The State Education Department
State Review Officer

No. 04-075

 

 

 

 

 

Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Hyde Park Central School District

 

 

Appearances:

Barbara J. Ebenstein, Esq., attorney for petitioners

 

Donoghue, Thomas, Auslander & Drohan, Esqs., attorney for respondent, Daniel Petigrow, Esq., of counsel

 

 

DECISION

            Petitioners appeal from the decision of an impartial hearing officer which found that alleged procedural and substantive violations of the Individuals with Disabilities Education Act (IDEA) with respect to the 2002-2003 and 2003-2004 school years were moot.  Petitioners also appeal from the decision which denied a request that their daughter be classified as multiply disabled or as other health impaired (OHI), in addition to having an orthopedic impairment (OI).  Finally, petitioners appeal from the decision which found that the respondent offered petitioners’ daughter a free appropriate public education (FAPE).  The appeal must be sustained in part.

 

            Before addressing the merits of the case, I must address two procedural issues.  Respondent asserts that there were irregularities in the manner in which the Notice of Intention to Seek Review (Notice of Intention) was served upon respondent Board of Education of the Hyde Park Central School District (district).  The Notice of Intention was served upon respondent’s attorney by facsimile rather than by personal service (8 NYCRR 279.2).   The purpose of a Notice of Intention is to ensure that the record is provided to the State Review Officer (Application of a Child with a Disability, Appeal No. 04-014; Application of a Child with a Disability, Appeal No. 01-055; Application of a Child with a Disability, Appeal No. 99-3). The record before me suggests that petitioners served their Notice of Intention by facsimile on September 7, 2004 after having first received the impartial hearing officer’s decision on September 2, 2004 (Petition at p. 2; Ex. A. to Answer). Respondent transmitted the record in this matter on September 15, eight days after the service by facsimile.   Petitioners' service by facsimile of the Notice of Intention had no adverse effect on this proceeding (Application of a Child with a Disability, Appeal No. 02-009), and I decline to dismiss the Petition on this ground. I do, however, caution petitioners’ counsel to ensure compliance with Part 279 of the Regulations of the Commissioner of Education in the future. 

           

            Additionally, respondent asserts that the Petition should be dismissed because it was personally served upon respondent by one of the petitioners herein, in contravention to state regulations (8 NYCRR §279.8).  It appears, based upon affirmations in response to respondent’s Answer, that respondent’s district office had moved at or around the time of the impartial hearing officer’s decision (Affirmation of Counsel and Affirmation of Petitioner, received by Office of State Review on November 19, 2004).  Apparently when a process server attempted to serve the district, he was not directed to the new district office. After petitioners’ attorney learned of the proper address, and with the deadline for service fast approaching, one of the petitioners served the district (id.).  Appeals from hearing officers' decisions are generally not dismissed for service irregularities (Application of a Child with a Disability, Appeal No. 02-009; Application of a Child with a Disability, Appeal No. 01-055; Application of a Child with a Disability, Appeal No. 93-7; Application of a Child with a Disability, Appeal No. 93-2).  Under these unusual circumstances, I will not dismiss the appeal because of the improper service, but again I caution petitioners’ counsel to comply with the Part 279 regulations, and note that my determination herein should not be read to condone personal service by a party.

 

            When the parents filed a request for a hearing on June 24, 2003, the student was 14 years old and was scheduled to have completed 9th grade but had earned zero credits towards that end and was failing all of her classes  (Dist. Ex. 20; Tr. pp. 501, 548-549).  At that time, the student was being educated via home tutoring  (Dist. Ex. 16; Tr. p. 546).  Prior to 9th grade, the student was enrolled at a parochial school  (Tr. pp. 474, 486).  While enrolled at the parochial school, the student was for the most part educated via home tutoring services under the auspices of respondent  (Tr. p. 486).  While in parochial school she had not yet been classified as a student eligible for special education services (Tr. pp. 474-475, 487).1  

 

