The State Education Department
State Review Officer

Nos. 04-050 & 04-052

 

 

 

 

Applications of a CHILD WITH A DISABILITY, by her guardian, and the BOARD OF EDUCATION OF THE PIONEER CENTRAL SCHOOL DISTRICT, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education

 

Appearances:
Hodgson Russ, LLP, attorney for respondent, Ryan L. Everhart, Esq., of counsel

DECISION
 

        The guardian of a child with a disability and the Board of Education of the Pioneer Central School District have separately appealed from the decision of an impartial hearing officer. The appeals have been consolidated for purposes of this decision, in which the guardian will be referred to as petitioner and the Board of Education will be referred to as respondent. The impartial hearing officer held that respondent's individualized education program (IEP) for the 2003-04 school year was a "nullity" due to an improperly composed Committee on Special Education (CSE) and ordered the CSE to reconvene. The appeals of petitioner and respondent must be dismissed.

        At the time of the impartial hearing, the student was 19 years old. She had received an IEP diploma, attended respondent's graduation ceremony in June 2003 (Dist. Ex. F) and had returned to respondent's high school for the 2003-04 school year after receiving individualized reading instruction during summer 2003 (Dist. Ex. 80).1 The student's classification as a student with multiple disabilities is not in dispute. She has a diagnosis of cerebral palsy with right side hemiplegia, evidenced by a slightly underdeveloped right upper extremity and a leg length discrepancy (Dist. Ex. 9). Cognitive testing conducted in May 2002, prior to the student's enrollment in respondent's high school, yielded a standard score of 68 for general intellectual functioning on the Woodcock-Johnson Tests of Cognitive Ability (Dist. Exs. 81 p. 16, 82 p. 18). Petitioner reported that the student has diagnoses of an obsessive-compulsive disorder, oppositional defiant disorder, an auditory processing disorder, and a reading disability (Tr. p. 955). I find no documentation in the record for these four diagnoses. Petitioner also reported diagnosis of an autism spectrum disorder approximately five years before the impartial hearing (Tr. pp. 954, 957-58), but petitioner has not provided respondent with documentation of that diagnosis (Tr. pp. 18, 167).

        Prior to enrollment in respondent's district, the student resided at a group home in another district and attended an 8:1+1 special education class (Tr. pp. 8-10, 19). The student began attending high school in respondent’s district in September 2002, when she moved to a group home operated by the Office of Mental Retardation and Developmental Disabilities (OMRDD) (Tr. p. 13).

        During the student's first year in respondent's district in 2002-03, she participated in a Board of Cooperative Educational Services (BOCES) program to train students to work in preschool programs. Petitioner reported that the student had a particular aptitude for working with young children, had previously participated in an early childhood training program and had had successful experiences as both a volunteer in two preschool settings and as a paid employee in a third setting (Tr. pp. 968, 969, 972-73). However, there is no documentation of these placements in the record. Despite these reported successful experiences in previous settings, the student encountered difficulties in her BOCES program during 2002-03 because she exhibited inappropriate behaviors (Tr. pp. 792-944).

        A physical therapy (PT) evaluation conducted on October 25, 2002, described the student as "extremely capable" in the school environment and did not recommend PT services (Dist. Ex. 9). An occupational therapy (OT) evaluation conducted on November 18, 2002 found "no significant limitations in physical function" related to the student's hemiplegia and did not recommend OT services (Dist. Ex. 20).

        In June 2003 petitioner requested PT services, asserting that the student required PT in order to learn how to take care of her own health and her physical fitness (Tr. pp. 962-63, 967). In response to this request from petitioner, respondent’s physical therapist met with staff at a fitness center near the student's residence and identified weight training equipment that would be safe and appropriate for the student to use (Dist. Ex. 10). At a CSE meeting held on November 21, 2002, the physical therapist offered to develop an exercise program that would allow the student to make use of the fitness center after school and on weekends (Dist. Ex. 21). The CSE reconvened on January 9, 2003 to continue discussion of the student's OT and PT needs. At that meeting, petitioner indicated that the student required both OT and PT services, and that the physical therapist should oversee the student's exercise program at the fitness center (Dist. Ex. 29). Petitioner explained that the student required OT services to address a weakness in her right hand, for which surgery was required but the student was reluctant to have (Dist. Ex. 29). Minutes of this meeting note that the student, who was present at the meeting, stated that she did not perform the hand strengthening exercises that had already been developed for her (Dist. Ex. 29). The record indicates that, subsequent to this meeting, OT services were provided to the student on a consultation basis on five occasions between April 29, 2003 and June 10, 2003 (Dist. Ex. 70).

