The State Education Department
State Review Officer
Application of the BOARD OF EDUCATION OF THE BARKER 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
Hodgson Russ LLP, attorneys for petitioner, Jerome D. Schad, Esq., of counsel
Andrew K. Cuddy, Esq., attorney for respondent
Petitioner, the Board of Education of the Barker Central School District, appeals from the decision of an impartial hearing officer finding that it did not meet its burden of demonstrating that the program recommended by its Committee on Special Education (CSE) for respondent's daughter for the 2001-02 school year was appropriate. It also appeals from the hearing officer's order remanding the matter to the CSE to develop an individualized education program (IEP) for the student for the remainder of the 2001-02 school year and the 2002-03 school year, and to locate a placement for the student outside the school district. Respondent cross-appeals from the hearing officer's failure to order specialized reading instruction and compensatory services for her daughter, as well as his failure to address the appropriateness of an IEP developed in February 2001. The appeal must be sustained. The cross-appeal must be dismissed.
When the hearing began in November 2001, the student was 15 years old and being homeschooled by her mother. Her prior educational history is discussed in Application of a Child with a Disability, Appeal No. 98-49, and Application of a Child with a Disability, Appeal No. 00-027, and will not be repeated here in detail.
The student was initially classified as learning disabled by petitioner's CSE when she was in the sixth grade during the 1997-98 school year. She was reportedly reading at a fourth grade level at that time. She has deficits in reading, language arts, and mathematics (Exhibits 15, I-14). She also has a mild attention deficit hyperactivity disorder (ADHD), predominantly inattentive type (Exhibit I-4). A slight to mild central auditory processing disorder (CAPD) was identified on one of four tests in a central auditory processing evaluation conducted in September 2000 (Exhibit 17). Additionally, the student has mild deficits in sensory processing and motor coordination, as well as handwriting difficulties, described as exerting excess pressure on the pencil causing fatigue when performing writing tasks (Exhibits 18, I-5, I-6, I-15).
The student attended Barker Central Middle School for seventh grade during the 1998-99 school year where she received special education and related services, including counseling, pursuant to IEPs developed throughout the school year (Exhibits H-4, H-5, H-6, H-7, H-8). In November 1998, while at petitioner's Pratt Elementary School accompanying another parent to a parent-teacher conference, the student's mother was arrested and charged with criminal trespass and harassment when she refused to leave the school after being requested by the principal to do so (Exhibit 53). A temporary order of protection was issued in December 1998 effective through June 1999 requiring respondent to stay away from Barker Central School (Exhibit 51-A). A jury convicted respondent of criminal trespass in March 1999 (Exhibit 54), and she was sentenced to probation for a period of one year in June 1999 (Exhibit 51-B). As a condition of probation, a one year order of protection was issued, requiring respondent to refrain from certain conduct, including no contact with the school district and no telephone calls, letters or faxes to the school district (Exhibits 51-B, 52-A). The order and conditions of probation provided that any communication to the school district had to be by respondent's spouse and was not to include threatening or intimidating language (Exhibit 52-A). In February 2000, the order of protection was extended to September 23, 2000, after respondent was found to have violated the conditions of her probation (Exhibit 51-C).
In February 1999, prior to the commencement of her trial, respondent wrote to a member of the New York State Board of Regents (Regents) explaining her efforts to advocate for her daughter (Exhibit E-24). The Regents brought the matter to the attention of the Commissioner of Education (Commissioner) who contacted the District Superintendent of the Sole Supervisory District of Orleans and Niagara Counties Board of Cooperative Educational Services (BOCES district superintendent) to assist the parties (Exhibits E-51, IHO 21). The BOCES district superintendent appointed a mediator in May 1999. During the early stages of the mediation process, respondent expressed concerns to the mediator about her daughter returning to school in petitioner's district (Exhibit E-72). It was decided that respondent would try to find a placement for her daughter in another school district; however, she was unsuccessful. Mediation was unsuccessful and was ultimately discontinued in October 1999 (Exhibits E-95, IHO 40).
Also in February 1999, respondent filed a complaint with the United States Department of Education, Office for Civil Rights (OCR) claiming that the school district discriminated against her daughter on the basis of disability (Exhibit 43). Her complaint listed more than ten allegations pertaining to the 1998-99 school year. Subsequently, respondent filed a second complaint with OCR alleging that the school district retaliated against her for filing the discrimination complaint (Exhibit 42). Respondent's complaints were closed by OCR in April 2001 upon determinations that the evidence was not sufficient to support the allegations of discrimination and retaliation.