The student has Kipple-Trenauney Syndrome, a chronic, debilitating condition  (Answer at p. 1; Dist. Ex. 10; Tr. p. 587).  The condition is extremely rare, with only 1,000 known cases worldwide, and one in which no two cases are alike  (Dist. Ex. 10).  The condition is a vascular disorder in which a patient develops abnormal blood vessels which act like varicosities  (Tr. pp. 446, 587).  The varicosities can cause soft tissue and bone problems  (Tr. pp. 447, 587).  In this particular student’s case, the disorder resulted in her requiring some 15 surgeries before the age of 12, including the partial removal of two-thirds of her bladder, the removal of all of the toes and several debulking procedures (Dist Ex. 9; Tr. p. 529). She experiences pain, rectal bleeding and anemia, with a low iron level (Tr. pp. 422, 440, 446, 460-462, 469-470, 591).  As a result of the surgeries on her feet, the student has a height differential between the two legs and requires special shoes  (Tr. pp. 460, 467).  She walks with the use of crutches or a scooter (Tr. pp. 191, 368).    

 

A Committee on Special Education (CSE) was convened on May 31, 2002, at which time the student was determined to be eligible for special education services as a student with an orthopedic impairment (Dist. Ex. 2; see 8 NYCRR 200.1[zz][9]).  Present at that meeting were the CSE Chairperson, school psychologist, a regular education teacher who was tutoring the student at home, a special education teacher from the middle school, a guidance counselor, the student’s father and the student’s grandmother  (Dist. Ex. 2; Tr. p. 181).  The student’s father completed a social history form in April 2002, indicating that the student had previously received “home schooling” and that she had little peer interaction “because of missing 2 years of school”  (Dist. Ex. 9).  The report recounted the student’s significant medical history, including the operations, and that the student has special medical examinations “every 6 months” (id.).  Petitioners submitted along with the social history a report from the student’s physician at the Children’s Medical Group (Dist. Ex. 10).  The physician described Kipple-Trenauney Syndrome, and stated his belief that “providing her with a home teacher on the days that she misses school would be what is needed in this rare complicated situation”  (id.).     

 

A psychological evaluation was conducted in April 2002  (Dist. Exs. 2, 8).  The Wechsler Intelligence Scale for Children, Third Edition (WISC-III) was administered.  The student achieved a score of 95 on the verbal scale, a 90 on the performance scale, and a 92 on the full scale, which scores fell in the average range  (Dist. Ex. 8).  The Wechsler Individual Achievement Test (WIAT-II) was administered, revealing that the student’s reading and math skills were commensurate with her estimated level of intellectual ability (id).  The evaluator noted that the student had missed a significant amount of school during the past two years due to her medical condition.  The evaluator also administered the Behavior Assessment System for Children (BASC).  The student’s maladjustment composite and social stress were determined to be “at risk,” and her somatization was determined to be “clinically significant” (id.).  The evaluator concluded that the findings suggested further exploration from a physician and recommended that the student receive counseling. 

 

The individualized education program (IEP) developed pursuant to the May 31, 2002 CSE meeting indicated that the student “has significant medical issues that take her out of school for long periods of time” and that the student “falls behind which impedes progress in the general education” (Dist. Ex. 2).  The student was placed in regular education with related services of counseling one day per week. The student was to be provided with an additional set of books as a modification, extended time to take exams and flexible scheduling (id.).  Although not indicated on the IEP, the CSE Chairperson indicated that the student received some other modifications, such as 5 minutes extra to get to class (Tr. p. 89).  The CSE Chairperson indicated that additional services beyond those were not necessary because the student had “normal cognitive abilities”  (Tr. p. 88). 

 

Soon into the 2002-2003 school year, however, it became clear that the student was not attending school regularly and was absent approximately two days per week (Tr. p. 91).  The CSE Chairperson called another meeting, which took place on November 20, 2002 (Tr. p. 90).  Present at the meeting, which was categorized by the district as a “subcommittee” meeting, were the CSE Chairperson, the school psychologist, a guidance counselor, a regular education teacher, a psychology intern and the parent (Dist. Ex. 4).  At the November meeting, the IEP was modified to reflect that the student was to be programmed for resource room for one period every other day (Dist. Ex. 3).  Additionally, it was agreed that the district would “supply a tutor for long term illness, as long as it is medically related to disability.  An updated medical evaluation and documentation indicating absences are due to disability will be required for tutoring”  (id.).  Additionally, counseling was discontinued at the parent’s request.

