The State Education Department
State Review Officer

No. 03-105

 

 

 

 

 

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 City School District of the City of New York

 

 

Appearances:
Neal Howard Rosenberg, Esq., attorney for petitioner

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, John Hewson, Esq, of counsel

 

DECISION

 

            Petitioner appeals from the decision of an impartial hearing officer which denied her request for compensatory education for the 2003-04 school year.  The appeal must be dismissed.

 

At the time of the hearing, petitioner's son was 21 years old, and had received an individualized education program (IEP) diploma from respondent's Queens Occupational Training Center (OTC) in June 2003.  The student turned 21 years old on February 14, 2003 and continued to receive services pursuant to his IEP through the summer of 2003.  The student was classified as mentally retarded by respondent's committee on special education (CSE) and his classification is not in dispute.

 

The student exhibits severe deficits in verbal and nonverbal communication and social skills.  He is impulsive, distractible and easily frustrated (Exhibit A).  The student is able to respond to concrete questions about his needs and wants through the use of a communication book and hand gestures (Exhibit A).  The student requires constant prompting to remain seated and supervision to participate in an activity (Exhibit A).  He also exhibits significant delays in writing, reading, and math skills.    The student is able to match shapes and items of different sizes.  He recognizes numbers one through five and can match pennies and nickels.  He does not demonstrate understanding one-to-one correspondence (Exhibit A).  The student requires an adapted functional curriculum and a structured small group educational environment. 

           

            The student began attending respondent's OTC in 1999 (9/17/03 Transcript p. 13).  The program at respondent's OTC is for adolescents between the ages of 14 and 21 (9/17/03 Transcript p. 12).  The program focuses on enhancing the independence of its students and combines academics with vocational opportunities to assist its students with transitioning to adult life (9/17/03 Transcript p. 12).  For the 2002-03 school year, the CSE recommended that the student be enrolled in an 8:1+1 class with a paraprofessional, a crisis paraprofessional and the related services of individual speech-language therapy for 45 minutes, three days per week, individual occupational therapy for 30 minutes, two days per week and adaptive physical education (Exhibit A).  The student's IEP also recommended that the student be transported in an air-conditioned bus (Exhibit A). 

 

The student's program at OTC also provided a vocational component (9/17/03 Transcript pp. 28-29; 10/17/03 Transcript pp. 40, 48).  The program at OTC integrates academics and vocational training (9/17/03 Transcript p. 12, 51). While attending OTC, he had many opportunities to participate in different workshops within the school. These included plastics, woodworking, ceramics, and plant ecology (9/17/03 Transcript p. 13).  The student's goals and objectives to increase his awareness of the school, community, city and country contained holiday and calendar short-term objectives that are appropriate for the student's functioning level.  It appears that the objective addressing the selection of public transportation routes on a computer screen was the result of a parental request for travel training.  However, the record does not support petitioner's belief that the student is an appropriate candidate for travel training (Exhibit A; 9/17/03 Transcript p. 29; 10/7/03 Transcript p. 54).  Although the IEP could have been crafted more precisely, the IEP goals and objectives promoted the student's opportunity to achieve some level of progress within his overall program.

           Petitioner requested the first hearing (Hearing 1) regarding the 2002-03 school year in the spring of 2003 (9/17/03 Transcript p. 18).  Hearing 1 began on May 8, 2003 and concluded on June 13, 2003.  The issue in Hearing 1 was petitioner's request that her son continue to receive special education services through summer 2003.  On June 17, 2003, the impartial hearing officer issued a "Statement of Agreement and Order" stating that petitioner's son would continue to attend OTC for the duration of the 2002-03 school year and that petitioner would "meet with the Principal and Transition Coordinator of [OTC] on June 18, 2003 to discuss the appropriateness of vocational modifications to the student's current program" (Exhibit 2; 9/17/03 Transcript p. 19).  The impartial hearing officer also stated that she would retain jurisdiction for the 2002-03 school year.  Neither party appealed from the Statement of Agreement and Order issued in Hearing 1, and as such the impartial hearing officer's order is final (34 C.F.R. § 300.510[a]).

         A meeting was held on June 18, 2003, pursuant to the Statement of Agreement and Order entered into at Hearing 1.  The meeting resulted in an agreement that petitioner's son would attend summer school at OTC and participate in an off-site job placement (9/17/03 Transcript p. 19).  The student attended the off-site job placement two days per week and attended OTC for three days per week (9/17/03 Transcript p. 20).  Respondent's assistant principal of OTC testified that the student was assigned to a job placement in a park.  His tasks involved picking up leaves in the park and cleaning a playground area (9/17/03 Transcript p. 19).  The assistant principal further testified that  either she or the principal or another assistant principal attended the job placement with the student and the student's paraprofessional in order "to maximize the success for [the student] and to see first hand his capabilities and just to insure success and for him to have a positive outcome"  (9/17/03 Transcript p. 20).  The assistant principal also testified that it was unusual for more than one adult to accompany a student to an off-site job placement, but necessary in this instance to refocus the student and to prevent him from running away (9/17/03 Transcript pp. 20-22). 

 

Petitioner requested a second impartial hearing (Hearing 2) in August 2003 when her son concluded the summer program at OTC (IHO Decision p. 2).  Petitioner sought an award of compensatory education for the 2003-04 school year on the grounds that respondent failed to offer her son both vocational training and travel training throughout his enrollment at respondent's OTC.  A new impartial hearing officer was appointed.  Hearing 2 began on September 17, 2003 and concluded on October 7, 2003.  The impartial hearing officer rendered his decision in Hearing 2 on November 5, 2003.  The impartial hearing officer found that the IEP dated April 16, 2003 was defective, stating:  "I credit the parent's assertion that [the student's special education teacher] was the only school or CSE staff member present when she signed it, and find that she had no meaningful chance to participate in its development"  (IHO Decision p. 8).  He further found that respondent's transition services were inadequate and ordered the New York City Department of Education to provide transition planning services to petitioner and her son "during the current school year"  (IHO Decision p. 8).  The impartial hearing officer denied petitioner's request for compensatory education.  Since neither party appealed from those parts of the impartial hearing officer's decision in Hearing 2 which found that petitioner was denied a meaningful opportunity to participate in the development of her son's IEP and that respondent must provide transition services for the 2003-04 school year, I do not review them  (34 C.F.R. § 300.510[a]). 

 

In this appeal, petitioner first asserts that the impartial hearing officer in Hearing 1 retained jurisdiction over Hearing 2, and that she objected to the appointment of a second impartial hearing officer.  Petitioner also asserts that because the IEP dated April 16, 2003 indicated a projected date of review of April 27, 2004, respondent is required to provide services through the 2003-04 school year.  In the alternative, petitioner seeks an award of compensatory education for the 2003-04 school year based upon respondent's failure to provide vocational training and travel training.

 

I will first consider petitioner's claim that the impartial hearing officer in Hearing 1 retained jurisdiction over Hearing 2.  Petitioner objected to the appointment of a second hearing officer.  New York State Education Law section 4404 and its implementing regulations set forth the procedures for requesting an impartial hearing if a parent believes that a school district is not providing appropriate services under a student's IEP, and for assignment of impartial hearing officers after a district receives a parent's request for an impartial hearing (Education Law § 4404; 8 NYCRR 200.5[i]).  Appointment of the hearing officer must be made pursuant to the rotational selection process established in section 200.2 of the regulations (see 8 NYCRR 200.2).  It is well settled that there is no authority for an impartial hearing officer to generally assume jurisdiction with respect to all matters reportedly arising from the implementation of the hearing officer’s decision, or with respect to any future dispute between the parties (Application of the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 02-081; Application of the Bd. of Educ. of the Springfield-Griffith Institute Cent. Sch. Dist., Appeal No. 02-008).  Any such decision to retain jurisdiction over a subsequent matter requires the consent of both parties (Application of the Bd. of Educ. of the Pawling Cent. Sch. Dist., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 01-057; Application of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 99-77; Application of a Child with a Disability, Appeal No. 96-45; but cf., Application of a Child with a Disability, Appeal No. 98-9 [consent of both parties was not necessary for impartial hearing officer to retain limited jurisdiction to enforce his order that an immediate triennial evaluation be conducted]).  In the instant case, the Statement of Agreement and Order issued by the impartial hearing officer in Hearing 1 was not executed by the parties.  It was signed only by the hearing officer and issued in the manner consistent with a decision of an impartial hearing officer.  Since there is no evidence in the record that both parties consented to this order, I find that the hearing officer in Hearing 1 lacked the authority to retain jurisdiction over the subsequent dispute between the parties (Application of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 99-77; Application of the Board of Education of the City School District of the City of New York, Appeal No. 94-11; Application of the Board of Education of the City School District of the City of Binghamton, Appeal No. 96-32; Application of a Child with a Disability, Appeal No. 96-45).

