The Univeristy of the State of New York Emblem
The State Education Department
State Review Officer

 

No. 05-130

 

 

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 Middletown Enlarged City School District

 

 

Appearances:
Daniel J. Schneider, Esq., attorney for petitioner

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Daniel Petigrow, Esq., of counsel

DECISION

            Petitioner appeals from the decision of an impartial hearing officer which denied her request to be reimbursed for her son's tuition costs for two metalsmithing courses at the Center for Metal Arts during February 2005.  The appeal must be dismissed.

During the 2004-05 school year, the student attended a residential placement at the Summit School (Summit) pursuant to a 2004-05 individualized education program (IEP) dated August 11, 2004 (Joint Ex. 1 at pp. 1, 3).  The student graduated from Summit with a local diploma in August 2005 and at the time of the hearing in September 2005, was employed by the Center for Metal Arts  (Tr. pp. 14, 78).  The student's eligibility for special education programs and services as a student with a traumatic brain injury is not in dispute (see 8 NYCRR 200.1[zz][12]).

The student was described in the record as a "bright, articulate young man" who "makes friends easily and is well liked by his peers" (Joint Ex. 11 at p. 3).  Although the student's intellectual functioning is considered to be in the above average range, he exhibits a significant delay in written expression, does not display grade appropriate organizational and study skills and has difficulty completing assignments (Joint Ex. 1 at p. 3).  During the 2004-05 school year, the student's teachers at his residential placement reported that he was often a distraction in class and he required redirection to stay on task and reminders to complete assignments (Joint Ex. 11 at pp. 1, 3, 4).

The record is limited regarding the student's early special education history. Petitioner reported that as a preschool age child, the student sustained several accidents which resulted in head injuries (Tr. p. 61).  The student was enrolled in respondent's schools until September 2003, when he was placed at Summit in a 6:1+1 class as a day-student (Tr. p. 62; Joint Ex. 29 at p. 1).  Summit is a private school approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities.  The student's placement at Summit became residential during the 2003-04 school year (Joint Ex. 5; Tr. p. 62).

            Respondent's Committee on Special Education (CSE) subcommittee convened on August 11, 2004 for an annual review of the student (Joint Ex. 1).  The resultant IEP recommended continuation of the student's residential placement at Summit in a 12:1+1 class with the related service of individual and group counseling (Joint Ex. 1 at p. 2). The student was also recommended to receive a variety of test accommodations, including extended time, answers recorded and scribed, spelling and punctuation waived, and questions/text read (Joint Ex. 1 at p. 2).  Use of an AlphaSmart was recommended for the student's writing assignments (Joint Ex. 1 at p. 2).  Goals and objectives recommended for the student addressed study skills, writing and math (Joint Ex. 1 at pp. 4-5).

            The IEP indicated that, regarding post-school outcomes, the student intended to pursue a college education and was considering living independently (Joint Ex. 1 at p. 4).  The IEP recommended that the student "participate in career assessment inventories, interviews or evaluations to assist in deciding on a career path of interest" in order to plan for employment (Joint Ex. 1 at p. 4).  Regarding a coordinated set of transition activities, the IEP recommended that the student "participate in a regular course of study [at] Summit School with the recommended special education services which leads to a high school diploma" (Joint Ex. 1 at p. 4).

            Petitioner reported that she first became aware of transition services in September 2004 as a result of attending parent training workshops (Tr. pp. 62-63).  On October 12, 2004, petitioner met with Summit staff, including the student's social worker, guidance counselor, teachers and principal, to discuss the student's transition services (Tr. p. 64).

            On December 21, 2004, the transition coordinator at Summit completed a career assessment of the student (Joint Ex. 6).  The assessment report indicated that the student's basic aptitude, behavior and work pace were vocational strengths and he exhibited above average mechanical reasoning, high average spatial aptitude and high average clerical perception (Joint Ex. 6 at p. 4).  The student's general learning ability and verbal and numerical aptitude was considered to be average, while his math skills were identified as an area of vocational weakness (Joint Ex. 6 at p. 4).  The report stated that the student's goal was to become a blacksmith and that his plan to achieve this goal was to "try a few courses at the Ice Forge," located in Florida, New York, to "take one year off to travel" and to "work on father's farm [and] be paid while take [sic] courses" (Joint Ex. 6 at p. 4).  The transition coordinator recommended that the student conduct career exploration using CareerScope (Joint Ex. 6 at p. 4).

