The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of Rye
Westchester/Putnam Legal Services, attorneys for petitioners, Jacqueline R. Frost, Esq., of counsel
Shaw & Perelson, LLP, attorneys for respondent, Lisa S. Rusk, Esq., of counsel
Petitioners appeal from an impartial hearing officer's decision finding that respondent had offered to provide an appropriate educational placement to their son for the 2002-03 school year, and denying their request for an award of tuition reimbursement for that year. The appeal must be sustained in part.
At the outset, I will address a procedural issue. Respondent contends that the appeal must be dismissed because the petition was verified by petitioners' attorney and not by one of the petitioners as required by 8 NYCRR 275.5 and 279.1. The applicable regulations provide that a petition for review of an impartial hearing officer's decision is to be verified by at least one of the petitioners (id.). Although the original pleading should have been verified by one of the petitioners and not by their counsel (see Application of a Child with a Disability, Appeal No. 98-33), in response to respondent's objection and as part of their reply, petitioners have filed with the Office of State Review a proper verification of the petition by one of the petitioners. Petitioners have also filed proof that a copy of this verification has been served upon respondents. Under these circumstances, I will not dismiss their petition (cf. Application of a Child with a Disability, Appeal No. 02-009).
Petitioners' son was 19 years old and had successfully completed his program at the Devereux Glenholme School (Glenholme) in Washington, Connecticut at the commencement of the hearing in July 2002. The student had last attended respondent's schools during the 1998-99 school year when he was in the tenth grade at Rye High School (Transcript pp. 37, 170, 244, 264). He left respondent's schools in or about the spring of that year and began home instruction because of significant deterioration in his ability to function at school due to emotional and behavioral problems (Transcript pp. 65-66, 170-71, 244, 264-65, 564-67, 570). The student entered Glenholme in September 1999 when he was in the 11th grade (District Exhibit 26; Transcript p. 407). Glenholme is a therapeutic boarding school for students who have emotional and behavior difficulties as well as learning difficulties (Transcript p. 404). Petitioners' son remained at Glenholme in a 12-month program from September 1999 through June of 2002, when the school determined that he had successfully completed its program and could be appropriately educated in a less restrictive setting (District Exhibit 26; Transcript pp. 420, 424, 439-40). The student is classified as multiply disabled. That classification is not in dispute.
At the request of petitioners, respondent obtained a vocational assessment from the Southern Westchester Board of Cooperative Educational Services (BOCES) in December of 2000. The assessment indicated that the student required a highly structured environment in order to perform to his capability. The report concluded that petitioners' son would need education beyond his 18th birthday because of the amount of training and coaching necessary for him to demonstrate consistent appropriate social behavior. At the time of the evaluation, the student was participating in a food service training program at Glenholme, and he expressed an interest in working in this area. Based on his tested aptitude and identified skills, the evaluator indicated that training in word processing, keyboarding, and other office skills would also be appropriate. To address the student's difficulty with transferring classroom learning to non-classroom situations, the evaluator recommended that the student's vocational training be provided as part of a real world experience or, if that were not possible, in an environment that closely resembled an actual job site (District Exhibits 6, 7).
As part of his triennial evaluation, a school psychologist evaluated the student in September 2001. The evaluator reported that testing on the Wechsler Adult Intelligence Scale – Third Edition (WAIS-III) yielded a verbal IQ score of 96 (39th percentile), a performance IQ score of 91 (27th percentile), and a full-scale IQ score of 94 (34th percentile), indicating overall cognitive functioning in the average range. Personality testing indicated that the student's overall functioning was good. He showed evidence of social immaturity, an awareness of the need for independence, and a tendency to view interpersonal relationships as hostile (District Exhibit 2).
Respondent's evaluator administered the Wechsler Individual Achievement Test (WIAT) in October of 2001 (District Exhibit 2). The student performed in the average range in basic reading (standard score of 93, 32nd percentile), reading comprehension (92, 30th percentile), and mathematics reasoning (92, 30th percentile); in the low average range in written expression (84, 14th percentile), and in the severely deficient range in spelling (75, 5th percentile) and numerical operations (73, 4th percentile).