 

On December 16, 2002, a nurse practitioner at the Children’s Medical Group completed a school/work certificate indicating that the student had a viral illness, and that she was to return to school on January 6, 2003 (Dist. Ex. 12).  The certificate indicated that it was to cover absences retroactive from Thanksgiving break (id.).   The student did not return to school on January 6, 2003, and was home tutored for the duration of the 2002-03 school year (Dist. Ex. 16; Tr. p. 364). A subsequent school/work certificate dated May 2003, signed by a physician at the Children’s Medical Group diagnosed nerve pain and authorized “intermittent return to school for socialization and school work” but also indicated that the student was to “continue home education for the rest of the year”  (Dist. Ex. 13). 

 

On May 19, 2003 and again on July 9, 2003 the parties met for additional subcommittee and CSE meetings.  Initially, there was confusion as to whether the student had passed any of her classes, as she had not been consistently graded  (Tr. pp. 374, 378, 379, 506-507).  A discussion was held as to whether the student would be eligible for an extended school year (Tr. p. 500).  The student was ultimately scheduled for summer school after the parent requested an impartial hearing  (Tr. pp. 548-549).  She did not obtain some of the assignments to complete her 9th grade English class, however, until sometime in September 2003, well into the 10th grade  (Tr. p. 509).  She did arrange to take a proficiency exam in 10th grade for her 9th grade Spanish class, and earned credit for that class upon passing  (Tr. pp. 387-388, 501). 

 

            In September 2003, the student was hospitalized for a transfusion for complications of an iron deficiency stemming from blood loss  (Tr. pp. 471, 511).  In October 2003, she was hospitalized for approximately one week for possible cellulitis in her back (Tr. p. 512).  The district was advised by a physician’s note that the student was to be kept out of school until further notice (Dist. Ex. 22).  The district was advised of the need for a tutor, and one was scheduled to meet with the student but did not keep the appointment (Tr. pp. 512-514).  Another tutor assigned to the student was also unable to continue working with her (id.).  At that point, a third tutor was sent to work with the student, who commenced tutoring services on November 13, 2003 (Tr. p. 250). 

 

The hearing was initially scheduled to take place on July 9, 2003 (Tr. p. 505).  On that date, however, a settlement agreement was tentatively reached at a CSE meeting which preceded the commencement of the hearing  (Tr. pp. 20, 505-507).  The terms of that agreement are not totally clear from the record but it was apparently agreed at that time that the student would attend summer school to complete work missed during the 9th grade  (Tr. pp. 19, 20, 505, 507).  In January 2004, it became clear that the agreement was not working and petitioners requested that the hearing be reopened  (Tr. pp. 12-13).  The hearing commenced on February 2, 2004 and was continued to February 25, March 4, March 22, May 11, and June 17, 2004.

 

At the hearing, testimony was obtained from the CSE Chairperson, the school psychologist, the school physician, one of the student’s physicians, both of petitioners and both individuals who tutored the student, one of whom tutored the student during the 2002-03 school year and another who tutored the student during the 2003-04 school year.  Of this testimony, significant information came from the student’s two tutors.  The student’s tutor for the 2002-03 school year testified that when she began working with the student in the fall of 2002, there was confusion that impeded the implementation of the tutoring services (Tr. pp. 363-364).  Assignments were often not provided for the student, and when they were, they were often provided at the last minute so that she’d have to work on two sets of assignments at once (id.). When the tutoring schedule was made more clear, the student’s work was often not graded and she did not have much in the way of grades or feedback (Tr. pp. 356, 374, 378).  Indeed, it was not evident to either the student or the tutor that the student was failing 9th grade until the school year was almost over, and the July 2003 CSE meeting took place  (Tr. p. 378). 

