The State Education Department
State Review Officer

 

No. 04-084

 

 

 

 

 

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

 

 

Appearances:
Bouvier Partnership, LLP, attorney for respondent, Jay C. Pletcher, Esq., of counsel

 

 

DECISION

 

            Petitioner appeals from the decision of an impartial hearing officer, which:  1) denied her request for compensatory education; 2) determined that respondent offered to provide a free appropriate public education (FAPE) to her daughter for the 2003-04 school year; 3) found petitioner was properly informed of her due process rights for the past ten or more years; and 4) found respondent complied with a mediation agreement dated August 8, 2003.  The appeal must be dismissed.

 

        Initially, several procedural matters must be addressed.  Respondent contends that petitioner's affidavit of personal service fails to comply with the Regulations of the Commissioner of Education (Ans. ¶ 12).  Respondent also contends that the notice of intention to seek review and petition were improperly served (Ans. ¶ 11). 

State regulation requires that a notice of intention to seek review of an impartial hearing officer's decision shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed (8 NYCRR 279.2[b]). The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed (id.).  If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period (id.).

Petitioner asserts that she made a request for an appeal on June 7, 2004 and attempted to commence this appeal by correspondence, dated August 18, 2004, addressed to the State Review Officer.  After receiving a copy of petitioner’s misaddressed August 18, 2004 correspondence on September 15, 2004, the Office of State Review notified petitioner of the Regulations of the Commissioner of Education relative to an appeal to the State Review Officer.  In response to this notification, petitioner filed her notice of intention to seek review, notice with petition and an affidavit of verification with the Office of State Review.  Petitioner was then notified of the need to personally serve respondent and to file an affidavit of personal service with the Office of State Review.

Respondent asserts that the notice of intention to seek review and the petition were not personally served upon it.  I note that petitioner attempted to file an affidavit of personal service with the Office of State Review.  The purpose of a notice of intention to seek review is to ensure that the record is provided to the State Review Officer. The record in this matter was provided. An appeal from a decision of an impartial hearing officer is not generally dismissed for service irregularities (Application the Bd. of Educ., Appeal No. 02-070; Application of a Child with a Disability, Appeal No. 93-7; Application of a Child with Disability, Appeal No. 93-2).  I find that respondent has not been prejudiced by any alleged defects in the service of the petition and was able to effectively respond to petitioner's allegations in a timely manner upon receipt of the petition. Given these facts, I will not dismiss the petition for petitioner's failure to properly serve the notice of intention to seek review and the petition (Application of the Bd. of Educ., Appeal No. 04-085; 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. 93-2).

 Respondent further requests that the petition be dismissed as untimely (Ans. ¶ 11).  An untimely petition may be excused for good cause shown (Application of a Child with a Disability, Appeal No. 03-092; Application of a Child with a Disability, Appeal No. 97-18; Application of the Bd. of Educ., Appeal No. 91-35), and the reasons for the delay are to be set forth in the petition (8 NYCRR 279.13).  In her petition, petitioner requested an extension of time to appeal the June 25, 2004 decision, asserting that she initially did not know how to properly commence the appeal. She further asserted that she had not been informed of how to appeal despite asking the impartial hearing officer for that information.  I find that petitioner made diligent good faith attempts to bring this appeal and has expeditiously corrected any mistakes upon notice thereof. I also find credible her assertion that she attempted to initiate the appeal after the hearing concluded and prior to the expiration of the timeline for serving her petition for review, but was stymied by her unfamiliarity with the process. Under these circumstances, I will exercise my discretion and excuse petitioner's delay (Application of the Bd. of Educ., Appeal No. 04-091; Application of a Child with a Disability, Appeal No. 02-009; Application of the Bd. of Educ., Appeal No. 01-043).

 

 When the hearing began on March 3, 2004, petitioner's daughter was 20 years old and was receiving services in accordance with an individualized education program (IEP) for the 2003-04 school year dated January 7, 2004 (Dist. Ex. 2 pp. 1-7).  The student was also receiving compensatory services pursuant to a mediation agreement dated August 8, 2003 (Dist. Ex. 1).  The student has been diagnosed with a severe form of spina bifida, which encompasses the conditions of hydrocephalus, myelomeningocele and Arnold-Chiari Malformation, Types I and II, and the student is described as medically fragile and non-ambulatory (Dist. Ex. 2 pp. 1, 11).The student has been determined eligible for special education and classified as a student having multiple disabilities by respondent's Committee on Special Education (CSE) (Dist. Ex. 2 p. 1; see 8 NYCRR 200.1[zz][8]). The student’s classification is not in dispute.  

 

On August 8, 2003, the parties entered into a mediation agreement (Dist. Ex. 1).  Respondent agreed to provide individual physical therapy three times per week for 40 minutes as per the recommendations of the student's physician and two additional 40-minute sessions per week as compensatory services during the 2003-04 school year.  Respondent also agreed to provide an autism consultation/evaluation for behavioral management, monthly meetings for service providers, a transition plan linked with adult service providers, adaptive physical education (APE) four times per week for 40 minutes each which included compensatory services, assistive technology equipment incorporated into the IEP, home-based tutoring five times per week for two and one-half hours each until the end of the 2003-04 school year which included 30 minutes of compensatory services, and a case manager (id.).  The agreement also provided that if the frequency of related services became overwhelming to the student, the services would be extended into the following school year (id.).  The parent agreed to withdraw an impartial hearing request dated June 30, 2003.  The additional services set forth in the mediation agreement were intended "to compensate [petitioner] for gaps in service" up to that date (Mar. 3, 2004 Tr. p. 21). 

 

For the 2003-04 school year, respondent's CSE recommended that petitioner's daughter receive home tutoring five times per week for two hours, APE three times per week for 40 minutes each, augmented communication and assistive technology consultation ten times per year for 60 minutes each, individual occupational therapy twice per week for 45 minutes each, individual physical therapy three times per week for 40 minutes each, individual speech-language therapy three times per week for 45 minutes, transitional support services once per week for 15 minutes, extended school year services, monthly consultation meeting for all service providers and a case manager (Dist. Ex. 2 pp. 3-4).  The CSE also recommended assistive technology devices of a computer, printer, specialized software and an augmented communication device (Dist. Ex. 2 p. 4). 

 

 According to the January 7, 2004 IEP, the Expressive One-Word Picture Vocabulary Test (EOWPVT) was administered on February 12, 2003 and the Peabody Picture Vocabulary Test – Third Edition (PPVT-III) was administered on April 4, 2003 (Dist. Ex. 2 p. 2).   Clinical observation, along with the results of the above testing, revealed that student exhibited severe delays in receptive and expressive language skills (Dist. Ex. 2 p. 2).  The IEP indicated that the student does have some letter identification skills and does imitate things she hears in the home environment (id.).  The student can answer the phone and engage in brief conversational exchange.  The student is able to accurately identify some basic sight words and is particularly proficient with colors and numbers 1-10 (id.).  The IEP states that the student needed to continue to be exposed to functional sight word vocabulary, picture symbols and the use of a computer word prediction program (id.). 

 

The student is non-ambulatory and uses a wheelchair for mobility (Apr. 19, 2004 Tr. p. 90).  Although she is able to use her arms and hands for functional activities, the student continues to require assistance with many activities of daily living (Dist. Ex. 2 p. 2; Apr. 19, 2004 Tr. pp. 128-29).  According to the minutes of the January 7, 2004 CSE meeting the student continued to make progress (Dist. Ex. 2 p. 8).  Updated testing results were reviewed and respondent's school psychologist cautioned that the results might not be a clear estimate of the student's abilities because of her high distractibility (id.).  The student's special education teacher and service providers indicated that her program should continue to focus on the development of communication skills and physical development (id.).  The student's current behavioral intervention plan (BIP), which had been developed to address her noncompliance and difficulty transitioning, was reportedly successful (Dist. Ex. 2 pp. 8, 23-26).  Also at the meeting, day habilitation programs were discussed and petitioner indicated that she was comfortable with her daughter's progress (id.).  Petitioner stated that she wanted tutoring and APE reduced and that she was not comfortable with the second tutor in her home.  Petitioner also opined that the monthly service provider meetings were not necessary.  The remaining members of the CSE disagreed and also reiterated that the meetings were required by the mediation agreement (id.).

 

The hearing began on March 3, 2004.  Testimony was heard for three days and the hearing concluded on May 12, 2004.   Testimony at the hearing was limited to events occurring on or after January 1, 2003 (IHO Ex. 8 p. 5; Mar. 3, 2004 Tr. pp. 17-19).        

 

            At the hearing, petitioner indicated that she was happy with her daughter's 2003-04 program (Mar. 3, 2004 Tr. pp. 19-22, 25).  She agreed that the program was appropriate (Mar. 3, 2004 Tr. p. 32) and that the IEP had been implemented (Mar. 3, 2004 Tr. pp. 26, 32).  She also agreed that respondent had complied with the mediation agreement (Mar. 3, 2004 Tr. p. 32).  She testified that the 2003-04 IEP along with the compensatory services as set forth in the mediation agreement were overwhelming for her daughter (Mar. 3, 2004 Tr. pp. 23-27; Apr. 19, 2004 Tr. pp. 172-73) and requested that these services be provided by respondent after the student becomes ineligible for special education, due to her age, at the end of the 2004-05 school year (Mar. 3, 2004 Tr. p. 11).1  She stated that she would like three years of compensatory education "to make up for all the years that [the student] had missed" (Mar. 3, 2004 Tr. p. 15; see also Apr. 19, 2004 Tr. pp. 179-80).  Respondent indicated that it was willing to extend compensatory services into the 2004-05 school year, but was waiting for a written request for a reduction in services from petitioner.  The impartial hearing officer was able to illicit from petitioner that she did not want to make a written request for a reduction in services because she was afraid those services would never be delivered (Mar. 3, 2004 Tr. pp. 19-22). 

 

By decision dated June 25, 2004, the impartial hearing officer found that petitioner "was provided her due process rights appropriately, consistently and as long as ten years ago, and that [petitioner] was actually aware of her rights for at least several years prior to the instant hearing request" (id.).  The impartial hearing officer further found that respondent offered to provide a FAPE to petitioner's daughter for the 2003-04 school year (IHO Decision, p. 2) and that petitioner was not entitled to compensatory education (IHO Decision, p. 8).  The impartial hearing officer also found that all of the parent's claims prior to August 8, 2003 were resolved by the mediation agreement (IHO Decision, p. 8).

 

In this appeal, petitioner reiterates her claims before the impartial hearing officer and specifically requests three years of compensatory education for violations of the Individuals with Disabilities Education Act (IDEA) occurring between 1984 and August 2003 (Pet. ¶ 34).  Relative to the 2003-04 school year, petitioner contends that respondent has not provided the level of services set forth in the 2003-04 IEP, a transition plan, or a functional behavior assessment (FBA) (Pet. ¶¶ 7, 10, 11, 25, 27, 32). 

 

The IDEA "requires that states offer parents of a disabled student a wide array of procedural safeguards designed to help ensure the education of their child" (Polera v. Bd. of Educ., 288 F.3d 478, 482 [2d Cir. 2002]).  One such procedural safeguard is the right to an impartial due process hearing by the State educational agency or by the local educational agency (20 U.S.C. § 1415[f][1]; see also Polera, 288 F.3d at 482; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 68 [2d Cir. 2000]).  In New York, either "[a] parent or a school district may initiate a hearing on matters relating to the identification, evaluation or educational placement of a student with a disability, or the provision of a [FAPE] to the child" (8 NYCRR 200.5[i][1]).  At the impartial hearing, the parties "shall have an opportunity to present evidence, compel the attendance of witnesses and to confront and question all witnesses at the hearing" (8 NYCRR 200.5[i][3][xii]; see also J.D. v. Pawlet, 224 F.3d at 68; Application of a Child with a Disability, Appeal No. 04-092).

 

            The record reveals that the majority of the lost services for which petitioner seeks compensatory education occurred prior to the execution of the mediation agreement.  The record also indicates that the mediation agreement was intended to compensate petitioner for these lost services.  In this appeal, petitioner's claims, which occurred prior to August 8, 2003, essentially distill to a request to alter the terms of the mediation agreement.  The State Review Officer (SRO) has jurisdiction over claims arising from a matter relating to the identification, evaluation or educational placement of a student with a disability, or the provision of a FAPE (8 NYCRR 279.1[a]).  It is well settled that an appeal to the SRO is not the proper vehicle to enforce agreements between the parties (Application of a Child Suspected of Having a Disability, Appeal No. 03-071; Application of the Bd. of Educ., Appeal No. 91-30), or enforce prior orders of an impartial hearing officer or SRO (Application of a Child with a Disability, Appeal No. 04-100; Application of a Child with a Disability, Appeal No. 04-077; Application of a Child with a Disability, Appeal No. 04-007; Application of a Child with a Disability, Appeal No. 01-086; Application of the Bd. of Educ., Appeal No. 99-4).  Petitioner repeatedly testified that she is seeking three years of compensatory education to make up for services her child did not receive from the age of six until August 2003 (Apr. 19, 2004 Tr. pp. 52, 179-80; May 12, 2004 Tr. pp. 123-24, 132).  The mediation agreement executed August 8, 2003 specifically covers this time period (May 12, 2004 Tr. pp. 60-61).  Petitioner also testified that she is happy with her daughter's program and the service providers (Mar. 3, 2004 Tr. pp. 29-30; Apr. 19, 2004 Tr. pp. 177-78) and agreed that both the 2003-04 IEP and mediation agreement were implemented.

 

The IDEA also ensures that each child with a disability is provided a FAPE (20 U.S.C. § 1400[d][1][A]; 34 C.F.R. § 300.121[a]).  A FAPE consists of special education and related services provided in accordance with an IEP (20 U.S.C. § 1401[8]; 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]).  The student's recommended program must also be provided in the least restrictive environment (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. 02-092; Application of a Child with a Disability, Appeal No. 01-105).  An IEP must include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]).  In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]).

 

An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a][3]).  Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][3][i]). 

 

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]).

 

With respect to petitioner's claims which arose during the 2003-04 school year, they are unsupported by the record.  Petitioner alleges that respondent did not provide tutoring and speech-language services as set forth in the student's 2003-04 IEP (Pet. ¶¶ 10, 25).  The record reflects that respondent attempted to provide the recommended two and one-half hours of tutoring, but was unable to do so due to the parent's discomfort with assigned tutors and times when she felt her daughter was becoming overwhelmed (Dist. Exs. 3, 13, 14, 44; Apr. 19, 2004 Tr. pp. 55-60, 74-75, 105-06).  The record also reflects that approximately 15 minutes of a speech-language therapy session was missed on a few occasions when the parent needed to end the session early in order to bring her daughter to a recreational bowling program (Mar. 3, 2004 Tr. pp. 24-25; Apr. 19, 2004 Tr. pp. 133-34, 136-38, 141-50).   

 

Petitioner also contends that respondent failed to develop a transition plan for the student (Pet. ¶ 32).  As set forth in the mediation agreement, respondent was required to develop a transition plan focusing on linking to adult agencies (Dist. Ex. 1).  The August 25, 2003 CSE minutes indicate that a transition coordinator was assigned to the student and a plan consistent with the mediation agreement was outlined (Dist. Ex. 6). The transition plan indicated that the student would live at home and included a suggestion that the parent explore day habilitation programs, as well as programs that could bring services into the home.  Transitional support services were included in the student's IEP (Dist. Exs. 2, 6). According to the record, adult services were subsequently discussed with the parent and the student's transition coordinator attempted to link the parent with the adult service system (Dist. Ex. 3; Apr. 19, 2004 Tr. pp. 70, 78-9, 84-85).

 

Lastly, petitioner alleges respondent failed to develop and implement an FBA (Pet. ¶ 11).  The record reveals that an FBA was conducted on October 9, 2003 (Dist. Ex. 2 pp. 23-25).  The student's BIP is dated October 9, 2003 (Dist. Ex. 2 p. 26) and was subsequently reviewed at the October 14, 2003 CSE meeting (Dist. Ex. 5).  The record also reflects that the BIP was implemented and data collected (Dist. Ex. 12) and that the plan was reviewed after implementation (Dist. Ex. 2 p. 22).  According to the minutes of the January 7, 2004 CSE, the BIP was meeting with success and the student continued to make progress (Dist. Ex. 2 p. 8).

 

I agree with the impartial hearing officer's determinations that petitioner is not entitled to compensatory education and that respondent's recommended program for the 2003-04 school year was appropriate.  I also concur with the impartial hearing officer that petitioner was properly informed of her due process rights and that respondent has complied with the mediation agreement dated August 8, 2003.

 

Finally, it appears from the record that respondent is willing to extend the compensatory services beyond the date set forth in the mediation agreement (Mar. 3, 2004 Tr. pp. 23-42).  I encourage the parties to work together for the benefit of the student.

 

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

 

 

             

THE APPEAL IS DISMISSED.

 

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

January 21, 2005

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1  New York Education Law provides for the delivery of special education services to a student with a disability through the end of the school year in which the student turns 21 years of age  (N.Y. Educ. Law § 4402[5][b]; see 8 NYCRR 100.9[e]; see also Application of a Child with a Disability, Appeal No. 04-100; Application of a Child with a Disability, Appeal No. 02-016; Application of a Child with a Disability, Appeal No. 00-024).