The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Springville-Griffith Institute Central School District
Andrew K. Cuddy, Esq., attorney for petitioner
Hodgson Russ LLP, attorneys for respondent, Jerome D. Schad, Esq., of counsel
Petitioner, the child's father, appeals from the decision of an impartial hearing officer which determined that there was no evidence in the record demonstrating that petitioner's son had been referred to respondent's Committee on Special Education (CSE). Based upon his finding that the child had not been referred to the CSE, the hearing officer determined that the CSE acted inappropriately and beyond its jurisdiction when it convened in November 2002. He concluded that the recommendations and individualized education program (IEP) developed by respondent's CSE in November 2002 were "of no effect whatsoever," and that the child was not entitled to receive special education and related services during the 2002-03 school year. Despite this determination, the hearing officer also addressed both the procedural and substantive appropriateness of the November 2002 IEP. He found the meeting at which the November 2002 IEP was developed to be procedurally defective and annulled the CSE's recommendations and the IEP. He also determined that the November 2002 IEP was substantively inappropriate and ordered that it be annulled on that basis. Respondent cross-appeals from that part of the hearing officer's decision which addressed the procedural and substantive merits of the November 2002 IEP. The appeal must be sustained in part. The cross-appeal must be sustained in part.
Petitioner's son was nine years old and in the third grade at Springville Elementary School (SES) when the hearing began in February 2003. His educational history and evaluations are described in a prior decision (Application of the Bd. of Educ. of the Barker Cent. Sch. Dist., Appeal No. 02-070), and will not be repeated here in detail.
In July 2000, a comprehensive evaluation report suggested that the child met the criteria for a diagnosis of pervasive developmental disorder, not otherwise specified (PDD-NOS) (Exhibit 67). The evaluators determined that the child's language and behavior did not support a diagnosis of Asperger's disorder, and that he clearly did not fully meet the criteria for a diagnosis of autistic disorder. In an October 2002 psychological evaluation, the child's cognitive ability was reported to be in the low range (Exhibit 34). The evaluator noted that the discrepancy between the child's achievement and his chronological age and cognitive ability revealed a pattern which was highly suggestive of a specific learning disability. The child's performance in reading and language arts was at the kindergarten level, while his performance in math was at the second grade level (Exhibit 54). His overall language ability was in the average range, with conversational skills within the normal range for sentence length and complexity (Exhibit 42). Auditory perceptual skills also were average, with a slight weakness in auditory memory. The child demonstrated age appropriate overall gross motor skills, but varied perceptual and motor planning skills related to handwriting (Exhibit 37). A sensory processing evaluation identified deficits which were likely to interfere with the child's ability to sit for long periods, remain alert, maintain participation with peers and respond appropriately to social and environmental cues (Exhibit 55).
As indicated above, the child was a resident of the Barker Central School District (Barker) until the fall of 2002. While residing in Barker, he was homeschooled for kindergarten, first and second grade, and did not receive special education services (Transcript pp. 459, 477, 544). On September 12, 2002, the child was enrolled in respondent's district by his mother (Pet. ¶ 7). As part of the enrollment process, the child's mother completed the district's confidential registration form, providing her address in Springville, New York and her husband's address in Gasport, New York (District Exhibit 58). Gasport is not located within respondent's district. On the form she also indicated that her son participated in certain programs including remediation for math and reading, and special education including a 15:1 integrated class, IEP counseling and occupational therapy. The child's mother also met with the principal of SES who referred her to the district's director of special education services (Transcript p. 404).
By letter dated September 27, 2002, the director of special education services requested that the child's mother consent to the evaluation of her son (Exhibit 56). The child began to attend school on September 30, 2002 in a third grade integrated classroom (Transcript p. 51). Between the date of the child's enrollment on September 12 and September 30 when he began attending school, the director of special education services and the child's mother had several conversations regarding the child's program (Transcript pp. 49, 405, 487-90).
The district received the mother's consent to evaluate on October 8, 2002, after which various evaluations were conducted (Exhibits 34, 37, 42). The CSE convened on October 29, 2002 at which time it was agreed that a team meeting would be held to discuss goals and objectives which would be finalized in an IEP at a subsequent CSE meeting (Transcript p. 93). The CSE reconvened on November 15, 2002. It recommended that the student be classified as autistic, that he be placed in a 12:1+1 integrated classroom with related services of occupational therapy, counseling, and speech-language therapy as well as specialized reading instruction.
Petitioner was not provided notice of the November 2002 meeting, nor did he attend (Transcript p. 111). The child's mother did attend the meeting, which continued for more than two hours (Exhibit 28). Approximately two hours into the meeting, the additional parent member of the CSE had to leave, and was replaced by another additional parent member (Exhibits 26, 28). At the meeting, the child's mother expressed her disagreement with certain aspects of the IEP, but did not want to reconvene (Exhibit 28). Notwithstanding the lack of consensus, the CSE developed an IEP which was approved by the Board of Education on December 11 (Exhibits 14, 22; Transcript pp. 144-45).
By letter dated January 16, 2003, the child's father requested an impartial hearing because he disagreed with the program, placement, and evaluations, and the "procedural and substantive non-compliance with applicable law" (IHO Exhibit 1). The hearing was held in February 2003. Although the child's father requested the hearing, he did not participate in the proceedings (IHO Decision p. 6). However, the child's mother testified at the hearing and was in attendance at each hearing session.
The hearing officer rendered his decision on April 22, 2003. Based upon petitioner's hearing request and closing brief, he determined that petitioner's claims could be summarized into four issues. First, he addressed the extent of the district's responsibility to provide special education to the child prior to the creation of an IEP. He noted that the child had never received special education from any public agency. He further noted that the only two IEPs developed for the child had been annulled in a prior proceeding and were the subject of a pending appeal. The hearing officer concluded that at the time the child was registered in the district, the district had no obligation to provide special education to him. Accordingly, he denied petitioner's claim for compensatory education for services petitioner claims were not provided to his son prior to the development of the IEP. Second, the hearing officer addressed whether the November 2002 IEP was "procedurally correct". He found that though petitioner was not provided notice of the November 2002 CSE meeting, the child's mother received timely notice of the meeting and he determined that such notice was sufficient to be considered constructive notice to petitioner. The hearing officer further found that the CSE was not properly constituted because the additional parent member left the meeting after two hours and was replaced by another additional parent member. The hearing officer also found that the district failed to meet its burden of establishing that it had obtained all appropriate evaluations, specifically an observation of the child.
Third, the hearing officer found that the November 2002 IEP was substantively inappropriate because the present levels of performance were insufficient, there was no present functioning level against which short-term objectives could be measured, and the standards to measure progress were not objective. Finally, the hearing officer addressed the issue of whether the IEP was properly implemented. He found that the child was not classified when he was enrolled in the district in September 2002. He further found that there was no evidence in the record that the child was ever referred to respondent's CSE. Accordingly, he found that the CSE acted inappropriately and beyond its jurisdiction when it convened in November 2002. Therefore, he determined that the recommendations made by the CSE at that meeting were "null, void and of no effect whatsoever." He also determined that the child was not entitled to receive special education during the 2002-03 school year. As a result of his findings, the hearing officer dismissed the parent's claims.
Petitioner appeals from the hearing officer's decision. He claims that the hearing officer erred in finding that his son was not referred to respondent's CSE and in finding that he was provided proper notice of the November 2002 CSE meeting. Among numerous requests for relief, he seeks a determination that his son has been denied a free appropriate public education (FAPE) as of the date he was enrolled in the district, "corrective educational services" for the period of time between his son's enrollment in the district and when he actually began classes, and services to make up for the occupational and speech-language therapy that he claims his son did not receive. The district cross-appeals claiming, among other things, that the hearing officer erred in examining the procedural and substantive merits of the November 2002 IEP after having ruled that it had no legal obligation to provide special education and related services to the child.
First I must determine the status of the child when he entered respondent's district in September 2002. The child was initially referred to the CSE when he resided in Barker and Barker's CSE met to consider his eligibility for the first time in 2001. At that time, the child was being homeschooled and had been homeschooled for kindergarten, first and second grades (Transcript p. 459). The child's parents requested a hearing because they disagreed with Barker's CSE's classification and program recommendation. At that hearing, the hearing officer was asked to determine the child's pendency placement. He determined that the child's pendency placement was general education. The hearing officer addressed issues regarding IEPs developed in 2001 and 2002. He rendered a final decision regarding each IEP in June 2002 annulling Barker's recommended classification and IEPs. Barker appealed those decisions to this office. Shortly after the appeal was filed, the child was enrolled in respondent's district. While residing in Barker, the child did not receive special education or related services. In view of the unique circumstances presented in this case, I find that when the child entered respondent's district in September 2002, placement in general education would have been appropriate. I note that the child's mother believed that her son would be placed in general education with no services when he entered respondent's district (Transcript p. 536).
Petitioner claims that the hearing officer erred in finding that his son was not referred to the CSE. As noted above, when the child's mother enrolled her son in the district in September 2002, she completed the district's confidential registration form indicating that her son participated in certain programs including remediation for math and reading, and special education including a 15:1 integrated class, IEP counseling and occupational therapy (District Exhibit 58). Further, the principal of SES referred the child's mother to the district's director of special education services. In a follow-up letter, the principal of SES advised the child's mother to contact the special education department about her son's needs for services outside the general education classroom and indicated that he would work with the coordinator of special education services to assist in the evaluation process (District Exhibit 57).
A student suspected of having a disability shall be referred in writing to the chairperson of the district's CSE or to the building administrator of the school which the student attends for an individual evaluation and determination of eligibility for special education programs and services (8 NYCRR 200.4). I agree with the hearing officer that the confidential registration form completed by the child's mother did not constitute a referral. However, I find that in the absence of a referral from the child's parent, the district had sufficient information regarding the child that it should have referred him to the CSE. Notwithstanding the fact that the child was not referred to the CSE in the manner set forth in state regulation, the district commenced the evaluation process with the child's mother's consent. Given the specific circumstances presented in this case, I find that the district's action initiating the evaluation process was appropriate.
