The State Education Department
State Review Officer

No. 04-100

 

 

 

 

 

 

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York

 

 

Appearances:
Kehl, Katzive & Sigmond, LLP, attorney for petitioner, Marion C. Katzive, Esq., of counsel

 

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent

 

 

DECISION

 

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

           

            At the time of the hearing, petitioner's son was 22 years old and had been classified by respondent's Committee on Special Education (CSE) as a student with an emotional disturbance (Parent Ex. B; June 16, 2004 Tr. p. 18).  Petitioner describes her son as morbidly obese, suffering from phobias and anxieties, with various neurological and behavioral problems (June 16, 2004 Tr. p. 5).  Standardized testing completed in 1997 reportedly indicated a verbal IQ score of 90 (average) and a performance IQ score of 54 (moderate deficit) (Parent Ex. M).  The student was described by a school psychologist as having aggressive urges with limited tolerance for minor peer provocations (id.), and has a history of verbally abusive and disruptive behavior related to feelings of anxiety and depression (see Parent Ex. L).

 

        The record in this case is sparse, however, it appears that in October 1998, when petitioner's son was 16, he was placed at the Karafin School (Karafin) pursuant to a Nickerson Letter (Parent Ex. L; see IHO Decision, p. 2).  At the end of the 1998-99 school year, the director of Karafin discharged the student, informing petitioner that, due to the student's emotional fragility and his poor impulse control, the student needed a more structured program than Karafin could offer (see Parent Ex. L).  Respondent's CSE attempted to find an appropriate educational placement for the student, and finally, in February 2002, secured a placement for him at the Judge Rotenberg Center (JRC) (June 16, 2004 Tr. p. 4).  JRC is a private residential school located in Canton, Massachusetts which has been approved by the Commissioner of Education to contract with school districts to instruct students with disabilities.  Petitioner's son continued to attend JRC for the following 2002-03 school year, and in November 2002 started working toward a GED diploma (June 16, 2003 Tr. pp. 5-6).  On January 2, 2003, respondent's CSE met for its annual review of the student's individualized education program (IEP).  The 2002-03 IEP continued to place the student in a twelve-month residential program at JRC in a self-contained 12:1+1 class for all academic subjects (Parent Ex. B).  The 2002-03 IEP included, inter alia, transition goals and objectives and a behavioral intervention plan (id.).  The 2002-03 IEP noted that the student had matured significantly over the last eight months at JRC, and his frustration level had dropped considerably (id. at p. 4).   The IEP listed an expected high school completion date of June 2003 (id. at p. 12).  During the 2002-03 school year the student turned 21 (June 16, 2004 Tr. p. 5).

 

In March 2003, petitioner requested an impartial hearing (Hearing 1) seeking compensatory education to make up for the two-and-a-half-year period from June 1999 through February 2002 during which her son had been without an appropriate placement (June 16, 2004 Tr. pp. 5-6; Parent Ex. A at p. 3).1  A hearing was held on April 9, 2003, and a decision was rendered on May 16, 2003 (Parent Ex. A).  The impartial hearing officer found that the student had been denied appropriate services for a substantial period of time, which resulted in regression and a need for additional transition services to fully prepare the student to transition into the community (id.). The impartial hearing officer awarded petitioner's son compensatory education services at JRC for the 2003-04 school year to be paid by respondent based on the district's failure to provide an appropriate program and placement for the student for the 1999-2000 and 2000-01 school years, and during the first half of the 2001-02 school year.  Based in part on the testimony of the JRC psychologist and the educational coordinator, the impartial hearing officer found that "an additional year at [JRC] will address the deficiencies caused by the Department of Education's failure to provide services" (Parent Ex. A at p. 4). The impartial hearing officer also remanded the matter to the CSE to prepare a new 2003-04 IEP for the student at JRC, with updated goals and objectives and an updated transition plan, by June 15, 2003 (id. at p. 5). Neither petitioner nor respondent appealed from the impartial hearing officer's decision.