        The minutes of the January 9, 2003 CSE meeting also note that a functional behavioral assessment (FBA) was to be conducted (Dist. Ex. 29). Respondent's director of special education arranged for a school psychologist to gather information for the student's FBA, but petitioner objected to that procedure (Tr. p. 377), and a meeting was arranged as an alternate means of developing the FBA (Tr. pp. 132-33). On February 7, 2003, staff working with the student met with petitioner to develop an FBA (Tr. p. 134). On or about February 10, 2003, the school psychologist, who was the student's counselor, developed a draft behavioral intervention plan (BIP) based on the FBA and sent it to petitioner for her review and approval (Tr. pp. 134-35). Petitioner did not provide comments on the proposed BIP, instead responding on March 13, 2003 by submitting a document that she had developed, summarizing information gathered at the February 7, 2003 meeting (Dist. Ex. 40; Tr. p. 134). The CSE adopted this document as the student's FBA and incorporated it into the student's IEP (Tr. p. 135). Behaviors identified included arriving late for class, leaving class without a pass, making rude comments to staff, involvement in peer conflicts, noncompliance with instructions, and perseveration on problems (Dist. Ex. 40).

        On or about March 20, 2003, petitioner sent a BIP that she developed to the director of special education, indicating that she had discussed the plan with the student, who was amenable to the plan (Dist. Exs. 45, 46). The director of special education contacted petitioner by telephone and expressed surprise that the plan she had proposed differed significantly from what had been discussed at the February 7, 2003 meeting (Tr. p. 139). He indicated to petitioner that he was concerned because petitioner’s proposed BIP incorporated a token economy system that he did not believe would encourage the student's independence (Tr. p. 139). The director of special education met with petitioner to discuss the BIP that she had written and, after considerable discussion, revised the plan (Tr. pp. 142, 145-46).

        In a progress report dated June 13, 2003, respondent's physical therapist reported that the student had participated in exercise activities at the fitness center near her home on three dates in May 2003 (Dist. Ex. 63). The student had not returned to the fitness center since that time despite frequent telephone calls from the therapist encouraging her to attend (Dist. Ex. 69).

        A reading progress report prepared for the student's June 17, 2003 annual review noted that the student had made progress in her one-to-one reading program and was reading independently at the third grade level (Dist. Ex. 64). The reading teacher reported that the student's progress was affected by fatigue, as her reading session was scheduled at the end of the school day, and also by 65 absences between September 2002 and May 2003 (Dist. Ex. 64).

        A speech therapy progress report prepared for the student's June 17, 2003 annual review noted that the student had achieved all of her goals for the 2002-03 school year. The therapist indicated that she was "uncertain" as to whether speech-language services should be continued for the following year (Dist. Ex. 65). The student's remaining areas of difficulty involved adjusting her conversation to the listener and carrying over emotions from one situation and letting it affect a different setting. The therapist noted that some improvement could be made in these areas, but also noted that they were areas of difficulty experienced by many adults (Dist. Ex. 65).

        The CSE convened on June 17, 2003 for the student's annual review (Dist. Ex. 66). Minutes indicate that the CSE discussed the proposed BIP and also discussed behavioral concerns at the student's BOCES program (Dist. Ex. 66). Petitioner suggested that problems at BOCES may be related to inappropriate program modifications and the BOCES teacher's need for training in the student's disability (Dist. Ex. 66). The student's consultant teacher reported difficulties with implementing modifications because of the student's refusal of the modifications at her scheduled time (Dist. Ex. 66).

        The CSE did not complete a 2003-04 IEP for the student at the June 17 meeting. The meeting ended abruptly at the request of petitioner (Dist. Ex. 66; Tr. p. 268). Petitioner requested reading instruction for the student during summer 2003 and in response to this request, the CSE recommended individual reading instruction twice per week for 60 minutes (Dist. Ex. 66). A draft IEP was developed based on discussion at the meeting for review at a subsequent meeting (Dist. Ex. 81; Tr. p. 16). No IEP was developed for the student's summer reading services.