In June 1999, less than one week after her mother was sentenced for her criminal trespass conviction, the student was suspended from school (Exhibits E-61, X, Y, IHO 35). The middle school principal advised the student's parents of the arrangements for their daughter's instruction in an alternative setting, the public library, during her suspension (Exhibit E-62).
Petitioner's CSE met on June 14, 1999 to develop the student's IEP for the 1999-2000 school year (Exhibits H-9, IHO 32). It recommended that the student be placed in a special class for reading and math, and in integrated classes for English, science and social studies, with the support of an aide to assist the student with focusing on task, taking notes and organization. It further recommended that the student receive supplementary reading instruction, resource room services, counseling and occupational therapy consultation services. The CSE also recommended a Franklin Speller, English, science and social studies texts on tape, and various assignment and test modifications. The IEP included an addendum specifying instructional modifications, the functions of the aide, program coordination and parent reporting. The parents did not attend the meeting, reportedly because mediation was ongoing (Exhibits 86, E-72).
The student did not return to school for eighth grade when the 1999-2000 school year began. Rather, in a letter dated September 29, 1999, respondent advised the mediator who had been appointed in May 1999 that, under protest, she would temporarily provide home instruction to her daughter (Exhibit IHO 36).
In early October 1999, petitioner's interim superintendent advised the student's parents of the state compulsory education law which requires that children ages six to sixteen attend school or receive a substantially equivalent education elsewhere (N.Y. Educ. Law § 3205), and asked that they provide written proof as to how they were meeting the requirements of the law (Exhibit E-92). He cautioned them that he would be required to report educational neglect to the proper authorities if their daughter remained out of school without such proof. The following week, the BOCES district superintendent reiterated petitioner's intention to file a report of educational neglect (Exhibits E-95, IHO 40).
In November 1999, the student's father inquired of petitioner's interim superintendent why no attempts had been made to provide his daughter the services listed on her IEP (Exhibit E-101). In response, the interim superintendent indicated that the school district would provide the services set forth on the student's IEP if she attended school (Exhibit E-102). He further indicated that should written notice of an intention to homeschool the student for the 1999-2000 school year be provided, the school district would provide services as required by state regulation governing home instruction. Toward the end of the month, the BOCES district superintendent advised the student's parents that he had forwarded their daughter's progress report, which they had previously provided him, to petitioner's interim superintendent (Exhibit IHO 46). Additionally, he provided the parents information pertaining to the requirements for home instruction. In early December, in response to a letter from respondent to the Commissioner, a supervisor in the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) encouraged respondent to either enroll her daughter in petitioner's schools or begin home instruction (Exhibit E-108).
In January 2000, the BOCES district superintendent advised respondent that petitioner's interim superintendent had received and reviewed the individualized home instruction plan (IHIP) for her daughter's homeschooling and found it to be minimally acceptable (Exhibit F-2). In February 2000, respondent filed a complaint with VESID alleging that the school district failed to provide a free appropriate public education (FAPE) to her daughter, failed to implement her daughter's 1999-2000 IEP, failed to provide related services to her daughter and failed to allow equal parental participation (Exhibits 91, 120). Also in February 2000, petitioner's director of special education and curriculum advised respondent that he had received her quarterly home instruction report and found her daughter's grades to be acceptable (Exhibit F-4). He reiterated the school district's willingness to provide the educationally related support services listed on her daughter's 1999-2000 IEP, and indicated that her husband should immediately request in writing that the services be provided.
In early March 2000, petitioner's director of special education and curriculum asked the student's parents to complete a form consenting to have their daughter evaluated prior to her annual review, which was to be scheduled toward the end of the school year (Exhibit F-7). Written requests were made again on March 22 and April 14, 2000 (Exhibits F-11, F-15).
By letter dated April 14, 2000, one of VESID's regional associates advised petitioner's superintendent that VESID had completed its investigation of the student's parents' February 2000 written complaint alleging that the school district violated federal and state laws and regulations regarding the provision of special education services to their daughter (Exhibit 121). The letter sets forth findings and recommendations, including a finding that the school district had made attempts to offer the related services on the student's 1999-2000 IEP. A VESID supervisor had previously requested additional specificity with respect to the parents' claim that the school district failed to allow equal parental participation, and indicated that should additional and relevant information be provided the office would investigate as appropriate.
