The State Education Department
State Review Officer
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 Carle Place Union Free School District
John J. McGrath, Esq., attorney for petitioner
Jaspan, Schlesinger, Hoffman, LLP, attorney for respondent, Carol A. Melnick, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied her request for compensatory education for her son and also determined that respondent was not required to pay for the cost of an independent neuropsychological evaluation. The appeal must be dismissed.
At the time of the parent’s request for a hearing on January 19, 2005 (Dist. Ex. 1 at pp. 3-10), the student was 19 years old, and enrolled in half-day classes at the Nassau County Board of Cooperative Educational Services – Alternative Learning Program (BOCES-ALP) and half-day vocational training classes at The Rehabilitation Institute (TRI) (see Dist. Exs. 103, 115, 134). Nine days after petitioner's request for a hearing, the student graduated from the BOCES-ALP program, earning a high school Regents diploma (Dist. Exs. 128, 132, 125; see Tr. pp. 377-79).
The student has been diagnosed with Asperger’s disorder and an attention deficit hyperactivity disorder (ADHD), as well as depression and intermittent explosive disorder (Dist. Exs. 23, 76; Tr. pp. 1479-80). He is described by the school psychologist as a bright and verbal teenager, who exhibits mood instability, anxiety, rigidity and difficulty with peer and adult relationships (Dist. Ex. 76; Tr. pp. 127-30). He was enrolled in respondent’s high school from ninth grade to April of his eleventh grade year, receiving various special education services including resource room, counseling, and occupational therapy services under an individualized education program (IEP) which was revised at least annually by respondent’s committee on special education (CSE) (see Dist. Exs. 11, 20, 26, 44, 55, 64, 74). Although originally classified as other health impaired (OHI) by the CSE, he was reclassified as a student with autism at the start of his tenth grade year (Dist. Ex. 26; see 8 NYCRR 200.1[zz]). His classification is not in dispute.
Psychological testing performed at the end of the student's ninth grade year yielded a verbal IQ score of 111 (high average range), a performance IQ score of 123 (superior range), and a full scale IQ score of 119 (high average range), indicating better nonverbal than verbal skills (Dist. Ex. 19 at p. 3). The school psychologist reported that academically the student was performing in the average range in reading, mathematics, and writing (Dist. Ex. 19 at p. 4). Social-emotional functioning was reportedly a concern; testing on the Behavior Assessment System for Children–Self Report (BASC-SR) revealed that the student was at risk in the areas of Atypicality, Locus of Control, Social Stress and Sense of Inadequacy scales (Dist. Ex. 19 at p. 4). He presented with difficulties controlling anger, a low frustration tolerance, and labile mood (id.). The student was receiving medication from his physician to address some of these concerns, and outside counseling was recommended (id.).
Beginning in the student's tenth grade year and continuing into his junior year, incidents arose involving the student's difficulty managing his anger and his alleged misinterpretation of social cues (see Dist. Exs. 36, 37, 39, 40, 49, 52). As a result of the parent's report of ongoing incidents of other students teasing and taunting her son (Dist. Ex. 32), the district created a written monitoring program which assigned specific teachers and/or aides to monitor or shadow petitioner's son throughout the school day as he walked between classes and also assigned a senior student to “keep an eye” on him during gym class (Dist. Exs. 32, 35). In addition, the district arranged for staff training on Asperger's disorder (Dist. Exs. 35, 38) and used a consultant to provide ongoing support and suggestions to staff members working with the student (Dist. Exs. 34, 35, 41, 42, 43, Parent Exs. 35, 36, 37). The consultant met regularly with the staff and developed a specific behavioral intervention plan (BIP) for the student in the event an incident occurred (Dist. Ex. 40). The student's final grades in each of his academic subjects for his tenth grade year ranged from 81 to 93 (Dist. Ex. 45). His IEP listed the diploma sought as a high school diploma and stated a long-term goal of attending a four-year college (Dist. Ex. 20 at p. 9, Dist. Ex. 26 at pp. 4, 8-9).
On May 1, 2002 the CSE convened to develop the student's IEP for his 2002-03 junior school year (Dist. Ex. 44, see also Dist. Exs. 55, 64, 74). The CSE recommended that the student continue in regular education classes with 43 minutes of resource room services once per day, 30 minutes of individual counseling once per week, 30 minutes of group occupational therapy once per week, and 10 minutes per day of skilled nursing services (Dist. Ex. 44 at p. 10). Supplementary aides and services on the IEP included weekly progress reports, rest breaks, extra set of books, hall monitor/safety plan (see Dist. Exs. 46, 47), copies of notes, and the use of a laptop computer and calculator (Dist. Ex. 44 at p. 10). Program modifications for school personnel relative to the student included training and information on Asperger's disorder and implications for instruction of the student, as well as regular consultations with the student's teachers (Dist. Ex. 44 at p. 11). Testing accommodations included extended time for tests, administered in small groups in a separate location, with directions read and restated (id.). Goals and objectives were devised in the areas of behavior management, social skills, study skills, occupational therapy, English, mathematics, and auditory processing (Dist. Ex. 44 at pp. 4-10). The 2002-03 IEP listed a regular high school diploma as the diploma sought, and the transition plan recommended that the student take the college entrance exams, complete a vocational interest battery, and work with his guidance counselor in choosing classes to meet his long-term goals (Dist. Ex. 44 at p. 12). The 2002-03 IEP also noted that the student would take Regents courses and receive career counseling (Dist. Ex. 44 at p. 4). The student was ultimately enrolled in three courses for his junior year requiring Regents exams (English, American History and Chemistry) (Dist. Ex. 63).
At the start of his junior year, the student was involved in more incidents of uncontrolled anger, including two outbursts in gym class and one during a pop quiz in his social studies class (Dist. Exs. 49, 52, 57). His average grade in each academic subject after the end of the second marking period had dropped, ranging from 66 to 86 (Parent Ex. 21). The district continued to have the student monitored and continued to have the consultant meet regularly with the staff to discuss strategies on the student's adjustment and functioning in class (Dist. Exs. 50, 52, 56, 61). The consultant reported that the student often appeared "overwhelmed" and visited the nurse's office with increasing frequency due to feelings of stress (Dist. Ex. 52, see Parent Ex. 20). The school psychologist noted that the student was also experiencing short-term memory problems that were causing him stress (Dist. Ex. 51). The CSE met in November 2002 and added an additional 30-minute per week individual counseling session specifically on social skills to the student's IEP (Dist. Ex. 55 at p. 10). The CSE also directed the school psychologist to develop a more comprehensive BIP for the student, which was completed in December (Dist. Ex. 58), and the school principal advised the staff to implement a support plan which included sending home progress reports and homework assignments with the student (Dist. Ex. 60, see Dist. Ex. 62). In February 2003 the CSE met and adjusted the student's IEP to move him into a self-contained 15:1 social studies class (Dist. Ex. 64 at p. 10).
During February and March 2003 school staff documented numerous incidents regarding the student's lengthy bathroom and nurse's office breaks, and inappropriate behavior including cursing and yelling at teachers and aides (Dist. Ex. 68 at pp. 2-3, Dist. Exs. 65, 70, 71, 72). After a serious incident on March 4, 2003 the student was suspended for several days (Dist. Exs. 67, 68). Upon his return to school, the student was assigned a 1:1 aide (Dist. Ex. 68, see Dist. Ex. 76). The CSE reconvened on March 26, 2003 and recommended that the student be placed at BOCES-ALP in a 9:1+2 full day setting for the remainder of his 11th grade year (Dist. Ex. 74, Parent Ex. 23). The CSE continued to recommend most of the same test accommodations and program modifications, deleted occupational therapy, and recommended he receive related services consisting of 30 minutes of group counseling twice per week and 30 minutes of individual counseling twice per week (id.). His IEP continued to list an expected outcome of a regular high school diploma, and that he would take Regents courses and work with a guidance counselor toward outcomes of attending a four-year college and future employment (id.).
In April 2003, prior to the student's transfer to BOCES-ALP, a new psychological evaluation was conducted (Dist. Ex. 76). Administration of the Kaufman Brief Intelligence Test (K-BIT) yielded a full scale IQ score of 108, which was found to be still in the high average range, yet somewhat lower than the previous score of 119 (compare Dist. Exs. 19, 76). Academic achievement testing results revealed average reading and spelling abilities with low average math skills (Dist. Ex. 76 at p. 3). The school psychologist described the student as having "at least overall high average intellectual potential," but whose emotional state could contribute to a slight decrease in intellectual performance, as a result of stress and anxiety that the student experienced on a daily basis (Dist. Ex. 76 at p. 2). The evaluator noted that the student was wrestling with a number of issues, including great stress from academic demands and rising social-peer problems, and that his coping skills were "barely adequate" (Dist. Ex. 76 at p. 2). The student's BASC-SR results likewise revealed that he was experiencing stress that lead to anxious, depressive, and atypical responses with accompanying feelings of inadequacy (Dist. Ex. 76 at pp. 2-3). The student was described as having intense needs in individualized instruction, support, and management, owing to his condition and "the level of regression recently triggered by a combination of factors" (Dist. Ex. 76 at p. 3). The school psychologist recommended continued outside psychiatric care and an educational placement that provided a lot of structure and psychological support, yet permitted some flexibility (Dist. Ex. 76 at p. 3).
Petitioner's son began attending the recommended BOCES-ALP program on April 28, 2003 (Dist. Ex. 79, see Dist. Ex. 80 at p. 2) and finished his junior year there (see Dist. Ex. 82). The student's final academic grades from the fourth quarter of his junior year at BOCES-ALP were: English B+, Social Studies A, Math B+, and he successfully passed both the English and Social Studies Regents exams in June 2003 (Dist. Ex. 82 at p. 2).
The CSE met and developed the student's program for his senior 2003-04 school year (Dist. Ex. 73). The 2003-04 IEP included the results of the new psychological evaluation of the student conducted in April 2003. The IEP described the student's academic skill levels and learning abilities as appropriate to his grade level, with strengths in written expression (Dist. Ex. 73 at p. 2). The IEP stated that the student "has a significant delay in social skills, emotional functioning, attentional skills which inhibits participation in age appropriate activities" (id.). It noted that, due to his disability, the student has "severe problems" relating appropriately to adults and peers (Dist. Ex. 73 at p. 3), and that the student can exhibit behaviors of aggression, frustration, mood swings, and anxiety (id.). The student was also described as exhibiting symptoms of inattention, cognitive impulsivity and distractibility (id.). The IEP also stated that the student requires "intensive supervision" to function in the educational setting, and a great deal of behavior management strategies (Dist. Ex. 73 at p. 4). Based on the foregoing, the CSE recommended that the student remain in the BOCES–ALP program with the same related services and accommodations for the 2003-04 school year (Dist. Ex. 73). Goals and objectives included study skills, writing, mathematics, and social/emotional/behavioral skills (id.). The 2003-04 IEP listed the student's expected diploma as a Regents diploma, with a graduation date at the end of his senior year in June 2004 (Dist. Ex. 73 at p. 1). His transition plan consisted of working with his guidance counselor to devise an appropriate course load leading to a high school diploma and entrance into a four-year college (Dist. Ex. 73 at p. 4). In addition, BOCES-ALP created their own transition plan for the student, which included participation in vocational assessments, community experiences, and exploration of living options, financial aid, and travel options (Dist. Ex. 100).
During his senior year, in November 2003, the student participated in a Level II Vocational Assessment at BOCES-ALP, which measured his aptitudes and interests relative to future employment (Dist. Ex. 87). Results of two interest inventories supported the student's stated interest in robot or video game design (Dist. Ex. 87 at p. 4). Based on the results of the assessment and on background information, the evaluator concluded that the student's need for support and one-on-one assistance indicated that he required a job coach and a structured, supportive employment environment (id.). The evaluator recommended that the student receive career counseling with school staff, employment or volunteer job experience, and a referral to the State Education Department’s Office for Vocational and Educational Services for Individuals with Disabilities (VESID) after graduation to determine eligibility for vocational support services (Dist. Ex. 87 at pp. 5-6). The student maintained a B+ average and attained honor roll status for the first three quarters of his 2003-04 senior year at BOCES-ALP (Dist. Exs. 98, 99).
In January 2004 the student's treating psychiatrist wrote to the district indicating that, due to the student's disability, the student was becoming anxious and overwhelmed by his academic coursework (Dist. Exs. 91, 89, see Parent Ex. 56). The psychiatrist requested that the student's coursework be modified or reduced so that the student could "graduate successfully, albeit at a slower pace" (Dist. Ex. 91, see Dist. Ex. 89, Parent Ex. 56). The CSE convened on January 21, 2004 and recommended that the student delete two classes from his schedule and instead receive additional support from aides with time management and organizational skills, and job coaching at a local drugstore as determined by a BOCES Supported Employment Program evaluation (Dist. Ex. 92 at pp. 1, 4, Dist. Ex. 94; Tr. pp. 880-82). The CSE also extended the student's graduation date an additional half-year from June 2004 to January 2005, listing the expected diploma as a Regents diploma on his IEP (Dist. Ex. 92).
In March 2004 the student began the BOCES work experience program at a local drugstore twice weekly for one hour (Dist. Ex. 102 at p. 1), however, he continued to exhibit the same task avoidant behaviors at work as he exhibited at school (Dist. Ex. 97). An observation report generated by the school psychologist in April 2004 indicated that the student required a great deal of support, had difficulty working independently and his behavior and affect were "consistently inconsistent" (id.).
The CSE convened on May 12, 2004 and concluded that although the student would complete most of his high school requirements by June 2004 for a Regents diploma and his graduation had been extended until January 2005 to allow the student more time, he still lacked some social and vocational skills that could interfere with his success at college (see Dist. Exs. 102, 104, 105). The CSE, therefore, determined that the student was eligible for extended year services (ESY), and recommended he attend TRI over summer 2004 to receive transition and daily living services, as well as individual counseling for one hour once per week (Dist. Ex. 102 at p. 1). According to the student's summer 2004 IEP, TRI would provide evaluation, travel training, independent living training, and community exposure (id.). The student's IEP for the additional half-year of the 2004-05 school year was also developed at this meeting, which recommended that the student attend academic classes at BOCES-ALP for half a day and a vocational program such as TRI for the remaining half of the day, five days per week (Dist. Ex. 103). The fall 2004-05 IEP also recommended individual counseling for 30 minutes twice per week, group counseling for 30 minutes twice per week, and skilled nursing services for 10 minutes daily (id.). The IEP continued to list the student's graduation date as January 2005 with a Regents diploma (id.). The fall 2004-05 IEP did not include any academic goals and objectives, but instead included a transition plan and activities for the student (Dist. Ex. 103 at pp. 4-5), which included participation in a Level III functional vocational assessment, employment skills, community experience, and independent living skills (Dist. Ex. 103 at pp. 4-5). In addition, the IEP incorporated the 2004-05 BOCES Annual Student Profile for the student (Dist. Ex. 101), which contained one writing objective, five psychosocial objectives, and several transition activities for the student's 2004-05 school year (Dist. Ex. 103 at pp. 2-3, see Dist. Ex. 101 at p. 14, Dist. Ex. 104 at p. 2). To meet long-term outcomes, the fall 2004-05 IEP listed college preparation and vocational training, and stated that the student would be referred to VESID for post-graduation services (Dist. Ex. 103 at p. 4). In the student's last quarter of his senior 2003-04 school year at BOCES-ALP he received a "D" in Chemistry, but passed all his other subjects; in June 2004 he passed the Mathematics Regents, but failed the Chemistry Regents exam (Dist. Ex. 108).
Petitioner's son attended TRI's summer program from July 6 through August 13, 2004 (Dist. Exs. 102, 106). While there, the student participated in a situational vocational assessment where he performed various job-related tasks (Dist. Exs. 109, 110). The results revealed that the student required a highly structured work setting, and he had potential for training in the entry-level clerical field, mail operations and stock/inventory areas (id.). The summary report noted that although the student expressed an interest in graphic design, he demonstrated limited frustration tolerance in that area (Dist. Ex. 110). TRI's program director recommended that the student enter TRI's Transition to Work program in the fall 2004, which offered training in jobs involving office technology, inventory, and bookkeeping, as well as weekly support groups focusing on social skills, life skills, job readiness and vocational academics (id.). The focus in these groups was to develop appropriate work behaviors, increase frustration tolerance, improve interpersonal skills and increase work tolerance (id.). The student also participated in TRI's summer travel training program (see Dist. Ex. 10). Contrary to the student's summer 2004 IEP (Dist. Ex. 102), he did not receive any individual counseling while at TRI (Tr. pp. 444-45, 1273-74).
From September 2004 through January 2005 petitioner's son attended BOCES-ALP in the morning and TRI in the afternoon as per his 2004-05 IEP (see Dist. Exs. 103, 115, 134). During this time the student participated in TRI's Transition to Work Program where he received training in Computer Graphics, Office Technology, Stock & Inventory, and Bookkeeping/Accounting (Dist. Ex. 134). He also was enrolled in Social/Life Skills, Vocational Academic and Job Readiness support groups, which addressed behavioral issues in a job setting (id.). In addition to academic classes (see Dist. Ex. 120), BOCES-ALP also addressed the student's psychosocial goals and objectives through individual and group counseling (Dist. Ex. 115), with the exception of an initial period of approximately four weeks in September 2004 when the student received individual counseling but failed to receive any group counseling services (Tr. pp. 1346-47, see Tr. pp. 1315-16), and another period in January 2005 when the student apparently did not receive either the individual or group counseling services from BOCES-ALP because the student's psychologist was absent and the student had been assigned to another counselor on an "as needed" basis (Tr. pp. 1317-19, 418). The student's academic grades at BOCES-ALP for the fall 2004 semester were all A’s and B’s (Dist. Ex. 120). The student continued to evidence task-avoidance behaviors such as sleeping and excessive trips to the bathroom and nurse's office (Parent Ex. 18).
On November 16, 2004, two months prior to the student's anticipated graduation, petitioner wrote to the CSE requesting that the district perform a neuropsychological evaluation on her son "to discover the nature of his memory deficits" (Parent Ex. 16). On November 30, 2004 the district notified petitioner that they were denying her request because they had consulted with staff at both TRI and BOCES-ALP and both stated that the student was doing very well and they did not need any additional evaluations in order for the student to be able to progress toward his goals and graduate (Dist. Ex. 111). By letter dated December 1, 2004 the district notified petitioner that her son was on track to graduate at the end of the fall 2004 semester, and that upon receipt of a local or Regents high school diploma, he would no longer be eligible to receive educational services from the district (Dist. Ex. 112). Petitioner participated in a meeting with representatives from VESID who informed her of how they could assist her son with post-secondary opportunities and provide services (see Dist. Ex. 90, Dist. Ex. 117 at p. 2). Petitioner also received a letter from the Office of Mental Retardation and Developmental Disabilities (OMRDD) acknowledging that her son had been referred to them by BOCES-ALP for post-graduation services (Dist. Ex. 116). In the letter, OMRDD notified petitioner that they had determined her son was eligible for adult programs and services and enclosed a proposed Plan of Care which listed TRI as a possible continued provider of services (id.).
In late December 2004 BOCES conducted a Vineland Adaptive Behavior Scales–Interview Edition of the student with information supplied by his mother (Dist. Ex. 113). Results showed that the student had moderate deficits in daily living skills, communication and socialization, and a severe deficit in his adaptive behavior composite (id.). At the end of December 2004 petitioner requested that the district conduct a social emotional evaluation for her son and an evaluation to determine the his eligibility for admission to the VIP Living Program at New York Institute of Technology (NYIT) (Dist. Ex. 114). Several attempts were made between the parties to schedule a CSE meeting on a mutually agreeable date to discuss the request for additional evaluations and review the status of the student's graduation (Dist. Exs. 90, 117). A CSE meeting scheduled for January 19, 2005 had to be rescheduled to January 20, 2005 because a BOCES-ALP member could not attend (id.). Despite several notifications to the student's parent, she failed to attend the January 20, 2005 CSE meeting (id.). 1 At the CSE meeting, the student's teacher at BOCES-ALP reported that the student was doing very well in both her classes, receiving final grades of "A" in Life Skills and "B" in Economics (Dist Exs. 117, 120). The BOCES-ALP principal confirmed that the student was meeting his goals and objectives and no further evaluations were needed (Dist. Ex. 117). The vocational director at TRI reported that the student was doing very well, participated in functional skills training despite developmentally inappropriate social skills, and that he was meeting his goals and objectives at TRI and no further testing was needed (id.). The student's guidance counselor at BOCES-ALP reported that she had been in contact with VESID, OMRDD, and the parent concerning adult services and aid, and had made all necessary referrals, and that either VESID or OMRDD could sponsor continued services for the student post-graduation at TRI (id.). The student's guidance counselor at the district's high school explained that admission to the NYIT Living Program required certain psychological testing; the school psychologist offered to conduct the testing for the parent (id.). A letter relaying the CSE's findings was sent to the parent the same day (see Dist. Exs. 118, 117).
By letter dated January 19, 2005 petitioner informed the CSE through her attorney that she was dissatisfied with the educational program provided to her son, especially as it related to his transition services, and requested an impartial hearing seeking relief in the form of compensatory education and reimbursement for independent evaluations (Dist. Ex. 1 at pp. 3-10). A hearing officer was appointed on January 21, 2005 (Dist. Ex. 1). On January 28, 2005 the school psychologist conducted the testing requested by the parent as part of the admission process to the NYIT VIP program (Dist. Ex. 139). Administration of the Wechsler Adult Intelligence Scale–Third Edition (WAIS-III) to the student yielded a verbal IQ score of 100 (average range), a performance IQ score of 125 (superior range), and a full scale IQ score of 111 (high average range) (Dist. Ex. 139 at p. 3), a slight improvement over his April 2003 scores (see Dist. Ex. 76). The evaluator noted that the student also appeared to have made distinct gains on a social-emotional level since his last psychological evaluation with respect to his general maturity, use of more adaptive coping devices, and an increased capacity to manage frustration (Dist. Ex. 139 at p. 2). He also noted that the student continued to show solid average verbal ability and now fell into the superior range nonverbally again, with at least overall high-average cognitive ability (id.).
The student graduated from the BOCES-ALP program on January 28, 2005, earning a Regents diploma (Dist. Exs. 128, 132, 125; Tr. pp. 377-79). With the exception of physical education, all of the student's grades at BOCES-ALP for the fall 2004-05 term were A’s and B’s (Dist. Ex. 120). In addition, TRI reported that the student had shown improvement in his vocational program during the fall 2004 and early 2005 period, demonstrating improvement in his clerical skills and his acceptance of constructive criticism, although he was still easily frustrated and required ongoing support in handling job-related tasks (Dist. Ex. 135).
Prior to the start of the hearing, petitioner's attorney made a motion for a ruling that the 2004-05 IEP (Dist. Ex. 103) which placed the student for half a day at BOCES-ALP and half a day at TRI for the fall of 2004 be determined to be the student’s pendency placement for the duration of the proceedings (IHO Ex. 1). On February 8, 2005 the impartial hearing officer rendered an interim pendency ruling agreeing with petitioner that the 2004-05 IEP was the student's pendency placement (IHO Ex. III). Respondent requested that the impartial hearing officer reconsider her ruling, reporting that although there was no problem continuing the student's attendance at TRI, that the Nassau County BOCES had refused to re-admit the student into its ALP program, claiming that the student had already fully completed and graduated from that program (Dist. Ex. 126). The district offered to admit the student into the district's high school or some other agreed upon location as part of the student's pendency placement instead of BOCES-ALP (id.). After two days of testimony, the impartial hearing officer issued a second interim order on March 16, 2005 reiterating her original pendency determination and ordering BOCES to re-admit the student into its ALP program effective immediately (IHO Ex. V).
The hearing on petitioner's claim that her son was denied a free appropriate public education (FAPE) began on April 5, 2005 and was held over the course of nine nonconsecutive days, concluding on May 31, 2005. The impartial hearing officer rendered a decision on July 5, 2005 denying the parent's request for reimbursement for a private neuropsychological evaluation, and finding that, although there were defects in the educational program provided to the student in that statements of transition services on the student's IEPs were inadequate, these defects did not result in a denial of a FAPE because the record revealed that the student did receive some benefit both academically and vocationally from his educational program. The impartial hearing officer also found that, in any case, since the student had graduated with at least a high school diploma he was no longer eligible for services under the Individuals with Disabilities Education Act (IDEA) unless there had been a gross violation of the IDEA such as would entitle the student to an award of compensatory education. While the impartial hearing officer found that the fact that the student was not provided with counseling services at TRI during summer 2004 and for several weeks in September 2004 and January 2005 at BOCES-ALP (as directed in his IEPs) constituted a denial of a FAPE, she also found it did not rise to the level of a gross violation of the IDEA necessary for an award of compensatory education. Petitioner appeals these findings and seeks an award of compensatory education for additional vocational, daily living/independence skills and counseling services for her son at NYIT or a comparable program at the district's expense for summer 2005 and the 2005-06 school year, as well as an order for a neuropsychological evaluation.2
As an initial matter, petitioner's attorney has annexed to his memorandum of law a three-page summary report by the educational coordinator of a program at NYIT discussing the student's academic and vocational experiences in that program during the summer of 2005 and asks that it be considered as additional evidence (Pet.'s Mem. of Law, Ex. 6). It is undisputed that the student enrolled in this program after the close of the hearing. Respondent objects to the submission of this evidence as outside of the record and asks that it not be considered (Ans. ¶¶ 85-87). Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (Application of the Bd. of Educ., Appeal No. 05-058; Application of a Child with a Disability, Appeal No. 05-001; Application of the Bd. of Educ., Appeal No. 04-070). While the document offered on appeal was not available at the time of the hearing, it bears little or no relevance to the issue of whether or not respondent provided petitioner's son with a FAPE or committed any gross violations of the IDEA during the time period at issue. Since the report is not necessary for my review, I decline to accept it into evidence (Application of a Child with a Disability, Appeal No. 05-020; Application of a Child with a Disability, Appeal No. 04-097; Application of a Child with a Disability, Appeal No. 04-083).
Turning to the issues presented herein, the purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487)3 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]).4 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. 04-043).