The student's psychiatrist, who had treated him for 11 years, prepared a neuropsychiatric summary in April 2002. The psychiatrist reported that petitioners' son had been under his care since 1991 for the treatment of a pervasive development disorder (Asperger-like syndrome), and secondary obsessive compulsive disorder (OCD), Tourette's disorder, social anxiety disorder, mood disorder with hypo-manic features, attention deficit disorder (ADD), learning disabilities and developmental immaturities. The psychiatrist also reported that the student had been in therapy for many years and was taking medication to help reduce his symptoms. He reported that the student's symptoms included difficulties with social interactions, problems with transitions, poor perceptions of others' boundaries, avoidance of social situations, isolation, and a level of impulsiveness that became more marked in the presence of his family. The psychiatrist concluded that the student had made progress at Glenholme but was not ready to graduate from high school, that he did not have the skills to begin his adult life, and that he needed to prepare for that by learning independent living skills. He recommended an environment that would not only teach petitioners' son academic skills but would help him develop appropriate social, vocational, and self-management skills (District Exhibit 8).
The student made significant progress during the almost three years that he had resided at Glenholme. When he entered Glenholme, he had significant behavior difficulties (Transcript p. 406). He was very immature, with very poor social and problem solving skills (Transcript pp. 406, 420). He annoyed other students and did not get along with them (id.). By the third quarter of the 2001-02 school year, he had graduated from the school's token economy behavior modification program (Transcript pp. 407-09, 414, 420, 424). He had made significant progress in social skills, acted more mature and responsible, and was more successful in getting along with other students (Transcript pp. 420-21; see also Parent Exhibit 4). However, petitioners' son was still quite socially immature, did not demonstrate age appropriate social skills, and continued to have difficulty interacting with people his own age (Transcript pp. 416, 420-22). His vocational programming at Glenholme included paid, supervised work in the dining hall and an instructional food service program (Transcript pp. 414-16). Because of his progress and age, and consistent with his need to transition to a less restrictive environment, the student resided with another student in an apartment-type situation within the closely supervised milieu of the school during his last quarter of attendance at Glenholme (Transcript pp. 409, 412-13, 445). Over the course of the 2001-02 school year, the student also made progress in his academic courses. His grades during this period were mostly Bs and included some As (District Exhibit 26; Parent Exhibit 5). In looking toward the next year, Glenholme staff reported that petitioners' son needed a program that would focus on vocational and independent living skills, and that would provide him with the support and supervision he required to obtain those skills (District Exhibit 11, p. 1). Glenholme staff stressed that it was important that the student's vocational skills be developed in authentic, real-life situations and pointed out that he was unrealistic with respect to career opportunities and employment situations (District Exhibit 23; Transcript pp. 425, 430, 438).
Respondent's Committee on Special Education (CSE) met on April 8, May 6, and June 3, 2002 to prepare the student's individualized education program (IEP) for the 2002-03 school year (District Exhibits 11, 13; Transcript pp. 69-70, 82, 135). The student's mother attended these meetings. A representative from Glenholme, who had been one of the student's teachers during the entire period of his attendance at that school, participated in the meetings by telephone. At its June 3, 2002 meeting, the CSE recommended a 12-month IEP for the period July 2002 to July 2003. The summer 2002 component of the student's 12-month program is not in dispute. For the 2002-03 school year, the CSE recommended that the student attend an 8:1+1 Therapeutic Support Program (TSP) - Fragile class, located at the Southern Westchester BOCES Center. The three-hour morning program would include daily classes in American history, English, physical science, and consumer/business math. The CSE recommended that in the afternoon, the student participate in the Southern Westchester BOCES Basic Occupational Education Program (BOEP) that was also located at the BOCES complex. At the urging of the Glenholme representative, the CSE recommended that the student participate in an actual employment situation. To assist him in an employment situation, again at the urging of the Glenholme representative, the CSE recommended that the student be assigned a job coach for ten hours a week. To address the student's needs in content area vocabulary and grammar and to support his ability to participate in responsible discourse (social language), the CSE recommended that the student receive individual speech-language therapy for 30 minutes, twice a week. The CSE also recommended that the student be provided with both individual and group counseling, each once a week for 30 minutes (District Exhibit 13).