At the beginning of May 2000, in response to the March 2000 request for consent, the student's father, noting that his daughter's reevaluation was not due until November 2000, advised petitioner's director of special education and curriculum that he would not consent to have his daughter evaluated until after the order of protection expired, when his wife would be able to participate in the process (Exhibit F-18). Additionally, he requested that his daughter's annual review for the 2000-01 school year be postponed until after the order of protection expired. On May 21, 2000, respondent requested a meeting with VESID's statewide coordinator for special education quality assurance (VESID's statewide coordinator) in an effort to resolve her dispute with the school district (Exhibit F-22).
At the end of May 2000, petitioner's director of special education and curriculum advised the student's parents that the CSE was obligated to conduct an annual review prior to the start of the school year. He indicated his willingness to conduct the review at a location off school property (Exhibit F-23). The student's annual review was conducted on June 19, 2000 at the Somerset Town Hall in an effort to provide an opportunity for the student's mother to attend (Exhibits F-27, F-32, IHO 63). Although the student's parents did not attend the meeting, the CSE reviewed the student's homeschooling reports for the second and third quarters of eighth grade which reflected satisfactory progress in all subjects (Exhibit H-11). The CSE noted that the student would need support in all ninth grade core academic subjects and recommended that she be placed in a special class, in the general education setting, for global studies, mathematics and specialized reading in general education English to assist with language arts skills and content. The assistance of an aide was recommended for science only, because of the inclusion programming in the other core academic subjects. The CSE continued to recommend that the student receive supplementary reading instruction, resource room services, counseling, specialized equipment and modifications. The addendum to the IEP was updated for the 2000-01 school year.
At the end of June 2000, in response to respondent's request for a meeting, VESID's statewide coordinator suggested that a meeting be scheduled for August 8, 2000. In a letter dated July 13, 2000, she explained that the purpose of the meeting was to provide respondent an opportunity to present evidence that respondent believed was not considered when the findings of VESID's complaint investigation were issued on April 14, 2000 (Exhibit F-41). After the August 8, 2000 meeting, VESID's statewide coordinator outlined to respondent the steps the school district agreed to take in an effort to resolve the special education issues, including contracting with non-district personnel to complete the student's evaluations and updating the student's IEP (Exhibit F-50). She emphasized the need for the student to receive educational services, and reiterated that it was respondent's responsibility to either send her daughter to school or prepare an approvable plan for homeschooling.
In a letter dated September 6, 2000 to VESID's statewide coordinator, respondent indicated that it would be inappropriate for her daughter to attend school in the district without appropriate services and without her involvement in the transition process (Exhibits 9, 125, 162, F-51). She requested that VESID's statewide coordinator direct the school district to provide home instruction to her daughter while the evaluations and CSE meetings were being conducted. The following day, on behalf of the student's parents, an advocate contacted petitioner's new superintendent in an effort to facilitate communications between the parties (Exhibits F-53, IHO 66). She advised him that the parents were requesting temporary home instruction within the home or at a private location.
Less than one week after the 2000-01 school year began, petitioner's superintendent explained to the parents their obligations with respect to the compulsory education requirements and urged them to send their daughter to school (Exhibits 48-H, 127, F-55). The following week, respondent advised VESID's statewide coordinator that effective September 6, 2000, she would be homeschooling her daughter under protest (Exhibits 97, 128, F-60). At this point, the student's mother began directing her correspondence intended for the school district to VESID's statewide coordinator because, as the mother explained, the order of protection issued in June 1999 remained in effect and prohibited her from contacting the school district. The student's mother further indicated that on September 18, 2000 she expected a special education teacher to implement her daughter's IEP and begin teaching in her home. A few days later, VESID's statewide coordinator advised the student's parents how the school district would proceed regarding their daughter's upcoming evaluations and CSE meetings (Exhibits 10, F-61). She explained that she would ask the CSE to schedule a meeting immediately to discuss a possible interim revision to their daughter's IEP based upon available information, and that a meeting to develop a final IEP would be scheduled upon receipt of the evaluations which were being conducted. She advised the parents that their September 6, 2000 letter would serve as consent for their daughter's reevaluation. With respect to respondent's plans for homeschooling, VESID's statewide coordinator explained that if an IHIP were approved by the school district and respondent provided home instruction, the school district was not required to offer educational services in the home, and that the type and location of special education services to be provided would be a determination to be made by the CSE.
