The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the William Floyd Union Free School District
Deborah Rebore, Esq., attorney for petitioner
Ehrlich, Frazer & Feldman, attorney for respondent, Laura A. Ferrugiari, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision relating to the adequacy of her daughter's individualized education program (IEP) for the 2001-02 school year. The hearing officer ordered respondent's Committee on Special Education (CSE) to correct deficiencies in the student's IEP and to provide her with " "an appropriate compensatory education and related services program." He also concluded that petitioner's daughter's assignment to self-contained special classes with a student to staff ratio of 12:1+1 and related services was appropriate and provided the student with a free appropriate public education (FAPE). The appeal must be dismissed on procedural grounds.
Petitioner's daughter was 12 years old and enrolled in self-contained 12:1+1 seventh grade special classes at respondent's William Paca Middle School (Middle School) at the commencement of the impartial hearing in March 2002. However, she had stopped attending school in January 2002 because of petitioner's concern about her daughter's physical safety at the Middle School.
Petitioner's daughter has received special education services since preschool. The student has been diagnosed with an attention deficit hyperactivity disorder (ADHD) and takes medication for that condition. She entered respondent's school district in the middle of the 1999-2000 school year when she was in the fifth grade. At the time of her entry into respondent's district, the student was classified as other health impaired (OHI). In the sixth grade, during the 2000-01 school year, she was enrolled in a self-contained 12:1+1 special class program and received speech-language therapy and occupational therapy.
Respondent's CSE initially scheduled the annual review for the student's seventh grade special education program for May or June 2001 (Transcript pp. 179, 594). In response to a request from petitioner, the annual review was rescheduled and held on October 10, 2001 (District Exhibit 1; Transcript pp. 179-80, 183, 595-96). Six weeks before the CSE meeting, a school psychologist tested and evaluated petitioner's daughter (District Exhibit 4). The administration of the Wechsler Intelligence Scale for Children – Third Edition (WISC-III) yielded a verbal IQ score of 62, a performance IQ score of 74, and a full-scale IQ score of 65. The student's test results on the Wechsler Individual Achievement Test (WIAT) indicated that her performance was significantly below that of her same aged peers. Her composite reading and writing scores measured performance at the fourth percentile in those two areas (Standard Score [SS] 73). Her composite mathematics score showed her performance in that area to be at the first percentile (SS 66). In listening comprehension, the student's score was at the third percentile (SS 71). An occupational therapist also evaluated the student in August 2001 (District Exhibit 2), and respondent completed a speech-language evaluation prior to the CSE meeting (Transcript p. 182).
At the October 10, 2001 meeting, the CSE recommended a change in the student's classification from OHI to multiply disabled (Transcript pp. 189-90). Petitioner attended the meeting and agreed with the change in classification. The CSE also recommended placement of petitioner's daughter in the self-contained 12:1+1 special class program at the Middle School, which included a life skills/prevocational component (Transcript pp. 192-95). Petitioner's daughter had been attending this special class program since the beginning of the 2001-02 school year with petitioner's consent (Transcript pp. 180-81). The CSE further recommended that the student continue to receive occupational therapy and speech-language therapy (Transcript pp. 215, 232). However, the CSE did not review, recommend approval of, or revise a written IEP for petitioner's daughter for the 2001-02 school year at this meeting (see 8 NYCRR 200.4[d] and [f]), 34 C.F.R. §§ 300.340[a] and 300.343[a],[c]). Nor did the CSE establish any of the student's individual needs, or present levels of performance in the areas of social development, activities of daily living, and management. Such determinations are necessary components for a student's IEP (Transcript pp. 415-32, 437-40, 446-57, 460-62, 464-68, 472-74; see 8 NYCRR 200.4[d][i], 34 C.F.R. §§ 300.340[a] and 300.347[a]). Moreover, the goals and objectives that ultimately appeared as part of her 2001-02 IEP were not discussed or considered at this CSE meeting (Transcript pp. 292, 482-87, 489-90, 492-94, 496-97, 499-507; see 8 NYCRR 200.4[d][iii], 34 C.F.R. §§ 300.340[a] and 300.347[a]).
At the October 10, 2001 meeting, the CSE also agreed to schedule a meeting between the student's parents and her current teacher to discuss the student's goals and objectives (Transcript p. 195). The meeting was held in November 2001, but the participants focused on the student's distractibility and medication for her ADHD (Transcript pp. 389-90, 429-30), and did not develop the student's goals and objectives. Respondent's staff subsequently prepared a written IEP, which included goals and objectives that were to have been discussed at the November meeting, and provided it to petitioner on or about January 28, 2002 (District Exhibit 1; Exhibit A; Transcript pp. 47, 599-600).
Petitioner's daughter was reportedly involved in a number of incidents at the Middle School from November 2001 to mid-January 2002 (District Exhibit 13; Exhibits B, C; Transcript pp. 615, 619, 633-35, 638-39, 642, 644-46), as a result of which petitioner became concerned about her daughter's safety and the student reportedly developed a fear of returning to the school (Transcript pp. 654-57). Petitioner sought treatment for her daughter from a psychologist in February 2002 (Transcript pp. 657-58), but the student did not return to the Middle School for the balance of the 2001-02 school year (Transcript p. 656). She received home instruction through the end of that school year and returned to school in September 2002.
By letter dated February 27, 2002, petitioner's attorney requested an impartial hearing (Impartial Hearing Officer [IHO] Exhibit 1). The hearing request alleged that respondent had failed to provide petitioner's daughter with a safe environment, that her IEP was inadequate, and that parts of the IEP were developed without petitioner's participation. For relief, petitioner requested that her daughter be placed outside of the district, that respondent's CSE be convened in order to correct the alleged defects and deficiencies in the IEP, and that the student be provided with compensatory instruction and related services.
The hearing commenced on March 22, 2002 and continued on April 18, April 26, May 2, May 22, June 28, and July 15, 2002. At the hearing the petitioner asserted the following: the CSE did not develop the IEP; the parents were not sufficiently involved in the development of the IEP; the IEP was not adequate; the student could not safely attend the Middle School; and the October 10, 2001 CSE meeting did not have an additional parent member present as required by Education Law § 4402(1)(b)(1)(a)(viii) and 8 NYCRR 200.3(a)(1)(viii). Respondent conceded at the hearing that the IEP was deficient in several respects (Transcript p. 27). It argued, however, that the IEP's procedural and substantive deficiencies did not constitute a violation of the student's right to a FAPE, that the student's placement was appropriate, and that the district had provided petitioner's daughter with a FAPE.
The hearing officer rendered a decision on August 23, 2002. He concluded that the evidence did not support a finding that the Middle School was unsafe for petitioner's daughter. He also found that the CSE that met on October 10, 2001 was not properly constituted. In addition, he concluded that the student's IEP for the 2001-02 school year contained serious deficiencies. The hearing officer ordered respondent's CSE to meet immediately to correct the IEP. He also ordered respondent to provide "an appropriate compensatory education and related services program" to petitioner's daughter. In furtherance of this, he ordered the parties to meet as soon as possible to work out the specific details of such a program. The hearing officer also concluded that petitioner's daughter made educational progress and benefited from her educational program at the Middle School and that respondent therefore had provided her with a FAPE and an appropriate placement.1
A fully constituted CSE met on September 18, 2002, as directed by the hearing officer, and drafted an IEP and a program of additional services to be provided to petitioner's daughter (Answer ¶ 4[e]). On September 24, 2002, petitioner commenced this appeal.
Petitioner contends, among other things, that the hearing officer erred in determining that respondent had provided the student with a FAPE and an appropriate placement. She argues that the IEP should have been declared null and void due to the absence of the additional parent member from the CSE meeting, that the CSE did not review and/or approve the student's IEP, that the IEP's goals and objectives were developed without petitioner's participation, and that the IEP was inadequate for a number of reasons and therefore not reasonably calculated to enable the student to receive educational benefits. Petitioner requests that the student's placement for the 2001-02 school year be found inappropriate, that the IEP be found null and void, and that the hearing officer's remedy of "an appropriate compensatory education and related services program" be affirmed.