By letter dated June 7, 2002, petitioners requested an impartial hearing with respect to the CSE's recommendation. The letter also requested payment for the cost of the student's program at the Berkshire Center (Berkshire) in Lee, Massachusetts. The hearing commenced on July 8, 2002 and continued on July 11, and August 1, 5, and 6, 2002. The hearing officer rendered a decision on October 23, 2002. She concluded that the student was appropriately grouped in the TSP - Fragile class (IHO Decision p. 10) and that the program set forth in the IEP was reasonably calculated to allow petitioners' son to receive educational benefits. She therefore denied petitioners' request for tuition reimbursement and did not address whether the program at Berkshire appropriately addressed the student's needs and whether the equities favored payment to petitioners for that program.
The parents appeal from the hearing officer's decision. They contend that their son was not suitably grouped for instructional purposes with children having similar individual needs. They also argue that the CSE's recommended program was inadequate. In particular, they assert that the student did not need the TSP morning program as he had completed a three-year therapeutic placement at Glenholme; that the recommended program involved too much classroom teaching; that the occupational education part of the recommended program was inadequate in that it covered the vocational program the student had at Glenholme; and that the hearing officer did not place proper reliance on the evidence presented by their son's psychiatrist that the proposed program would not address his need to develop and maintain his independent living skills. Respondent contends that the program set forth in the student's IEP provided the student with a free appropriate public education (FAPE) and that petitioners have not shown that the student's program at Berkshire was appropriate for his special education needs.
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq.) is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]). A FAPE includes special education and related services provided in conformity with an IEP (20 U.S.C. § 1401), and it is the student's IEP that tailors a student's program to his or her unique needs (Bd. of Educ. v. Rowley, 458 U.S. 176, 181 ). A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359 ). The failure of a parent to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ). 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, 532 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. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
In order to meet its burden to show that it offered to provide a student with a FAPE, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025). Procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE (W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D. Conn. 2001]; see Arlington Cent. Sch. Dist. v. D.K., ___ F.Supp.2d ___, 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; Evans, 930 F.Supp at 93; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]; Application of a Child with a Disability, Appeal No. 02-041; Application of a Child with a Disability, Appeal No. 02-015). The program recommended by the CSE 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. 02-059; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). An IEP must indicate the individual needs of the student in the areas of academic or educational achievement and learning characteristics, social development; physical development and management needs (8 NYCRR 200.4[d][i]). A student's needs relating to academic or educational achievement and learning characteristics includes those relating to activities of daily living and adaptive behavior (8 NYCRR 200.1[ww]).
Among the purposes of the IDEA is the preparation of students with disabilities for employment and independent living (34 C.F.R. § 300.1[a]). To the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enable the student to prepare for later educational experiences and for post-school activities, including formal education, if appropriate, employment, and independent living (34 C.F.R. Part 300, Appendix A, Part III; See also 34 C.F.R. Part 300, Appendix A, Part III, Question Nos. 11-13). Consistent with this, the IDEA regulations set forth specific requirements related to transition planning and transition services (id.). For students 14 years of age and older, the IEP must include a statement of the student’s transition service needs in the applicable portions of the IEP (34 C.F.R. § 300.347[b]; 8 NYCRR 200.4[d][viii]). For students 15 years of age and older, it must include a statement of the student's needs, taking into account the student's preferences and interests as they relate to transition from school to post-school activities including post-secondary education, vocational training, integrated competitive employment, continuing and adult education, adult services, independent living, or community participation (8 NYCRR 200.4[d][i][c], 200.1[fff]). For such students, the IEP is also required to include a statement of needed transition services, including if appropriate, a statement of the interagency responsibilities or any needed linkages with other service providers (34 C.F.R. 300.347[b]; see also 8 NYCRR 200.4[d][ix]), as well as a statement of the student's projected post-school outcomes, based on his or her needs, preferences, and interests, in the areas of employment, post-secondary education and community living.
Transition services are defined as:
a coordinated set of activities for a student with a disability that –
(1) Is designed within an outcome-oriented process, that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;
(2) Is based on the student's needs, taking into account the student's preferences and interests; and
(3) includes --
(ii) Related services;
(iii) Community experiences;
(iv) The development of employment and other post-school adult living objectives; and
(v) If appropriate, acquisition of daily living skills and functional vocational evaluation.
(34 C.F.R. § 300.29; see also 8 NYCRR 200.1[fff]).
Petitioners' son was 19 years old at the time of the hearing. He had spent the previous three school years, including two summers, in a highly restrictive, 24-hour supervised setting at Glenholme. During that time, he was enrolled in vocational programming and each year participated in life skills classes. There is no dispute that the student has significant educational, social and emotional needs, and that at the present time, preparing him for independent living and employment by providing him with appropriate transition planning and transition services is a critical educational need. I note that the student was clear in his testimony that he wanted to acquire and to learn to use independent living skills (Transcript pp. 522, 525, 527-28, 538).
The student's psychiatrist testified that he had long been advocating an away-from-home living situation for the student (Transcript p. 726); that the student needed very close supervision to learn appropriate skills of living, including self management, transportation, money management, meals, clothes, and leisure time (Transcript pp. 726-28); that he had "tremendous reservations" about the student living at home, fearing that he would not acquire necessary independent living skills (Transcript pp. 732-33, 767); that if the student did return home, it would be very easy for him to fall back into infantile and immature patterns and he would not gain the necessary skills to be independent (Transcript p. 733); that when the student was home from Glenholme, he became infantile, engaged in inappropriate talk and touching with family members, and that the longer he stayed home the worse this would become (Transcript pp. 773-74, 795); that this would not happen if petitioners' son were not at home and in an appropriate setting (Transcript pp. 794-95); that the student needed a place where he could be taught to become a young adult (Transcript pp. 735-36); that the program recommended by respondent was not appropriate because of his concern that the student's self-care skills would regress (Transcript pp. 766-67); and that a residential component was a crucial component of the student's program (Transcript p. 768).
A special education teacher who had taught the student during the three years he had been at Glenholme, including his life skills class for the last two years, also provided persuasive testimony regarding the student's transition needs. She testified that the student had made a lot of progress in the area of social skills at Glenholme, that he did not need the level of supervision provided by Glenholme 24 hours a day, and that he was ready for a less restrictive environment than that at Glenholme (Transcript pp. 420-21, 424, 439-40). Despite his progress, the teacher testified that the student remained quite socially immature (Transcript pp. 420-21). This witness also testified that the parents reported positive home visits, but that there were always difficulties when the student was at home and that "family work" helpful to the student was taking place (Transcript p. 429). She also expressed concern regarding the development and maintenance of the student's independent living skills if he were at home (Transcript p. 454).
Consistent with this testimony, the student's mother testified that the student had a difficult time at home, that she had difficulty keeping him focused, and that he became childlike and immature at home (Transcript pp. 558, 576-77). She also testified that although he had graduated to the self-dependence level at Glenholme, he continued to need a token economy program when he was at home (Transcript p. 577). Although she downplayed its significance, she also indicated that the student engaged in inappropriate behavior with family members at home (Transcript pp. 845-46).
Although there was testimony that the program recommended by the CSE would provide certain transition services, the testimony did not show that the program would appropriately address the student's independent living needs. Moreover, respondent provided no rebuttal testimony to the evidence presented by the student's psychiatrist, his teacher, and his mother, which raised significant questions about whether the program proposed by respondent's CSE could successfully address his independent living needs while he lived at home for the 2002-03 school year. Although the program recommended by the CSE was predicated on the student's living at home, it included no family counseling, notwithstanding the acknowledgement by respondent's school psychologist, who was a member of the CSE which developed the proposed IEP, that "some work in the family [was] appropriate" (Transcript pp. 199-200).
Further, the student's IEP did not adequately describe his transition needs, including his independent living needs, an area of particular importance in light of the fact that the student was 19 years of age (see 8 NYCRR 200.4[d][i][c], 200.1[fff]; see also 34 C.F.R. § 300.347[b]). The document's statement of his educational needs and learning characteristics did not include an assessment of his needs relating to activities of daily living and adaptive behavior which would be relevant to the delayed development of his independent living skills (8 NYCRR 200.4[d][i], 200.1[ww]). I also note that the IEP did not include adequate statements of his projected post-school outcomes or of his needed transition services which are also required by the state and federal regulations (see 34 C.F.R. 300.347[b]; 8 NYCRR 200.4[d][ix]). With respect to the former, the IEP provides only that "[t]ransition for 2002-03 will happen at the annual review meeting where programs will be explored" (District Exhibit 14, p. 4). Relative to the latter, the IEP is for the most part vague and it is specific only with respect to access to job coaching "to prepare for and secure successful employment" (District Exhibit 13, p. 4). The IEP indicated that the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) "will serve as the participating agency," and it references a referral to the Young Adult Institute (YAI). However, it provided no information as to what specific role VESID was to play in the student's transition to employment and independent living. With respect to YAI, the school psychologist testified that that program advised him to contact VESID regarding the student and that he also had learned that because of reduced funding, YAI's programs were available only to students with mental retardation (Transcript p. 200). The IEP makes no reference to possible assistance from any agency to assist the student with residential programming to facilitate the development and maintenance of residential independent living skills, and the record does not indicate that respondent's CSE explored this as a potential transitional linkage. I note finally that without an adequate description of the student's transition needs, including those relating to independent living, the CSE lacked a sufficient basis to formulate an IEP that would appropriately address those needs.
At the time of the hearing in this matter, petitioners' son was 19 years old and had just completed a highly structured residential program. Although it was reported that he had made much progress in that program, the record also indicates that he remained socially immature and continued to require a structured educational environment with considerable support. The student's psychiatrist, private school teacher, and mother all expressed significant concern about his independent living skills. The record does not show, however, that these concerns were adequately addressed by the CSE in the present levels of performance, individual needs, and transition services sections of the student's IEP or by the program recommended by the CSE. Given the student's age and the importance of providing him with a program to prepare him for employment and independent living, I find that the inadequacies of the IEP in identifying his transition needs and in specifying transition services to address such needs resulted in a loss of educational opportunity to the student. Accordingly, I conclude that respondent failed to establish that it offered petitioners' son a FAPE (see Application of a Child with a Disability, Appeal No. 02-015). Having made this determination, it is not necessary that I address petitioners' challenge to the hearing officer's determination that their son was suitably grouped for instructional purposes in respondent's proposed TSP - Fragile class.
Petitioners bear the burden of proof with regard to the appropriateness of the educational program for which they seek reimbursement during the 2002-03 school year (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, petitioners must show that Berkshire offered an educational program which met their son's special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-20). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S., 231 F.3d at 105; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).
Berkshire is a post-secondary program for students with learning disabilities and is located in Lee, Massachusetts (Transcript p. 505; Parent Exhibit 1). It does not issue diplomas, and some of its students come to its program without diplomas (Transcript pp. 468-69). It takes students without diplomas if it believes they can achieve a diploma within a year; however, the issuance of a diploma based on work done at Berkshire is the responsibility of the home school district (id.). Berkshire's enrollment is between 35 and 40 students (Transcript p. 388) with the ages of its students ranging from 18 years to between 26 and 28 years (Transcript p. 355). Students' IQ scores range from 70 to above 130 (Transcript p. 489). The average age of the students is 22, and students generally attend Berkshire for two to four years (Transcript pp. 356, 496). Berkshire's assistant director, who was also its admissions director, testified that there would be six new students in the 2002-03 school year (Transcript p. 388).
Berkshire's program teaches residential living skills (Transcript pp. 332-33, Parent Exhibit 1, p. 22). All students reside in one of five apartment buildings in Lee, Massachusetts owned by Berkshire; two of the buildings have a live-in resident staff person (Transcript p. 484). The apartment living skills program includes weekly assistance with the students' budgeting and banking needs. The assistant director testified that Berkshire has three tracks (Transcript p. 333). In addition to residing in one of the program's apartments, students attend Berkshire Community College (BCC) in Pittsfield, Massachusetts; Mildred Elley Business School (Mildred Elley), also in Pittsfield; or Berkshire's vocational internship program (Transcript pp. 333, 392). The assistant director also testified that there was no formal relationship between Berkshire and either BCC or Mildred Elley, but that they have a close working relationship (Transcript pp. 323, 393). Participation in the academic, business, and internship tracks are not mutually exclusive (id.). Historically, 60 percent of the students attend BCC, 25 percent attend Mildred Elley, and 15 percent participate in the vocational internship program (Transcript p. 494).