 

            The tutor for the 2003-04 school year testified that when he first started tutoring the student in November 2003, it was unclear what work the student had missed, and that he did not obtain a complete understanding of what the student had missed until January 2004 (Tr. pp. 250, 332-336).   He indicated that he did not have any course syllabi for the student, although the same would have been helpful  (Tr. p. 326).   He also testified that it was his position that he was only going to devote 23 hours of past-due tutoring hours to complete whatever 9th grade work was owed, and the rest was up to the student to complete on her own (Tr. p. 272). Aside from earth science lab requirements, no modifications to the student’s 10th grade workload were suggested by the school to reflect that the student was receiving homebound instruction (Tr. p. 326). The tutor indicated that some of the teachers did not communicate what assignments were due to him and others were slow to return completed assignments back to him (Tr. pp. 325, 328-329, 520). One of them provided assignments that had already been completed by the student and refused to provide additional assignments unless ordered to by the principal  (Tr. pp. 329-330). By the end of the first marking period of 10th grade, the student had made little progress and had failed most of her 10th grade classes (Parent Ex. D.) 

 

            In a decision issued August 24, 2004, the impartial hearing officer determined that the student’s classification as a student with an orthopedic impairment is appropriate, that petitioners’ daughter was offered a FAPE, and that the challenges to the 2002-03 and 2003-04 IEPs were moot. On appeal petitioners assert the following: the student should be classified as a student with “multiple disabilities” (see 8 NYCRR 200.1[zz][8]); the student’s IEP should provide for a combination of school attendance and daily home instruction; that her school workload should be modified while still complying with state standards and Regents requirements; that her progress be documented on a marking period basis; that her tutor and teachers meet on a weekly basis to coordinate instruction; and that she be provided compensatory education over the “summers” and that she be provided one-to-one math instruction at home by a certified math teacher during the 2003-04 school year.

 

            Respondent bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). In order to meet its burden, respondent must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025). The educational benefit must be "meaningful" (Rowley, 458 U.S. at 192) and "more than mere trivial advancement" (Walczak, 142 F.3d at 130; Mrs. B., 103 F.3d at 1121). It must be 'likely to produce progress, not regression,' (Walczak, 142 F.3d at 130 M.S., 231 F.3d at 103). The child's progress must be viewed in light of the limitations of the child's disability (Rowley, 458 U.S. at 202; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114 [2d Cir. 1997]). The recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

 

            Petitioners assert that the IEPs developed pursuant to the May 31, 2002 CSE and November 20, 2002 subcommittee meetings were procedurally flawed because they were improperly composed. If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 02-015), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]).

 

            Regarding the May 31, 2002 CSE meeting, which was an initial meeting, it is clear that there was no additional parent member, nor was there a waiver of this right  (Dist. Exs. 2, 4; Tr. pp. 199-200, 488). The IDEA sets forth minimum procedural safeguards each school district must provide to eligible students with disabilities (20 U.S.C. § 1415). The additional parent member is not a required member of the IEP team under the IDEA (20 U.S.C. § 1414[d][1][B]). The New York State Legislature, in Article 89 of the Education Law, provides for special education in a manner consistent with the IDEA and confers additional procedural protections. One of those additional procedural protections is the requirement of an additional parent member of the CSE (N.Y. Educ. Law § 4402 [1][b][1][a][viii]; see also 8 NYCRR 200.3[a][1][viii]; Application of a Child with a Disability, Appeal No. 02-092). The statute and accompanying regulation require that the additional parent member be present at the CSE meeting. This section was amended in 1999 to provide a single scenario by which the additional parent member may be excluded: "such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting" (N.Y. Educ. Law § 4402 [1][b][1][a][viii]; 8 NYCRR 200.3[a][1][viii]).  The May 31, 2003 CSE meeting was held without a valid waiver and without the required additional parent member. Accordingly, I find that the May 31, 2002 meeting was improperly constituted under New York law.2

 

 Petitioners allege the lack of physical examination prior to the May 31, 2002 CSE meeting as a procedural error. State regulations provide that an initial evaluation for special education eligibility must include a physical examination in accordance with the provisions of section 903, 904 and 905 of the Education Law (8 NYCRR 200.4[b][i]).  A physical was not conducted by the school, however, the May 2002 CSE did have a report from the student’s physician dated October 2001 (Dist. Ex. 10; Tr. p. 184).  The extent to which this report was actually considered by the district is questioned by petitioners (Tr. 489; Dist. Ex. 2).  The May 2002 IEP indicates, though, that the student had “significant medical issues that take her out of school for long periods of time” and therefore does discuss the student’s physical conditions and attendant limitations (Dist. Ex. 2).  The IEP does not, however, articulate how home tutoring would be implemented in the event that it were to become necessary, an omission which, as is discussed below, proved to be a significant impediment to this student being able to benefit from education.

