics teacher had not been providing instruction to him on a regular basis. The CSE did not pursue the subject of allegedly missed instruction with petitioner. It did agree to meet with her on August 29, which was shortly before the boy was expected to graduate from high school. On August 29, the CSE met briefly with petitioner, but agreed to adjourn the meeting because petitioner's son was ill at home.
The CSE met again on September 6, 1996. The boy's guidance counselor reported that petitioner's son had completed English 12, social studies 12, health, and art, which he needed to complete in order to graduate, and that he had also completed advanced placement biology Regents Math Course IV and Latin III. He indicated that the boy's mathematics teacher had informed him that the boy's final grade for Regents Math Course IV was 90. Petitioner challenged the accuracy of the boy's grade, by asserting that the teacher had not provided enough instruction for her son to have earned a final grade of 90 for the course. She asserted that respondent's records would reveal that there were no time sheets for the teacher, progress reports, or copies of tests, which would indicate that such instruction had been provided. Respondent's superintendent of schools, who attended the meeting, indicated to petitioner that the CSE was not the proper forum to address her complaint about the teacher, and he noted that the Math IV course was not required for graduation. The CSE determined, by consensus, that petitioner's son had met the criteria for graduation from high school. Petitioner and her son stated that the latter would not accept his high school diploma because of respondent's failure to provide instruction for the Regents Math Course IV in accordance with the terms of the June, 1995 stipulation settling their Federal Court action. Petitioner also asserted that her son's health teacher had failed to provide the requisite amount of instruction, and that her son had not met requirements for graduation because he had not taken any physical education courses (cf. 8 NYCRR 100.5 [a]).
Petitioner contended that the CSE had failed to meet its obligation to do transitional planning for her son, and that he could not be graduated from high school without such planning. The CSE chairperson asserted that the CSE had attempted to work cooperatively with petitioner and her son at the March, April, and June CSE meetings, but they had not cooperated with the CSE. He handed 16 publications about the rights of the disabled in postsecondary school settings (Exhibit 17) to petitioner, and stated that he was thereby responding to the request for information which petitioner had made at the June 25, 1996 CSE meeting.
At petitioner's request, a hearing began on October 10, 1996, before Ms. Erne Levins. Petitioner contended that respondent had denied her son equal access to the curriculum, because of the allegedly inadequate instruction which the boy had received in Regents Math Courses III and IV, and in his health education course during the 1995-96 school year. Respondent argued that petitioner's claim of educational malpractice was beyond the scope of an impartial hearing, and that the issues which petitioner had raised before Ms. Levins were also raised in a hearing to be conducted by Mr. Eugene Kaufman on October 17, 1996. Ms. Levins indicated her willingness to have the two proceedings consolidated and heard by Mr. Kaufman. At the hearing on October 17, 1996, respondent asked Mr. Kaufman to consolidate the two proceedings. Over petitioner's objections that the proceedings involved separate issues and that consolidation would delay the outcome of each proceeding, the hearing officer granted respondent's motion to consolidate. Mr. Kaufman scheduled the consolidated hearing to begin on November 19, 1996, but offered petitioner the options of having it heard by Ms. Levins, himself or by another hearing officer or, in the alternative, she could appeal from his order consolidating the two hearings. Petitioner chose to appeal. By letter dated November 6, 1996, the Office of State Review informed petitioner that her appeal from Mr. Kaufman's procedural ruling was premature because the hearing officer had not rendered his final decision in the proceeding. When the parties appeared before Mr. Kaufman on November 19, 1996, they agreed to have the consolidated proceeding heard by James P. Walsh, Esq., who agreed to accept the assignment.
