The State Education Department
State Review Officer

No. 04-007

 

 

 

 

 

 

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 Springville-Griffith Institute Central School District

 

 

Appearances:
Andrew K. Cuddy, Esq., attorney for petitioners

 

Hodgson Russ LLP, attorney for respondent, Jerome D. Schad, Esq., and Ryan L. Everhart, Esq., of counsel

 

 

DECISION

 

Petitioners appeal from the decision of an impartial hearing officer which found that respondent offered their son a free appropriate public education (FAPE) for the 2002-03 school year. The appeal must be dismissed.

 

As of the first day of the hearing, on June 9, 2003, petitioners' son was nine years old and enrolled in a regular education third grade classroom at respondent's elementary school. The student was receiving services in accordance with an individualized education program (IEP) dated February 26, 2003. The program developed by the Committee on Special Education (CSE) provided for a regular education classroom placement with direct and indirect consultant teacher services for three and one-half hours per day (Exhibit IHO 1D). The IEP also provided for related services of individual counseling five times per week for 30 minutes, individual speech-language therapy and occupational therapy (OT), each three times per week for 30 minutes, group speech-language therapy twice per week and group OT once per week, each for 30 minutes, an OT consult once per week for 30 minutes, and a full-time 1:1 aide (Exhibit IHO 1D p. 1). The student's OT and speech-language therapy were delivered through a combination of push-in and pull-out sessions (Transcript pp. 350, 739). The student received math and reading instruction in a self-contained 12:1+1 classroom (pull-out basis) (Exhibits IHO 1B p. 39, IHO 1D pp. 1, 7-9), as well as 1:1 individualized reading instruction daily, for 60 minutes (Exhibit IHO 1D pp. 2, 12; Transcript pp. 96, 166).

 

According to the IEP in place at the time of the hearing, the student exhibited delays in reading, writing and some math skills (Exhibit IHO 1D p. 2). He reportedly responded to a whole word approach to reading, but not phonics instruction (Transcript pp. 160, 399, 463, 818, 993). In math he demonstrated good computational skills but had difficulty with word problems and telling time (Transcript pp. 103, 469). The student exhibited sensory processing deficits including difficulty interpreting auditory, tactile and vestibular information (Exhibits SD 3-6). The student also had difficulty with the physical process of writing due in part to poor hand strength and stability. A fluency evaluation revealed a mild to moderate stuttering disorder (Exhibit SD 15). The student was alternately described as charming with a good sense of humor and intolerant of classmates and interested in violent themes (Transcript p. 105). He could reportedly establish and maintain eye contact, engage in conversations with peers, and relate well to others (Transcript pp. 106, 120, 228, 343, 399). His behavior ranged from compliant to disruptive (Transcript pp. 105-10, 150, 152, 215, 219, 225-29, 233-44, 249-53, 282, 309-10, 359-61, 764-66, 800-08, 821). The disruptive behavior included swearing and throwing objects (Transcript pp. 113, 150, 219, 241, 251, 805, 807). Respondent's school intervention teacher testified to the student's disruptive behavior and described an incident that required her to seek medical attention (Transcript pp. 242-44). The teaching assistant in the student's integrated classroom also testified that she had been injured by petitioners' son (Transcript pp. 800-08). According to his teacher, the student preferred working with a familiar adult and worked best in a 1:1 setting, but could be successful in a group given appropriate supports (Transcript p. 103). The student also benefited from the use of a visual schedule (Transcript pp. 123-24). An educational evaluation was completed on October 9, 2003 by a reading specialist selected by the student's father, at respondent's expense (Exhibits SD 97, 98). In his testimony, the evaluator described the student as having a communication disorder (Transcript p. 1111). The evaluator further testified that he diagnosed the student as having an expressive language disorder and a specific reading disability (phonological dyslexia) (Transcript pp. 1111-13). The evaluator recommended 1:1 reading instruction consisting of a combination of whole word and phonics based multisensory approaches to word learning (Exhibit SD 98; Transcript pp. 1116, 1124). The student is classified as autistic and his classification is not in dispute. In fact, his current IEP for the 2003-04 school year is not part of the record and the student's current education program is not in dispute. What is before me is a series of claims pertaining to prior school years. In this appeal, petitioners seek declaratory relief rather than compensatory equitable relief.