 

            For the November 2002 subcommittee meeting, it is clear that neither a special education teacher nor the student’s home tutor were present at this meeting  (Dist. Ex. 4; Tr. p. 495).  Under New York State Education Law, boards of education in city school districts in cities having in excess of 125,000 inhabitants, can appoint subcommittees on special education to the extent necessary to ensure timely evaluation and placement of students with disabilities (N.Y. Educ. Law § 4402[1][b][1][d]; 8 NYCRR 200.3[c]). Each subcommittee is required to include the following members: the student's parents; one regular education teacher of the student (if the student is or may be participating in the regular education environment); one special education teacher of the student, or, if appropriate, a special education provider of the student; a representative of the school district involved in special education; an individual who can interpret evaluation results; such other persons having knowledge or special expertise regarding the student as the school district or parents shall designate; if appropriate, the student; and a school psychologist whenever a new psychological evaluation is being reviewed or a change to a more restrictive program is being considered (N.Y. Educ. Law § 4402[1][b][1][d]; see N.Y. Educ. Law § 4402[1][b][1][a]; 8 NYCRR 200.3[c][2]). In addition, "the committee shall invite the appropriate professionals most familiar with a student's disability or disabilities to attend any meeting concerning the educational program for such student" (N.Y. Educ. Law § 4402[1][b][1][b]; see N.Y. Educ. Law § 4402[1][b][1][a][ix]; 8 NYCRR 200.3[c][2][vii]).

 

            I find, that in the unique circumstances of this case, the child's home tutor should have been present at the November 2002 subcommittee meeting as an “other person having knowledge regarding the student" (8 NYCRR 200.3[c][2][ii],[c][2][vii])). The tutor would have been able to add necessary and valuable information and insight into whether or not tutoring was being implemented in such a way to allow the child to benefit from her education program. Indeed, this meeting was called to address insufficiencies of the May 31, 2002 IEP stemming from the fact that the student was not attending school; the tutor testified that there was a lack of coordination among the student’s teachers impeding the implementation of home tutoring services.  The failure to have the tutor, who was the person most familiar with the student’s instruction, at the CSE meeting, along with the failure to have a special education teacher present, resulted in a denial of educational benefit to the student.   

 

            In light of the fact that there was no additional parent member at the initial CSE meeting, and in light of the fact that there were other key members missing from the November 2002 subcommittee, I find that the meetings regarding the 2002-03 school year were both improperly composed. I further find that the absence of these individuals at the meetings resulted in a loss of educational opportunity which denied the student a FAPE. (see Application of a Child with a Disability, Appeal No. 04-020 [subcommittee missing a music therapy teacher found to result in a denial of FAPE; Application of the Bd. of Educ., Appeal No. 03-062 [CSE missing two to three required members was found to result in a denial of FAPE]).

 

Even if I were not to determine that the lack of a parent member, special education teacher, and home tutor were procedural violations that denied educational opportunity and FAPE, I find that the May 31, 2002 and November 20, 2002 IEPs were not implemented in such a way as to provide a FAPE.  In doing so, I am mindful of the dictates of Rowley that a student is entitled to a program that is “reasonably calculated” to confer educational benefits (Rowley, 458 U.S. at 207). 

