The State Education Department
State Review Officer
Application of the BOARD OF EDUCATION OF THE MILLBROOK 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
Shaw & Perelson, LLP, attorney for petitioner, Garrett L. Silveira, Esq., of counsel
Genoveffa Flagello, Esq., attorney for respondents
Petitioner, the Board of Education of the Millbrook Central School District (district), appeals from an impartial hearing officer's decision awarding one year of compensatory education to respondents' daughter. The hearing officer found that the district had not provided an appropriate speech program or a transition plan for the student. Petitioner maintains that respondents' claim for compensatory education was barred by laches, and that it had provided a free appropriate public education (FAPE) to the student. The appeal must be sustained.
At the time of the hearing, the student was 22 years old and was nonverbal. She entered the district in 1991, having been previously identified as a student with autism while attending the Children's Annex (Exhibit D-7). The staff at the Children's Annex initially exposed the student to a variety of communicative methodologies, but ultimately focused on facilitated communication (Transcript p. 343). In 1993, respondents removed their child from the Children's Annex, and placed her in a day program at the Devereux Foundation (Devereux) (Exhibit D-23; Transcript pp. 350, 351). In 1994, the student was removed from Devereux and placed at Rehabilitation Programs, Inc. (Rehabilitation).
The student's speech teacher at Rehabilitation from 1994 through February 1997 used a total communication approach to teaching. She taught the student to communicate using pictures and sign language (Transcript p. 47). During the 1996-97 school year, the teacher introduced the Picture Exchange Communication System (PECS) (Exhibit D-10; Transcript p. 356). PECS is system of teaching nonverbal people to spontaneously initiate communication by exchanging picture symbols (Exhibit P-11). There are six phases of PECS. In the initial phase, a student is expected to pick up a card with a picture symbol and hand it to the teacher, without prompting, in order to initiate communication. The speech teacher at Rehabilitation testified that she used a modified form of PECS with respondents' daughter, because the student required verbal prompts to use the picture symbols. The student displayed a limited understanding of the system, and the teacher was never able to discontinue using prompts (Transcript p. 51). The teacher testified that the student was unable to move beyond the modified version of phase one of PECS (Transcript p. 53). In a February 1997 report, the speech/language teacher recommended that the focus of the student's speech therapy should continue to be total communication with an emphasis on PECS (Exhibit D-12).
The student remained at Rehabilitation for the 1997-98 school year. Her speech/language therapist for the 1997-98 school year reported that during group therapy, the student was expected to communicate by using sign language and by pressing pictures to activate a voice communication device. During individual therapy, PECS was emphasized. The therapist described the student's performance in both group and individual therapy as erratic. The student's motivation reportedly varied from day to day, and she continued to require prompting to use PECS (Exhibit D-11).
During the 1998-99 school year, the student was placed in a special education class of the Duchess County Board of Cooperative Educational Services (BOCES). Her individualized education program (IEP) provided for 30 minutes of individual speech/language therapy five times per week and an individual aide. The student's annual goal for speech/language indicated that she would improve her ability to use alternative means of communication. Her short-term objectives indicated that the student would use a communication or language board, language systems, and sign language, all with 60 percent accuracy (Exhibit D-20). Notebook entries showed that the student was experiencing some success with PECS (Exhibits D-10, P-19). In April 1999, the speech/language therapist reported that the student had exhibited improvement in her willingness to select a picture from a group. The student continued, however, to select items that she did not desire. Upon receiving the item, she would push it away (Exhibit P-18).
The student remained at BOCES for the 1999-2000 school year. The CSE recommended that she receive 30 minutes of speech/language therapy in a group once per week and 30 minutes of individual speech/language therapy four times per week, and that she have the services of an individual aide (Exhibit D-19). The student's speech/language progress report for the final quarter of the 1998-99 school year indicated that she continued to work on the first level of PECS. The speech therapist reported that the student had demonstrated the ability to consistently use the picture symbols in structured settings (Exhibit P-17).