        When the CSE reconvened on August 19, 2003 to complete the student's 2003-04 IEP, the parent member scheduled to attend was not available. Petitioner was asked if she wished to proceed and she indicated that the CSE needed to complete her daughter's IEP (Parent Ex. F; Tr. p. 158). At this August 19th meeting, the CSE reviewed goals and objectives that had been prepared at the June 17th meeting (Dist. Ex. 81). Petitioner stated that she was not satisfied with many of the goals and objectives (Dist. Ex. 83; Parent Ex. F) and she presented goals and objectives that she had written for the student. The CSE adopted the goals and objectives proposed by petitioner for OT, math and speech, as well as transition goals (Dist. Ex. 82; Parent Ex. F; Tr. p. 331). The CSE also adopted language recommended by petitioner describing the student's present levels of performance (Dist. Ex. 82, Parent Ex. F; Tr. p. 126).

        At the August 19, 2003 CSE meeting, petitioner indicated that she was pleased with the progress the student made in her summer 2003 reading program (Dist. Ex. 83, Parent Ex. F). She stated that, based on her own testing of the student, the student had improved her reading by two grade levels, from a third grade to a fifth grade level, and she indicated that she would like to have the student continue using some of the same instructional strategies and programs in 2003-04 (Parent Ex. F). The student's reading teacher for 2002-03, who was also to be her teacher for 2003-04, indicated that the program used by the teacher during the summer was similar to what she had used during the 2002-03 school year (Parent Ex. F). However, petitioner rejected the goals and objectives proposed by the reading teacher, indicating that they were not appropriate (Parent Ex. F). The director of special education offered to arrange for the two reading teachers to meet with petitioner to develop a program and to develop goals and objectives (Parent Ex. F; Tr. p. 348). This meeting was held on October 14, 2003 (Tr. p. 358). The reading teacher conducted additional assessments and developed a statement of present levels of performance and new goals for reading, which were sent to petitioner for review and approval (Dist. Ex. 118; Tr. p. 109).

        The CSE did not complete the student's 2003-04 IEP at the August 19, 2003 meeting. It did recommend services for 2003-04. Recommended services included 15:1 occupational math five times per week for 40 minutes, individual specialized reading five times per week for 40 minutes, individual speech-language therapy two times per week for 30 minutes, and individual counseling two times per week for 30 minutes. In response to petitioner's request for increased consultant teacher services, consultant teacher services were increased to 300 minutes per week direct service and 300 minutes per week indirect service at the student's BOCES vocational placement (Dist. Exs. 81, 82, 83, Parent Ex. F). The CSE also recommended resource room services five times per week for 40 minutes, but petitioner stated that the student did not need resource room services (Dist. Ex. 83, Parent Ex. F). Petitioner agreed with a recommendation that four of the time periods intended for resource room services be used for the student's speech and counseling sessions, with the fifth session available for transitional services or for other assistance as needed (Dist Ex. 83, Parent Ex. F; Tr. pp. 177-79).

        Respondent's director of special education prepared a draft IEP based upon discussion at the August 19, 2003 CSE meeting, including petitioner's reports, recommendations and proposed goals and objectives and sent it to petitioner for review and comment in November 2003 (Dist. Ex. 83; Tr. pp. 111, 126, 649). Petitioner did not reply to the director of special education's request for comment on the draft IEP, nor did she respond to his attempts to schedule a CSE meeting to finalize the IEP (Tr. pp. 112, 383-84; Dist. Ex. 132) and the CSE did not reconvene until May 2004.

        Although the IEP had not been finalized, the services recommended in the IEP were provided to the student beginning in September 2003, and respondent's staff responsible for implementing the IEP addressed goals and objectives. On September 19, 2003, staff who provided services to the student convened to review the student's proposed IEP and her BIP in order to ensure consistent implementation (Tr. p. 330). On September 26, 2003, the student informed one of her special education teachers that she no longer wanted to participate in certain aspects of her BIP and indicated that she would not do so until petitioner reviewed the matter and informed respondent of an appropriate course of action (Dist. Ex. 95; Tr. pp. 380-81, 644-45, 694-95). In a letter dated October 2, 2003, petitioner expressed her concern that respondent's staff was not consistently following the student's BIP (Parent. Ex. AB).