 

Petitioners requested an impartial hearing on May 20, 2003, alleging that respondent failed to implement the decisions of two impartial hearing officers and one decision of the State Review Officer (Exhibit IHO 1A-Tab 10). The hearing commenced on June 9, 2003 and concluded almost five months later on November 4, 2003. Testimony was taken for a total of eight days. One thousand one hundred forty-one pages of transcript were recorded and 130 exhibits were received into evidence. The impartial hearing officer rendered his 60-page decision in the instant case on November 25, 2003. At the hearing and again in the instant appeal, petitioners primarily seek enforcement of these prior decisions (IHO Decision p. 1-2; Transcript pp. 9-10, 202, 454-55, 457-58, 624, 631-32, 655, 964, 1059; Pet. 9, 14-16, 18; Pet. pp. 17-20). In addition to the enforcement request, the impartial hearing officer identified 14 issues for decision in the hearing below (IHO Decision p. 2). The impartial hearing officer found two procedural defects in the student's 2002-03 IEP (pertaining to last school year) that did not result in a denial of FAPE (IHO Decision pp. 43-45, 57, 60). The impartial hearing officer dismissed petitioners' claims of failure to implement prior administrative decisions and also dismissed the remainder of petitioners' allegations (IHO Decision pp. 8-43, 45-60).

 

The procedural history of the underlying matter is noteworthy. Since November 5, 1999, the education of this now ten-year-old child has been the subject of no fewer than 12 impartial hearing requests, four appeals to the State Review Officer, a civil action commenced in the United States District Court for the Western District of New York, and at least one complaint each to the Commissioner of Education of the State of New York and the United States Department of Education (Exhibit IHO 1A-Tabs 1-17). For clarification I note, that this appeal arises from a sixth impartial hearing officer's decision pertaining to educational services received by this student (see discussion below). The first impartial hearing officer's decision (Hearing 1), of which petitioners seek enforcement in the instant appeal, was rendered during the 2001-02 school year on February 26, 2002 (Exhibit IHO 1A-Tab 2 p. 15). At respondent's request and over petitioners' objection, the impartial hearing officer in Hearing 1 agreed to consolidate four separate impartial hearing requests that were pending into Hearing 1. The issues before the impartial hearing officer in Hearing 1 were the district's alleged failure to: 1) implement an impartial hearing officer's decision rendered June 26, 2001 (Exhibit IHO 1A-Tab 2 p. 4); 2) provide a report card for the student (Exhibit IHO 1A-Tab 4 pp. 1-2); and 3) properly train school bus personnel (Exhibit IHO 1A-Tab 5 pp. 1-2). The fourth issue concerned a December 18, 2001 CSE meeting, that proceeded without the presence of petitioners. This fourth issue was settled by stipulation on the first day of Hearing 1 (Exhibit IHO 1A-Tab 2 pp. 43-47). On March 3, 2002, respondent's CSE met for the purpose of incorporating the transportation recommendations into the child's IEP, pursuant to the order of the impartial hearing officer rendered in Hearing 1 (Exhibit IHO 1A-Tab 2 p. 15).

 

Respondent's CSE met April 10, 2002 for the student's annual review and recommended that the student continue in a 6:1+1 special education classroom for the 2002-03 school year (Exhibit P G). On April 25, 2002, petitioners requested an impartial hearing regarding the CSE's recommended placement for the 2002-03 school year (Hearing 2) (Exhibit IHO 1A-Tab 7 p. 1). Hearing 2 began on May 31, 2002 and concluded on July 24, 2002. In his decision dated August 13, 2002, the impartial hearing officer ordered respondent to place the student in an inclusion classroom, reconvene its CSE to reconsider all aspects of the child's IEP, and to conduct a functional behavioral assessment (FBA) (Exhibit IHO 1A-Tab 7 p. 5). On August 29, 2002, petitioners requested another hearing regarding their son's pendency placement (Hearing 3) (Exhibit IHO 1A-Tab 8 p. 1). On September 14, 2002, respondent appealed the decision in Hearing 2 to the State Review Officer. The decision in Hearing 3 was rendered on October 23, 2002, wherein the impartial hearing officer found that the 6:1+1 special education classroom was the child's pendency placement (Exhibit IHO 1A-Tab 8 p. 6). Respondent appealed the decision in Hearing 3 to the State Review Officer and petitioners cross-appealed.