By letter dated September 22, 2000, petitioner's superintendent advised the student's parents that the one-page document they submitted as an IHIP for their daughter for the 2000-01 school year did not comply with state regulations and that they must complete a proper IHIP (Exhibits 129, F-63). The superintendent also advised the parents that instruction in basic curriculum areas is provided to students at school district facilities, not in private homes, and he indicated that the CSE would review where it would be appropriate to provide related services to their daughter. In addition, he advised the parents that a CSE meeting for their daughter would be held on September 27, 2000. The following day, the student's mother advised VESID's statewide coordinator that neither she nor her husband would be available to attend the September 27, 2000 CSE meeting. She further indicated that she did not want a parent representative to be invited to attend any CSE meeting regarding her daughter (Exhibits 98, 130, F-64, IHO 68). As noted above, the order of protection expired on September 23, 2000.
On September 27, 2000, respondent advised VESID's statewide coordinator that she had scheduled her daughter's evaluations (Exhibits 100, 132, F-69, IHO 69). The following week, she advised VESID's statewide coordinator that despite the claims of petitioner's director of special education and curriculum, her husband had forwarded their daughter's end of year assessments and fourth quarter grades for 2000-01 school year in June 2000, and she would not provide the information again (Exhibits F-77, IHO 72).
On October 2, 2000, petitioner's director of special education and curriculum provided notice to the student's parents that the CSE meeting, initially scheduled for September 27, would be held on October 12, 2000 (Exhibit F-74). The CSE met on that date to review the results of the student's reading and central auditory processing evaluations (Exhibits 17, H-10, I-16). The CSE noted that the reports did not provide substantial new information that had not previously been considered, and it recommended that the student continue to receive the same services (Exhibit H-10). The IEP indicated that the student was being evaluated by multiple professionals who may provide additional information to adjust her educational program. The parents did not attend the meeting. They provided notice of their inability to attend in a letter dated October 12, 2000 to VESID's statewide coordinator (Exhibits 137, 168, F-81, IHO 74).
By letter dated October 20, 2000, petitioner's director of special education and curriculum asked the student's parents to submit an IHIP for their daughter (Exhibits 169, F-82). He made the request again on November 3, 2000 (Exhibit F-90). Also on November 3, 2000, he asked the student's parents to contact the guidance office to arrange for their daughter's counseling services, which pursuant to her IEP were to be provided at school (Exhibit F-92). At the end of November, petitioner's superintendent advised the student's parents that their home instruction program was placed on probation and advised them of the requirements for a remediation plan (Exhibit F-94). He again reminded them of the compulsory education requirement. In a response sent directly to petitioner's superintendent, the student's parents submitted the previously requested progress report and annual assessment, and requested the assistance of a regular education and special education teacher in developing and implementing an appropriate remediation plan (Exhibits 44, 139, F-95, IHO 77).
On December 7, 2000, the director of special education and curriculum provided notice to the parents of a CSE meeting for their daughter on December 20, 2000 (Exhibit F-96). He indicated that the meeting was contingent upon receipt of the evaluation reports that had not yet been received by the CSE. The following week, the director of special education and curriculum advised the parents that the CSE meeting would have to be postponed, as certain evaluations were still outstanding (Exhibit F-99).
Later that month, the student's mother advised petitioner's superintendent that the school district had failed to contact her to make the necessary arrangements for her daughter's education (Exhibits 46, 140, F-101, IHO 80). In response, the superintendent informed respondent that although she never filed an IHIP for her daughter for the 2000-01 school year despite being encouraged to do so, the filing of a ten-week report demonstrated that her daughter was being homeschooled. He further informed her that pursuant to her daughter's IEP, counseling was to be provided at school as a related service, and any instruction beyond that was her responsibility and must be described in the IHIP (Exhibits 142, F-102, IHO 81).
In a letter dated December 21, 2000, petitioner's director of special education again advised the parents that the evaluation process had not been completed and asked their cooperation (Exhibit F-105). He indicated that their daughter's CSE meeting would not be rescheduled until all the evaluation reports had been received.
