The State Education Department
State Review Officer

No. 01-047

 

 

 

Application of the BOARD OF EDUCATION OF THE NISKAYUNA CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

Appearances:
Higgins, Roberts, Beyerl & Coan, P.C., attorney for petitioner, Michael E. Basile, Esq., of counsel

Young, Sommer, Ward, Ritzenberg, Wooley, Baker & Moore, LLC, attorney for respondents, Kenneth S. Ritzenberg, Esq., of counsel

 

DECISION

        The Board of Education of the Niskayuna Central School District (school district) appeals from an impartial hearing officer's decision which held that respondents' son was entitled to receive two years of compensatory education due to the school district's failure to provide the child with a free appropriate public education (FAPE) during the 1995-96 and 1996-97 school years. The appeal must be sustained in part.

        At the time of the impartial hearing, respondents' son was 20 years old. He was classified as multiply disabled, and his classification is not in dispute. The student is enrolled in a residential program for deaf/blind students at the Perkins School for the Blind (Perkins) in Massachusetts. Although the request for an impartial hearing was submitted in March 1999, the hearing did not conclude until May 2000. The hearing officerís decision was not rendered until June 2001. The student is now beyond age 21, and the school district has taken the position that he is no longer eligible for educational services. In response to the school district's position, respondents sought a preliminary injunction enjoining the school district from removing their son from Perkins. On July 3, 2001, the U.S. District Court for the Northern District of New York enjoined the school district from suspending, terminating or altering such educational services until the State Review Officer rendered a final determination in this appeal. The student continues to attend Perkins in accordance with the Courtís order.

        The student was born in September 1979. He contracted meningitis and had a stroke at the age of eight months (Transcript p. 23). As a result, he was diagnosed as having athetoid spastic cerebral palsy with a seizure disorder. Audiological evaluations conducted in fall 1991 as a part of the student's triennial evaluation revealed that he had a severe to profound bilateral sensorineural hearing loss. The student had previously been diagnosed with a mixed hearing loss, and has been intermittently fitted with hearing aids. The school district's psychologist opined that the student's intellectual potential had been masked because an effective communication system had not previously been identified (Exhibit P-22).

        The student entered the school district during the 1985-86 school year, and he was placed at the Center for the Disabled. He continued to be educated at the Center for the Disabled through the 1988-89 school year. Thereafter, respondentsí son was placed in a special education program operated by the Capital Region Board of Cooperative Educational Services (BOCES) during the 1989-90 school year, and he continued as a student at BOCES through the beginning of the 1993-94 school year. During the 1993-94 school year, the student was placed in petitionerís Iroquois Middle School (Iroquois), and he remained there during the 1994-95 school year.

        In January 1995, petitionerís Committee on Special Education (CSE) met to discuss the possibility of an evaluation of the student by the Technology Resources for Education Center (TRE). The TRE evaluation would determine whether the student might benefit from an augmentative communication device. In May 1995, a TRE evaluator reported that the student did not exhibit organized visual scanning when searching for symbols on his communication board and he did not communicate with his peers. The evaluator recommended a communication system that included a picture/symbol board and utilization of a laser light system (Exhibit P-55).

        The student's summer program was also discussed at the January CSE meeting. His parents were interested in the BOCES Deaf & Hard of Hearing (D & HOH) summer program, and reportedly did not want him to be placed in a functional skills class (Exhibit P-52). The deaf services consultant recommended a summer placement at the Center for the Disabled, because the D & HOH classroom was not air conditioned and there was an age limitation for enrollment in the D & HOH program. The student needed an air conditioned classroom because of his seizure disorder (Exhibit P-53). The student was denied admission to the D & HOH summer program (Transcript p. 1679).

        The CSE met on June 22, 1995 to prepare the studentís individualized education program (IEP) for the 1995-96 school year. The minutes of that meeting indicate that although the parents preferred a placement in the BOCES D & HOH program, the BOCES had declined to admit the student to the program, and the CSE discussed a possible placement in a BOCES Fundamental Specialized Instruction (FSI) program with some integration with the D & HOH program (Exhibit SD-26). However, the matter was not resolved at the meeting. On July 6, 1995, the parents filed a request for an impartial hearing, because their son did not have a placement for the 1995-96 school year, and the parents did not agree with the options being considered by the CSE (Exhibit P-72).

        The CSE met again on July 20, 1995 to discuss the student's program for the 1995-96 school year. The parents indicated that they wanted their child to attend a program that would allow him exposure to deaf and hearing impaired students. The student's needs included communication, mobility, functional life skills/academics and social skills (Exhibit P-9). According to the IEP resulting from that meeting (Exhibit P-10), the CSE recommended that the student be placed in a combination of the BOCES FSI and D & HOH program. I note that there appears to have been some misperception by the parents about the nature of the program recommended by the CSE, for which the latter must bear some responsibility. In any event, the studentís father withdrew respondentsí hearing request, while noting that he understood that he could reinstate the request for hearing upon a significant change to his child's placement (Exhibit P-73).

        Representatives from the CSE and BOCES met with the parents on September 5, 1995. The BOCES speech therapist indicated that she did not have experience with the type of picture/symbol board recommended for the student and she requested a demonstration with it. The FSI teacher reportedly commented that problems existed with the student's program (Exhibit P-74). The mother contacted the school psychologist on September 6, 1995, because of concerns about the attitudes of the speech therapist and teacher, the qualifications of the speech therapist and her need for training, the amount of access her son would have to a computer, and confusion over the purpose of the FSI class (Exhibits P-75 and P-76).

        The student's IEP for the 1995-96 school year was completed on September 11, 1995. According to the IEP, the studentís triennial evaluation should have been performed by June 20, 1995, because his previous educational and psychological evaluations had been conducted in June 1992 (Exhibit P-10). The school district contacted Russell Sage College about performing a psychoeducational evaluation (Exhibit P-27), but the evaluation was never conducted.

        As noted above, the CSE recommended a combination of the FSI and D & HOH programs at BOCES, in a class with a 15:1 child to adult ratio. The student's IEP included the following services: a full time sign language interpreter; consultation by a teacher of the deaf five times per week for 90 minutes; individual occupational therapy two times per week for 45 minutes and 30 minutes of occupational therapy consultation one time per week; individual physical therapy three times per week for 45 minutes; a physical therapy consultation one time per week for 30 minutes; a shared aide five times per week for three hours; a speech/language consultation one time per week for 30 minutes; and speech/language two times per week for 45 minutes (Exhibit P-10).

        The evidence shows that the student received academic instruction in the FSI class. The teacher reported working on the following skills with the student: identifying environmental signs, recalling personal information, understanding temporal and calendar concepts and developing an understanding of number concepts and coins (Transcript pp. 369-375). The student attended mainstream classes for homeroom, lunch, physical education and special classes. Three students from the D & HOH program attended the mainstream classes with the student, thus allowing him to socialize with both typical and hard of hearing peers (Transcript pp.160, 161). He attended one field trip with the FSI class and three field trips with his mainstream class over the course of the school year (Transcript pp. 431, 432). The student received the services of a 1:1 interpreter who was familiar with him and had worked with him for several years, and the student was also assigned a shared aide (Exhibit P-10).

        Correspondence during the fall of 1995 indicates that certain people, including the BOCES special education supervisor, petitionerís school psychologist, and the CSE chairperson, expressed concerns about the student's program. The concerns generally involved the student's interaction with mainstream peers and the establishment of a communication system (Exhibits P-46, P-23, and P-34). At a meeting with the CSE in December 1995, respondents expressed concern that their son did not have adequate interaction with deaf and hard of hearing peers. The D & HH teacher indicated, however, that the student could not appropriately be placed in the D & HH program because he was not functioning at the same academic level as the other students.

        In a letter dated February 26, 1996, the school districtís director of pupil services informed the district superintendent that the father did not want his child to be placed in a FSI class during the 1996-97 school year. The parents reportedly wanted their child to be placed with deaf peers (Exhibit P-38).

        The student's mid-year progress reports indicated some progress was being made during the 1995-96 school year. His speech therapist reported that the student's eye contact had improved, but that he would occasionally indicate refusal by dropping his head. The physical therapist reported that the student was developing driving skills with his electric wheelchair, but he experienced problems with making and maintaining contact with the control switch. The studentís occupational therapist reported that he had enjoyed success in art, sewing and cooking. The special education teacher reported that the student could count to ten, but could not consistently identify coins. He seemed to enjoy socializing with his classmates. Petitionerís deaf consultant reported that respondentsí son had experienced difficulty on the test she had administered to him, but he did demonstrate an understanding of a variety of concepts, and could identify some money, related items and objects by function. He could also identify pictures related to cooking, colors and functions (Exhibit P-50).