        From October 2003 through the first week of January 2004, petitioner exchanged correspondence with various members of respondent's staff who were involved with the student. Petitioner requested additional information about the student's progress and expressed her concern that various aspects of the student's IEP were not being properly implemented. Respondent's staff responded by providing the information requested (Parent Exs. AB, AC, H, K, Dist. Exs. 101, 102, 103, 106, 116, 117, 120, 123, 126, 127, 129, 131, 132, 134).

        By letter dated January 17, 2004, petitioner requested an impartial hearing seeking a determination that respondent failed to implement the 2003-04 IEP and that respondent had violated procedural regulations in creating the 2003-04 IEP (Dist. Ex. 137). The hearing began on February 4, 2004 and ended on May 14, 2004, after six days of testimony.

        The impartial hearing officer rendered a 42-page decision on June 25, 2004 that found the 2003-04 IEP to be a "nullity" due to an improperly composed CSE; found respondent's CSE notice to petitioner to be inadequate in that it did not list the name of a parent member; and found that the student's program in that IEP was not reasonably calculated to confer educational benefits. The impartial hearing officer stated that respondent properly implemented specialized reading services, consultant teacher services, physical therapy and BIP goals and objectives, but that respondent did not implement resource room services, assistive technological devices and physical education. The impartial hearing officer found it necessary to evaluate the student for autism and/or pervasive development disorder and to determine reasons for the student's noncompliance with the program. The impartial hearing officer found that the student is entitled to additional services to be provided once current needs have been determined and evaluations performed. The impartial hearing officer further found that petitioner failed to cooperate with respondent in revising the student's IEP, stalled implementation of the BIP and failed to cooperate in conducting a further CSE. The impartial hearing officer also found that respondent failed to proceed to conduct a CSE and create an IEP in the absence of petitioner's willingness to participate.

        Accordingly, the impartial hearing officer declared the IEP recommended by the CSE of August 19, 2003 to be a nullity and ordered the CSE to reconvene and do the following: plan additional services needed to make up for the missed resource room instruction; within 30 days, review the student's IEP consistent with the tenor of the decision; adopt and recommend appropriate reading goals and objectives and present levels of education performance; recommend what additional services are appropriate to make up for the missed resource room instruction; arrange for assistive technology device evaluations to determine what assistive technology devices are appropriate; review and revise elements of the student's IEP, the physical therapy and occupational therapy goals and objectives as part of related services provided towards the transition plan; determine what evaluations are necessary to determine if the student has the appropriate classification in order to determine if the student has autism and/or pervasive developmental disorder and/or oppositional defiance syndrome; determine the appropriate evaluations to determine the cause of the student's nonattendance at physical therapy and occupational therapy; determine what evaluations are appropriate to identify the cause of the student's noncompliance, refusal and defiance, to have said identified cause reflected in the IEP, to formulate an appropriate transition plan, to recommend appropriate services and to achieve annual goals and short-term instructional objectives; and recommend an appropriate program to provide for the student's physical education needs either through physical education or adaptive physical education. The impartial hearing officer also ordered that the district review its procedures to ensure that the student's general education teacher is in attendance at CSE meetings.