 

At a CSE meeting held October 29, 2002, the parties met and agreed to place the child in a regular education classroom with direct and indirect consultant teacher services for three and one-half hours per day (Exhibits IHO 1B pp. 53, 57-58, 85-87, IHO 1C p. 1). The IEP generated on October 29, 2002 reflected the recommended related services of individual counseling three times per week, group counseling twice per week, each for 30 minutes, individual speech-language therapy and occupational therapy (OT), each three times per week for 30 minutes, group speech-language therapy twice per week and group OT once per week, each for 30 minutes, an OT consult once per week for 30 minutes (Exhibit IHO 1C p. 1). While some of the student's related services were provided in the classroom, therapists also delivered services in separate therapy rooms (Transcript pp. 350, 739). The student received math and reading instruction in a self-contained 12:1+1 classroom (pull-out basis), and individualized reading instruction for 60 minutes daily (Exhibits IHO 1B p. 39, IHO 1D pp. 1, 2, 7-9, 12; Transcript pp. 96, 166).

 

On October 31, 2002, petitioners commenced an action in the United States District Court for the Western District of New York (District Court) seeking a preliminary injunction which would require the implementation of the impartial hearing officers' decisions rendered in Hearings 2 and 3 (J.K. v. Springville-Griffith Inst. Cent. Sch. Dist., No. 02-CV-765S [W.D.N.Y. filed Oct. 31, 2002]; Exhibit IHO 1A-Tab 11). By decision entered December 30, 2002, petitioners' request for a preliminary injunction was denied (J.K. v. Springville-Griffith Inst. Cent. Sch. Dist., No. 02-CV-765S [W.D.N.Y. Dec. 30, 2002] [order denying preliminary injunction]; Exhibit IHO 1A-Tab 13). In the meantime, on December 16, 2002, an FBA was conducted (Exhibit SD 42). On January 3, 2003, petitioners requested an impartial hearing seeking to enforce the decision of the impartial hearing officer rendered in Hearing 2, and the annulment of the IEP dated October 29, 2002 (Hearing 4) (Exhibit IHO 1A-Tab 9). On January 7, 2003, petitioners amended their complaint in the District Court (J.K. v. Springville-Griffith Inst. Cent. Sch. Dist., No. 02-CV-765S [W.D.N.Y. Jan. 7, 2003]; Exhibit IHO 1A-Tab 12). On January 15, 2003, the State Review Officer sustained the appeal of Hearing 2 to the extent that the impartial hearing officer retained jurisdiction over the matter. The remainder of the impartial hearing officer's findings in Hearing 2 were affirmed by the State Review Officer (Application of the Bd. of Educ. of the Springville-Griffith Inst. Cent. Sch. Dist., Appeal No. 02-081; Exhibit IHO 1A Tab 7 p. 18).

 

On January 7, 2003, respondent moved for a Status Conference in the District Court. Respondent's motion was denied (J.K. v. Springville-Griffith Inst. Cent. Sch. Dist., No. 02-CV-765S [W.D.N.Y. Jan. 21, 2003] [order denying status conference]; Exhibit IHO 1A-Tab 14). On January 23, 2003, respondent moved to dismiss petitioners' civil action in the District Court. On January 26, 2003, petitioners objected to the FBA and requested an independent educational evaluation (IEE) (Exhibit IHO 1A-Tab 15 p. 4). On January 31, 2003, the State Review Officer affirmed the pendency placement determination made in Hearing 3 (Application of the Bd. of Educ. of the Springville-Griffith Inst. Cent. Sch. Dist., Appeal No. 02-112; Exhibit IHO 1A-Tab 8 p. 35). On February 6, 2003, respondent denied petitioners' request for an IEE and initiated an impartial hearing request on March 3, 2003 (Hearing 5) (Exhibit IHO 1A-Tab15).

 

By decision dated February 22, 2003, petitioners' request for Hearing 4 was dismissed by the impartial hearing officer on the grounds that: 1) the same issues were currently before the District Court; 2) the IEP dated October 29, 2002 was an attempt to implement the decision in Hearing 2; and 3) the decision of the State Review Officer dated January 15, 2003 superseded the decision in Hearing 2 and the CSE must convene to implement the decision of the State Review Officer (Exhibit IHO 1A-Tab 9).

 

On February 26, 2003, respondent's CSE convened pursuant to the January 15, 2003 decision of the State Review Officer and recommended to continue the student's program and placement as set forth in his October 29, 2002 IEP, except for the addition of a 1:1 aide (Exhibit IHO 1D). The student also continued to receive his OT, speech-language and consultant teacher services (Exhibit IHO 1B pp. 36-50), math and reading instruction in a small group on a pull-out basis (Exhibit IHO 1B p. 39) and individualized reading instruction. In his testimony regarding the changes to the student's IEP on February 26, 2003, the student's special education teacher indicated that as of that date he was co-teaching the student's third grade classroom with the student's regular education teacher (Transcript pp. 88, 100).