 

In May or June of 2003, JRC's school psychologist, the student's case manager, the student's teacher and petitioner developed a proposed IEP for petitioner's son for the 2003-04 school year (Parent Ex. C) and reportedly sent a copy to respondent's CSE for approval, but never heard back from respondent (June 16, 2003 Tr. pp. 36-37, 39, 41, 25-26).  The proposed 2003-04 IEP was very similar to respondent's January 2003 IEP, but included a vocational plan whereby the student was enrolled part time in a vocational technical school where he attended vocational courses and GED classes (June 16, 2004 Tr. pp. 27, 33; see Parent Ex. C at 8).  Although the diploma objective on the proposed 2003-04 IEP specified an IEP diploma (Parent Ex. C at p. 13), the student continued to take classes to prepare for the GED examination (June 16, 2004 Tr. p. 27).  The proposed 2003-04 IEP was implemented and petitioner's son received all of the proposed services (June 16, 2004 Tr. p. 36).  As part of his vocational training, the student was employed part time at a Coca-Cola plant and also worked at an in-school position with the marketing department, where he reportedly did very well (Parent Ex. C at p. 3).  The educational director at JRC testified that the student made progress academically and socially during the 2003-04 school year, and was very confident and motivated in his preparation for the GED examination (June 16, 2004 Tr. pp. 30-32, 37).  Although the student made progress during the year, nevertheless, at the end of the school year the staff at the vocational technical school still felt that the student was not yet ready to take the GED examination (June 16, 2004 Tr. pp. 28-29).  During the 2003-04 school year the student turned 22 (June 16, 2004 Tr. p. 18). 

 

By letter dated April 6, 2004 petitioner contacted the CSE and requested "a review of the ongoing placement needs" and transition services for her son (Parent Ex. E).  The CSE responded that, since the student was over 21, the CSE was no longer obligated to conduct an annual review of the student's educational placement (June 16, 2004 Tr. pp. 17-18). On June 7, 2004 petitioner requested a second due process hearing (Hearing 2), seeking an additional year of compensatory education for her son at JRC (Pet. ¶ 18; June 16, 2004 Tr. pp. 12-13).  The hearing was held on four days beginning on June 16, 2004 and ending on August 20, 2004.  During the hearing, respondent agreed to continue to fund the student's tuition at JRC (July 27, 2004 Tr. p. 57; August 20, 2004 Tr. p. 71).  On the last day of the hearing, the impartial hearing officer ordered respondent to continue the funding until a decision was rendered (August 20, 2004 Tr. p. 71).  On September 21, 2004 respondent's CSE developed a "pendency" IEP for the student at JRC, effective until a decision was rendered (see Petition Ex. A.).  On October 15, 2004 the impartial hearing officer rendered his decision denying petitioner's request for an additional year of compensatory education.  Petitioner appeals, requesting that the impartial hearing officer's decision in Hearing 2 be annulled and that petitioner's son be awarded an additional year of compensatory education at JRC for the 2004-05 school year as further compensation for the lack of services in the past, and for respondent's failure to comply with the first impartial hearing officer's order to convene a CSE meeting by June 15, 2003 and devise an appropriate transition plan.  Petitioner also requests that the matter be remanded to the CSE to develop an appropriate transition plan for her son for the 2004-05 school year.

 