Pursuant to 34 C.F.R. § 300.342(b)(1), an IEP must be in effect before special education and related services are provided to an eligible child. However, this requirement does not preclude temporarily placing an eligible child with a disability in a program as part of the evaluation process before the IEP is finalized to assist the public agency in determining the appropriate placement for the child (34 C.F.R. Part 300, Appendix A, Section IV, Question 14). To ensure that the temporary placement does not become the final placement, school districts could develop an interim IEP with specific conditions and timelines, ensure that the parents agree to the interim placement before it is carried out and that they are involved in the development process, and set a specific timeline for finalizing the IEP and conduct an IEP meeting at the end of the interim period to finalize the IEP.
The child's mother testified that she advised the district that her son's IEPs developed by Barker had been annulled (Transcript p. 403). However, she also demanded that services listed on the annulled IEP be provided to her son (Exhibits 47, 48). Additionally, she understood that her son's program would be reviewed in October 2002 (Transcript p. 501). The coordinator of special education services testified that her first contact with the child's mother was either on September 12 or 13, 2002 (Transcript p. 40). She further testified that between September 12 and September 30, 2002 when the child began attending school, she had numerous conversations with the child's mother about the program and the child's needs (Transcript p. 49). The coordinator of special education services also testified that she was aware that the child's Barker IEPs had been annulled (Transcript pp. 67, 102). However, part of her testimony included a description of the procedure she follows when a student enters the district with an IEP, and indicated that the services on an IEP from the other district would be provided for a period of time, usually 30 days, then the CSE would meet to review the placement (Transcript pp. 57-58). Based upon the information before me, I find that when the child began school in September 2002, the district agreed to provide the services requested by the child's mother who was very involved in the process and who understood that the CSE would meet to review the program in October 2002 after evaluations had been conducted.
For a student not previously identified as having a disability, the CSE shall provide a recommendation to the board of education which shall arrange for the appropriate special education programs and services to be provided within 60 school days of the receipt of consent to evaluate (8 NYCRR 200.4[d]). The record shows that the district received parental consent to evaluate on October 8, 2002 (Exhibit 53). The CSE developed an IEP for the child at a meeting on November 15, 2002 which the Board of Education approved on December 11, 2002 (Exhibits 14, 22). I find that the CSE provided a timely IEP to the Board of Education, which arranged for appropriate services in a timely manner.
The hearing officer found various procedural and substantive violations with respect to the development of the November 2002 IEP. Assuming, without deciding, that the hearing officer's findings are supported by the record, there is no meaningful relief that I can grant in this case. The record shows that the child began receiving services prior to the development of his IEP. Special education services were provided on the first day he entered school in September 2002, speech-language therapy in October 2002, and occupational therapy in November 2002. The record also shows that the child's mother requested those services. Additionally, the record shows that the child's mother was an active participant in the CSE process. She estimated that she met with respondent's staff on approximately 14 different occasions to develop her son's IEP (Transcript p. 557). Moreover, the record shows that on February 14, 2003 while the impartial hearing was pending, the CSE met and developed another IEP for the child (Transcript pp. 185, 252). Given that the child was provided the services his mother and the CSE agreed he needed, that the child's mother was an involved participant in the development of his IEPs, that a new IEP was developed in February 2003 after the child's mother met with her son's providers to review goals and objectives, and that the 2002-03 school year is over, any order with respect to the November 2002 IEP would not be meaningful and I decline to review the merits of the IEP further.
Petitioner seeks additional speech-language and occupational therapy to make up for the services he claims his son did not receive. 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, the district agreed to and began providing speech-language and occupational therapy to the child before his IEP was finalized. Additionally, the occupational therapist testified that occupational therapy sessions were being provided to the child beyond those specified in the November 2002 IEP (Transcript p. 348). An award of additional services is not warranted in this case because there has been no deprivation of services.
With respect to respondent's cross-appeal, having found that the child was referred to the CSE, it was necessary to address the issues challenging the appropriateness of the November 2002 IEP. Therefore, that part of the cross-appeal claiming that the hearing officer erred in considering the procedural and substantive merits of the IEP must be dismissed. Further, having determined that under the circumstances presented in this case no meaningful relief can be granted, it is not necessary that I address respondent's claim that the hearing officer imposed an unreasonable standard when examining the procedural and substantive merits of the IEP.
I have considered the remaining claims raised by the parties and I find that they are without merit, not in dispute or not properly before me.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is annulled insofar as it determined that the child was not referred to the CSE, that the November 2002 IEP was null and void, and that the child was not eligible for special education services for the 2002-03 school year.
Albany, New York
November 6, 2003
PAUL F. KELLY