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),5 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 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 , cert. denied 531 U.S. 1019 ).6
Petitioner argues that the student was prematurely graduated and is thus still eligible for services under the IDEA. In the instant case, the impartial hearing officer correctly determined, and the record supports her finding, that the student had successfully finished the course work and earned at least the number of academic credits required by the State of New York for graduation from high school with receipt of either a local or Regents diploma (Dist. Exs. 128, 132, 125; Tr. pp. 377-79), and that beyond that, neither an impartial hearing officer nor a State Review Officer may pass upon the academic standards required by the State of New York for graduation in a proceeding of this nature (Application of the Bd. of Educ., Appeal No. 05-037; Application of a Child with a Disability, Appeal No. 02-011; Application of a Child with a Disability, Appeal No. 96-67; Application of a Child with a Disability, Appeal No. 94-31). The student's high school guidance counselor testified that the student met the requirements for a Regents diploma by successfully completing four years of English, four years of Social Studies, three years of Science, and three years of Mathematics, passing Regents exams in English, History, Math A and two Science Regents exams (see Tr. pp. 534-35). She stated that the minimum credits necessary to graduate was 20.5, and that petitioner's son earned 28.0, including sequences in Art and English, qualifying him for a Regents diploma (id.; see Dist. Exs. 128, 132, 125). The student's final grade point average was 85.87 (Tr. p. 535). Since by virtue of achieving a Regents diploma petitioner’s son is no longer eligible for services under the IDEA, petitioner's son may only obtain special education services at this point in the form of an award of compensatory education, based on a gross violation of the IDEA occurring during the time of his eligibility (see Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Application of a Child with a Disability, Appeal No.05-018; Application of a Child with a Disability, Appeal No. 03-078).
After reviewing the voluminous record (consisting of over 190 exhibits and more than 2,100 pages of testimony) and the impartial hearing officer's thorough 42-page decision, I find that the impartial hearing officer applied the proper legal analysis in determining whether the student received a FAPE during his time of eligibility (see Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 ), and if not, whether there existed a gross violation of the IDEA during the student’s period of eligibility such as would warrant an award of compensatory education (see Garro, 23 F.3d at 737; Mrs. C., 916 F.2d at 75; Burr, 863 F.2d at 1078; Application of a Child with a Disability, Appeal No. 05-018).
Regarding petitioner’s challenge to the statement of transition services on the student’s IEP, the impartial hearing officer applied the proper standard that only procedural flaws that either result in a denial of educational opportunity or benefit, or infringe on parental participation in the IEP process rise to the level of a denial of a FAPE, then carefully analyzed the transition services the student actually received, and correctly found the student was not denied a FAPE, thus properly concluding it could not be a gross violation of the IDEA (see, e.g., Application of a Child with a Disability, Appeal No. 03-105; Application of the Bd. of Educ., Appeal No. 02-033; Application of a Child with a Disability, Appeal No. 00-024; Application of a Child with a Disability, Appeal No. 01-002; Application of the Bd. of Educ., Appeal No. 99-95; compare Application of a Child with a Disability, Appeal No. 02-016 [compensatory education awarded where record showed no evidence that any transition services were provided to a student with significant disabilities]). In the instant case the record reveals that the student received ample transition services in the form of at least three detailed functional vocational assessments, successful completion of courses leading to a Regents diploma, various job skills training, actual work experience at a local drugstore, travel training, independent living training, community exposure, three support groups designed to aid the student in dealing with his emotional issues in the work environment, and assistance in setting up post-graduate services from outside agencies.
The impartial hearing officer also properly determined that while the district’s failure to provide all of the counseling services on the student’s IEP during summer 2004 and for several weeks in September 2004 and January 2005 might well have been a denial of a FAPE, it nonetheless did not rise to the level of a gross violation such as the type resulting in the denial of, or exclusion from, educational services for a substantial period of time necessary for an award of compensatory education (see generally, Application of a Child with a Disability, Appeal No. 05-057 [failure to provide some occupational therapy services on an IEP for a short duration does not constitute a gross violation of the IDEA warranting compensatory education]; Application of a Child with a Disability, Appeal No. 05-018). She correctly determined that, despite the lack of all counseling sessions specified on the student's IEPs, while at BOCES-ALP and TRI the student had received some meaningful educational benefits both academically and vocationally from the district's program by graduating with a Regents diploma and receiving job training and community and daily living skills training, as well as receiving supplemental counseling through support groups that specifically addressed the student's social-emotional issues in the job environment. The impartial hearing officer correctly concluded that based on these facts taken as a whole, no gross violation of the IDEA had occurred.
Lastly, the impartial hearing officer applied the correct analysis in determining that the district had performed appropriate psychological evaluations of the student such that a neuropsychological evaluation in the final two months before he graduated would yield substantially the same information as the district already possessed, therefore, the district was not obligated to pay for such additional testing (see Application of a Child with a Disability, Appeal No. 01-040). The school psychologist who provided counseling services to the student for several years testified that there was no clinical indication that a neuropsychological evaluation of petitioner's son would provide any significant additional information the district had not already obtained from previous evaluations, results of which had been incorporated into the student's educational program (Tr. pp. 1056, 1035-39, 1033, 1027-28). He testified that memory problems exhibited by the student were already addressed through study skills/organizational goals and objectives on the student's IEP and during regular individual and group counseling sessions, and that any memory problems the student had were not significant enough to have any effect on his educational performance (Tr. pp. 1068-75). Likewise, the student's psychologist at BOCES-ALP testified that ample information already existed on the student's cognitive and social-emotional functioning from prior evaluations and observations to devise an appropriate educational program for the student, and that a neuropsychological evaluation was not necessary for this student (Tr. p. 1294). As noted, the student received final grades of A’s and B’s, and graduated with a Regents diploma (Dist. Exs. 120, 128, 132, 125). Under these facts, I concur with the impartial hearing officer that in this instance a neuropsychological evaluation two months prior to the student's graduation with a Regents diploma was unwarranted.
Based upon my review of the entire hearing record, I find that the hearing was conducted in a manner consistent with the requirements of due process, that the decision was supported by the record and well reasoned in all respects, that the impartial hearing officer applied the proper legal analysis in determining whether petitioner is entitled to compensatory education or reimbursement for a privately obtained neuropsychological evaluation, and that there is no need to modify the decision of the impartial hearing officer (34 C.F.R. § 300.510[b]; N.Y. Educ. Law § 4404; see generally, Application of the Bd. of Educ., Appeal No. 05-031; Application of a Child with a Disability, Appeal No. 04-089; Application of a Child with a Disability, Appeal No. 04-009). I therefore adopt the findings of fact and the determination of the impartial hearing officer for the reasons stated therein that petitioner's son is not entitled to compensatory education or a privately obtained neuropsychological evaluation. I note that petitioner's son is still entitled to pursue any post-graduation services recommended by VESID and OMRDD (see Dist. Exs. 117, 116).
I have considered petitioner's remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
Albany, New York
October 24, 2005
PAUL F. KELLY
1 Petitioner admitted at the hearing that she was aware of the date of the CSE meeting, but had advised the district through her attorney that she would not participate (Tr. pp. 1729-31).
2 Although petitioner appears to also raise the student’s pendency placement as an issue in the petition, petitioner is actually requesting enforcement of two prior pendency orders by the impartial hearing officer which found BOCES-ALP to be part of the student’s pendency placement (see IHO Exs. III, V). Petitioner claims the district has not complied with that part of the pendency orders because BOCES-ALP refused to re-admit the student. 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 with a Disability, Appeal No. 04-100; 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). 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. Aug. 4, 1998]; Blazejewski v. Bd. of Educ., 560 F. Supp. 701 [W.D.N.Y. 1983]; Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 99-004; see also SJB v. New York City Dept. of Educ., 2004 WL 1586500 [S.D.N.Y. July 14, 2004] [noting exhaustion requirement does not apply to enforcement of an IHO order; petitioner can apply directly to federal court]).
3 The term "free appropriate public education" means special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and,
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
4 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.
5 The Regulations of the Commissioner of Education provide: "Earning a Regents or local high school diploma shall be deemed to be equivalent to receipt of a high school diploma pursuant to Education Law, section 3202(1) and shall terminate a student’s entitlement to a free public education pursuant to such statute. Earning a high school equivalency diploma or an Individualized Education Program diploma shall not be deemed to be equivalent to receipt of a high school diploma pursuant to Education Law, section 3202(1) and shall not terminate a student's entitlement to a free public education pursuant to such statute" (8 NYCRR 100.5[b][iii]; see also 34 C.F.R. § 300.122; see Application of a Child with a Disability, Appeal No. 04-054).
6 I note that, given the fact that graduation and receipt of a high school diploma are generally considered to be evidence of educational benefit (Pascoe v. Washington Cent. Sch. Dist., 1998 WL 684583; Application of the Bd. of Educ., Appeal No. 05-037; see also Rowley, 458 U.S. at 207 n.28; Walczak, 142 F.3d at 130 [“the attainment of passing grades and regular advancement are generally accepted indicators of satisfactory progress” under the IDEA), the receipt of which terminates a student’s entitlement to a FAPE (34 C.F.R. § 300.122[a][i]; 8 NYCRR 100.5[b][iii]), taken together with the Second Circuit’s high standard requiring the presence of a gross violation of the IDEA to have occurred during the time of eligibility in order for the student to qualify for an award of compensatory education (see Garro v. State of Connecticut, 23 F.3d 734, 737 [2d Cir. 1994]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990), it would appear that it would be the rare case where a student graduates with a Regents or local high school diploma and yet still qualifies for an award of compensatory education (see, e.g., J.B. v. Killingly Bd. of Educ., 990 F. Supp. 57 [D. Conn. 1997] [where student apparently graduated and received diploma prior to the district establishing the appropriate graduation requirements, court decided student had established a prima facie case of likelihood of success on the merits on a possible award of continued compensatory education]; Application of the Bd. of Educ., Appeal No. 05-037).