The hearing before Mr. Walsh began on December 11, 1996. In her opening statement, petitioner asserted a number of claims. She contended that the CSE had illegally graduated her son because it failed to do the requisite transitional planning, and her son had not received the agreed upon amount of instruction during the 1995-96 school year. She also contended that the CSE should have appointed a special education teacher to remediate or supervise the remediation of her son's educational deficits and to formulate his IEP annual goals and short-term objectives. She further asserted that the appropriate teachers had not been invited to attend the various CSE meetings, and that the special education teacher member of the CSE had not paid attention during a CSE meeting. She also challenged the validity of the CSE meeting which was held on September 6, 1996 because the special education teacher member had allegedly left before the meeting ended. Petitioner also claimed that she had been denied her right to fully participate in the CSE meetings and that her son had been denied access to information. She alleged that her son's transcript had been illegally altered, and argued that the hearing was untimely under Federal and State regulations. Respondent opposed petitioner's claim with respect to the instruction her son received on the ground that those claims were the subject of two other proceedings. The hearing officer reserved decision, and agreed to review four prior hearing transcripts.
On the next day of hearing, on January 7, 1997, Mr. Walsh indicated that some, but not all, of the issues which petitioner had raised were the subject of other hearings. He ruled that it was beyond his jurisdiction to determine the quality of the instruction which the boy had received, but he would consider the quantity of the instruction which the boy's teachers had provided. He declined to consider petitioner's claims with regard to the alleged falsification of her son's high school transcript or her son's alleged inability to graduate because he had not taken physical education courses. The hearing officer accepted jurisdiction over petitioner's claim that the CSE lacked one of its required members at the September 6, 1996 meeting, and that the CSE had failed to do transitional planning for the boy. He also agreed to consider petitioners' claim that the hearing was untimely.
The hearing continued for an additional 13 days, ending on August 15, 1997. The hearing officer rendered his decision on December 31, 1997. He identified nine issues to be resolved. The hearing officer determined that there were certain issues which were solely within the jurisdiction of the U.S. District Court, such as respondent's failure to create a new IEP for petitioners' son upon his return to school in March, 1995. However, he found that he had jurisdiction to determine whether respondent had implemented the IEP which was in effect during the 1995-96 school year pursuant to the stipulation. With regard to the amount of instruction which had been provided to the boy, the hearing officer found that respondent had provided slightly more than the required number of hours in economics, although the instruction had not been uniformly provided at the rate of three hours per week. He noted that the child had received a score of 100 on his final examination, and found that he had received all of the benefit which could have been anticipated from the instruction he received. The hearing officer further found that respondent had failed to provide the boy with three hours of instruction per week or its aggregate equivalent for the length of the course, in health education. However, in view of the boy's final grade of 100 in health education, the hearing officer concluded that respondent had provided him with sufficient instruction in health education. With respect to the boy's instruction in mathematics during the 1995-96 school year, the hearing officer noted that there were two courses of instruction. He found that the boy, who had previously taken the Regents Math Course III, was to receive remediation in that subject and to re-take the examination for the course. The first teacher hired by respondent to provide remediation reportedly worked for a total of 35 1/2 hours from July 1995 until the middle of October 1995. A replacement teacher, who instructed the boy for a total of 58 1/4 hours from November 1995 until August 1996, had indicated on her payroll reports that she was teaching the Regents Math Course IV to the boy. The hearing officer concluded that respondent had failed to provide the requisite number of hours of instruction in mathematics during the 1995-96 school year.
The hearing officer next addressed petitioner's contention that her son had been deprived of the opportunity to take and complete the Regents Math Course IV during the 1995-96 school year. He noted that the replacement teacher, who did not testify at the hearing, had indicated on her payroll reports that she began instruction in Math IV on November 14, 1995, while petitioner and her son testified that the teacher did not begin such instruction until after the boy had successfully taken the Regents Math Course III examination in June, 1996. The boy's high school transcript indicated that he had completed the Math Course IV and had achieved a final grade of 90, based upon information supplied by the replacement teacher. The hearing officer found that respondent had failed to demonstrate that it had provided the boy with sufficient instruction in the Regents Math Course IV to complete the course and take the Regents examination in that course. However, the hearing officer further found that by declining to take the Regents exam for Math Course III in August, 1995 and January, 1996, petitioner's son had created a situation in which he could receive no more than two months of instruction in the Regents Math Course IV. He rejected the boy's testimony that he felt unprepared to take the August and January exams, noting that the boy had previously taken the Math Course III for the entire 1991-92 school year. The hearing officer also noted that just prior to the administration of the Regents Math Course III examination in January, 1996, petitioner's son had informed respondent's staff that he would not take the test primarily because of a disagreement over the testing modifications to be employed for that test. As noted above, petitioner's position regarding those modifications was not sustained (Application of a Child with a Disability, Appeal No. 96-76). The hearing officer dismissed petitioner's claim with respect to the denial of an opportunity to complete the Regents Math Course IV.
The third issue which the hearing officer addressed was whether appropriate testing modifications had been used when the boy took his final examination in economics over a continuous twenty-four hour period. The hearing officer rejected petitioner's claim that respondent had improperly altered her son's testing modifications by not holding a CSE meeting to change the boy's IEP.
The hearing officer also rejected petitioner's contention that she and her son had been denied full and meaningful participation in the process by which the CSE made its recommendations for the boy. He found that there was no evidence that respondent had failed to provide appropriate notification of a CSE meeting, and that the record demonstrated that petitioner and her son had fully participated in each of the CSE meetings which had been held since March, 1995.
The fifth issue addressed by the hearing officer was whether adaptive physical education was provided to the boy during the 1995-96 school year. He noted that there was no dispute that the boy had not received any physical education during the 1995-96 school year, and that there was no proof in the record that the boy's IEP indicated that he would receive adaptive physical education. The record revealed that petitioner's son had a medical waiver from physical education for the 1988-90, 1990-91, and 1991-92 school years. The hearing officer further noted that petitioner had not raised the issue until the September 6, 1996 CSE meeting, in an attempt to forestall the CSE from determining that he had met the requirements for graduation. He therefore dismissed petitioner's claim that her son had been denied adaptive physical education during the 1995-96 school year.
The next issue to be determined was whether the CSE failed to meet its obligation to do transition planning and to include a statement of needed transition services on the boy's IEP, as required by 8 NYCRR 200.4 (c)(2)(v). The hearing officer found that the CSE had met with petitioner and her son to discuss the latter's transition to a post-secondary educational program, but that the CSE had not explicitly amended the boy's IEP from the 1990-91 school year, or created a new IEP, to have a written statement of needed transition services. However, he found that petitioner and her son were estopped from challenging the appropriateness of the IEP for the 1990-91 school year because they had agreed in the stipulation that the IEP would be used during the 1995-96 school year. He further found that neither that IEP nor the stipulation required that there be transitional services, and he dismissed petitioner's claim.
The hearing officer also found that petitioner and her son were estopped from challenging the appropriateness of the boy's IEP annual goals and short-term instructional objectives because of the 1995 stipulation.
The eighth issue which the hearing officer addressed was whether the hearings which were held in response to petitioner's August 21, 1996 request for a hearing (the hearing before Ms. Levins) and petitioner's September 17, 1996 (the hearing before Mr. Kaufman) were timely, in view of the Federal and State requirement that a final decision in a hearing be reached within 45 days after the hearing was requested (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c]). The 45-day time period can be extended by a hearing officer with the consent of either party (34 CFR 300.512 [c]). The hearing officer found that the parties had agreed to extend Ms. Levins' time with respect to the first hearing because Ms. Levins was at the time conducting another hearing involving this boy, and that the delay from October 17, 1996 (when Mr. Kaufman consolidated the two proceedings) until December 11, 1996 (which was the first day of the consolidated hearing before Mr. Walsh) was attributed to petitioner's appeal from Mr. Kaufman's interim order and her selection of Mr. Walsh to be the hearing officer in the consolidated hearing. He dismissed petitioner's complaint of untimeliness.
The last of the nine numbered issues which the hearing officer addressed was petitioner's contention that the CSE which met on September 6, 1996 was not properly constituted because the individual designated as the special education teacher member (see 34 CFR 300.344 [a]) left before the CSE meeting had concluded. The hearing officer reviewed the transcript which had been made of the CSE meeting (Exhibit 16), and found that the CSE had discussed and resolved the issue of the boy's graduation before the individual in question left the meeting. Therefore, he dismissed petitioner's complaint.
The hearing officer noted that petitioner had sought an award of compensatory education for her child. He held that he was not deprived of jurisdiction to award compensatory education simply because the boy had earned enough high school credits. The hearing officer further held that he could award compensatory education if respondent had failed to provide any portion of the student's special education services when it was obligated to do so. In determining whether to grant petitioner's request for compensatory education because of respondent's failure to provide three hours of instruction per week in mathematics during the 1995-96 school year, the hearing officer found that no harm had resulted to the student as a result of respondent's failure. Consequently, he declined to order an award of compensatory education.
Petitioner has raised a number of issues in her petition with regard to the hearing officer's decision. However, I will first address her contention that the hearing which was initiated by her hearing request on August 21, 1996 should not have been consolidated with the hearing which was initiated by her hearing request on September 17, 1996. I do not agree with petitioner. A hearing officer is not precluded by Federal or State law from consolidating the issues raised in separate hearing requests into a single due process proceeding (Application of a Child with a Disability, Appeal No. 95-51; Application of a Child with a Disability, Appeal No. 96-43; Application of a Child with a Disability, Appeal No. 97-4). I find that there is no merit to petitioner's contentions that both parties must agree to the consolidation, or that the board of education must formally vote in favor of consolidation. While a hearing officer's power to consolidate is not unlimited (see Application of a Child with a Disability, Appeal No. 97-83), I find that consolidation was appropriate in this instance. The first hearing had been delayed by agreement for reasons unrelated to respondent's subsequent request for consolidation until October 10, 1936, which was beyond the 45-day time limit. Respondent's attorney promptly raised the issue of consolidation at the first day of the hearing before Ms. Levins, and at the first day of the hearing before Mr. Kaufman. Mr. Kaufman afforded petitioner an opportunity to appeal from his decision granting respondent's motion to consolidate. When the hearing reconvened on November 19, 1996, petitioner was given the opportunity to select a new hearing officer, which she did. I find that her argument about the timeliness of the consolidated proceedings is without merit. While petitioner asserts that of the issues raised in her two hearing requests were different, I find that the adequacy of the educational program which had been provided to her son during the 1995-96 school year was raised in both proceedings. Indeed, the record demonstrated that it was the primary issue in the consolidated hearing before Mr. Walsh, and that many of the witnesses who were questioned about that issue were also questioned about the other issues raised by petitioner. To have held two hearings would clearly have been a duplication of effort.
Petitioner requests that I not consider the provisions of the redacted stipulation in her Federal Court action (Exhibit 19) in determining this appeal. She contends that she instituted this proceeding to vindicate her son's rights under the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973, and did not seek a determination that respondent's actions had violated the terms of the stipulation. Petitioner's argument ignores the fact that the stipulation established the terms and conditions under which her son's instruction was to be provided during the 1995-96 school year, consistent with the IDEA. The stipulation incorporated by reference the terms of the CSE's March 24, 1995 recommendations. Those recommendations, as more fully set out in Exhibit 19, provided that the boy's IEP dated June 1, 1990 was his "status quo" IEP. Therefore, the boy's June 1, 1990 IEP together with the stipulation, are crucial to evaluating petitioner's claims with respect to the adequacy of her son's instructional program. I note that while petitioner objected at the hearing to admitting only portions of the stipulation into evidence, she declined respondent's offer to enter the entire document into evidence (Transcript, pages 1975 and 1998).
Petitioner challenges the hearing officer's findings with respect to the composition of the CSE at its meeting on September 6, 1996, and its alleged failure to afford her and her son an opportunity to meaningfully participate in various CSE meetings. I have reviewed the transcript of the September 6, 1996 CSE meeting (Exhibit 16), and I concur with the hearing officer's finding that petitioner's challenge to the CSE's composition is without merit. The transcript reveals that the two issues of the boy's graduation from high school and transition planning for him had been extensively discussed, and that the CSE had determined that he was eligible for graduation, notwithstanding petitioner's claim that her son could not graduate until the CSE had done more transitional planning for him. Although petitioner and her son sought to prolong the discussion, the special education teacher member of the CSE made a motion to adjourn the meeting because the issues had been resolved. Thereafter, petitioner and her son launched into a personal attack against the teacher, and the teacher left the meeting. The CSE chairperson closed the meeting shortly thereafter.
A CSE must afford a student's parents a meaningful opportunity to participate in the development of the student's IEP (Application of a Child with a Disability, Appeal No. 96-31). That opportunity would also extend to an adult student such as petitioner's son. The official interpretation of the Federal regulations implementing the IDEA indicates:
"The parents of a child with a disability are expected to be equal" participants along with school personnel in developing, reviewing and revising the child's IEP. This is an active role in which the parents (1) participate in the discussion about the child's need for special education and related services, and (2) join with the other participants in deciding what services the agency will provide to the child" (34 CFR Part 300, Appendix C, Question 26).
In referring to that interpretation, the Office of Special Education Programs of the U.S. Education Department has nevertheless opined that:
" ... we recognize that the desired consensus among equal participants is not always possible. Where an open discussion does not lead to agreement on the contents of the IEP, the local educational agency has the ultimate responsibility for crafting the IEP" (EHLR 211: 436).
Having reviewed the transcripts of the March 28, 1996, April 18, 1996, June 25, 1996, and September 6, 1996 CSE meetings, I find that petitioner and her son were afforded an appropriate opportunity to make their views known to the CSE and to question its members about appropriate issues. The fact that the CSE did not accede to each of their wishes does not mean that they were denied a meaningful opportunity to participate (Application of a Child with a Disability, Appeal No. 93-41; Application of a Child with a Disability, Appeal No. 94-31).
Petitioner challenges the CSE's determination that her son had met the requirement for graduation from high school. Since that determination may affect petitioner's rights and those of her son with regard to the relief which they seek, I will address that issue. Although neither an impartial hearing officer nor I may pass upon the academic standards which the State of New York requires for graduation (Application of a Child with a Disability, Appeal No. 94-31), we can determine whether a student has met the stated requirements for graduation. In order to obtain a Regents High School Diploma, a student must earn 18 1/2 units of credit, some of which must be in prescribed sequences, and the student must pass certain Regents examinations (8 NYCRR 100.5 [b]). The Regents diploma requirements are in addition to those required to obtain a local high school diploma. One local diploma requirement is that a student earn two units of credit in physical education, which are not to be counted in determining if the student has earned the minimum number of credits required for graduation (8 NYCRR 100.5 [a]). Petitioner contends that her son was not eligible to graduate by the end of August, 1996 because he had not taken any physical education while in high school. Her son testified that he last took physical education while in the sixth grade during the 1986-87 school year. He reportedly did not take physical education during the next two school years because of medical excuses. The boy's guidance counselor testified that physical education had been waived for the boy during the ninth grade because of a physician's note. The child's IEP for the 1990-91 school year did not address the issue, nor did the party's June, 1995 stipulation. Indeed, the issue appears to have been raised for the first time by petitioner at the September 6, 1996 CSE meeting. I agree with petitioner that information about the boy's medical condition should have been updated. However, I find that given the boy's medical condition and his various seizures which he described in his testimony, it is highly unlikely that his physicians would have approved of his participation in either regular or adaptive physical education.
In order to graduate, petitioner's son was required to earn credit for one-half year courses in health and economics, which he did in August, 1996. However, petitioner contends that her son did not receive the agreed upon amount of instruction in either course. The hearing officer found that 46 hours of instruction in health was provided to the boy between June, 1995 and August, 1996. While the parties debated whether a school semester consisted of 18 or 20 weeks, it is clear that petitioner's son should have received a minimum of 54 hours of instruction in health. Petitioner also challenged her son's credit for the health course because he reportedly did not take a final examination in that course. The hearing officer found that there was no evidence in the record that a final examination was required. While I do not condone respondent's failure to provide the requisite number of hours of health instruction to petitioner's son, I find that it does not afford a basis for finding that the boy was illegally graduated, as petitioner contends.
The hearing officer found that the boy had received a total of 68 3/4 hours of instruction in economics, which exceeded the amount of instruction which respondent was required to provide the boy for a one-half year course. Petitioner does not dispute that her son received 68 3/4 hours of instruction, but she appears to argue that if an instructor took more than one-half year to complete a one-half year course, the instructor was required to provide additional hours of instruction. In any event, she also argues that the issue is whether respondent adhered to the agreement to provide three hours of instruction per week, rather than the total number of hours of instruction which respondent provided. I disagree (see Application of a Child with a Disability, Appeal No. 96-45; Application of a Child with a Disability, Appeal No. 96-75). However, I caution respondent to insure that in the future, special education services are provided to the extent reasonably possible in accordance with the terms of a child's IEP or other governing agreement.
Petitioner also raises one other issue with respect to her son's economics course. She contends that respondent failed to comply with the testing modifications which appeared on her son's IEP when the boy was required to complete his final examination in economics within a 24 consecutive hour period at the end of August, 1996. The boy's 1990-91 IEP (Exhibit L) provided that "flexible scheduling" of tests would be permitted. The June, 1995 stipulation (Exhibit 19) provided that he would receive " ... a total time extension of 24 hours to complete an examination, if needed" and separately provided that Regents examinations would be administered " ... even if in several sessions, over the period of one day." In Application of a Child with a Disability, Appeal No. 96-76, I found that the stipulation was controlling with regard to the testing modifications to be used during Regents examinations. The economics final examination which this boy took in August, 1996 was a local examination, and was therefore not subject to the stipulation's requirement that it be completed within a 24-hour period which was inclusive of rest periods. The decision to administer the examination over a 24-hour period was apparently made by the boy's teacher. However, there is no evidence that petitioner or her son raised the issue with anyone in the school district prior to the examination. There is no showing that the child's performance on the examination was affected by the change in the testing modification. Therefore, I find that petitioner's complaint does not afford a basis for concluding that her son should not have graduated.
Having completed all of his required courses, petitioner's son met the State criteria for graduation from high school. Although he apparently declined to accept his high school diploma, that fact does not in any way entitle him to receive educational services from respondent, which is not obligated to provide post-graduate instruction pursuant to the IDEA (Wexler v. Westfall Board of Education, 784 F. 2d 176 [3d Cir., 1986]); Gorski v. Lynchburg School Board, 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). However, the boy's receipt of a high school diploma does not affect his right to seek an award of compensatory education. The courts have concluded that compensatory education, i.e., special education services to be provided to a student after the student is no longer eligible because of his or her age, or receipt of a high school diploma, to receive such services, is a permissible remedy under the IDEA, when the student 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 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]).
In determining whether petitioner's son was denied a free appropriate public education (FAPE), I must note that the facts of this case are unusual in that the boy's operative IEP for the 1995-96 school year was his 1990-91 IEP, as a result of the parties' June, 1995 stipulation. The 1990-91 IEP is a brief document which did not include a statement of needed transition services, which is one of the issues in this proceeding. Furthermore, its two annual goals of "Work on Academics - Ninth Grade" and "Work on Organizational Skills" were too vague to be appropriate. However, the parties agreed to use that IEP. They were not precluded from agreeing to replace or modify that IEP. As noted above, Exhibit A to the stipulation indicated that the CSE chairperson contemplated amending the IEP after obtaining assessments from the boy's teachers and the results of the boy's triennial evaluation. Respondent's attempt to perform a triennial evaluation was the subject of another proceeding (Application of a Child with a Disability, Appeal No. 96-38). Before the decision in that appeal was rendered, the CSE did begin a series of meetings with petitioner and her son to plan for the boy's transition from high school.
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:
(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 comparable State definition appears at 8 NYCRR 200.1 [rr]).