        On appeal, petitioner claims that the impartial hearing officer erred in part by failing to address substantive issues regarding the student's program. Petitioner requests that I direct respondent to do the following: provide petitioner with notice of the CSE meetings; direct respondent to provide petitioner with prior notice; convene the CSE within 30 days with a fully constituted membership including, but not limited to, the parent member and the general education teacher of the student; determine that respondent failed to implement the recommended 15:1 special class for math, five times per week for 40 minutes and placed the student in a 1:1 math program denying the student a free appropriate public education (FAPE); direct respondent to provide day-to-day compensatory education or "corrective action" for the failure of respondent to provide the 15:1 special class math instruction; determine that respondent failed to implement the recommended 300 minutes per week of direct consultant teacher services; direct respondent to provide day-to-day compensatory education or "corrective action" for the failure of respondent to provide direct consultant teacher services; determine that respondent failed to implement appropriate specialized reading instruction, individual, five times per week for 40 minutes; determine that respondent failed to provide petitioner with progress reports for specialized reading instruction for the 2003-04 school year; direct respondent to provide day-to-day compensatory education or "corrective action" for the failure of respondent to provide an individual Orton-Gillingham based specialized reading program based on appropriate annual goals and short-term instructional objectives; direct respondent to provide progress reports to the parent toward the annual goals and short-term instructional objectives every five weeks; determine that respondent did not implement resource room services five times per week for 40 minutes; direct respondent to provide day-to-day compensatory education or "corrective action" for the failure of respondent to provide resource room services, five times a week for 40 minutes; determine that respondent failed to implement the speech-language services and that those provided to the student for the 2003-04 school year were not appropriate; direct respondent to provide appropriate speech-language services that provide compensatory speech services as "corrective action"; determine that respondent did not provide occupational therapy services as a related service or transition service; direct respondent to provide day-to-day "corrective action" and/or compensatory education for direct occupational therapy services; determine that respondent failed to provide physical therapy services as a transition service; direct respondent to provide "corrective action" and/or compensatory education for physical therapy services as a transition service; determine that respondent did not implement the BIP; direct respondent to implement the student's BIP and to provide "corrective action" not implementing the behavioral plan; determine that respondent did not comprehensively reevaluate the student to provide appropriate transition services; direct respondent to evaluate the student for driving; determine that respondent did not provide appropriate transition services, including a coordinated set of activities; and direct respondent to provide "corrective action" and/or compensatory transition services to the student beyond the age of 21.

        On appeal, respondent claims that the impartial hearing officer erred in part by directing respondent to conduct an evaluation to determine the cause of the student's nonattendance and defiance and in stating that respondent may conduct a CSE meeting without petitioner and the student. Respondent requests that I reverse these provisions of the impartial hearing officer's decision.

        I will address petitioner's appeal first. The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities are provided a free appropriate public education (FAPE) (20 U.S.C. § 1400 [d][1][A]; see Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. § 300.13). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). The student's right to a FAPE has been affected when the procedural violation results in the loss of the student's educational opportunity or seriously infringes upon the parent's opportunity to participate in the development of the student's IEP (see Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]; W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]).

        The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.550 [b]; 8 NYCRR 200.6 [a][1]). 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 (20 U.S.C. § 1414 [d]; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        The record reflects that during the impartial hearing, respondent conceded that the August 19, 2003 CSE that developed the draft 2003-04 IEP was not properly composed and offered that the draft IEP be annulled and the matter remanded to the CSE (Tr. p. 393). While petitioner rejected this offer (Tr. p. 395), respondent's concession, combined with the impartial hearing officer's finding of the need for new evaluations of the student, formed the basis for the impartial hearing officer's June 25, 2004 decision that a CSE be reconvened after new student evaluations and that additional services be provided in accordance with the results of the new evaluations. Given this, I am not persuaded that there is a need to disturb the impartial hearing officer's finding that the 2003-04 draft IEP is a nullity, that the student was denied a FAPE insofar as the student's program was not reasonably calculated to confer educational benefit and that the CSE is to reconvene.

        Petitioner requests an order for day-to-day compensatory education or "corrective action" for each of the following alleged failures of respondent: failure to provide 15:1 math instruction; failure to provide direct consultant teacher services; failure to provide for an individual Orton-Gillingham based specialized reading program based on appropriate annual goals and short-term instructional objectives; failure to provide resource room services five times a week for 40 minutes; failure to provide speech services; failure to provide occupational therapy services; failure to provide physical therapy services; and failure to implement a behavioral plan. Petitioner also requests an order that directs respondent to provide compensatory transition services and/or "corrective action" to the student beyond the age of 21.

        With respect to petitioner's claims regarding the implementation of the math class, IEP goals and objectives for functional math were presented by petitioner at the August 19, 2003 CSE meeting and were adopted by the CSE and added to the 2003-04 IEP (Tr. pp. 649-50; Dist. Ex. 82, Parent Ex. F). At the August 19th meeting, the CSE recommended placement in a 15:1 special education math class five times per week for 40 minutes (Dist. Ex. 82). The student was placed in a special education math class in September 2003. Although it was designated a 15:1 class, only two other students were scheduled to be in the class (Tr. p. 582).