At the end of January 2001, petitioner's director of special education and curriculum provided the parents with a list of possible dates and times for a CSE meeting for their daughter (Exhibit F-109). He again advised the parents that the meeting was contingent upon receipt of certain evaluation reports. On February 7, 2001, the director of special education and curriculum advised the parents that a CSE meeting to review the results of their daughter's reevaluation would be held on February 16, 2001. The parents attended that meeting at which various evaluations were reviewed including an independent occupational therapy evaluation (Exhibits 18, I-15), an independent psychological evaluation (Exhibit I-13), and an independent psychoeducational evaluation (Exhibits 15, I-14), as well as homeschooling reports that indicated progress in all areas of ninth grade education provided (Exhibit 5-A). An IEP was developed which provided for substantially the same services as the previous IEPs for that school year (Exhibits 22, 25, H-12). Additionally, the CSE recommended that the student's supplemental reading services, outside the general education setting, be increased to five times per week to address a decrease in standard scores in reading comprehension, spelling and written expression reflected in the psychoeducational evaluation. It further recommended that occupational therapy services, outside the general education setting, twice per week and occupational therapy consultation services once per week be added to the student's IEP to address the student's mild sensory processing and other deficits identified in the independent occupational therapy evaluation.
In early March 2001, petitioner's director of special education and curriculum advised the student's parents that should they choose to continue to instruct their daughter at home, she would be entitled to have her special education and related services delivered at school (Exhibits 24, 148, F-125).
By letter dated May 22, 2001, petitioner's director of special education and curriculum provided the student's parents a choice of two potential dates and times for their daughter's annual review. He advised them that in the event the dates were not convenient or they failed to respond, the meeting would be held on June 13, 2001 (Exhibit 28). On May 30, 2001, respondent advised petitioner's director of special education and curriculum that neither of the dates were convenient, and encouraged him not to proceed until a mutually agreed upon date, time and location could be arranged (Exhibits F-130, IHO 96). In a letter dated June 4, petitioner's director of special education and curriculum advised the parents that the CSE meeting would be held on June 13, 2001 as indicated in his May 30 correspondence (Exhibits 29, F-131, IHO 97). Formal notice of the June 13 CSE meeting was included with the June 4 correspondence (Exhibits 30, F-132, IHO 98). There is no indication in the record that the parents responded to such notice.
The CSE met on June 13, 2001 for the student's annual review (Exhibit 32). The parents did not attend (Exhibit 31). No additional evaluations were presented for the CSE's consideration. The committee developed an IEP for the student for the 2001-02 school year providing for substantially the same program as the student's February 2001 IEP, with the exception of science, which it recommended be provided in a special class within the general education setting (Exhibit 33).
On July 3, 2001 respondent advised petitioner's superintendent of her intention to homeschool her daughter for 2001-02 school year (Exhibits 36, 152). In response, the director of special education and curriculum advised the parents that if they were interested in services being implemented at school, they should request such services in writing (Exhibits 37, 153, F-133). Instead, the parents requested an impartial hearing on July 10, 2001 as they disagreed with the educational placement, program, evaluations and recommendations of the CSE for their daughter (Exhibit IHO-106). They also asserted the claim that the school district had created a hostile environment toward them.
The hearing began in November 2001 and, after 14 sessions over the following four months, concluded in March 2002. The hearing officer rendered his decision on May 3, 2002. He found that petitioner failed to meet its burden of demonstrating that its public school system was an appropriate placement site for the student at the time. He further found that the CSE failed to take adequate steps to obtain parental participation at the student's June 2001 annual review meeting, and he annulled the IEP developed at that meeting. Noting that there was no contention that the student had not continued to make satisfactory progress in all subjects while being homeschooled, the hearing officer found that the student was not entitled to compensatory education. The hearing officer also found that there was insufficient information in the record to mandate a specific reading program for the student. He ordered the CSE to develop an IEP for the student for the remainder of the 2001-02 school year, as well as for the 2002-03 school year. He further ordered petitioner to contact other school districts and nonpublic schools for the purpose of locating a school that would accept the student for the remainder of the 2001-02 school year and the 2002-03 school year.