As with any portion of an IEP, the development of a statement of needed transition services requires the cooperation of a parent, student, and the CSE. Unfortunately, the transcripts of the March 26, 1996, April 18, 1996, and June 25, 1996 CSE meetings reveal that there was little cooperation. For example, when the boy was asked about his vocational goals at the April 18 meeting, he declined to discuss his goals. The CSE was aware of the boy's desire to attend college. At the April 18, 1996 meeting, the VESID representative, the boy's guidance counselor, and other CSE members described the process the boy should follow to obtain information about college programs for students with disabilities, and the process of applying to VESID to receive services from that entity. While petitioner appears to dismiss the CSE's efforts as dealing only with the financial aspects of going to college, I find that the record simply does not support her position. Petitioner also asserts that the CSE should have tested her son to ascertain whether he could physically attend college, although she does not indicate what kind of testing would provide that information. Given the nature of the boy's disability, an up-to-date physical examination would have provided useful information. However, petitioner and her son indicated that they would not share that information with respondent's CSE (Exhibit 10, pages 50-51).
At the June 5, 1996 CSE meeting, the CSE chairperson distributed an outline of transitional planning topics which had been, or still needed to be, discussed (Exhibit 13). Additional information was obtained from the boy to assist the CSE in filling in what the CSE chairperson described as gaps in the planning process. The results of an occupational therapy evaluation which had been done in the fall of 1995 were also discussed at the CSE meeting. The information which the CSE had obtained could have been used to prepare a statement of needs for the boy's IEP. However, there is no evidence in the record of a new or amended IEP which reflected that information (cf. 8 NYCRR 200.4 [c][v]). In view of the boy's graduation from high school, I will not direct the CSE to prepare a new IEP for him. I will direct it to prepare a written statement of transitional needs, with the information which it currently has. Petitioner's son may, if he chooses, provide the CSE with up-to-date information about his medical condition. I encourage him to do so.
Petitioner contends that the hearing officer erred by not ordering respondent to provide compensatory education to her son because of its failure to provide him with adequate instruction in the Regents Math Course IV during the 1995-96 school year. The hearing officer found that respondent had failed to demonstrate that it had provided the boy with sufficient instruction to complete the course and take the Regents examination in August, 1996, notwithstanding respondent's contention that instruction in the Regents Math Course IV had begun well before the end of the 1995-96 school year. The hearing officer's finding with respect to the sufficiency of the boy's instruction has not been appealed, and it is therefore final. Petitioner challenges the hearing officer's determination that her son had placed himself in a position where he could not receive adequate instruction in the Regents Math Course IV because the boy had deferred taking the final examination for the Regents Math Course IV until June, 1996.
In essence, the question is whether the boy should have taken the Regents Math Course III examination in January, 1996. He had previously taken the course during the 1991-92 school year, but had not achieved a passing score on the Regents examination in June, 1992. When the parties agreed in their June, 1995 stipulation that the boy would take the Regents Math Course IV during the 1995-96 school year, they expected that the boy would receive sufficient remediation to successfully pass the final examination in the Regents Math Course III well before the end of the 1995-96 school year. That remediation began in June, 1995. The boy and his then math teacher concluded that the boy was not ready to take the Regents examination in August, 1995. The teacher instructed the boy in the Regents Math Course III until October, 1995. He then left his position, and a replacement teacher did not begin to provide instruction until November 14, 1995. The next administration of the Regents examination for this course occurred on or about January 26, 1996. The boy did not take the examination, primarily because of a dispute with the school district about the testing modifications to be used for the examination, notwithstanding the fact that the parties' stipulation had explicitly established the testing modifications during Regents examinations (Application of a Child with a Disability, Appeal No. 96-76). At the hearing in this proceeding, the boy testified that he had also declined to take the examination in January, 1996 because he felt he was unprepared for it. However, he also testified that in another proceeding his teacher had testified that he was well prepared for the examination. Upon the record before me, I find that there is no basis for annulling the hearing officer's finding.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the hearing officer with respect to a statement of needed transition service is hereby annulled; and
IT IS FURTHER ORDERED that respondent shall expeditiously prepare a statement of needed transition services, in accordance with the terms of this decision.
|Dated:||Albany, New York||__________________________|
|October 20, 1998||FRANK MUŅOZ|