        In an April 4, 1996 letter to the CSE chairperson, the parentsí attorney requested a copy of the student's educational file. He informed the chairperson that the parents disagreed with the district's evaluation of their son and wished to have the boy independently evaluated at district expense. The parentsí attorney also asserted the parentsí belief that their sonís IEP for the 1995-96 school year had not been properly implemented, and requested a meeting with the CSE to address that issue as well as plan for the studentís future educational programming (Exhibit P-82). Petitionerís superintendent reportedly contacted the BOCES superintendent to inform her that the school district and the parents felt that the student's program should be expanded. He also expressed concern about a perceived lack of response to their previous requests for change (Exhibit P-57).

        The student's year-end progress reports indicated improvement. His teacher reported that the student had improved in his ability to attend, i.e., pay attention, and to formulate sentences. The student was also attempting to gain adult attention with increased frequency. The districtís consultant for services to the deaf reported that the student displayed improvement with eye contact, attending and identification of verbs and modifiers. She noted, however, that the student used his communication boards inconsistently. The speech therapist reported that the student was using vocalizations to gain people's attention, but he did not respond to color-coding of the picture/symbol board. The occupational therapist reported that the student could not identify all lower case letters of the alphabet, but he could identify the numbers 1 through 5 (Exhibit P-51).

        The CSE convened on June 26, 1996 to recommend a summer program for the student. It recommended placement at Questar, another local board of cooperative educational services Respondents testified that they had learned about the Questar program through their attorney (Transcript pp. 1343, 2002). The CSE recommended a Hard of Hearing (HOH) program with an individual aide, an individual interpreter, individual occupational therapy two times per week, individual physical therapy three times per week, individual speech therapy two times per week and group speech therapy one time per week. The evaluations relied upon by the CSE were more than three years old. The CSE noted that the IEP would be revised upon receipt of further evaluations (Exhibits P-12, SD-2).

        In July 1996, the student was evaluated at the Boston Center for Deaf and Hard of Hearing Children (BCDC) and the New York State School for the Deaf. The evaluators from BCDC observed that the student was able to demonstrate "repeated and reliable responses with objects, pictures, letters, numbers, colors and geometric designs." The evaluators recommended that the student's program include an augmentative communication specialist and a speech/language therapist who knows sign language, with the goal of interaction with fellow students. The evaluators also recommended that the student's communication boards be restructured, that expanded language be modeled by the staff, and that the student engage in functional literacy activities (Exhibit P-80).

        The evaluators from the New York State School for the Deaf recommended that the student use a power wheel chair, a computerized communication system, a variety of communication boards, and they felt that the family should coordinate its personal communication system with school activities. The evaluators opined that the student needed to be in an environment where people use sign language to communicate formally and informally. He also needed to be placed with deaf, multiply disabled peers in a program focusing on functional living skills and development of prevocational training. Finally, the evaluators recommended continued assistive technology evaluations and the pursuit of amplification or tactile devices to improve the student's environmental awareness and sense of well being (Exhibit P-39).

        The student's progress reports indicated that he was improving in holding his head up and focusing. He would also respond appropriately to stories being read in class (Exhibit SD-16). His speech/language therapist indicated that the student could comprehend familiar and functional vocabulary when he had supervision (Exhibit SD-17). The student's occupational therapist reported that the student could control his light pointer for three seconds. He did not progress using the computer because the computer was broken for much of the summer (Exhibit SD-19).

        On August 26, 1996, petitionerís CSE recommended that the student be enrolled in the Questar HOH program, with an individual aide, individual interpreter, individual speech therapy two times per week, group speech therapy one time per week, and individual occupational therapy two times per week during the 1996-97 school year. The CSE recommended that physical therapy be increased from three times per week to five times per week. There is no evidence that the CSE included a teacher member, as required by law (Exhibits P-13, P-14, SD-3 and SD-23).

        The student began the 1996-97 school year in Questarís HOH program in the Rensselaer High School. Respondents reported their child did not receive an individual aide, individual interpreter or physical therapy, and he did not participate in mainstream activities (Transcript pp. 1351, 1355). After six weeks, the student was placed in Questarís deaf and multiply handicapped program at Maple Hill High School. The CSE recommended a full time individual aide, a full time individual interpreter, individual speech therapy two times per week, group speech therapy one time per week, individual occupational therapy two times per week, individual physical therapy three times per week at school, individual physical therapy two times per week at home, and adaptive physical education three times per week. Meeting on November 7, 1996, after the boyís transfer to deaf and multiply handicapped program, the CSE recommended that the student be mainstreamed for lunch, homeroom, special classes and an academic course to be named in the future (Exhibit P-15).