Petitioner appeals from the hearing officer's decision. It argues that the hearing officer erred in annulling the June 13, 2001 IEP for lack of parent participation, in considering the parent's hostility when making his determination that its public school system was an inappropriate placement site, and in ordering it to locate a placement outside the school district. Respondent cross-appeals arguing that the hearing officer improperly failed to award compensatory relief, to order a specialized reading program, to address the February 2001 IEP, and to render a timely decision.
I will address petitioner's claims first. The hearing officer found that the record of communications between the school district and the parents did not establish that the required steps were taken to ensure parental participation at the June 13, 2001 CSE meeting, and accordingly, he annulled the student's IEP for the 2001-02 school year which was developed at that meeting. Pursuant to federal and state regulation, a school district shall take steps to ensure that one or both of the student's parents are present at each CSE meeting or are afforded the opportunity to participate, including notifying the parents of the meeting early enough to ensure that they will have an opportunity to attend and scheduling the meeting at a mutually agreed upon time and place (34 C.F.R. § 300.345[a]; 8 NYCRR 200.5[d]). In addition, federal and state regulations permit a school district to conduct a CSE meeting without the parent in attendance if the district is unable to convince the parent to attend (34 C.F.R. § 300.345[d]; 8 NYCRR 200.5[d]). In such an instance, the school district must maintain a detailed record of its attempts to arrange a mutually agreed upon time and place for the meeting.
As noted above, by letter dated May 22, 2001, in an effort to schedule the student's annual review, petitioner's director of special education and curriculum suggested potential dates and times to the student's parents (Exhibit 28). He requested that they inform him by May 30, 2001 of the date they selected and encouraged them to be in attendance. He further indicated that in the event the dates were not convenient, the annual review meeting would be held on June 13, 2001. I note that the student's last annual review was conducted on June 19, 2000 (Exhibit H-11). On May 30, 2001, the student's mother indicated that neither date was convenient for her and her husband (Exhibits F-130, IHO 96). She encouraged the school district not to conduct a meeting until a date, time and location could be mutually agreed upon; however, she did not indicate when she would be available. By letter dated June 4, 2001, the director of special education and curriculum advised the parents that their daughter's annual review meeting would be held on June 13, 2001 as he had explained in his May 22 letter (Exhibits 29, F-131, IHO 77). He indicated that he hoped they would attend. A formal parent invitation dated June 4, 2001 was included with his correspondence. The student's parents did not respond to that correspondence, nor did they attend the meeting. On July 10, 2000, they requested an impartial hearing (Exhibit IHO-106).
The record shows that the school district notified the parents of its intention to schedule the annual review meeting over two weeks in advance of the proposed dates. The record further shows that it attempted to schedule the meeting at a mutually agreed upon time and place by offering the parents a choice of potential times and dates. Additionally, the record shows that the director of special education and curriculum encouraged the parents to attend and that the parents failed to respond to the formal invitation to attend the meeting. The record also shows the efforts made by the school district over the course of the year attempting to arrange meetings at mutually agreed upon times and places (Exhibits 93, 94, 122, 123, 124, 137, 168, F-23, F-26, F-27, F-32, F-33, F-63, F-64, F-81, IHO 62, IHO 74). Based upon the circumstances in this case, I find that petitioner took sufficient steps to obtain parent participation, and that it was permissible to conduct the meeting without a parent in attendance. Although the parents were not in attendance, the CSE minutes from the June 2001 meeting reflect that the third quarter homeschooling progress report prepared by the student's mother was reviewed at the meeting (Exhibit 32).
Petitioner also claims that the program recommended by its CSE for the 2000-01 school year was appropriate. A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 534 U.S. 942 ; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-29). To meet its burden, a board of education must show that it adequately complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA) and that the IEP developed through the IDEA's procedures is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 ). The recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 02-008; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). As noted above, the student is classified as having a learning disability, with deficits in reading, language arts, and mathematics. Testing conducted in December 2000 when the student was in ninth grade indicated that the student's math understanding and arithmetic capabilities were at a sixth grade level, her reading decoding and reading comprehension were at an early fifth grade level, and her writing skills were at an early fourth grade level (Exhibits 15, I-14). The record also shows evidence of a mild ADHD (Exhibit I-4), a mild CAPD (Exhibit 17), as well as mild sensory processing and motor coordination deficits, including handwriting difficulties (Exhibits 18, I-15).
I have reviewed the June 2001 IEP and find that it identifies the student's needs as reflected in the evaluations. It contains goals and objectives for the student's identified deficits in mathematics, reading and language arts, and provides for the use of appropriate special education services, including supplemental reading instruction. Additionally, the IEP provides for occupational therapy and counseling to assist the student in her transition back to the public school, as she had been homeschooled for two years. The IEP also provides for program, test and instructional modifications, as well as a transition plan. Based upon the information before me, I find that the June 2001 IEP is reasonably calculated to confer educational benefits.
The central issue in this appeal, however, is whether the student will receive educational benefits if the IEP is implemented in petitioner's schools. At the hearing, respondent asserted that the school district created a hostile environment toward her and her daughter. Specifically, respondent claimed that she and her daughter were afraid that they would be arrested if her daughter returned to the school district. She also claimed that the school district requested the order of protection which excluded her from participating in the CSE process and prevented her from having contact with the school district for nearly two years. She described other actions of the school district that allegedly created a hostile environment, including obtaining and releasing her daughter's records without her consent. Additionally, she claimed that her daughter's fears were reinforced by the school district's actions regarding her suspension, as well as the manner in which the school district and its personnel addressed her reading difficulties. Respondent argued that the hostile environment claim should have been an integral part of the determination of the appropriateness of the placement of a student pursuant to 8 NYCRR 200.4(d)(4)(ii), which requires that CSE recommendations be developed in conformity with LRE requirements, including that consideration must be given to any potential harmful effect on the student. She contended that the CSE ignored the potential harmful effect on her daughter of a placement in petitioner's district, even though it was cognizant of her daughter's fears and of the opinions of the professionals who evaluated her daughter and who recommended a placement outside the district.
In his decision, the hearing officer noted that there had been controversy between petitioner and respondent with respect to the student's education for at least six years. He described several incidents that occurred over the years beginning with respondent's arrest. He concluded that respondent was arrested as a result of specific criminal conduct, not due to her activity as an advocate. The hearing officer also noted that respondent took continuing offense at various actions of the school district. However, in each instance, he credited the testimony of the school district personnel who explained the actions. The hearing officer also described the incident leading to the student's suspension, and again found the testimony of school district personnel to be credible. Notwithstanding his findings regarding the claims raised by respondent, the hearing officer concluded that petitioner did not meet its burden of showing that the school district was an appropriate placement site for the student at the time.
Petitioner argues that the hearing officer improperly considered the parent's hostility toward the school district in his ruling that the recommended placement was inappropriate. As described above, the issue as presented by respondent at the hearing concerned the alleged hostile environment and actions of the school district toward her and her daughter.
Two distinct types of hostility claims are presented in this appeal. The first type consists of claims in which a parent alleges that the school district created a hostile environment. Respondent raised a hostile school environment claim at the hearing. However, the hearing officer did not make a specific finding with respect to that claim. Rather, as noted above, he described the school district's actions that formed the basis of respondent's claim, then credited the testimony of school district personnel that explained the actions. The hearing officer did not conclude that school district personnel had acted improperly. Based upon the information before me, including the hearing officer's credibility assessments, I find that the evidence is insufficient to support respondent's hostile school environment claim.
The second type of hostility claim consists of a contention that a parent is so hostile or vehemently opposed to the program or school district that the value of an IEP is undermined. Neither party raised a "parental hostility" claim at the hearing. However, while the hearing officer did not make a specific finding that the parent was hostile to the school district or the program, he did imply as much in finding that petitioner failed to meet its burden of showing that the school district was an appropriate placement for the student. On appeal, petitioner asserts that the hearing officer considered parental hostility in reaching his decision. Whether or not the hearing officer relied on a finding of parental hostility in reaching his decision, I note that parental hostility was not raised at the hearing, and I find that the evidence in the record is insufficient to support such a claim.
Even if such a contention had been raised at the hearing, as a general rule, I am not convinced that parental hostility is a factor that should lead to a determination that an otherwise appropriate program and placement does not offer a FAPE. A student's placement decision must be made by a group of persons, including the parents and school personnel (34 C.F.R. § 300.552[a]; 8 NYCRR 200.4[d]). While parental preference for, or opposition toward, a particular placement is a consideration for the CSE, each placement decision must be based on the student's IEP (8 NYCRR 200.4[d] and [d][ii][a]). Many factors are to be considered by the CSE in making a placement recommendation and the IDEA and its implementing regulations do not permit a placement decision to be based solely on parent preference (OSEP Opinion, 17 EHLR 1182 ).
Additionally, a core concept emphasized in the IEP requirements of the IDEA is that parents of a child with a disability are expected to be equal participants, along with school personnel, in developing, reviewing and revising their child's IEP (34 C.F.R. Part 300, Appendix A, Section II, Question 5). The IEP team should work toward consensus, and every effort should be made to resolve differences through informal steps (34 C.F.R. Part 300, Appendix A, Section II, Question 9). This collaborative approach is reflected in the 1997 amendments to the IDEA in provisions which are intended to expand and promote opportunities for parents and regular and special education personnel to work in new partnerships at both the state and local levels (H.R. Rep. No. 105-95, at 79 ) and to encourage parents and educators to work out their differences by using nonadversarial means (H.R. Rep. No. 105-95, at 82 ). Allowing an otherwise appropriate program and placement to be frustrated solely by a claim of parental hostility might well undermine such an approach.
I now turn to respondent's cross-appeal. Respondent is seeking compensatory education for the 1999-2000 and 2000-01 school years, claiming that petitioner failed to provide services to her daughter during those school years. However, the record does not support respondent's claim. Rather, the record shows that respondent declined the services petitioner offered. Respondent began homeschooling her daughter during the 1999-2000 school year, and continued to do so through the 2000-01 school year. Petitioner's CSE developed IEPs for the student for those school years. It advised respondent on several occasions during those school years that it was prepared to provide services to her daughter at school. Nevertheless, respondent was unwilling to accept any services delivered at the school.
Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It may be awarded 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 (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]). There is no evidence of either in the record. Moreover, there is nothing in the record to show that the student is no longer eligible to receive instruction. When the hearing began, she was 15 years old and had not yet received a high school diploma.
While compensatory education is a remedy that is available to students who are no longer eligible for instruction, I note that State Review Officers have awarded additional services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030). As noted above, however, the record indicates that petitioner has offered to provide appropriate services to respondent's daughter. Accordingly, an award of additional services is not warranted in this case.
Respondent claims that the hearing officer failed to order a specialized reading program. Having determined that the IEP was reasonably calculated to provide educational benefits, I need not address this claim. I note, however, that the CSE was not required to specify a teaching methodology in the student's IEP (Application of a Child with a Disability, Appeal No. 02-022; Application of a Child with a Disability, Appeal No. 98-49; Application of a Child with a Disability, Appeal No. 95-15). Rather, the precise teaching methodology to be used by a child's teacher is a matter to be left to the teacher (Application of a Child with a Disability, Appeal No. 94-26; Application of a Child with a Disability, Appeal No. 93-46; Matter of a Handicapped Child, 23 Ed Dept Rep 269 ).
Respondent also claims that the hearing officer erred in failing to address the appropriateness of the February 2001 IEP. She argues that it should have been completed in November 2000. As the 2000-01 school year had ended prior to the date the cross-appeal was filed, and a new IEP had been developed for the 2001-02 school year, no meaningful relief could be granted, nor was any suggested in respondent's appeal papers. I note, however, that the rescheduling of the November 2000 CSE meeting was attributable in part to the student's parents, who initially refused to provide consent for the evaluation process, and then scheduled the evaluations, with private evaluators of their choice, after being advised that some of the evaluations would not be completed in sufficient time for reports to be available for the November meeting (Exhibit F-59).
Finally, I find respondent's claim that the hearing officer failed to render a timely decision to be frivolous. On the final day of the hearing, respondent's attorney specifically agreed to an extension to May 3, 2002 for the hearing officer to render a decision (Transcript p. 2709).
I have considered the parties' remaining claims and find them to be without merit.
THE APPEAL IS SUSTAINED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED THAT the decision of the hearing officer is hereby annulled to the extent that he found that petitioner failed to take adequate steps to obtain parental participation at the June 13, 2001 CSE meeting, to the extent that he found that petitioner failed to offer an appropriate program, and to the extent that he ordered the matter remanded to the CSE to develop new IEPs and to locate a placement for the student outside the school district.
Albany, New York
July 24, 2003
PAUL F. KELLY