The program also provides individual and group counseling once a week (Transcript p. 339) and employs a consulting psychiatrist (Transcript p. 361). Students who use medication are required to be self-medicating (Transcript p. 360). All students are required to perform at least an hour a week of community service (Transcript p. 34). Berkshire provides in-house classes in critical thinking, current events, organizational/time management, study skills, library research skills, communication, health issues, government and civic responsibilities, reading and writing skills, life skills, math, and banking skills (Transcript pp. 333-35, 368; Parent Exhibit 1, p. 21). All students receive individual tutoring (Transcript p. 340). Students who are attending BCC or Mildred Elley receive tutoring in the areas in which they take courses (id.). Others are tutored in needed vocational or practical living skills (id.). The program does not employ speech-language therapists, but it would assist students who need such services by helping them make an appointment with a speech-language therapist in the community (Transcript pp. 365-66).
Berkshire's internship track provides internships with cooperating community sponsors in an area that is of interest to the student, with a goal of providing students with a number of different experiences (Transcript pp. 333, 378). Berkshire's vocational director, who works with students in the internship program and with actual and potential internship sponsors, coordinates the internship program (Transcript pp. 336-39). A vocational skills class also provides internship track students with targeted help including a vocational assessment, résumé assistance, practice interviews, and job skills (Transcript pp. 335-36). Students attend internships between one and three days a week (Transcript p. 487). The vocational director is in frequent telephone contact with the sponsor during the course of the internship, and sponsors provide Berkshire with end-of-semester evaluations (Transcript pp. 363-64). Although it is possible, the program does not recommend beginning the internship program with actual employment (Transcript p. 349). If the students are successful in internship experiences, the vocational coordinator provides assistance in finding students appropriate jobs (Transcript p. 351).
Berkshire's assistant director testified that petitioners' son would initially be placed in the vocational track, receive an assessment and related vocational services, and be placed in an internship in an appropriate career area (Transcript pp. 477-79). The assistant director testified that he did not know what in-house courses the student would have at Berkshire because the schedules were still being developed (Transcript p. 482). He also indicated that he was unable to describe what a typical day for the student would be because he had not heard from the student's parents regarding whether they wanted "to give college a try" (Transcript p. 477). The student's mother testified that beginning in September, Mildred Elley had a seven and a half week period where petitioners' son would explore different options (Transcript p. 604) but also that she had not yet made a decision regarding that program (Transcript pp. 606-07). She also indicated that Mildred Elley had a hospitality program that her son could take after completing the exploratory program (Transcript p. 605). The student's mother also testified about him being involved in Berkshire’s internship program (Transcript p. 853). The student testified that in the fall he wanted to learn to live on his own (Transcript pp. 519, 522, 525, 538) and attend either the community college or the business school (Transcript pp. 519, 525). He further testified that he wanted to start at the business school and that if he did not like that program, he would try some courses at the community college (Transcript p. 520).
The student has significant academic deficiencies in numerical operations, spelling, and written expression. He is socially immature and lacks age appropriate social skills, including social language skills. He needs support and supervision in this area and would benefit from the presence of peer role models, as he has significant difficulty in relating to students his own age. Independent living skills are also an area of significant importance to the student, and he needs an environment that will facilitate independence and learning in this area to assist him to become a functioning adult. The student's transition needs require a program that provides significant vocational experiences in the context of authentic and real life situations (District Exhibits, 7, 11, 23; Transcript pp. 427, 446, 448, 449, 450, 738). Petitioners’ son is not ready for completely independent vocational experiences. At the present time, he requires the assistance of a job coach to help him find an interesting and challenging vocational opportunity, to be present at the work site at the beginning of the job to make sure that the task is clear and within the student's abilities and that he understands his responsibilities, and to be available to work with the student and supervisor during the vocational experience to address the problem solving, communication, and interpersonal issues that would arise because of the student’s deficits (Transcript pp. 418, 461-63). The student also needs to become more realistic relative to employment possibilities and career opportunities.