        In February 1997, the student's teacher reported that the student's cognitive abilities were scattered, and that abstract concepts were difficult for him to understand (Exhibit P-65). In March 1997, a technology consultant reviewed the student's assistive devices, and made several recommendations to improve the student's ability to communicate (Exhibit P-64). In June 1997, the student's interpreter reported that the student was beginning to learn to use the IntelliKeys communication system at the beginner level (Exhibit P-67). The student's teacher reported that the student had made some progress identifying class vocabulary words, and the speech therapist reported that the student had made "steady progress" in his ability to engage in classroom conversation. The adaptive physical education teacher noted gradual to satisfactory progress in physical fitness skills, perceptual motor skills and personal living skills (Exhibits P-21 and P-22).

        At a meeting held on June 17, 1997, the CSE recommended transitioning the student to a residential placement at Perkins (Exhibits P-17 and SD-37). In September 1997, the CSE convened and recommended that the student remain at Perkins through the 1997-98 school year (Exhibit P-18).

        In a letter dated January 22, 1999, the parents' attorney requested a meeting with the school district to discuss the possibility of obtaining an award of compensatory education to the student because of petitionerís alleged failure to provide appropriate educational programs for the student during the 1995-96 and 1996-97 school years (Exhibit P-83). Following an exchange of letters between the partiesí attorneys, the parents through their attorney requested a hearing on March 18, 1999, to obtain two years of compensatory education for the two school years. The parentsí attorney also asserted a claim of discrimination in violation of Section 504 of the Rehabilitation Act, and that the district had failed to produce the student's educational record in violation of IDEA and Article 89 of the New York State Education Law (Exhibit P-88).

        The impartial hearing was initiated in December 1999, and continued over the course of eleven days. The hearing concluded on May 8, 2000. In her decision that was rendered on June 4, 2001, the hearing officer noted that the central issue in this proceeding was whether respondentsí son had been denied a FAPE by the Board of Education during the 1995-96 and 1996-97 school years. She found that the educational program that was provided to the student during the 1995-96 school year was inappropriate because the student did not interact with deaf and hard of hearing peers to the degree that either the parents or the school district had expected. She noted that there was no consensus about the nature of the studentís program when his IEP was prepared by the CSE, and she credited the testimony by the studentís interpreter that the teacher of the FSI class had relied upon the interpreter to instruct the student more than the interpreter felt was appropriate. In essence, the hearing officer found that the studentís needs were unique among his FSI classmates, who were not deaf, and that respondentsí son had been overly isolated in the FSI class during the 1995-96 school year.

        The hearing officer also found that the student's educational program for the 1996-97 school year was inappropriate for him. Specifically, she noted that the student's individual interpreter was not hired until two months after the beginning of the school year, and that the interpreter had used a different form of sign language than had been previously used with the student. The hearing officer further noted that the interpreter became the teacher for the entire class for 32 days, when the assigned teacher had to take an emergency medical leave in January 1997. The hearing officer found that it had been disruptive for the student to experience several different classroom teachers in one year. She also found that the interpreter had inappropriately attempted to use facilitated communication with the student, and the student was denied the use of his laser pointer to communicate during the school year. The hearing officer concluded that the changes in head classroom teachers and the instability of communication techniques constituted a denial of a FAPE to the student during the 1996-97 school year. Because she found that the student had been denied FAPE during both the 1995-96 and 1996-97 school years, the hearing officer ordered the school district to pay for two years of compensatory education for the student at Perkins.

        The school district appeals from the hearing officerís decision. Petitioner asserts that the CSE did not commit any gross procedural errors in developing the studentís IEPs for the 1995-96 and 1996-97 school years, and that the student was not denied educational services for a significant period of time during those two school years. Petitioner further asserts that the student showed no signs of regression during the school years in question, and it argues that the equitable doctrine of laches bars the parentsí request for compensatory education.

        The Individuals with Disabilities Education Act (IDEA) requires school districts to provide a FAPE to all students classified with a disability until the student reaches age 21 (20 U.S.C. ß 1412[a][1][A]; 8 NYCRR 200.1[mm]). Although students are generally not entitled to a public education beyond age 21, compensatory education can be awarded to a student beyond age 21, if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial 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]). Not all procedural violations constitute a denial of FAPE (Roland M. v. Concord School Comm., 910 F. 2d 983 [1st Cir. 1990]). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D. N.Y. 1997]).

        The record shows that the student's educational program for the 1995-96 school district was created after extensive discussion with the parents over the course of two days in June and July. The student's special education teacher was present for the June meeting, but not the July meeting. At that time, federal regulation required that "the childís teacher" be a member of the CSE (former 34 CFR ß 300.344 [a][2]), and the regulation indicated that the childís special education could be the teacher member. I note that no teacher member of the CSE was indicated on the minutes for either the June or July CSE meeting (Exhibits P-8 and 9).

        In addition, both federal and state regulations provided that a child with a disability be evaluated at least once every three years (former 34 CFR ß 300.534 [b]; former 8 NYCRR 200.4 [e][4]). Respondentsí son had last been evaluated in June 1992, and a change of placement was contemplated by the parents and the CSE for the 1995-96 school year. I find that the studentís triennial evaluation should have been conducted before the CSE recommended the studentís educational program for the 1995-96 school year.

        In addition, respondents were dissatisfied with the manner in which the program for the 1995-96 school year was implemented. As noted above, others including petitionerís school psychologist, the CSE chairperson, and the BOCES special education supervisor, also had concerns about the appropriateness of the studentís educational program at the BOCES early in the 1995-96 school year. The student had been placed at the BOCES in order to afford him the opportunity to interact with deaf peers, since that opportunity could not be provided in petitionerís Iroquois Middle School. However, the record reveals that the student had only limited opportunities to interact with deaf peers at the BOCES. Most of his time was spent in the FSI program, in which he was the only deaf student. His FSI teacher did not use sign language, and reportedly relied upon the studentís interpreter to instruct him (Transcript pp. 1616-1618).

        Although the BOCES had a program for the deaf and hard of hearing (D & HOH), and the studentís IEP expressly indicated that he was to be enrolled in the "BOCES FSI/D & HOH" program (Exhibit P-10), respondentsí son reportedly spent little, if any, time in the D & HOH program (Transcript p. 1625). He was apparently not involved in the D & HOH program because of BOCES staff concerns that he would not be appropriately grouped for instructional purposes (see 8 NYCRR 200.6 [a][3]). The record does not afford a basis for me to determine whether the student would have been suitably grouped for instruction with other students in the D & HOH program.

        While petitionerís employees are to be commended for attempting to make changes in the implementation of the studentís educational program for the 1995-96 school year, the program as implemented was not consistent with the studentís IEP because it did not involve the BOCES D & HOH program to any significant degree. Petitioner may of course engage a service provider such as the BOCES to implement the provisions of a studentís IEP. However, the board of education continues to be responsible for ensuring that each of its students with a disability is provided with a FAPE (Application of a Handicapped Child, 20 Ed Dep Rept 318).

        A FAPE begins with an IEP that is prepared in accordance with the applicable federal and state procedural requirements, and that addresses the studentís special education needs. Although an IEP is not a contract between the parents and the school district, it cannot be ignored and the services that it includes cannot be withheld from a student. If it becomes impracticable to provide services, it is incumbent upon the CSE to revise the studentís IEP. Upon the record before me, I find that the studentís IEP was not prepared in accordance with federal and state requirements, and was not implemented as written. Respondentsí son was excluded from the educational program set forth in his IEP for the 1995-96 school year. Therefore, I concur with the hearing officerís decision with regard to a denial of a FAPE during the 1995-96 school year.

        As noted above, the CSE that prepared the studentís IEP for the 1996-97 school year was invalidly composed because it did not include the childís teacher. Petitioner concedes that all of the required personnel may not have attended the August 26, 1996 CSE meeting, but it asserts that all required individuals attended a subsequent CSE meeting on November 7, 1996 that resulted in an updated IEP for the 1996-97 school year (Exhibit P-15). Similarly, I note that the August 26, 1996 IEP does not refer to any evaluation performed within the preceding 36 months, but that the November 7, 1996 IEP incorporates some of the information provided by the BCDC in its 1996 evaluation, suggesting that the latter IEP was based upon reasonably current evaluative data. The August 26 IEP included one page of annual goals from the studentís IEP for that summer, which were replaced with another page of three very broadly worded annual goals in the November 7 IEP.

        The student began the 1996-97 school year in the Questar HOH program at the Rensselaer High School, but was transferred to the Questar deaf and multiply handicapped program in the Maple Hill High School. The student's individual aide and interpreter were each missing for about three weeks in fall 1996. He reportedly did not receive related services and he was not mainstreamed during that three-week period. In January 1997, the studentís interpreter assumed the duties of the classroom teacher, who went on an emergency medical leave. The student's interpreter had to teach the class for 32 days until a new teacher was hired. Consequently, she was unavailable to be the studentís interpreter, and the student could not be mainstreamed during this period of time. However, there is no evidence that the student was deprived of instruction during this time period.

        Although respondents assert that the student did not receive adaptive physical education, I must note that there is a June 1997 progress note concerning his adaptive physical education in the record. They also assert that their child was not allowed to use his laser pointer, thereby hindering his ability to communicate effectively. The use of the laser device was denied by Questar staff because of concern that it might injure the eyes of other students. The hearing officer noted that the record did not provide an adequate basis to resolve the safety issue. The studentís IEP for the 1996-97 school year did not include a description of any necessary assistive technology devices, although his use of a light pointer was mentioned in the IEP description of his management needs (Exhibit P-15). The hearing officer noted that the laser device was replaced with a light pointer, which she opined to be not as effective as a laser pointer. While it may have been preferable to continue to use the laser device, I find that this matter does not rise to the level of a denial of a FAPE. I note that respondents acknowledge that their son does not have access to a laser light pointer at Perkins (Transcript p. 1514).

        The hearing officer also considered the fact that the studentís interpreter at Questar had attempted to use "facilitative" communication with him. As best I can determine from the record, the parties and the hearing officer are referring to what is generally known as facilitated communication, which involves someone holding a studentís arm or hand to assist the student in communicating (Application of a Child with a Disability, Appeal No. 93-46). The hearing officer noted that this technique was not included on the studentís IEP, and suggested that the interpreter had flouted the parentsí wishes by using the technique. I agree with petitioner that there is no requirement that the use of a particular technique be set forth on an IEP, and the interpreterís use of the technique did not violate the studentís IEP. Although a Questar teacher testified that the interpreterís confidence in facilitated communication was misplaced, I cannot find that her use of the technique deprived the student of a FAPE.

        The record reflects that difficulties arose with use of the computer. The student's teacher testified that he was able to play games and utilize the computer for mathematics, but she could not operate the communication boards (Transcript p. 1114). The Questar consultant testified that Microsoft Works could not be opened on the student's computer, making it difficult to create communication boards for the student (Transcript p. 1845). Despite the difficulties with the computer, the student's teacher was able to address the student's needs regarding communication, mobility, life skills/academics and social skills. I find that the difficulties with the computer do not rise to a denial of FAPE.

        Respondentsí son did not receive the services of an individual interpreter for 32 school days during the 1996-97 school year. Questar was unable to provide individual interpreter services because the classroom teacher experienced a medical emergency and the student's interpreter taught the class. Because the interpreter was teaching the class, the student was denied the opportunity for mainstreaming during that 32-day period. While it is unfortunate that the student was deprived of mainstream opportunities for 32 school days, he continued to receive instruction in his classroom. I find that it does not rise to the level of a denial of FAPE.

        I have considered respondentsí assertion that their son did not receive physical therapy five times a week during the 1996-97 school year. However, I must note that the father testified that his son had received physical therapy five times a week (Transcript p. 1363). Respondents also assert that their son did not receive adaptive physical therapy. They base this assertion on speculation (Transcript p. 1363). They do not present any evidence that their son was denied adaptive physical therapy. The student received all recommended related services and was not denied educational services for an extended period of time. I have considered respondents' remaining assertions, and I do not find that they afford a basis for concluding that their son was denied a FAPE during the 1996-97 school year. Therefore, I cannot agree with the hearing officerís determinations with respect to the adequacy of the services the student received during the 1996-97 school year and his eligibility for an award of compensatory education for that school year.

 

        THE APPEAL IS SUSTAINED IN PART.

        IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that she found that respondentsí son was denied a FAPE during the 1996-97 school year, and that he was entitled to receive a second year of compensatory education.

 

 

 

 

Dated:

Albany, New York

__________________________

February 6, 2002

FRANK MUÑOZ