Petitioner does not appeal from the hearing officer's finding that the evidence did not show that the Middle School was an unsafe environment for her daughter. Moreover, she does not challenge the hearing officer's orders that respondent's CSE immediately meet and correct the deficiencies in the IEP and that respondent provide "an appropriate compensatory education and related services program". Nor, on appeal, does petitioner argue that her daughter should not have been placed in respondent's self-contained 12:1+1 special class program or raise any questions with respect to the related services provided to her daughter.
As indicated above, the hearing officer found that the CSE was improperly constituted and the IEP seriously deficient. He ordered immediate corrective action and compensatory relief, directing the CSE to convene and eliminate the IEP inadequacies and provide "an appropriate compensatory education and related services program" to petitioner's daughter.2 I note that the relief granted by the hearing officer is relief that petitioner had requested. I also note that petitioner does not request reimbursement for any services or instruction she provided to her daughter. Nor does petitioner point to any prejudice or tangible harm to her daughter from the hearing officer's decision.
"(T)he administrative appeal process is available only to a party which is 'aggrieved' by an IHO's determination" (Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 385 [N.D.N.Y. 2001]). Only a party aggrieved by a hearing officer's decision may appeal to a State Review Officer (34 C.F.R. 300.510[b]; 8 NYCRR 200.5[j]; Application of a Child with a Disability, Appeal No. 02-007; Application of a Child with a Disability, 99-029). Further, the State Review Officer is not required to determine issues which are no longer in controversy or to review matters which would have no actual effect on the parties (Application of a Child with a Disability, Appeal No. 02-011; Application of a Child with a Disability, Appeal No. 98-73; Application of a Child Suspected of Having a Disability, Appeal No. 95-60).
Petitioner does not, on appeal, seek modification of the order that the parties develop a program of additional educational services for her daughter. Rather, petitioner merely seeks affirmance of this uncontested determination with which she agrees. The compensatory services determination is not adverse to her daughter's interests. Neither does respondent dispute the order. I decline to address the matter further after having found that petitioner is not aggrieved by the hearing officer's determination on this issue.
I further find that petitioner's request that her daughter's 2001-02 IEP be declared null and void must be dismissed. Although the hearing officer did not explicitly declare the IEP to be null and void, he granted the relief that petitioner requested based on his determinations that the formulation of the IEP was improper.3 The IHO's determinations that there was no additional parent member present at the October 10, 2001 CSE meeting, that the IEP issued after that meeting was seriously deficient, and that the CSE must meet and correct the IEP made clear that he found that the IEP was inadequate and not prepared as required. With respect to the claim that the hearing officer erred in failing to find that the inadequacy of the then current IEP rendered inappropriate the student's 2001-02 placement, I conclude that such claim is moot because petitioner ceased contesting such a placement at the start of the 2002-03 school. In light of the absence of any controversy relating to relief or to the student's educational placement or related services, and in light of the fact that the 2001-02 school year is over, I find that, under the circumstances presented, a determination that the student's prior placement was inappropriate would have no actual effect on the parties. Accordingly, I decline to review the merits of that claim also.
THE APPEAL IS DISMISSED.
Albany, New York
August 21, 2003
PAUL F. KELLY
1 The IHO's determination that a FAPE was provided is not an issue that needs to be decided in this appeal and has not been considered.
2 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 Individuals with Disabilities Education Act (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]). While federal courts within the Second Circuit have held that 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 equitable relief in the form of additional educational 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). In general, the award of additional educational services, for a student who is still eligible for instruction, requires a finding that the student has been denied a FAPE. In the instant case, the IHO awarded equitable relief in the form of additional compensatory services despite finding that the student received a FAPE. The appropriateness of ordering compensatory services in the absence of a denial of a FAPE is not at issue because neither party appealed that portion of the IHO's decision.
3 I would encourage the respondent to review its obligations under 34 C.F.R § § 300.340-50 and 8 NYCRR § 200.4. A review of 34 C.F.R. Part 300, Appendix A would also be instructive.