Petitioners have not shown that the program at Berkshire was appropriate for their son's academic needs. There was no testimony regarding how that program would specifically address the student’s academic needs in mathematical operations, written language, and spelling. The testimony and submitted brochure indicates that tutors were available to assist students in these areas and that the program provided "in-house classes." However, the assistant director was unable to state what specific in-house classes the student would attend (Transcript p. 482). That witness also testified that some of Berkshire’s classes were limited to students participating in the BCC and Mildred Elley tracks and that petitioners had not advised him that they would be participating in either of those tracks. Although the student testified that he would be taking college or business school classes and mentioned nothing about Berkshire's vocational program, the student's mother testified that she had not made a final decision regarding the student's attendance at Mildred Elley (Transcript pp. 606-07). Petitioners did not submit any evidence that the student would be attending BCC. Although the student would receive tutoring, the assistant director, who testified that at the time of the hearing the student was on the vocational track, also testified that tutoring provided to vocational students was vocational and not academic (Transcript pp. 340, 477-79).
With respect to the student's vocational needs, the internship program would appear to meet at least some of his needs in this area. However, there was no testimony that the student would be able to begin to participate in an internship experience at the beginning of the program. The only commitment in the record was that an appropriate internship would be found within sixty days. As indicated above, a job coach was integral to a successful vocational experience for petitioners' son. While Berkshire has a vocational director, and while that person clearly fills some of the responsibilities of a job coach, there was no testimony that this staff person, or any other, would be present at the internship site at the beginning of the experience to assist the student and thereby help to facilitate positive outcomes from that experience (See transcript pp. 336-39, 363-64, 492). The job coach was a critical component of an appropriate vocational transition program for the student. Petitioners’ failure to show that Berkshire would be able to provide such services was a significant defect in the program proposed for the student.
A major element of Berkshire's program is its focus on successful apartment living. Petitioners’ son had completed almost three years in a very structured and supervised environment. The student’s continued attendance at Glenholme was not necessary to address his special educational needs. At the same time, while the student was ready to leave Glenholme and move to a less restrictive environment, the evidence is insufficient to conclude that the residential aspect of Berkshire's program was appropriate for his needs in this area. As indicated above, while Berkshire staff resided in two of its five apartment buildings, its staff was present in the other buildings only from approximately 3:00 or 4:00 p.m. to approximately 9:00 or 10:00 p.m. (Transcript p. 342). Residential staff was available to be called for emergencies after that (Transcript pp. 483-84). The extent to which staff was present in the other three buildings when students woke up or were otherwise on the premises was unclear. The student's life skills teacher at Glenholme testified that she would need more information about Berkshire's program before she could agree that its level of residential supervision was appropriate for the student (Transcript pp. 439-40). The student's psychiatrist, who had treated him for 11 years, testified that the student needed a tight structure 24 hours a day, very close supervision to learn appropriate skills of living, and a great deal of program supervision (Transcript pp. 727-29, 732-33, 735). He testified that the student's residential component was crucial, that a supervised living arrangement would be very helpful to the student, and that he could live in a supervised group home (Transcript pp. 729, 768, 772). He did not testify that the degree and extent of the supervision with respect to the residential component of Berkshire's program was sufficient for the student's needs. Petitioners provided no testimony with respect to whether their son would reside in one of the buildings with live-in staff.
On the record before me, I find that petitioners have failed to establish that Berkshire's educational, vocational, and residential programs appropriately addressed the student's needs. That being the case, I need not reach respondent’s contention that placement of petitioners' son at Berkshire would be inconsistent with the requirement that each student with a disability be placed in the LRE.
As petitioners have not prevailed with respect to the second criterion for an award of tuition reimbursement for their son's attendance at Berkshire for the 2002-03 school year, it is unnecessary to address the question of whether that claim is supported by equitable considerations.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is annulled insofar as she determined that respondent recommended an appropriate program for petitioners' son; and,
IT IS FURTHER ORDERED that within 30 days of the date of this decision respondent's CSE must meet and develop, as required by the applicable federal and state regulations pertaining to transition services, an appropriate IEP that includes a statement of the student's transition service needs; a statement of the student's needed transition services, including a statement of appropriate interagency responsibilities and needed linkages; and a statement of the student's projected post-school outcomes.
Albany, New York
September 5, 2003
PAUL F. KELLY