 

Petitioner next contends that because the IEP developed on April 16, 2003 for the remainder of the 2002-03 school year stated a projected date of review in April 2004, respondent is required to provide services for the 2003-04 school year.  The impartial hearing officer held that the IEP cannot confer more rights than laws upon which it is founded (IHO Decision p. 7).  He found that all of the parties were aware that petitioner's son's 21st birthday was during the 2002-03 school year and that, regardless of the date on the IEP, petitioner's son would not be entitled to compensatory education for the 2003-04 school year in the absence of a gross violation of the Individuals with Disabilities Education Act (IDEA) (see Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990].  In this appeal, respondent contends that the projected date of review was a clerical error (Answer ¶ 40).  Respondent's witnesses testified that there was no intent to confer services beyond graduation and that all the participants in the April 16, 2003 CSE meeting were aware that the student would be graduating in June 2003 (10/7/03 Transcript pp. 13-15, 25-26, 32, 45-47).  I find respondent's assertion that the projected review date on the April 16, 2003 IEP was the result of a clerical error is supported by the record (Application of the Bd. of Educ. of the Middle Country Cent. Sch. Dist., Appeal No. 97-65).  I further find that the April 16, 2003 IEP was not intended to extend services to petitioner's son for the 2003-04 school year.

 

I now turn to petitioner's claim for compensatory education for the 2003-04 school year.  The IDEA requires school districts to make a free appropriate public education (FAPE) available to each student with a disability who has not received a high school diploma through the age of 21 (20 U.S.C. § 1412[a][1][A]; Education Law §§ 4402[2][a] and 4401[1]).  Although students are generally not entitled to a public education beyond that age, compensatory education may be awarded beyond age 21 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 by Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Lester H. v. Gilhool, 916 F.2d 865 [3d Cir. 1990]; Miener v. State of Missouri, 800 F.2d 749[8th Cir. 1986]).  Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).   

 

In the instant case, petitioner has based her request for an award of compensatory education upon respondent's failure to provide appropriate transition services, specifically, vocational training and travel training to her son.1  Initially, I note, contrary to petitioner's assertions, that petitioner's son is not an appropriate candidate for travel training due to his impulsivity and level of functioning (Exhibit A; 10/7/03 Transcript p. 54) and that the student's program at OTC did provide a vocational component (9/17/03 Transcript p. 12).  The IDEA requires that each student with a disability receive appropriate transition services (20 U.S.C. § 1401[30]; 34 C.F.R. § 300.29; Education Law § 4401[9]; 8 NYCRR 200.1[fff]).  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][1]; 8 NYCRR 200.4[d][2][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][2][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][2]; see also 8 NYCRR 200.4[d][2][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 (8 NYCRR 200.4[d][2][ix]).

 

 With respect to this, 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 post-secondary 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 --

(i) Instruction;

(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]). 

 

 In the instant case, the student's long term adult outcomes as set forth on the April 16, 2003 IEP were to:  integrate into the community with maximum supports; attend a day habilitation program; live independently with maximum supports; and obtain services from varied employment resources through a voluntary program (Exhibit A).  The student's transition services encompassed five areas:  instructional activities; community integration; post-high school; and independent living and acquisition of daily living skills/functional vocational assessment.  For each of those areas respectively, his IEP stated:  "instruction will involve an academic program with daily living skills; [the student] will be enriched by a curriculum that is community based through community trips; [the student] will participate in a program that emphasizes functional and daily living skills; [the student] will develop skills necessary to stay on task for extended periods of time; and activities of daily living will include training in personal health and safety skills (Exhibit A).  Respondent's transition coordinator testified that there were transition meetings for parents held every Tuesday (9/17/03 Transcript p. 35).  He further testified that for the last two years of every student's enrollment at OTC, special meetings were held in addition to the Tuesday meetings.  At these special meetings, post-secondary service providers participated in order to explain what programs were offered (9/17/03 Transcript p. 35).  The transition coordinator explained that his role was to help parents and students choose an appropriate placement given the information provided in the special meetings (9/17/03 Transcript pp. 35-36).  Petitioner testified that she chose not to participate in the special meetings and transition program at OTC (9/17/03 Transcript p. 62).  Petitioner also testified that she visited potential placements on her own, stating "I went and I saw the place, and they give me the same answer that the agency gave me here; that he's not ready for that kind of program where he can be placed.  He doesn't qualify and he's not ready"  (9/17/03 p. 59).  Based upon the record and petitioner's own testimony, the programs that she expressed a preference for were inappropriate for the needs of her son (9/17/03 Transcript p. 36-40).    