The Individuals with Disabilities Education Act (IDEA) applies to children aged 3 through 21 inclusive (20 U.S.C. § 1412[a][1][A]), subject to the limitation that it does not apply to children aged 18 through 21 where it is inconsistent with State law or practice on the provision of a public education (20 U.S.C. § 1412[a][1][B][i]; see St. Johnsbury Academy v. D.H., 240 F.3d 163, 169 [2d Cir. 2001]).  New York Education Law specifically provides IDEA eligibility to children through the end of the school year in which they turn 21 (N.Y. Educ. Law § 4402[5][b]; see 8 NYCRR 100.9[e]; see also Application of a Child with a Disability, Appeal No. 02-016; Application of a Child with a Disability, Appeal No. 00-024).  Generally, under the IDEA, "a [child with a disability] does not have a right to demand a public education beyond the age of twenty-one" (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990] [internal citation omitted]).  Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA]" (Honig v. Doe, 484 U.S. 305, 318 [1988]; see Cosgrove v. Bd. of Educ., 175 F. Supp.2d 375 [N.D.N.Y. 2001]). The Second Circuit, however, allows for the provision of compensatory education services for a student over 21 years old where there has been a gross violation of the IDEA during the time of the child's eligibility (Garro v. Connecticut, 23 F.3d 734, 737 [1994]; Mrs. C., 916 F.2d at 75; Burr v. Ambach, 863 F.2d 1071, 1075 [2d Cir. 1988]), such as the type that results in the denial of or exclusion from educational services for a substantial period of time (see, e.g., Mrs. C., 916 F.2d at 75; Burr, 863 F.2d at 1078). In such cases, "the scope of the remedy can extend beyond the scope of the original right" (Burr, 863 F.2d at 1078, citing Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 [1971]), and compensatory education services may be awarded to students over 21 as a remedy for past deprivations of a right that the IDEA clearly provided-- a FAPE between the ages of 3 and 21 (see Burr, 863 F.2d at 1078; Cosgrove, 175 F.Supp.2d at 387). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 151 [N.D.N.Y. 1997], aff'd 208 F.3d 204 [2000], cert. denied 531 U.S. 1019 [2000]; Application of the Bd. of Educ., Appeal No. 02-033; Application of a Child with a Disability, Appeal No. 02-019).

 

In Hearing 1, the impartial hearing officer decided that one year of compensatory education was sufficient to compensate petitioner's son for the lack of appropriate services from June 1999 to February 2002.  Since petitioner chose not to appeal that decision, that decision is final and binding upon the parties (see 34 CFR § 300.510[a]; 8 NYCRR 200.5[i][4][ii]) and may not now be relitigated.  If petitioner thought that one year of compensatory education was insufficient to remedy the lack of appropriate services for her son during the prior period when he did not receive services, as her attorney argued on the last day of Hearing 2 (August 20, 2004 Tr. p. 80), her remedy was to appeal from the decision in Hearing 1, which she failed to do (see Application of a Child with a Disability, Appeal No. 00-018; Application of a Child with a Disability, Appeal No. 94-31).  Having failed to appeal from the impartial hearing officer’s decision, petitioner is bound by that decision (Application of a Child with a Disability, Appeal No. 04-018; Application of the Bd. of Educ., Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 02-097; Application of a Child with a Disability, Appeal No. 01-096; Application of a Child with a Disability, Appeal No. 00-057).

 

            Petitioner alternatively argues that she is entitled to an additional year of compensatory education based upon the failure of the CSE to meet and develop its own IEP and transition plan for the student for the 2003-04 school year.  This claim is also misplaced.  First, as noted, once the school year ended during which the student reached the age of 21 (i.e., the 2002-03 school year), the provisions of the IDEA no longer applied to the student's 2003-04 school year (see 20 U.S.C. § 1412[a][1][A], [B][i]; N.Y. Educ. Law § 4402[5]).  Compensatory education is a judicially-crafted remedy; it is not an extension of the protections and benefits of the IDEA itself (see Cosgrove, 175 F.Supp.2d at 388 ["the relief…arises from equity and is not a legislative authorization to extend the reaches of the statute"]; see also Burr, 863 F.2d at 1078). Therefore, any obligation respondent had to provide educational services to the student as compensatory education during the 2003-04 school year originated solely from the impartial hearing officer's order in Hearing 1, not the IDEA.  Petitioner objects to the CSE’s failure to meet as per the impartial hearing officer's order in Hearing 1 to develop its own IEP and transition plan for her son for the 2003-04 school year by June 15, 2003, and argues that the transition plan that the student received was inadequate.  Notably, she did not complain of this violation of the impartial hearing officer's order until the school year was almost over, on April 6, 2004 (Parent Ex. E). 