During the 1999-2000 school year, the student's mother was reportedly informed that her child's teachers were not using PECS (Transcript pp. 376, 384), and that her child had not been making progress in the same manner as she had the previous year (Transcript pp. 376, 377). The mother expressed concern to the CSE about the implementation of her daughter's IEP (Exhibit D-5). On March 17, 2000, an augmentative communication evaluation was conducted. The student displayed a basic understanding of the first level of PECS, but reportedly still needed to have an open hand cue in order to respond. The evaluator noted that it would be difficult to predict how much progress into the succeeding levels of PECS the student might make, but she opined that PECS was an excellent foundation for communication and should be used with modifications, if necessary. She stated that integration of a basic voice output system should be tried to increase motivation for communication, and that the school district should obtain a "Communication Builder" device to further that goal. Finally, the evaluator recommended use of a computer with a touch screen for academic goals and general language stimulation (Exhibit D-8).
On April 26, 2000, the CSE recommended that the student continue in a BOCES 8:1+1 special education class for the 2000-01 school year, with 30 minutes of individual speech/language therapy four times each week, and 30 minutes of group speech/language therapy once each week. In addition, the CSE recommended that an individual aide be assigned to the student. The student's IEP communication goals and objectives indicated that she would improve her ability to use an alternative means of communication (Exhibit D-16). In a letter to petitioner's director of pupil personnel services dated June 2, 2000, the student's father expressed concern about the imminent departure of the student's speech therapist, and the alleged failure to implement his daughter's IEP communication goals. He requested that his daughter be given appropriate lessons in speech/language therapy (Exhibit P-29). The record is unclear whether the district responded to the father's request. On August 30, 2000, the CSE amended the student's IEP to provide her 30 minutes of individual physical therapy four times per year and six sessions with a physical therapy monitor (Exhibit P-38).
On September 19, 2000, the student's mother requested an IEP review meeting because no speech/language therapist had been assigned to her child. The mother also wanted to discuss the appropriateness of the student's IEP goals and objectives (Exhibit P-28). During the first week of October, the student's mother and the student's case manager met with the augmentative communication evaluator to discuss her March 2000 evaluation. The evaluator noted that the district had followed through on some of her recommendations, and indicated that a "Boardmaker" had been obtained to make picture symbols that had been introduced to the student. She amended her prior recommendations to provide that the vocabulary to be used with PECS be jointly selected by the student's family and school team. She noted that the student's mother wanted to defer the use of a voice output communication system that the evaluator had recommended, and to concentrate on using PECS in its original format as much as possible. The evaluator suggested various ways in which school staff could be trained in the use of PECS. She also offered suggestions for improving communication between the student's parents and school staff (Exhibit D-9).
A student progress report, dated November 11, 2000, indicated that the student was using a modified PECS program throughout her day. The therapist reported that the student was able to use PECS during structured settings with minimal prompting, but required more prompting to use PECS in functional settings (Exhibit D-18). By letter dated January 21, 2001, respondents requested compensatory education for their daughter, asserting that she had not been provided appropriate communication education during the past several years (Exhibit P-30). Their request was denied by the CSE on June 6, 2001 (Exhibit D-1).
In a progress report dated January 26, 2001, the therapist reported that the student was having some success using picture symbols to make requests, although she had not used them independently. A third quarter progress report dated April 3, 2001 indicated that the student continued to use the modified PECS program to facilitate appropriate requesting during structured settings. In other situations, the student would reportedly use PECS only when denied something she desired until she presented the corresponding picture symbol. The final progress report for the year was issued on June 18, 2001. The therapist reported that the student continued to use PECS during structured settings, but she used PECS to make spontaneous requests only five times during the quarter (Exhibit D-18).
In a letter dated June 7, 2001, petitioner's director of pupil personnel services informed respondents that their child had been recommended to receive a high school IEP diploma (Exhibit D-4). In a letter dated June 8, 2001, respondents challenged the CSE's refusal to recommend compensatory education for their daughter by requesting an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA) and § 4404 of the New York State Education Law. Respondents asserted that the district did not properly implement the student's speech services and did not develop an appropriate transition plan (Exhibit D-1). The impartial hearing took place over the course of four days in the fall of 2001.
In her decision dated February 25, 2002, the hearing officer rejected the Board of Education's assertion that the student's parents were barred by the equitable doctrine of laches from challenging the adequacy of her educational programs for prior school years. She found that the district had not provided an appropriate speech program to the student because the CSE had failed to specify the consistent use of a single methodology to improve the student's communication skills. She also questioned the appropriateness of the student's IEP annual goal and short-term objectives for speech during the 2000-01 school year. The hearing officer also found that the CSE had failed to develop an adequate transition plan for the student in accordance with the requirements of 8 NYCRR 200.4(d)(2)(ix) prior to her graduation. However, she noted that a new transition plan had been developed in September 2001. The hearing officer awarded the student one year of compensatory education at a location to be agreed upon by the parties.
Compensatory education, the continuation of instruction for a student after he or she is no longer eligible for instruction because of age or graduation (Application of a Child with a Disability, Appeal No. 01-094), may be awarded if there has been a gross violation of the IDEA (Garo v. State of Connecticut, 23 F.3d 734 [2d Cir. 1994] resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Application of a Child with a Disability, Appeal No. 01-094).
The IDEA does not prescribe a time period within which claims must be asserted. The doctrine of laches is an equitable defense that may be asserted in situations in which no statute of limitations exists. Laches applies when a party has failed to assert a right in a timely manner and the delay causes prejudice to the opposing party. Courts may decline to apply the doctrine of laches, if good cause exists for the delay in asserting the right (Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187 (2d Cir. 1996).
In this case, respondents sought compensatory education for the alleged failure of the district to provide appropriate speech/language services over a significant period of time (Exhibit D-1). The evidence included IEPs for the 1995-1996 school year through the 2000-01 school year (Exhibits P-8, P-33, P-34, P-36, P-38, P-44, P-45, D-16, D-17, D-19, D-20, D-21, D-22). The evidence shows that respondents were provided with due process notices in accordance with IDEA (Exhibits D-25, D-27, D-28, D-29, D-31, D-32, D-33, D-34, D-35, P-46; Transcript pp. 469-470), but they did not exercise their due process rights until the month that the student was to receive her IEP diploma (Exhibit D-1). Respondents did not offer any reason for their delay in asserting their rights. The hearing officer found that respondents had expressed their concerns about their daughter's educational program at various CSE meetings that they had attended over the years. However, mere notice of dissatisfaction does not put a school district on reasonable notice that a student's parents will challenge an IEP in the future and seek relief such as an award of tuition reimbursement (Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 158 [3d Cir. 1994]). I find that this is equally true when the relief sought is an award of compensatory education. In the absence of evidence of good cause for their delay in asserting their due process rights, I find that respondents' claim for compensatory education with regard to school years 1995-96 through 1999-2000 is barred by the equitable doctrine of laches.
Respondents' request for compensatory education for their daughter with regard to the 2000-01 school year was timely. I must now determine whether their daughter is in fact eligible for an award of compensatory education. She received an IEP diploma in June 2001, at the age of 21, and is therefore no longer eligible to attend petitioner's schools (Education Law § 3202). However, I am unable to conclude, upon review of the record, that there was a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services to the student for a substantial period of time during the 2000-01 school year.
The student had an IEP in place during that school year, and she was provided services in accordance with her IEP. I have considered the hearing officer's findings with regard to the student's IEP goals, as well as her suggestion that the delivery of services to the student might have been better supervised by the CSE or the student's case manager. In addition, the parties disagree about the efficacy of modifying the student's PECS program to include the use of verbal prompts. I find that none of the foregoing affords a basis for concluding that there was a gross violation of the IDEA or a denial of services for a substantial period of time.
The hearing officer found that the CSE had failed to conduct adequate transition planning for the student prior to her leaving school in June 2001. Under the heading of transition plans, the student's IEP for the 2000-01 school year included an outcome statement indicating that she should attend a day habilitation program. It also included a brief description of activities to be pursued relating to long-term outcomes, such as participating in functional academic courses of study to develop life skills. While I agree with the hearing officer that the IEP lacked the transition plan content required by 8 NYCRR 200.4 (d)(2)(viii) and (ix), that omission does not afford a basis for concluding that the student is entitled to an award of compensatory education (Application of the Bd. of Educ., Appeal No. 99-95; Application of a Child with a Disability, Appeal No. 99-74). As noted above, the parties engaged in additional transition planning in September 2001.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer's decision is hereby annulled.
Albany, New York
March 7, 2003