 

Hearing 5 commenced on April 21, 2003. On May 20, 2003, petitioners requested an impartial hearing challenging the February 26, 2003 IEP and seeking enforcement of the decisions relative to Hearing 2 (Hearing 6) (Exhibit IHO 1A-Tab 10). Hearing 6 commenced on June 9, 2003 and continued until November 4, 2003.

 

The decision in Hearing 5 was rendered July 28, 2003, wherein the impartial hearing officer dismissed all of petitioners' claims (Exhibit IHO 4). On July 31, 2003, respondent's motion to dismiss was granted in part and denied in part by the District Court (J.K. v. Springville-Griffith Inst. Cent. Sch. Dist., No. 02-CV-765S [W.D.N.Y. July 31, 2003] [order granting in part and denying in part motion to dismiss]). On November 25, 2003, the impartial hearing officer in Hearing 6 rendered his decision which forms the basis for the within appeal.

 

Petitioners have sought enforcement of administrative decisions relative to their child's education during the 2001-02 and 2002-03 school years in five separate proceedings within three different forums. Petitioners herein do not seek compensatory education or additional services as a remedy for respondent's alleged failure to implement the decisions relative to school years past, they seek an order from the State Review Officer directing respondent to implement the decisions (Pet. pp. 17-19). I find petitioners' requests are not properly before me. Moreover, I note that the hearing officer below found petitioners' claims of non-implementation to be without merit (IHO Decision pp. 8-43, 45-60).

 

It is well settled that enforcement of prior orders of an impartial hearing officer and/or the State Review Officer are not properly determined by the State Review Officer (see Application of a Child Suspected of Having a Disability, Appeal No. 03-071 [holding petitioner's enforcement remedies include judicial enforcement pursuant to CPLR Article 78, an action in federal court, or VESID administrative complaint procedure]; Application of a Child with a Disability, Appeal No. 01-086 [holding petitioner's enforcement request not properly before the State Review Officer; petitioner's remedy was to seek judicial enforcement of the impartial hearing officer's tuition reimbursement award]; Application of the Bd. of Educ. of the Ticonderoga Cent. Sch. Dist., Appeal No. 99-4 [holding respondent's remedy was to seek enforcement via CPLR Article 78 or in federal court] [citing Blazejewski v. Bd. of Educ. of the Allegany Cent. Sch. Dist., 560 F. Supp. 701 [W.D.N.Y. 1983]; A.T. and I.T. on behalf of Z.T. v. State Educ. Dept., 1998 WL 765371 [E.D.N.Y. 1998]). Therefore, I find petitioners' requests are not properly before me.

 

Petitioners' objections to the February 26, 2003 IEP, which have not been previously raised in an adjudicative forum, essentially distill to a disagreement with the CSE's recommended specific class placement for the 2002-03 school year. These objections became moot at the end of the 2002-03 school year. Petitioners contend that the February 26, 2003 IEP was inappropriate and that their son should now be placed in the inclusion classroom described by the State Review Officer in his decision relative to the 2002-03 school year (see Application of a Child with a Disability, Appeal No. 02-081). I note that in general, appeals relative to specific class placements are moot at the end of the school year because no meaningful relief could be granted (Application of a Child with a Disability, Appeal No. 03-083; Application of a Child with a Disability, Appeal No. 93-20). I further note that administrative decisions rendered during school years long since expired may no longer appropriately address the current needs of the child. The Individuals with Disabilities Education Act (IDEA), New York State Education Law and the respective implementing regulations of each statute require that a CSE review a child's IEP at least annually because a child's needs change over time (see 20 U.S.C. 1414[d][4][A][i]; 34 C.F.R. 300.343[c][1]; Education Law 4402[2]; 8 NYCRR 200.4[f]). In the instant case, I find petitioners' requested relief particularly inappropriate, given the testimony of the child's father that petitioners are now satisfied with the student's 2003-04 program (Transcript pp. 953, 972, 1004-06, 1017-18). Based upon the foregoing, I need not, and do not, reach the issue of the appropriateness of the specific class recommended by the CSE during the 2002-03 school year (Application of a Child with a Disability, Appeal No. 03-083; Application of a Child with a Disability, Appeal No. 93-20).

 

I have considered petitioners' remaining contentions and find them to be without merit.

 

 

THE APPEAL IS DISMISSED.

 

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

April6, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER