The State Education Department
State Review Officer
Application of 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 to a child with a disability
Hodgson Russ LLP, attorney for petitioner, Ryan L. Everhart, Esq., of counsel
Petitioner, Board of Education of the Pioneer Central School District, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondent's daughter for the 2004-05 school year and awarded her two years of compensatory education past the age of 21. The appeal must be sustained in part.
The student turned 20 years old during the course of the impartial hearing, which began in December 2004 and concluded in May 2005 after eight days of hearing. Her eligibility for special education services as a student with multiple disabilities is not in dispute (see 8 NYCRR 200.1[zz]). Her educational history is set forth in Applications of a Child with a Disability and the Bd. of Educ., Appeal Nos. 04-050 and 04-052 and Application of the Bd. of Educ., Appeal No. 05-011, and will not be repeated here in detail.
Briefly, Applications of a Child with a Disability and the Bd. of Educ., Appeal Nos. 04-050 and 04-052, decided on September 13, 2004, upheld an impartial hearing officer's determination that the individualized education program (IEP) developed for respondent's daughter for the 2003-04 school year did not offer the student a free appropriate public education (FAPE) and ordered that petitioner conduct additional evaluations and reconvene a committee on special education (CSE) to revise the 2003-04 IEP. Application of the Bd. of Educ., Appeal No. 05-011, decided March 4, 2005, dismissed petitioner's appeal of an impartial hearing officer's decision, dated December 11, 2004, which found that the student's placement during the pendency of the instant due process hearing was determined by the 2003-04 IEP.
In June 2004, before the decision in Applications of a Child with a Disability and the Bd. of Educ., Appeal Nos. 04-050 and 04-052, was issued, petitioner's school psychologist conducted a psycho-educational evaluation of the student for the stated purpose of satisfying re-evaluation requirements (Dist. Ex. 49 at p. 1). Administration of the Wechsler Adult Intelligence Scale- Third Edition (WAIS-III) placed the student in the borderline range of intellectual potential (Dist. Ex. 49 at p. 4). The evaluator noted that the student "was not thrilled about being tested" and at times was somewhat oppositional and refused to follow directions (Dist. Ex. 49 at p. 2). He cautioned that the student's test results were likely to underestimate her true capabilities (Dist. Ex. 49 at p. 4). The student's reading skills were assessed using the Gray Oral Reading Tests, Fourth Edition (GORT-4) (Dist. Ex. 49 at p. 5). According to the evaluating psychologist the test was administered out of grade level and the results were to be viewed as global benchmarks of functioning (id.). The psychologist reported that the student's word recognition/decoding and comprehension skills appeared to be "quite good" on early text passages, however the student refused to follow instructions and disengaged from the task prior to reaching the ceiling level for the test (id.). The student received a grade equivalent of 5.2 for comprehension (Dist. Ex. 49 at p. 3). The remaining subtests were unable to be scored (id.). The psychologist reported that the student had received the following standard (and percentile) scores on the Wechsler Individual Achievement Test- Second Edition (WIAT-II), which was administered by her special education teacher in May and June 2004: 48 (<0.1 percentile) in math reasoning, 66 (1st percentile) in numerical operations, 50 (<0.1 percentile) in mathematics composite, 63 (1st percentile) in written expression, 68 (2nd percentile) in spelling, 59 (0.3 percentile) in written language composite (Dist. Ex. 49 at p. 1). The student's social/emotional functioning and adaptive skills were assessed using the Behavior Assessment System for Children – Parent Rating Scale (BASC-PRS) and the Adaptive Behavior Inventory, both of which were completed by the student's guardian (Dist. Ex. 49 at pp. 2-4). The guardian's completion of the BASC-PRS resulted in multiple ratings in the clinically significant range encompassing both externalizing and internalizing problems including: hyperactivity, aggression, conduct problems, anxiety, depression, atypicality, withdrawal and attention problems (Dist. Ex. 49 at p. 5). The student's score on the Behavioral Symptoms Index, a measure of overall problem behaviors, was in the 99th percentile (id.). On the Adaptive Behavior Inventory, the student's overall rating was below the first percentile, suggesting that she demonstrated global adaptive skill deficits (id.). The psychologist concluded that the student continued to demonstrate cognitive, academic, and adaptive skill deficits consistent with a diagnosis of mild mental retardation (id.).
By letter dated June 28, 2004 respondent advised petitioner that the CSE had not met to develop a new IEP for the 2004-05 school year and that extended school year services were not in place (Dist. Ex. 48 at p. 2). Respondent stated that petitioner's reevaluation did not constitute a comprehensive evaluation and she requested copies of the completed evaluations, as well as any and all materials that would be reviewed by the CSE (id.). Several weeks later respondent forwarded copies of a November 2000 psychiatric consultation, along with an undated draft of behavior guidelines from the Western New York Developmental Disabilities Service Office (DDSO) to petitioner's director of special education (Dist. Ex. 46). The psychiatric consultation contained diagnoses of oppositional defiant disorder, attention deficit hyperactivity disorder (ADHD), post-traumatic stress disorder (PTSD) and pervasive developmental disorder (PDD) (Dist. Ex. 46 at p. 5). The behavior guidelines noted that the student had a history of pervasive developmental disorder - not otherwise specified (PDD-NOS) (Dist. Ex. 46 at p. 7).
Petitioner's CSE met on July 21, 2004 and again on August 27, 2004 to develop an IEP for the student for the 2004-05 school year. The July CSE meeting lasted for four hours and forty-five minutes with respondent and her daughter in attendance (Dist. Ex. 21 at p. 1). Meeting minutes indicate that the committee was asked to review and provide feedback on the student’s present levels of performance drafted by the CSE chairperson and school psychologist (Dist. Ex. 44 at pp. 2, 3; see Dist. Ex. 39). Evaluations of the student were provided to committee members, as was time for members to review them (Dist. Ex. 44 at p. 1, Dist. Ex. 51a). The CSE chairperson attempted to discuss the student's academic, social, physical, and management needs (Dist. Ex. 44 at pp. 3, 5) and committee members inquired about the student's aspirations (Dist. Ex. 44 at p. 1). During the course of the meeting respondent voiced numerous concerns. She asserted that petitioner's invitation letter was not in compliance with the Commissioner of Education’s regulations (id.). She also stated her disagreement with the proposed summer services for the student (id.), questioned the appropriateness of petitioner's testing (Dist. Ex. 44 at p. 2), and accused the CSE chairperson of denying the student a local diploma (Dist. Ex. 44 at p. 5). Respondent objected to the CSE Chairperson asking the student about her "hopes and dreams," because the student had not been given advance notice of the inquiry (Dist. Ex. 44 at p. 1). The minutes reflected that the student eventually responded to the inquiry, indicating that she would like to be a daycare or kindergarten teacher and possibly "do hair (cosmetology) on the side" (Dist. Ex. 44 at p. 2). The minutes also indicated that both respondent and the student wanted the student to participate in "the early childhood program with job coaching and internship" ((Dist. Ex. 44 at p. 3). Committee members noted that the student's need was for "hands on" experience and that the student had problems speaking with children, parents, and administrators (Dist. Ex. 44 at p. 4). The student stated she would return to the BOCES early childhood program (from which she had previously received a certificate), however the BOCES staff person indicated that were the student to return she might have to enroll in the classroom component of the program in addition to participating in field-work (id.). Although petitioner's speech therapist recommended the discontinuation of services, respondent disagreed, arguing that the student's autistic spectrum disorder entitled her to speech therapy (id.). Respondent asserted that many of the student's inappropriate interactions were communication based and suggested that a speech therapist should be the primary person involved with the student's internship (id.). Respondent expressed a desire for the student to receive occupational therapy, physical therapy, counseling, speech, reading, and GED preparation (Dist. Ex. 44 at p. 3). The CSE chairperson requested consent to conduct an evaluation to determine if the student had a PDD (Dist. Ex. 44 at p. 1). The CSE chairperson indicated that based on the information presented, reviewed and discussed, he would draft an IEP for respondent to review with the intent to finalize the IEP prior to the next board meeting on August 17, 2004 (Dist. Ex. 44 at p. 5). According to meeting minutes the student's recommended services would include: specialized reading instruction, specialized math instruction, occupational therapy, speech therapy, counseling, participation in regular physical education classes and an art class (id.).
Subsequent to the July 21, 2004 CSE meeting, the CSE chairperson sent respondent a letter indicating that he felt it was necessary to reconvene the CSE "in order to ensure an appropriate opportunity for full input prior to the adoption and implementation of the 2004-05 IEP" (Dist. Ex. 47 at p. 1). He stated that he would create a draft IEP to be distributed to respondent and all CSE members (id.). Further, petitioner's CSE chairperson noted that respondent and her advocate were basing much of their requested services and interventions for the student on the belief that the student had an autism spectrum disorder (id.). He noted that reports submitted to the committee by the respondent did not substantiate a diagnosis of PDD or PDD-NOS (id.). Petitioner's chairperson suggested that it was in the student's best interest for petitioner to conduct an evaluation to determine if the student was diagnosable within the autism spectrum and whether she warranted additional classification of autism (id.). Lastly, the CSE chairperson indicated that for the summer petitioner would provide the student with 12 hours of reading instruction by a certified reading specialist (Dist. Ex. 47 at p. 2). In addition, petitioner had arranged for the student to participate in a summer volunteer experience assisting the greeter at one of petitioner’s elementary schools (id.).
By letter dated July 26, 2004 respondent asserted that the CSE chairperson was attempting to "table" the July CSE meeting retroactively (Dist. Ex. 37). Respondent made numerous allegations, including that petitioner refused to do the following: review the student's triennial evaluations at the CSE meeting; develop annual goals and a coordinated set of activities as a transition plan; make changes to the draft present levels of performance; and discuss the student's need for a job coach, extended year services, and the student's choice for a diploma (Dist. Ex. 37 at p. 1). Respondent charged that both she and the student had been excluded from being equal members of the CSE process (id.). She further alleged that her request for a driving evaluation, occupational therapy evaluation for sensory integration, speech language evaluation, and functional vocational assessment were all refused (Dist. Ex. 37 at p. 2). Respondent stated that she disagreed with the school psychologist's reading assessment of the student, as well as his psychological evaluation, and requested an independent evaluation (id.). She asserted that the summer reading program designed for the student was not appropriate as it was not Orton-Gillingham based and that the greeter position arranged for the student was inappropriate (Dist. Ex. 37 at p. 3). Respondent stated that the student would not attend the summer program (id.). In a reply dated July 30, 2004 petitioner requested that respondent outline her bases for disagreeing with petitioner’s evaluations and indicate the names of evaluators she would be interested in using (Dist. Ex. 38 at pp. 1, 2). In a subsequent letter, petitioner's CSE chairperson indicated that he was amenable to the functional vocational assessment, speech/language evaluation, and occupational therapy evaluations requested by respondent but suggested that it would be helpful to first complete the evaluation to determine whether the student warranted a PDD diagnosis (Dist. Ex. 27). The CSE chairperson also noted that he was willing to consider conducting the first part of a two-part driving evaluation (id.).
By letter dated August 19, 2004 petitioner's CSE chairperson sent respondent a copy of a draft IEP for the 2004-05 school year (Dist. Exs. 28, 29). In addition, he outlined a potential internship for the student consisting of working in petitioner's "Latch Key" program from 7:00 a.m. to 8:45 a.m. daily (Dist. Ex. 28). A certified occupational therapy assistant (COTA) employed by petitioner would serve as the student's job coach and an experienced early childhood teacher would consult with the job coach and be able to meet periodically with the job coach and student together (id.). Petitioner's CSE chairperson also indicated that following the internship the student's schedule would alternate between a life skills class and gym (id.). For the remainder of her day the student would attend specialized reading, specialized math, an art elective and one period of either speech, counseling, or compensatory resource room (id.).
A continuation of the student's annual review took place on August 27, 2004 (Dist. Ex. 21). Minutes reflect that petitioner's CSE chairperson opened the meeting by outlining his expectations, specifically that the committee would review the revised, proposed present levels of performance, as well as the remainder of the IEP (Dist. Ex. 21 at p. 1). Respondent expressed concern that the make up of the CSE was different than that of the prior meeting and that the meeting composition was non-compliant (id.). She also raised concerns regarding the student's proposed internship in petitioner's Latch Key program, specifically that it would not allow the student to work with toddlers and preschool children, as the student requested (Dist. Ex. 21 at p. 2). Respondent further opined that a speech therapist, not a COTA, should serve as the student's job coach and asserted that the CSE chairperson had drafted the IEP outside the CSE process (id.). The meeting minutes state that after the additional parent member of the CSE1 suggested that respondent and her advocate were "hurting" the student by "their constant badgering of the CSE", respondent, her advocate, and the student, walked out of the meeting prior to any discussion of the draft IEP (Dist. Ex. 21 at pp. 2-3). The remaining committee members reviewed the draft IEP, recommended and agreed to changes related to speech objectives and the student's proposed schedule (Dist. Ex. 21 at p. 3). At its conclusion, the CSE recommended the following special education programs and services for the student: specially designed math five times per week for 40 minutes, individual specialized reading instruction five times per week for 40 minutes, compensatory resource room one time per week group, individual counseling two times 30 minutes per week, and individual speech language therapy two times per week for 30 minutes (Dist. Ex. 23). Program modifications/accommodations/supplementary aids and services included extra time (2 minutes) to negotiate halls, no homework, art and physical education graded on a pass/fail basis, and math and reading not graded (progress toward achievement of math and reading goals and objectives denoted in quarterly reports) (Dist. Ex. 23 at p. 11). Assistive technology devices and services included: Kurzweil 3000, Iball Tracball, and Franklin Spellchecker (id.). The recommended supports for school personnel on behalf of the student consisted of consultation between teacher and the job coach weekly for 30 minutes (id.). The student was afforded the following testing accommodations: extended time allotted to complete tests (x2) administered individually in separate location; simplified language in direction and explained; calculator; tests typed (cannot read cursive); and test passages, questions, items and multiple choice responses read for exams that do not measure reading comprehension (Dist. Ex. 23 at p. 12). In addition, the student's coordinated set of transition activities included interning in petitioner's Latch Key program with the support of a job coach and life skills instruction provided by a COTA and the DDSO (Dist. Ex. 23 at p. 13). The IEP noted that a vocational evaluation was "to be determined" (id.). The student's proposed schedule indicated that in addition to her IEP services she was scheduled for classes in art and physical education (Dist. Exs. 28, 52).
The current appeal derives from a letter by respondent, received by petitioner on November 8, 2004, objecting to the 2004-05 IEP and requesting a due process hearing (IHO Ex. II). Respondent stated in the letter that her disagreement consisted of but was not limited to: assignment of the student to "Latch Key" program with elementary children; services of a certified occupational therapist assistant as a teacher for vocational education; assignment of the student to "Life Skills" class taught by a certified occupational therapy assistant; transportation by public transportation; failure to review the student's progress for the 2003-04 school year by the CSE; failure of the CSE to recommend extended year services; failure to discuss diploma expectations by the CSE; failure of the CSE to develop appropriate present levels of performance based on the student's current functioning, abilities, and needs; failure of the CSE to develop appropriate measurable annual goals and short term instructional objectives; failure of the CSE to discuss and recommend how progress will be reported to parent; failure of the CSE to discuss and recommend appropriate testing modifications; failure of petitioner to provide accommodations and appropriate modifications to the general education curriculum; provision of resource room services once weekly; provision of speech services twice weekly outside general education; failure to recommend vocational education in the student's area of interest; failure to recommend consultant teacher services, direct and indirect; failure to recommend appropriate physical education modifications; failure to provide appropriate occupational therapy; failure to provide physical therapy; failure to define the duties and responsibilities of the case manager; failure to recommend appropriate transition services; failure to provide an appropriate behavioral intervention plan (BIP) for the student; failure of petitioner to provide appropriate supports to school personnel; failure of the CSE to review petitioner's evaluations completed for the student's triennial evaluation on July 21, 2004 and August 27, 2004; and failure of the CSE to review respondent's evaluations at the CSE meetings on July 21, 2004, August 27, 2004 or at any time (IHO Ex. II at pp. 1-2). In addition respondent asserted that the July and August CSE meetings were not properly composed in that no general education teacher for the student had attended either meeting (IHO Ex. II at p. 2).
Respondent's recommended solution to the dispute included annulment of the 2004-05 IEP and admission by petitioner that it failed to follow proper procedures. Respondent also proposed development of an IEP which would include, review of progress in the previous school year by a properly composed CSE; review of evaluations; development of accurate present levels of performance and measurable annual goals with short-term objectives; appropriate program modification and accommodations, staff training, vocational education, consultant teacher services for vocational education and all general education classes; GED preparation instruction; and development and implementation of an appropriate transition plan (IHO Ex. II at p. 2). Respondent also requested a statement of the student's projected post-school outcomes based on the student's preferences and interests, development of appropriate measurable transition goals with short term instructional objectives, and provision of a community based vocational education. Moreover, she requested provision of a special education teacher with a background in teaching students with autism; an appropriate behavioral plan; a job coach, physical therapy and occupational therapy; and progress reports toward annual goals and short-term objectives every five weeks (IHO Ex. II at p. 3). She further suggested day for day compensatory services or corrective action for the failure of petitioner to provide ESY services; compensatory services or corrective actions for the period of time the student did not receive a FAPE; attorney/consultant/advocate fees and expenses; and any other relief the IHO deemed just and proper (id.). Respondent requested that the student remain in her pendency placement, as determined by her August 19, 2003 IEP (id.).
The impartial hearing was held on eight separate days beginning on December 17, 2004 and concluding on May 6, 2005.
At the beginning of the December 23, 2004 hearing, respondent presented the impartial hearing officer with a request to expand the impartial hearing to include additional issues (Tr. p. 127; see IHO Ex. III). Respondent indicated that she became aware of the issues after reviewing the student's 2004-05 IEP, which she received on December 3, 2004 (Tr. pp. 138-39; IHO Ex. III). Respondent noted that she further disagreed with petitioner's recommendation to use petitioner's conduct code in place of the student's BIP without the benefit of a FBA. She objected to the following: failure to recommend a positive reinforcement behavioral modification plan; the "no homework" provision on the student's IEP; art and physical education graded as Pass/Fail; that math and reading would not be graded at all; failure of petitioner’s CSE to recommend Carnegie "credit" for the classes that the student has completed satisfactorily; delineation of the duties and responsibilities of the "ECE Teacher"; identification of service providers to the student prior to beginning the school year; failure of the board of education to recommend an aide for the bus that would transport the student; recommendation for the CSE for the use of a calculator for tests; failure of the CSE to recommend the provision of math instruction in a group or individual setting; failure of the CSE to consider whether the student was "volunteering" for the internship in which the CSE placed her; that the student would be responsible financially and for accessing public transportation to and from school; failure to list the information pertaining to the guardian in the IEP where the parent information is supplied; and failure of the CSE to delete the student's "race" as requested by parent. In addition respondent expressed disagreement with the failure of the CSE to conduct evaluations either recommended by the CSE or requested by respondent prior to the CSE meeting, including a functional vocational assessment, driving evaluation, speech/language evaluation, occupational therapy evaluation and sensory integration evaluation (IHO Ex. III).
By letter dated January 6, 2005 respondent informed the impartial hearing officer that petitioner had not yet implemented any portion of the student's pendency placement and the student remained "without any education at all" (IHO Ex. XXVI). Respondent noted that petitioner verbally indicated it intended to appeal the impartial hearing officer's pendency decision (IHO Ex. XXVI; see Application of the Bd. of Educ., Appeal No. 05-011). Respondent asserted that petitioner’s refusal to place the student in her pendency placement was an intentional means of denying the student her education and retaliating against respondent for her strong advocacy (IHO Ex. XXVI). She requested that the impartial hearing officer consider compensatory services or other corrective action for petitioner's failure to provide pendency placement services from September 1, 2004 through the date of the letter (id.). Respondent also requested that the failure to provide pendency services be added to the list of issues for determination within the hearing and asked that the student be awarded one-year compensatory education past the age of 21 in the event that petitioner continued to refuse to provide pendency services (id.). The impartial hearing officer responded by letter of the same date indicating that he did not have enforcement power over his orders (IHO Ex. XXVII).
Following petitioner's receipt of the decision in Application of the Bd. of Educ., Appeal No. 05-011 in March 2005, petitioner's director of special education sent a letter to respondent indicating that he was immediately taking steps to implement the student's 2003-04 IEP as the pendency placement and was in the process of putting together a schedule for the student (IHO Ex. IV at p. 11). In a follow up letter dated March 16, 2005 petitioner sent respondent a proposed schedule for the student (IHO Ex. IV at pp. 12-13). In a response dated March 18, 2005 respondent objected to the proposed schedule, noting that it reflected math class only one time per week as opposed to the student's IEP, which indicated she should be receiving math five times per week (IHO Ex. IV at p. 14). She further stated that in order to implement the student's IEP, and provide her with physical activity and socialization, petitioner would need to purchase a membership at a health club for the student (id.).
Petitioner's director of special education responded to respondent’s letter, indicating that according to the student's IEP she was scheduled to received math only once per week (IHO Ex. IV at p. 16). He also suggested that the student's socialization and physical activity needs might be met through participation in petitioner's weight room as part of a program developed by the physical therapist (id.). In a letter dated March 19, 2005 respondent indicated that the August 19, 2003 IEP contained a typographical error and the CSE had actually recommended math class five times per week for the student (IHO Ex. IV at p. 19). She further stated that use of petitioner's weight room after school would not constitute an "independent adult activity" as listed on the student's IEP, that the student was not amenable to receiving occupational therapy between 7 a.m. and 8 a.m., and that the student's assignment to a special education homeroom was discriminatory and not reflected in the student's IEP (IHO Ex. IV at pp. 19-20). In a follow-up letter dated March 22, 2005 respondent indicated that she had accompanied student to school on her first day of classes (IHO Ex. IV at p. 21). She noted that the student did not have access to the assistive technology devices listed on her IEP and that the student's math class was not appropriate to her needs as the other students in the class were working on algebra (IHO Ex. IV at pp. 21, 22). Respondent stated that she did not agree with the student's physical therapy being provided in petitioner's weight room and provided petitioner with information relative to purchasing a three-month membership to a health club near the student's residence (IHO Ex. IV at p. 22). In a subsequent letter dated March 24, 2005, respondent complained that the student's consultant teacher followed her around, constantly monitoring her, reportedly because of the "court case" (IHO Ex. IV at p. 23). She noted that the student did not need a personal aide and none was listed on her IEP (id.). Respondent asserted that the student's BIP was not being implemented (IHO Ex. IV at pp. 24, 25) and that the student had not received consultant teacher services to the extent indicated on her IEP (IHO Ex. IV at p. 25). She reported that the student's early childhood development class at BOCES included science instruction on Mondays and that the student would need the curriculum, materials, and tests for the science curriculum modified (id.). Respondent further indicated that the student's 2003-04 IEP indicated that she would be linked to the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) and that no "linkage" had taken place (IHO Ex. IV at p. 26). Finally respondent asserted that petitioner did not link the student with a job in a child-care related field for the summer and noted that petitioner needed to make arrangements for a position for the summer of 2005 in the event that the student's pendency IEP was still in place (id.). Respondent concluded that petitioner was continuing to deny the student a FAPE by violating respondent’s due process rights (id.).
Petitioner's director of special education responded to respondent’s complaints related to the student's BIP, homeroom, and linking the student with VESID by letter dated March 26, 2005 (IHO Ex. IV pp. 27-29). He noted that it was the student who indicated that she did not want to use components of her 2003-04 BIP and explained that until the student decided to use some reinforcement procedure, or none at all, only portions of the plan would be implemented (IHO Ex. IV at p. 28; Dist. Ex. 67). Petitioner's director reported that VESID began its involvement with students during the spring of their junior year, and indicated that the plan to link the student with VESID was timely (id.). He stated that the student had been assigned to a homeroom in the same manner as other students and the fact that her homeroom teacher was a special education teacher did not make her homeroom a special education homeroom (id.). Petitioner's letter further indicated that arrangements had been made for the student to use her local health club and that a meeting would be set up with the student, respondent, health club staff, and petitioner's physical therapist to develop a safe and appropriate exercise regimen in accordance with the student's IEP (id.). Petitioner's director requested that respondent sign a draft agreement detailing changes to the pendency placement to which the parties had "otherwise agreed" (IHO Ex. IV at p. 27). Provisions of the Agreement to "Change Aspects of [the student's] Pendency Placement" indicated that although the student's IEP called for one period of math per week the parties were in agreement that it was the intent of the CSE to recommend five periods per week, and thus five periods per week would be provided (IHO Ex. IV at p. 31). In addition although the student's 2003-04 IEP called for five periods of resource room per week the agreement stated that the CSE did not intend to recommend any resource room services for the 2003-04 school year (id.). The agreement indicated that the parties agreed that the student's pendency placement would not include resource room, however the student's schedule would include one resource room per week during which time the student could complete her homework (id.). In addition, two 15 minute occupational therapy sessions per month would be scheduled during this time (id.). The draft agreement also indicated, that by student request, only specific portions of her 2003-04 BIP would be implemented (id.).
By letter to petitioner's director of special education dated March 29, 2005 and faxed on that date, respondent denied that she and petitioner had discussed any agreement (IHO Ex. IV at p. 33). Respondent stated that she was "satisfied with my summary of the discussions in good faith, and yours and do not need or desire to sign an 'Agreement' for such" (id.). Respondent noted that the agreement did not contain means to provide compensatory education for petitioner's failure to provide the student's pendency placement for four months (id.). She went on to state "Should you decide that the District cannot agree to what was discussed and agreed upon on for [the student's] current pendency placement on March 21, 2005, then kindly inform me of this and immediately implement [the student's] IEP as written" (id.). Respondent opined that from the student's math homework it was clear that her math teacher did not intend to implement her IEP goals (IHO Ex. IV at p. 34). She stated that the student did not have the authority to change her pendency placement and that her BIP should be implemented as written (id.). Respondent expressed concern regarding the implementation of the student's consultant teacher and speech services and requested further information as to how they would be implemented (IHO Ex. IV at p. 35). Petitioner addressed respondent's claims in a letter dated March 30, 2005 noting, "the very fact that our recollections are so different only serves to underscore the need for a signed, written agreement, if we are to depart from the dictates of the pendency placement in any way" (IHO Ex. IV at pp. 36, 37).
Respondent subsequently sent a letter dated April 5, 2005 to the impartial hearing officer claiming that the student's pendency placement as it related to consultant teacher services, assistive technology, and speech and language services was not being appropriately implemented (IHO Ex. IV at pp. 1-2). Based on petitioner's alleged failure to implement the student's pendency placement respondent requested that the impartial hearing officer determine that compensatory education or day for day make-up services would provide the student with equitable relief.
In a decision dated July 15, 2005, the impartial hearing officer ordered that the student be awarded two years of compensatory education past the age of 21, to include appropriate transition services geared to preparing the student for employment in the area of early childhood care, remediation of the student’s academic deficits and any other services as determined appropriate for the needs of the student by the CSE and that the same services be provided to the student through the age of 21 (IHO Decision, p. 24). The impartial hearing officer also ordered the CSE to evaluate the student for extended year services; to conduct a functional vocational assessment, a driving evaluation and a speech/language evaluation of the student; and to consider conducting an occupational therapy and a sensory integration evaluation of the student (id.). The impartial hearing officer also ordered that the CSE proceedings be conducted in accordance with the recommendations of the New York State Education Department set forth in "Sample Individualized Education Program and Guidance Document" dated December 2002 (id.).
The impartial hearing officer determined that petitioner "committed significant procedural and substantive errors with the result that the student was deprived of a free appropriate public education for the 2004-05 school year" (IHO Decision, p. 7).
The impartial hearing officer identified the following procedural errors: 1) petitioner's failure to discuss a report entitled "Behavior Guidelines" submitted by petitioner at either the July 21, 2004 or August 27, 2004 CSE meeting (IHO Decision, pp. 11-13); 2) that the New York State Education Department publication "Sample Individualized Education Program and Guidance Document" and corresponding regulations required CSE members to "contribute to the discussion as individuals and not merely as a parent, a general education teacher, a school district representative, a school psychologist, etc." and therefore CSE members were improperly substituted between the July 21, 2004 and August 27, 2004 meetings (IHO Decision, pp. 10, 13); and 3) that petitioner's CSE meeting notices contained an "ill-advised description of the parent member as a 'representative' for the parent", which was "not without consequence" as respondent left the August 27, 2004 meeting after "taking umbrage" with the parent member's criticism of her advocacy style (IHO Decision, pp. 13-14). The impartial hearing officer found that the "procedural inadequacies cumulatively resulted in the loss of educational opportunity" (IHO Decision, p. 14). Substantively, the impartial hearing officer found that the transition services recommended by the CSE were not reasonably calculated to enable the student to receive educational benefit (IHO Decision, p. 15), that the transportation needs of the student needed to be reassessed (IHO Decision, p. 21), and the student’s need for extended school year services needed to be evaluated (IHO Decision, p. 22). As to respondent's assertion that petitioner did not implement the pendency placement after the Application of the Bd. of Educ., Appeal No. 05-011 decision, the impartial hearing officer found the record inconclusive (IHO Decision, pp. 22-23). The impartial hearing officer found respondent's contentions that speech therapy service should have been recommended to the student at the internship site and that there was an impropriety in the certified occupational therapy assistant being designated to provide job coach services to the student to be without merit (IHO Decision, p. 23).
On appeal, petitioner requests that the decision of the impartial hearing officer be reversed and argues that the impartial hearing officer: 1) exceeded his jurisdiction by awarding compensatory services back to the 2003-04 school year; 2) erroneously accredited respondent's claim that she sent an unaltered copy of a medical report to petitioner; 3) erroneously relied upon the recommendations of the psychologist who created behavioral guidelines for the student; 4) improperly faulted the CSE for not including information from the student's individual service plan when it did not possess the plan when it developed the student's IEP; 5) wrongly determined that petitioner failed to provide appropriate transition services to the student; 6) incorrectly determined that the CSE members at the August 27, 2004 meeting must be the same as those at the July 21, 2004 meeting; and 7) improperly determined that petitioner's CSE notices incorrectly described the additional parent member and accepted respondent's argument that she left the August 27, 2004 CSE meeting based on that description.
Respondent requests that the petition for review be dismissed as incomplete and untimely as the verification of the petition was not provided in the time frame required by the Regulations of the Commissioner of Education and does not meet the requirement of 8 NYCRR 279.2[c] or alternatively, that the petition and appeal be dismissed and that the decision of the impartial hearing officer be upheld.
I will first address respondent's procedural defenses. State regulations require that a copy of the board's notice of petition, petition, memorandum of law and any additional documentary evidence be served upon the parent within 35 days from the date of the impartial hearing officer's decision (8 NYCRR 279.2[c]). The decision of the impartial hearing officer is dated July 15, 2005 (IHO Decision, p. 25). The petition was served on respondent on August 17, 2005 (see Affidavit of Service dated August 17, 2005), making service of the petition timely. State regulations further require that all pleadings shall be verified (8 NYCRR 279.9). The verification accompanying the petition dated August 17, 2005 and signed by petitioner's superintendent of schools, verifies an attached answer, not a petition. In a reply dated September 7, 2005, petitioner submitted a verification, dated September 6, 2005 and signed by petitioner's superintendent of schools, verifying the petition dated August 17, 2005. Attached to the reply was an affidavit signed by petitioner's superintendent of schools acknowledging that he reviewed the contents of the petition on August 17, 2005 and that the verification he signed on that date contained a typographical error identifying the verified document as the answer. I will exercise my discretion and I will not dismiss the petition on this ground (Application of a Child with a Disability, Appeal No. 04-099).
The purpose behind the Individuals with Disabilities Education Act (IDEA)2 (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).3 Implicit in the concept of a FAPE is the requirement that the education to which access is provided be sufficient to confer "some educational benefit" upon the student (Rowley v. Bd. of Educ., 458 U.S. 176, 200-01 ). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003]; M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 ; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 05-089; Application of the Bd. of Educ., Appeal No. 05-007).
To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. 176, 206, 207 ). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that '"for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
In New York State, a student with a disability is eligible for services under the IDEA until he or she either receives a (local or Regents) high school diploma (34 C.F.R. § 300.122[a][i]; N.Y. Educ. Law § 4402[b][c]; 8 NYCRR 100.5[b][iii]; see Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the school year in which he or she turns twenty-one (N.Y. Educ. Law § 4402[b]; see 8 NYCRR 100.9[e]; Application of a Child with a Disability, Appeal No. 04-100). Compensatory education, the continuation of instruction to a student after he or she is no longer eligible for instruction because of age or graduation (Application of a Child with a Disability, Appeal No. 05-089; Application of a Child Suspected of Having a Disability, Appeal No. 03-094; Application of a Child with a Disability, Appeal No. 98-73; Application of a Child with a Disability, Appeal No. 98-65), may be awarded if there has been a gross violation of the IDEA (Garro v. State of Connecticut, 23 F.3d 734, 737 [2d Cir. 1994]), such as the type resulting in the denial of, or exclusion from, educational services for a substantial period of time during the student's period of eligibility for special education (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v Ambach, 863 F.2d 1071, 1078 [2d Cir. 1988]; Application of the Bd. of Educ., Appeal No. 05-037; Application of a Child with a Disability, Appeal No. 05-018; Application of a Child with a Disability, Appeal No. 03-078; Application of a Child with a Disability, Appeal No. 01-094). Compensatory education, as an equitable remedy, 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 [2d Cir. 2000], cert. denied, 531 U.S. 1019 ).
I have thoroughly reviewed the hearing record and conclude that the deficiencies in the 2004-05 IEP did not rise to the level of a gross violation of the IDEA which resulted in a denial or exclusion of the student from educational services for a substantial period of time necessary to warrant an award of compensatory education (Application of the Bd. of Educ., Appeal No. 05-037; Application of a Child with a Disability, Appeal No. 05-018; Application of a Child Suspected of Having a Disability, Appeal No. 03-094). The decision of the impartial hearing officer does not articulate, nor does it apply, the correct standard for the award of compensatory services. The decision notes that procedural and substantive errors deprived the student of a free appropriate public education for the 2004-05 school year and that procedural inadequacies cumulatively resulted in the loss of educational opportunity (IHO Decision, pp. 7, 14), but does not state how such errors, either individually or cumulatively, constitute a gross violation of the IDEA or how such errors denied or excluded the student from educational services for a substantial period. For this reason, that portion of the decision of the impartial hearing officer awarding compensatory education must be annulled. Additionally, the decision of the impartial hearing officer states that two years of compensatory services are being awarded to the student because an IEP developed on August 19, 2003 was ordered to be a nullity by an impartial hearing officer on June 25, 2004 and appeals from that decision were dismissed by the State Review Officer on September 13, 2004 (Applications of a Child with a Disability and the Bd. of Educ., Appeal Nos. 04-050 and 04-052). Even if I were to find the award of compensatory services proper in this case, I would find that the impartial hearing officer exceeded his jurisdiction in awarding compensatory education based upon the 2003-04 school year because respondent requested a due process hearing in this case to challenge only the 2004-05 IEP and respondent's request for compensatory services for the 2003-04 school year had been expressly denied in Applications of a Child with a Disability and the Bd. of Educ., Appeal Nos. 04-050 and 04-052 (at p. 12).
I now turn to a discussion of the procedural and substantive violations identified by the impartial hearing officer in his decision. I do not find a basis in the record for the impartial hearing officer's conclusion that the behavior support plan developed by petitioner was markedly inferior to the behavior guidelines submitted by respondent, thereby making the failure of the CSE to review the behavior guidelines more than a de minimis error (IHO Decision, pp. 12-13). At the beginning of the July 21, 2004 CSE meeting the CSE chairperson indicated that materials had been given to the CSE members, some that day, some the previous Friday, and that most committee members had a chance to read them (Dist. Ex. 51[a]). Later in the meeting, the CSE chairperson indicated that everyone had a copy of the behavior guidelines submitted by respondent (Dist. Ex. 51[a]). Following a discussion of the student's diagnoses, a break was taken for the purpose of allowing committee members to read newly distributed materials (Dist. Ex. 51[a]). Thus it appears that whether the behavior guidelines were distributed the Friday before the CSE meeting or at the meeting itself, each of the committee members was provided with a copy and the opportunity to review it. The behavior guidelines document, as well as the psychiatric consultation submitted by respondent, were considered by committee members in the context of discussing the student's needs during the July 21, 2004 CSE meeting (Dist. Ex. 51[a]).
The impartial hearing officer found that petitioner erred in failing to review evaluations, as requested by respondent, prior to the discussion of the student's present levels of performance (IHO Decision, p. 12). He noted that the CSE meeting did not proceed according to the recommended sequence as outlined in the "Sample Individualized Education Program and Guidance Document" (IHO Decision, pp. 9, 10-12.). The impartial hearing officer stated "while it would be foolish to think that circumstances which warrant matters being discussed in a different sequence might not from time to time arise, I believe that in such circumstances a compelling reason for deviation from the sequence specified would be clearly demonstrable" (IHO Decision, p. 10). The record reflects a compelling reason, which was articulated by the CSE chairperson. In an earlier impartial hearing involving the parties, the impartial hearing officer noted that respondent failed to cooperate with petitioner in revising the student's IEP, stalled implementation of the student's BIP and failed to cooperate in conducting a CSE meeting (Applications of a Child with a Disability and the Bd. of Educ., Appeal Nos. 04-050 and 04-052 at p. 6). In the appeal of that case I noted that respondent's participation in the IEP development process had been sporadic (id. at p. 13). In response to respondent's accusation that the CSE chairperson was skipping the first three steps outlined in the SED policy guidelines, the CSE chairperson stated that he did not believe that he was skipping steps, rather that he was trying to proceed in a focused way "that will get us results" (Dist. Ex. 51[b]). He noted that the student's evaluations were incorporated into the draft present levels of performance, and to the extent that they were not, if members disagreed, they could talk about them (Dist. Ex. 51[b]). He noted that everyone had read the materials (Dist. Ex. 51[b]). The CSE chairperson confirmed that he was conducting the meeting the way he was because he thought it was the way the committee would get something done (Dist. Ex. 51 [b]). I find that the CSE chairperson's decision was not unreasonable, given the noted adversarial history of the parties and I am not persuaded by a review of the record that harm or a gross violation of the IDEA resulted from the procedure that was employed.
The impartial hearing officer concluded that petitioner's behavior support plan (Dist. Ex. 53) was "markedly inferior" to the behavior guidelines draft by the DDSO, specifically noting that petitioner's plan relied exclusively upon the student removing herself from the classroom when upset, whereas the DDSO behavior guidelines (Dist. Ex. 46) included detailed information regarding recognizing the first signs that the student was experiencing increasing stress and assisting her in regaining control (IHO Decision, pp. 12-13). At the time of the CSE meeting the committee deferred development of a BIP because it wanted to be able to rule in or rule out PDD-NOS or autism (Tr. p. 441). Although the student had in place a BIP from the previous year the committee felt it could not further refine the plan without the evaluation regarding PDD (id.). Following the withdrawal of its impartial hearing request seeking a PDD evaluation petitioner's school psychologist drafted a behavior support plan (Tr. pp. 442, 1044-45; Dist. Ex. 53). Petitioner sought respondent's input on the plan but did not receive it (Tr. pp. 443). While the behavior guidelines developed by the DDSO are more detailed, the stated purpose of the DDSO plan and petitioner's plan are different. Among the expected outcomes listed in the DDSO plan was the expectation that the student would accept guidance and support from staff members when she was experiencing stress or frustration (Dist. Ex. 46 at p. 7). The stated goal of petitioner's plan was to help the student to learn to manage her behavior and resolve problems more independently (Dist. Ex. 53). While the plan developed by petitioner was not as specific as the DDSO plan, I do not find that it was inadequate to the extent that amounted to a gross violation of the IDEA.