        Two other students were in the class when the school year began in September, but the student objected to the presence of these two other students because she was working on different goals (Tr. p. 647). The student expressed discomfort with working with peers in this setting (Tr. p. 647). These two other students were rescheduled to accommodate the desire of the student, resulting in a class with one special education teacher and one student (Tr. p. 647). The two special education teachers who provided math instruction to the student implemented the draft IEP and addressed the goals and objectives for skills specifically requested by petitioner (Tr. pp. 661, 671).

        With respect to petitioner's claims regarding the implementation of direct consultant teacher services, the draft IEP for 2003-04 recommended 300 minutes per week direct and 300 minutes per week indirect teacher consultant services, which was an increase in services from the previous school year. The record contains an audiotape of the August 19, 2003 CSE meeting (Parent Ex. F), at which petitioner states that she would make a determination as to how much consultant teacher services the student would receive. The CSE complied with her decision.

        Testimony of the consultant teacher indicated that she was providing 360 hours a week direct and 240 hours a week indirect services at the student's BOCES vocational training program, resulting in more direct services than the CSE recommended. The student attended the BOCES program five days per week for approximately two hours each day. The consultant teacher provided direct instruction on Mondays, Tuesdays and Fridays and provided indirect services on Wednesdays and Thursdays (Tr. pp. 894, 895, 904, 907). In testimony, the consultant teacher gave detailed descriptions of how she provided both direct and indirect services (Tr. pp. 896-908) and also described how she measured student progress (Tr. p. 909).

        Although the number of hours of indirect and direct services provided to the student in 2003-04 was not in compliance with the student's IEP, it appears that the consultant teacher provided services as described in the IEP and as requested by petitioner, even though she did not provide the precise number of minutes of services recommended. The record does not demonstrate that the discrepancy in allotment of indirect and direct services has harmed the student.

        With respect to petitioner's claims regarding the implementation of appropriate specialized reading instruction, petitioner indicated to respondent that she wanted a specialized reading program identified as Orton-Gillingham for the student and would accept no other despite petitioner's stated satisfaction with reading instruction provided over summer 2003 without use of an Orton-Gillingham program (Tr. pp. 1009-10; Parent Ex. F). Respondent attempted to accommodate petitioner by holding a meeting with the summer school reading teacher, the reading teacher for 2003-04, petitioner and her advocate, at which a program and methodology was discussed and developed that appeared to satisfy petitioner's requests (Tr. pp. 103, 348, 358; Parent Ex. J). Based upon agreements reached at this meeting, the reading teacher for 2003-04 conducted testing and developed goals and objectives which were added to the draft revised IEP and which were forwarded to petitioner for her comment or approval (Dist. Ex. 118; Tr. pp. 109, 111). Petitioner subsequently failed to respond to requests for comment regarding these proposed goals and objectives (Tr. p. 112). Nevertheless, after she completed testing, the reading teacher, who had conducted assessments as agreed upon by petitioner (Dist. Ex. 107), began to provide individual reading instruction to the student period five times per week (Tr. p. 77). Although the reading teacher did not provide a progress report based upon the reading goals and objectives because petitioner had not yet approved them, an IEP progress report dated February 6, 2004 (Dist. Ex. 146) includes a narrative description of the activities the student was engaged in during her one-to-one reading sessions and describes her performance as of that date.

        With respect to petitioner's claims regarding the implementation of resource room services, this related service was listed on the draft IEP which was reviewed at the August 19, 2003 CSE meeting (Dist. Ex. 81). At the meeting, petitioner questioned the provision of this service and stated emphatically that the student did not need resource room (Parent Ex. F). When it was suggested that resource room could be used to assist the student with homework, petitioner indicated that the student would be doing her homework independently (Parent Ex. F).

        The CSE then recommended that the period that had been designated for resource room services for the student be used to schedule the student's speech and counseling services, with the remaining one day per week to be used to provide additional math instruction or to reschedule any sessions that might be needed (Dist. Ex. 83). Petitioner agreed with this recommendation (Parent Ex. F).