The Summit 2004-05 mid-year evaluation of the student stated that, based on the results of his CareerScope Interest Profile, he exhibited a "strong potential for success" in fields such as landscaping, tree surgery and carpentry (Joint Ex. 11 at pp. 4-5).  However, the student reportedly was not interested in pursuing those fields and the transition coordinator considered the student's interest in blacksmithing to be a "feasible option" (Joint Ex. 11 at p. 5).  The mid-year report indicated that the student was "not receptive to exploring career options and ha[d] no urgency to do so" (Joint Ex. 11 at p. 5).  The CareerScope results were reportedly shared with the student and his mother (Joint Ex. 11 at p. 5). The transition coordinator recommended that the student be referred for transition services "as needed" and a Vocational and Educational Services for Individuals with Disabilities (VESID) eligibility interview was scheduled for February 2, 2005 at Summit (Joint Ex. 11 at p. 5).  In the mid-year evaluation report, the student's guidance counselor indicated that the student had not applied to any colleges because he was very interested in pursuing a metal workshop program located in Florida, New York, where he would participate in an internship during February 2005 for one to two weeks (Joint Ex. 11 at p. 5).

            In December 2004, supplementary progress reports completed by teachers from Summit indicated the student was receiving a grade of incomplete in Math, Regents Chemistry and Humanities; however, he was passing Government (Joint Ex. 14).  On December 20 and 27, 2004 petitioner contacted respondent's assistant to the director of pupil personnel and special services to request an emergency CSE meeting to "increase his services" as he was "failing" two courses (Joint Ex. 32; Tr. p. 86-87).

            Respondent's CSE subcommittee met on January 19, 2005 for a program review to discuss the student's grades, progress and transition services (Joint Ex. 15; Tr. p. 65). At the meeting, petitioner proposed that respondent fund coursework in metalsmithing for the student as a transition plan "since there was none in existence" and because he had expressed excitement about such coursework (Tr. pp. 65-66; Joint Ex. 18).  Respondent's assistant to the director of pupil personnel and special services told petitioner that she would "get back" to petitioner if the metalsmithing course was something respondent would pay for (Tr. p. 66).  No changes to the student's IEP were made as a result of that meeting (Joint Ex. 15).  Petitioner received a phone message on January 28, 2005 from respondent's home-school liaison stating that respondent would not pay for the metalworking course because it was not applicable to transition (Tr. pp. 67-68; Joint Ex. 30).  Petitioner requested the reasons for respondent's refusal in writing (Tr. p. 68; Joint Ex. 30).

            The record reflects that the student was referred to VESID during the winter 2004-05 (Joint Ex. 11 at p. 5) and on February 1, 2005 a VESID eligibility interview with the student was held at Summit (Joint Ex. 20).  By e-mail dated February 2, 2005, the student's VESID vocational rehabilitation counselor reported to petitioner that after meeting with the student at Summit, reviewing his career testing, academic and cognitive assessments, that the Center for Metal Arts "seems to be an appropriate vocational program" (Joint Ex. 20).  The vocational rehabilitation counselor also indicated to petitioner that the Center for Metal Arts "is a good match for [the student] in view of his interests, strengths and abilities" (Joint Ex. 20).

            The CSE subcommittee reconvened on February 2, 2005 to conduct a program review and to discuss the student's transition plan (Joint Ex. 16; Tr. p. 69).  Petitioner was again informed that respondent would not pay for the student's metalsmithing courses, as the Center for Metal Arts was not a "New York State affiliated program" and the courses would not be recommended as a transition service (Joint Ex. 16).  Petitioner was notified that her son was eligible to receive services through VESID (Joint Ex. 18).  Respondent reported that Summit's transition counselor had scheduled a meeting with the student to complete the VESID application (Joint Ex. 18).  Petitioner requested that respondent invite the student to a CSE meeting and send him "planning tools" from the New York State Education Transition Planning Guide, which was a Level 1 student and parent questionnaire (Tr. p. 70).  On February 3, 2005, petitioner notified respondent's CSE chairperson/assistant director of pupil personnel and special services that she disagreed with respondent's decision to deny payment for "career training" for her son, that she was sending him to the courses the following week, and that she would seek reimbursement from respondent (Joint Ex. 22).

             By letter dated February 7, 2005, the CSE chairperson/assistant director of pupil personnel and special services invited petitioner's son to a CSE meeting on February 22, 2005 to discuss "how you are doing in school, what you want to do in the future and what activities your individualized education program should include" (Joint Ex. 7).

            During the first half of February 2005, the student completed two courses at the Center for Metal Arts (Tr. p. 40; Joint Exs. 36, 37, 38).  One course was a five-day workshop entitled "Comprehensive Fundamentals of Blacksmithing" and the second was a three-day workshop entitled "Advanced Comprehensive Course: Toolmaking, Joinery and Power Hammer" (Joint Ex. 35).  Petitioner paid $1,170.00 for the two courses (Joint Ex. 35; Tr. p. 78).  Petitioner indicated that the length of each course day was approximately 12 hours for the eight days the student attended, and that she sat through parts of the lectures and demonstrations (Tr. pp. 91-92).  Although unclear, the record suggested that the student missed three school days at Summit while attending one of the courses (Tr. p. 97).

On February 22, 2005, the CSE subcommittee met to discuss the student's transition plan (Joint Exs. 2, 19).  Petitioner and the student attended the meeting (Tr. p. 71).  A Level 1 Career Assessment and Student Interview were completed, which reiterated the student's interest in metalsmithing (Joint Exs. 8, 9).  At the meeting, the CSE subcommittee discussed the interview form that the student had completed, and respondent's guidance counselor reviewed the student's transcripts as well as what he needed to graduate (Tr. pp. 18-20).  At the time, the student was expected to graduate from Summit in June 2005 (Tr. p. 20).  On the student's school record "metal working internship" was indicated; however, there were no grades or credits noted on the transcript (Joint Ex. 39).  Petitioner stated that the student told the CSE subcommittee that he had enjoyed the metalsmithing course (Tr. pp. 72-73).  The student indicated that he would "go to college" in order to prepare for employment in fields that he is interested in (Joint Ex. 8).  Comments from the CSE subcommittee meeting indicate "options for post-graduation were discussed" such as the student taking college courses, living with his father and traveling (Tr. pp. 18, 20).  The CSE subcommittee noted that the student's VESID "paperwork" had been sent (Joint Ex. 19).  The CSE subcommittee decided to reconvene in May 2005 to discuss the student's graduation and post-graduate plans (Joint Ex. 2).  A VESID representative was to be invited to the May 2005 meeting (Joint Ex. 2).

The CSE subcommittee convened on June 7, 2005 and a full CSE met on June 23, 2005 (Joint Exs. 3, 4).  A community services liaison from Independent Living, Inc. attended the June 7 meeting and discussed the student's transition from school to the community once he graduated (Joint Ex. 3).  At the June 23 meeting, the CSE discussed petitioner's letter dated June 12 which again notified respondent that she was seeking reimbursement for the "vocational workshop" that her son had attended, and further requested a specific transition plan to be included in the student's IEP (Joint Ex. 24). Respondent stated its position that it was not responsible for the tuition, as the blacksmithing course was not a New York State affiliated program (Joint Ex. 4).  The CSE determined that the student was eligible to attend summer school at Summit in order to complete the required coursework for high school credit (Joint Ex. 4).  The student graduated from Summit in August 2005 with a local diploma (Tr. pp. 13-14).

By letter dated July 15, 2005, petitioner requested an impartial hearing stating that she disagreed with the decision of the CSE to deny payment for career training for her son and alleging that appropriate career training in the student's area of interest had not been provided by respondent (Joint Ex. 25). 

An impartial hearing was held on September 29, 2005.  At the hearing, petitioner asserted that respondent had failed to provide a free appropriate public education (FAPE) to her son by virtue of its failure to offer appropriate transition services.  Petitioner further asserted that, in light of this failure, she should be reimbursed for the two metalsmithing courses that she had paid for and her son had taken in February 2005 at the Center for Metal Arts.  Respondent asserted that it had offered appropriate transition services to petitioner's son and that, therefore, respondent was not responsible for reimbursing the cost of the metalsmithing courses taken by petitioner's son.

The impartial hearing officer rendered his decision on November 18, 2005.  He found that respondent failed to offer petitioner's son a FAPE due to its failure to offer appropriate transition services.  He also held that petitioner failed to establish how the metalsmithing courses were appropriate to meet her son's special education needs.  In light of this finding, he denied reimbursement for the metalsmithing courses, while also noting that petitioner did not seek compensatory education as a form of relief.

            Petitioner appeals and asserts that the impartial hearing officer erred in determining that petitioner failed to provide evidence that the metalsmithing courses were appropriate to her son's transition needs.  On appeal, petitioner seeks reimbursement for the cost of the two metalsmithing courses that her son completed in February 2005 at the Center for Metal Arts.  Respondent has not cross-appealed and, therefore, the impartial hearing officer's decision is final regarding his determination that the transition plan for petitioner's son, as contained in his August 11, 2004 IEP, was inappropriate (see 20 U.S.C. § 1415[i][1][A]; 34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][4][v]).  I therefore do not review that determination.

The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)1 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).2  A board of education may be required to reimburse parents for their expenditures for private special educational services obtained for a student by his or her parent, if the services offered by the board of education were inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).  In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (id.).  “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP” (Burlington, at 370-71).

Under the IDEA, 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 post-school activities, including higher education, if appropriate, employment, and independent living (20 U.S.C. § 1401[30]; see 34 C.F.R. § 300.29; N.Y. Educ. Law § 4401[9]; 8 NYCRR 200.1[fff]; 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 11).

Accordingly, pursuant to the legal requirements applicable to transition services at all relevant times for this appeal,3 beginning at the age of 15 (or younger, if appropriate) in New York, and 16 (or younger, if appropriate) under federal regulations, the student's IEP needed to include not only a statement of the student's post-school transition needs, taking into account the student's preferences and interests (8 NYCRR 200.4[d][2][i][c]; see 34 C.F.R. § 300.347[b][2]); but also a statement of needed transition services being provided (8 NYCRR 200.4[d][2][ix]; see 20 U.S.C. § 1414[d][1][A][vii][II]; 34 C.F.R. § 300.347[b][2]; see also 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 11).  Under New York regulations, needed transition services and activities must be provided in instruction, related services, community experiences, development of employment and other post-school adult living objectives (8 NYCRR 200.4[d][2][ix], citing 8 NYCRR 200.1[fff]).  New York regulations also require at age 15 that the student's IEP include a statement of projected post-school outcomes, based on the student's needs, preferences and interests, in the areas of employment, post-secondary education, and community living (8 NYCRR 200.4[d][2][ix]; see Application of a Child with a Disability, Appeal No. 04-112).

The impartial hearing officer found that petitioner did not establish that the services she selected were appropriate to meet the student's special education needs:  she did not provide sufficient evidence about the program and courses, including course content and schedule and what was offered (IHO Decision at pp. 12-14).  Notably, petitioner testified that she did not know if the Center for Metal Arts offered or provided him accommodations appropriate to his needs (Tr. pp. 98-99).  After reviewing the record and the impartial hearing officer's decision, I find that the impartial hearing officer applied the proper legal analysis in determining whether petitioner was entitled to tuition reimbursement (see Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]).  Based upon my review of the entire hearing record, I find that the impartial hearing was conducted in a manner consistent with the requirements of due process and that there is no need to modify the determination of the impartial hearing officer pertaining to the issue on appeal (34 C.F.R. § 300.510[b][2]; Educ. Law § 4404[2]).  I, therefore, adopt the findings of fact and determination of the impartial hearing office that petitioner is not entitled to tuition expenses.

I encourage petitioner and her son to investigate the adult services offered through VESID.

            THE APPEAL IS DISMISSED.

Dated:

Albany, New York

 

__________________________

 

February 8, 2006

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

1  On December 3, 2004, Congress amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEA 2004], Pub. L. No. 108-446, 118 Stat. 2647 [2004]). Since the relevant underlying events of this appeal occurred prior to the effective date of the 2004 amendments, the new provisions of the IDEA 2004 do not apply, and citations contained in this decision are to the statute as it existed prior to the 2004 amendments.

2  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.

20 U.S.C. § 1401[8]; see also 34 C.F.R. § 300.13; 20 U.S.C. § 1414[d].

3  As referenced in footnote 1, the IDEA was amended effective July 1, 2005 and a portion of those amendments changed the legal requirements for transition.