I do not find a basis in the record for the impartial hearing officer's conclusion that the second CSE on August 27, 2004 was improperly composed due to the substitution of different individuals than those who had attended the July 21, 2004 CSE meeting (IHO Decision, pp. 10, 13). I cannot conclude, based on the record, that the change in composition either denied the student a FAPE or resulted in a gross violation of the IDEA.
The impartial hearing officer found that petitioner's notices of the CSE meetings were not in compliance with the Regulations of the Commissioner of Education in that they stated that the parent member functioned as a representative of the parent (IHO Decision, p. 13; see Dist Exs. 30-33, 40-43). The impartial hearing officer found that this "ill-advised description of the parent member as a 'representative' for the Parent was not without consequence" in that respondent walked out of the August 29, 2004 CSE meeting, "taking umbrage" at the parent member for criticizing respondent's style of advocacy (IHO Decision, p. 14). The impartial hearing officer expressed doubt that respondent was actually misled by petitioner's notice but he concluded that he could not fault respondent for taking the CSE at its word (id.).
I do not find that the description of the additional parent member in the notice significantly impeded respondent's participation at the CSE meeting or denied the student educational opportunity or benefits. The record in this case demonstrates that respondent is well versed in the requirements of the CSE notice, as she made numerous objections to it at the July 21, 2004 CSE meeting (Dist. Ex. 51[a]). Given respondent's experience in this area, I cannot concur with the impartial hearing officer's finding that an alleged misconception as to the role of the parent member arising from the hearing notices caused respondent to leave the CSE meeting after her advocacy style was criticized by the parent member.
Substantively, the impartial hearing officer found that transition services recommended by the CSE were not reasonably calculated to enable the student to receive educational benefit (IHO Decision, p. 15). Among the purposes of IDEA is the preparation of students with disabilities for employment and independent living (34 C.F.R. § 300.1[a]). To the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enable the student to prepare for later educational experiences and for post-school activities, including formal education, if appropriate, employment, and independent living (34 C.F.R. Part 300, Appendix A, Part III; see also 34 C.F.R. Part 300, Appendix A, Part III, Question Nos. 11-13). Consistent with this, the IDEA regulations set forth specific requirements related to transition planning and transition services (id.; Application of a Child with a Disability, Appeal No. 03-078; Application of a Child with a Disability, Appeal No. 02-111).
While the impartial hearing officer acknowledged that the CSE conscientiously attempted to provide the student with hands-on experience addressing the difficulties she demonstrated during her internship, and further found that instructional objectives were developed to address the student's communication deficits, he concluded that the student's vocational interests were in early childhood education or early childhood care and that the students in petitioner's Latch Key program were ages five through eight or nine, and therefore found that the Latch Key program was inappropriate (IHO Decision, p. 19). The record indicates that at the July 21, 2004 CSE meeting, the student indicated to committee members that she would like to work with children in daycare or kindergarten (Dist. Ex. 51[a]). According to the director of petitioner's Latch Key program, fourteen of the thirty-five students enrolled in the program were kindergarteners (Tr. p. 213). I do not find the transition planning of the CSE was inadequate to the extent that compensatory education is required.
Based on the student's individualized service plan from the DDSO, introduced by respondent on the last date of the impartial hearing, the impartial hearing officer questioned the student's ability to manage public transportation and stated that the petitioner's transportation plan for the student must be reassessed (IHO Decision, pp. 20-21; see Parent Ex. AA). The record indicates that the DDSO had sent this individualized service plan to the CSE, but that it was destroyed at the request of respondent via the DDSO (Tr. p. 626). Based on this, I cannot find fault in the CSE's failure to consider this document when considering the student's transportation needs.
Having concluded that the deficiencies in the 2004-05 IEP discussed by the impartial hearing officer in his decision do not rise to the level of a gross violation of the IDEA which resulted in a denial or exclusion of the student from educational services for a substantial period of time, I do not find the impartial hearing officer's award of two years of compensatory education to the student to be appropriate and therefore annul that portion of his decision.
I concur with the impartial hearing officer's order that the CSE conduct a functional vocational assessment, driving evaluation, and speech/language evaluations of the student as well as his order that the CCE consider conducting occupational therapy and sensory integration evaluations. The record demonstrates that petitioner requested consent from respondent to conduct these evaluations and that while respondent consented to the functional vocational assessment and driving evaluations, respondent made a series of stipulations that petitioner found unacceptable (Tr. pp. 682-683). Moreover, respondent would not consent to petitioner releasing information to the evaluators, which the evaluators had deemed essential to conducting their evaluations (Tr. p. 683). I urge the parties to work collaboratively to ensure that these evaluations take place.
I have considered petitioner's remaining contentions and find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED THAT the impartial hearing officer's decision is annulled to the extent that it ordered that the student be awarded two years of compensatory education past the age of 21.
Albany, New York
November 7, 2005
PAUL F. KELLY
1 The Regulations of the Commissioner of Education provide that each CSE shall include an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting (8 NYCRR 200.3 [a][viii]).