        With respect to petitioner's claims regarding the implementation of speech services, the record indicates that the speech therapist who provided services to the student in 2002-03 did not identify any needs requiring speech services (Dist Ex. 65). Nevertheless, speech-language services were included on the student's proposed 2003-04 IEP to address goals proposed by petitioner (Tr. p. 121). These goals included a number of transition goals and also a goal for articulation. At the August 19, 2003 CSE meeting, petitioner stated that the student had difficulty pronouncing all contractions, particularly the word "didn't." However, the speech therapist’s progress report and testimony indicate that the student was heard to pronounce the contraction "didn't" correctly without prompting in a variety of settings within the school environment during the 2003-04 school year (Dist. Ex. 140; Tr. pp. 447, 449, 452, 510).

        The record indicates that speech therapy services were provided at the frequency indicated on the proposed IEP (Tr. p. 422). In her testimony, the speech therapist demonstrated that she addressed the goals and objectives developed by petitioner and adopted by the CSE and made progress towards achieving many of the goals and objectives developed by petitioner (Tr. pp. 454-60, 510).

        With respect to petitioner's claims regarding the provision of occupational therapy, this was listed on the student's IEP as a transition goal (Dist. Exs. 81, 82; Tr. pp. 298-99). The service recommended was minimal and consisted of meeting with the student twice per month for fifteen minutes to review exercises to strengthen her right hand, which was affected by cerebral palsy. The student was capable of performing the exercises independently and, as articulated by petitioner at the August 19, 2003 CSE meeting (Ex. F – Tape recording of meeting), the purpose of the two sessions per month was to encourage and motivate her to perform them independently at home.

        When the student resisted performing the exercises (Tr. p. 296), the occupational therapist devised and recommended several charts that could be used to encourage self-monitoring and submitted them to petitioner for approval and selection (Dist. Ex. 116). Petitioner did not respond to the therapist's request for review and comment (Tr. p. 59). Nevertheless, the occupational therapist continued her efforts to provide services to the student and implemented the goal and objectives as specified in the IEP (Tr. pp. 51-54) and within the limits imposed by the student, who articulated clearly to the therapist that she did not want an occupational therapy goal and that the goal was on her IEP because petitioner wanted it (Tr. p. 300). Further, the occupational therapist reported on October 6, 2003 that the student was "very capable" in use of her right hand and "appears to not require my service" (Dist. Ex. 100).

        With respect to petitioner’s claims regarding the implementation of physical therapy, an October 2002 physical therapy evaluation report indicated that no physical therapy services were needed (Dist. Ex. 9). The report stated that the student had no difficulties and was managing in her physical education class without problems and that she was physically managing to negotiate in school and in child care classes at BOCES. The student reported that she "does not have the time" to perform exercises prescribed by her previous therapist and refused new exercises, stating she "wouldn't do them anyway."

        At the request of petitioner (Parent Ex. F), the student's IEP included a transition goal to encourage independence and use of community resources (Dist Exs. 81, 82). The draft IEP developed at the August 19, 2003 CSE meeting states that the student would attend a local fitness center after school and on weekends and that her performance there would be monitored by a district physical therapist. The physical therapist was to schedule a follow-up session with the student after the student had completed ten sessions at the fitness center. The physical therapist had conducted an assessment at the fitness center in November 2002 (Dist. Ex. 10) and a follow-up evaluation in May 2003 (Dist. Ex. 63). The student discontinued attendance at the fitness center after three sessions in May 2003. The therapist contacted the student at her home on several occasions to encourage the student to resume attendance but the student did not continue with this fitness activity.

        With respect to petitioner's claims regarding the implementation of a BIP, the record indicates that the CSE recommended development of an FBA and BIP to address a number of behaviors which interfered with the student's ability to benefit from her educational program (Dist. Ex. 29). Petitioner attended the meeting at which an FBA was discussed and petitioner wrote and submitted her own FBA, which was adopted by the CSE and incorporated into the student's IEP (Dist. Ex. 40; Tr. p. 135). Petitioner also developed her own BIP for the student, which was also accepted and incorporated into the draft IEP (Dist. Exs. 45, 46).