 

Having reviewed the IEP’s for the 2002-03 school year, I conclude that they were not reasonably calculated to provide educational benefits at the time they were formulated, as they did not adequately address the provision of home tutoring for a student who was very likely to be, and in fact was, out of school.  The district acted appropriately by reconvening in November 20, 2002 in order to revise the May 31, 2002 IEP in light of the student’s continued absences.  I am nevertheless constrained to find that the district did not offer a FAPE for the 2002-03 school year. While the November 2002 IEP identified the possibility of tutoring in the event of long-term illness (Dist. Ex. 3), it is clear that it did not provide for appropriate implementation of those services.   Indeed, the tutor’s testimony indicates a lack of coordination between the teachers at respondent’s school and the tutor such that neither the tutor nor the student knew that the student was failing until the end of the 2002-03 school year (Tr. pp. 356 374, 378).  Additionally, the modifications that are listed in the IEP include only an extra set of books and extra time for testing  (Dist. Ex. 3).  It is not clear how, if at all, the curriculum was to be modified in the event of long-term illness.  The tutor suggested that the teachers would limit the amount of work sent home, but this was due more to the paperwork involved than any clear plan, and it is not at all clear how this translated into grades.  The only thing that is clear is that the student was under the impression that she was successfully completing her work because she was completing the work that was assigned when in fact she had no real insight as to her grades, which were failing (Tr. p. 356).  I conclude that the May 31, 2002 and November 20, 2002 IEPs did not offer an appropriate substantive program.

 

            Having determined that the IEP’s for the 2002-03 school year were inadequate, and that the district did not offer a FAPE for that year, I now turn to the 2003-04 school year.  It is clear that the IEP that resulted from the July 9, 2003 CSE meeting indicated a viewpoint between the parents and the district that was growing more and more divergent.  The IEP indicated that the school physician “reviewed the medical history of the student noting prior diagnosis of malingering and non-compliance to medical treatment, specifically medications” (Dist. Ex. 1).  The parents disagreed with this characterization (id.). Meanwhile the student’s program continued to be general education with resource room (id.).  It was noted on the IEP that the student needs to attend school consistently or cooperate with the home instructor, and that she needs to complete assignments if she is absent to progress in the general curriculum (id.). 

           

            After careful consideration, I find that the district did not offer a FAPE to this student during the 2003-04 school year.  In so finding, I note that the significant implementation problems evident in the 2002-03 school year continued into the 2003-04 school year, with a lack of coordination between the district and the tutor such that it was often unclear what assignments were due when and how the student was progressing  (Tr. pp. 325, 328-329, 520).  I do not find the recommendation of general education with support services to be inappropriate, I do find that the lack of a coordinated plan to deliver instruction when the student is absent from school for a significant period to be a denial of FAPE.   The record reveals that the July 9, 2003 IEP was formulated based, in part, upon inadequate 2002-03 IEPs, and like the 2002-03 IEPs, it was inadequate because it did not identify appropriate tutorial services to meet the identified need of instructional services at home when the student was absent for significant periods of time. The district offered a program that continued to focus on what the student must do (i.e. that she come to school or cooperate with the home instructor) to the exclusion of the district’s obligation to ensure that in the event that home tutoring was provided that it be “meaningful” and “reasonably calculated” to confer educational benefits (see for example, Dist. Ex. 1).  There should have been some provision on the IEP to have assignments and grades provided in a timely coordinated fashion so that the student did not complete assignments thinking that she was doing what was expected, only to fail at the end of the marking period.  It should have been also noted on the student’s IEP what, if any, modifications to the curriculum would be required in the event that her illness causes her to be out of school for extended periods of time. 

 

            In terms of expectations of the student, the impartial hearing officer noted that the district appeared to view the student as a malingerer; a view that was specifically rejected by the impartial hearing officer (see IHO Decision, at p. 5). It appears from the record that this student has a complicated medical condition that, at times, causes her significant pain (Tr. pp. 588-589).  There is, however, a legitimate question as to whether this student has been out of school for so long that she experiences anxieties regarding and/or difficulties with re-acclimating to school.  There are also legitimate questions as to the extent to which she is in pain versus the suggestion of somatization or exaggeration of symptoms (Dist. Ex. 8).  At varying points in the record it is noted that additional evaluations, including a physical therapy evaluation, an evaluation by a pain expert and an additional psychology evaluation, would be useful (Tr. pp. 200, 233, 429, 444).  These evaluations were not completed, and there is insufficient information for me to comment upon the pain issue except to the extent that I will direct that a physical therapy evaluation and independent psychological evaluation be performed at district expense. 