In the hearing below, the impartial hearing officer found that the evidence regarding notice of transition services to petitioner was anecdotal and that the transition plan set forth in the IEP was vague and insufficient (IHO Decision p. 8; Exhibit A).  I agree with the impartial hearing officer that the student's transition services failed to meet the procedural requirements of the IDEA.  Since the impartial hearing officer's finding that respondent failed to offer the student a FAPE because petitioner was denied a meaningful opportunity to participate in the development of her son's IEP has not been appealed, I do not determine whether the lack of an adequate transition plan in and of itself would result in a denial of FAPE (34 C.F.R. § 300.510[a]; see Urban v. Jefferson County Sch. Dist., 89 F.3d 720, 726 [10th Cir. 1996]; Chuhran v. Walled Lake Consol. Sch., 839 F.Supp. 465, 473-74 [E.D.M.I. 1993] aff'd 51 F.3d 271 [6th Cir. 1995] [unpublished table decision]; Application of a Child with a Disability, Appeal No. 00-024; Application of a Child with a Disability, Appeal No. 97-70; Application of a Child with a Disability, Appeal No. 96-67).

The issue before me is whether the denial of FAPE found by the impartial hearing officer below entitles petitioner to an award of compensatory education.  I find that it does not.  Although the student's transition plan was exiguous and failed to specifically address the student's needs, the record reveals that the student was provided transition services that were not reflected on his IEP (9/17/03 Transcript pp. 36-40).  In fact, the student received the services as set forth in the IEP dated April 16, 2003 through the summer of 2003 and pursuant to the order of the impartial hearing officer in Hearing 2, the student is receiving transition services for the 2003-04 school year.  Based upon the foregoing, I cannot find that the denial of FAPE in this case rose to the level of a gross violation of the IDEA which resulted in a denial or exclusion of the student from educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Cosgrove v. Bd. of Educ. of Niskayuna Cent. Sch. Dist., 175 F.Supp.2d 375, 387 [N.D.N.Y. 2001]). Therefore, I find that an award of compensatory education is not appropriate in this instance.

 

 

            THE APPEAL IS DISMISSED.

 

 

 

Dated:

Albany, New York

 

__________________________

 

February 20, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1  I note that the composition of the CSE meeting held on April 16, 2003 violated certain procedural provisions of New York State law, in that it did not include either the additional parent member (Education Law § 4402[b][1][a][viii]; 8 NYCRR 200.3[a][1][viii]), or a school psychologist (Education Law § 4402[b][1][a][iv]; 8 NYCRR 200.3[a][1][iv]) (see Exhibit A; 9/17/03 Transcript p. 43) as required under New York State Law.  Since an award of compensatory education is an available remedy only "where there has been a gross violation of the IDEA" (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Cosgrove v. Bd. of Educ. of Niskayuna Cent. Sch. Dist., 175 F.Supp.2d 375, 387 [N.D.N.Y. 2001]; Butler v. Glens Falls Cent. Sch. Dist., 106 F.Supp.2d 414, 419 [N.D.N.Y. 2000]; Wenger v. Canastota Cent. Sch. Dist., 979 F.Supp. 147, 151 [N.D.N.Y. 1997] aff'd 208 F.3d 204 [2d Cir. 2000]), I do not consider these procedural violations of New York State CSE composition requirements to be persuasive in determining whether or not the student is eligible for an award of compensatory education.  In addition, petitioner also alleged a failure to comply with IDEA IEP team member requirements which, given the facts before me, arises to a procedural violation that speaks to a denial of FAPE but not to a gross violation of IDEA.