        At the beginning of the 2003-04 school year, the BIP was reviewed by all relevant staff at respondent's high school and at BOCES (Tr. p. 330) and was implemented as written until the student informed her teachers that she no longer wished to participate in the plan. Petitioner was notified promptly and was asked to recommend an appropriate course of action (Dist. Ex. 95; Tr. pp. 380-81, 644-45, 694-95). Petitioner did not respond to this request for direction regarding implementation of the plan that she herself had developed.

        The record indicates that some aspects of the BIP remained in effect during the 2003-04 school year and the student complied with those aspects of the plan (Tr. pp. 157, 849, 921). The record also indicates that behaviors that had been identified in the BIP were less of a concern during the 2003-04 school year (Tr. pp. 129, 157, 697).

        Compensatory education is instruction provided to a student after he or she is no longer eligible to receive instruction because of age or graduation. It may be awarded 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 v. Ambach, 863 F.2d 1071 [2d Cir. 1988]).

        Upon a review of the record, the student appears to remain eligible for services at respondent's district. Moreover, the record does not support a finding that the student was excluded from educational services for a substantial period of time due to a gross violation of the IDEA. An award of compensatory education is not warranted in this case.

        As to the "corrective action" or additional services that petitioner seeks, the record does not persuade me to alter the determination of the impartial hearing officer that this student must be evaluated to identify current needs before additional services can be identified, proposed and implemented by respondent at a new CSE meeting.

        However, with respect to those portions of the 2003-04 program identified in petitioner's appeal that petitioner claims respondent did not implement, the record is replete with examples of deference and responsiveness by respondent to the suggestions of petitioner and proactive implementation by respondent of the program devised in large part by petitioner herself. Moreover, the record indicates instances where deference to petitioner, and the reluctance to develop and implement a program without petitioner’s input, actually impeded the formulation and implementation of the 2003-04 IEP given petitioner’s sporadic participation in the IEP development process.

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

      I now address respondent's appeal. With respect to respondent's two requests for relief, I have reviewed them and find them to be without merit.

        As to respondent's request that I reverse the impartial hearing officer's order directing respondent to conduct an evaluation to determine the cause of the student's nonattendance and "defiance", the record establishes no basis to reverse the impartial hearing officer's decision that the student be evaluated regarding behavioral concerns. I note that a review of the record indicates that the student is due for a triennial review. Insofar as evaluations conducted for the student's triennial review will afford the CSE an opportunity to identify behavioral concerns, if any, and to develop a BIP, if needed, this portion of the impartial hearing officer's decision need not be disturbed.

        Likewise, I find no basis to overturn the impartial hearing officer's finding that respondent may have conducted a CSE meeting in the absence of petitioner and/or the student. State and federal regulations require the CSE to include parent members (20 U.S.C. § 1414[d][1][B][i]; 34 C.F.R. § 300.344[a][1]; 8 NYCRR 200.3[c][2]). However, a CSE may proceed without a parent or guardian in attendance and the CSE may make decisions in the parent's or guardian’s absence if a school district is unable to convince parents or a guardian that they should attend so long as the school maintains a detailed record of its attempts to secure participation (34 C.F.R. § 300.345[d]; 8 NYCRR 200.5[d][3]&[4]). I am not persuaded by respondent's contention that it could not have conducted a CSE meeting in petitioner's absence because petitioner threatened due process proceedings if respondent did so. I remind the respondent that its obligation to provide a FAPE is an affirmative duty.

        I encourage both parties to work collaboratively in developing an appropriate program for the student. I encourage the student’s participation, also.

 

        THE APPEALS ARE DISMISSED.

 

 

Dated: Albany, New York   __________________________
  September 13, 2004   PAUL F. KELLY
STATE REVIEW OFFICER

 

1 The Regulations of the Commissioner of Education provide: "Earning a Regents or local high school diploma shall be deemed to be equivalent to receipt of a high school diploma pursuant to Education Law, section 3202(1) and shall terminate a student’s entitlement to a free public education pursuant to such statute. Earning a high school equivalency diploma or an Individualized Education Program diploma shall not be deemed to be equivalent to receipt of a high school diploma pursuant to Education Law, section 3202(1) and shall not terminate a student's entitlement to a free public education pursuant to such statute." 8 NYCRR 100.5[b][7][iii].