 

            Having found that there was a denial of FAPE, I now must turn to appropriate remedy.  In doing so, I note that this appears to be a case in which the both sides want what they believe to be appropriate for the student, however, their beliefs as to what is appropriate for this student are at times different.  The district believes that the student can and should be in school, and has formulated IEP’s with that goal in mind.  Petitioners, however, believe that their daughter is physically incapable of attending school.  Regardless, the fact is that the student was and perhaps still is out of school, and the formulation and implementation of the IEPs was not sufficient for her to receive an appropriate education.

 

            Petitioners request compensatory education. Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. 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]). 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]). 

 

            While compensatory education is a remedy that is available to students who are no longer eligible for instruction, 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, 04-054; Application of the Bd. of Educ., Appeal No. 02-047; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030).  As this student will have an opportunity to remedy any deprivation caused by the district’s failure to provide a FAPE before she is no longer eligible for special education, compensatory education is inappropriate.  That being said, it is likely that this student is entitled to additional services in the form of tutoring beyond what the district has been providing, especially if the student is still engaged in making up for work missed at the same time she is being given current work.  I will direct respondent to reconvene a CSE to consider the delivery of appropriate additional services to make up for the deprivation of educational services during the 2002-03 and 2003-04 school years, and to deliver the appropriate additional services.    

 

Finally, it is suggested by the district that the parents were not cooperative in providing the district with timely notice of their daughter’s medical absences.  I remind the parents of their need to cooperate with the district in providing timely information so as to enable the district to provide the needed instruction to their daughter.  It is also suggested that the student would benefit from counseling in order to assist her transition from home tutoring to a school environment.  This should be fully considered at a CSE meeting.

 

             

            THIS APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

            IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that it found respondent offered petitioners’ daughter a FAPE for the 2002-03 and 2003-04 school years and determined that petitioners’ claims arising during these two school years were moot; and

           

            IT IS FURTHER ORDERED that the CSE convene within 60 days of the date of this decision for the purpose of developing an IEP not inconsistent with this decision; and

 

IT IS FURTHER ORDERED that respondent have a physical therapy evaluation and psychological evaluation of the student performed by nondistrict personnel and consider the resulting reports and recommendations at the above ordered CSE meeting; and

 

IT IS FURTHER ORDERED that at the above ordered CSE meeting that the CSE shall consider and plan for the provision of appropriate additional services.

 

 

Dated:

Albany, New York

 

__________________________

 

December 20, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

 

1  With respect to the petitioners’ claims for the 2001-02 school year, those claims are time barred.  Although the IDEA does not prescribe a time period in which requests for administrative impartial due process hearings must be asserted, a one-year statute of limitations has been applied in light of recent case law requiring adoption of the most appropriate analogous state statute of limitations (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 [2d Cir. 2003]); (Application of the Bd. of Educ., Appeal No. 02-119; Application of the Bd. of Educ., 03-062).  Federal rules of accrual apply (Leon v. Murphy, 988 F.2d 303 [2d Cir. 1993]); hence, the time period for requesting an impartial hearing to resolve disputes under the IDEA or Article 89 of the New York Education Law begins to run when petitioners knew or should have known of the injury involved, in this case her daughter's failure to be evaluated by the respondent’s committee on special education.  (M.D., 334 F.3d at 221). The record shows that petitioners knew that their daughter was receiving homebound instruction during and before the 2001-02 school year, but did not request an impartial hearing until July 2003, almost two years later. Thus, their claims with respect to that year are untimely under the one-year statute of limitations (Application of the Bd. of Educ., Appeal No. 02-119).  While ruling that claims with respect to the 2001-02 school year are time barred, I must remind the district of its need to identify and promptly evaluate students who are suspected of having disabilities. 

 

2  Respondent has previously been found to be remiss for not having an additional parent member at CSE meetings (Application of a Child with a Disability, Appeal No. 02-092).