 

This claim relates directly to the enforcement of the impartial hearing officer's order in Hearing 1. It is well settled that enforcement of prior orders of an impartial hearing officer and/or the State Review Officer are not properly determined by the State Review Officer (see Application of a Child Suspected of Having a Disability, Appeal No. 03-071); Application of a Child with a Disability, Appeal No. 01-086; Application of the Bd. of Educ., Appeal No. 99-4).  Therefore, I find petitioner's requests are not properly before me.  The enforcement of an impartial hearing officer's order can properly be sought by filing an administrative complaint with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities pursuant to applicable federal and state regulations (see 34 C.F.R. §§ 300.660-300.662; 8 NYCRR 200.5[k]), or in federal court under 42 U.S.C. § 1983 (see A.T. v. New York State Educ. Dep't, 1998 WL 765371 at *7 [E.D.N.Y. August 4, 1998]; Blazejewski v. Bd. of Educ., 560 F.Supp. 701 [W.D.N.Y. 1983]; see Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 99-004).  Petitioner was free to avail herself of this relief at any time during the school year, but the record does not indicate that petitioner ever attempted to enforce the impartial hearing officer's order directing the CSE to meet until almost a year later, when the school year was almost over. 

 

            In any event, the record reveals that prior to the start of the 2003-04 school year, a new proposed 2003-04 IEP had been created in May or June of 2003 by the parent and the staff most familiar with the student at JRC, which was closely modeled after respondent's prior IEP for the student and which added additional transition services as ordered by the first impartial hearing officer, e.g., GED preparation objectives and the enrollment of the student in a part-time vocational school (Parent Ex. C; June 16, 2004 Tr. p. 27).  The educational director at JRC testified that the proposed 2003-04 IEP was implemented at JRC, that the student received all of the services, and that, although he had not met all of his goals and objectives, that the student had "done tremendously this year" (June 16, 2004 Tr. p. 40).  She noted that the student had achieved all of his social/emotional goals (June 16, 2004 Tr. p. 40), had made "great gains" in his interactions with his peers (June 16, 2004 Tr. p. 31), and had shown new self-confidence and self-motivation in preparing for the GED on his own (June 16, 2004 Tr. pp. 31-32).  Petitioner agreed (id.). The proposed IEP noted that the student "had obtained the highest level of independence, which includes house, school, job independence, and the independence to travel on home visits by himself" (Parent Ex. C at p. 4).  The student also reportedly did very well at his part-time jobs (Parent Ex. C at p. 3).  The mere fact that the student was not yet ready to take the GED examination does not mean that the transition plan was inadequate.  While I admonish respondent's CSE for failing to meet and develop the 2003-04 IEP, the record reveals that the student did receive an additional year of compensatory education with an updated “IEP” and transition plan, at respondent's expense, for the 2003-04 school year, as directed by the impartial hearing officer's order in Hearing 1.

 

            Lastly, petitioner raises for the first time on appeal that she was never provided with written notice, prior to her son attaining the age of 21, of the opportunity and procedure for obtaining a determination from a state agency of the student's needs for adult services and a recommendation of all appropriate programs operated, approved, authorized, or licensed by that agency which may be available when the student becomes ineligible for tuition-free education services, as required under section 4402[1][b][5] of the New York Education Law and section 200.4[h] of the Rules and Regulations of the Commissioner of Education.  Although this issue is not properly before me because it was not raised below (see Application of a Child with a Disability, Appeal No. 03-095; Application of a Child with a Disability, Appeal No. 01-024; Application of a Child with a Disability, Appeal No. 99-060), I strongly urge respondent, if it has not already done so (see Ans. ¶ 22), to work together with petitioner and her son to identify adult agencies that may offer appropriate adult services for petitioner's son (such as GED preparation courses) and, upon petitioner's consent, to provide the required information to those agencies.

 

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

 

           

THE APPEAL IS DISMISSED.

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

January 6, 2005

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

 

1  During this time petitioner's son was reportedly receiving some home instruction, with no related services (June 16, 2004 Tr. p. 6).