The University of the State of New York Seal
The State Education Department
State Review Officer

No. 06-066

 

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 New York City Department of Education

 

 

Appearances:

Advocates for Children of New York, attorney for petitioner, Lucy Eagling, of counsel

 

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Joshua C. Chao, of counsel

 

DECISION

            Petitioner appeals from the decision of an impartial hearing officer which denied her request for two years of compensatory education for her son in the form of home instruction after the age of 21.  The appeal must be dismissed. 

 

            At the commencement of the impartial hearing on May 9, 2006, the student was 20 years old and receiving home instruction (Tr. pp. 20, 32-33).  The student's eligibility for special education as a student with a learning disability is not in dispute in this appeal (see 8 NYCRR 200.1[zz][6]).

 

            The record reflects that the student began receiving special education services in kindergarten and that he has continued to receive special education services every year since that time (Tr. p. 20).  Although it is not clear from the record when respondent's Committee on Special Education (CSE) classified petitioner's son as a student with a learning disability (LD), the record documents that respondent's CSE continued that classification since at least October 22, 2002 (see Parent Ex. R; Dist. Exs. 1, 4, 12). 

 

            The record reflects that respondent tested and evaluated the student on several occasions:  February 1993, October 1998, October 2001, and October 2004 (see Dist. Ex. 2 at p. 2).  Respondent administered the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) to the student in February 1993, which yielded the following results:  verbal IQ score of 71; performance IQ score of 70; and a full scale IQ score of 68 (Dist. Ex. 2 at p. 2).  In 1998, the Stanford-Binet: Fourth Edition yielded similar results, as indicated by the following standard age scores (SAS):  verbal reasoning SAS of 70; abstract reasoning SAS of 63; quantitative reasoning SAS of 68; short-term reasoning SAS of 72; and a test composite of 64 (id.).  Respondent re-administered the Stanford-Binet: Fourth Edition in October 2001, which resulted in the following scores:  verbal reasoning SAS of 88; quantitative reasoning SAS of 82; short-term memory SAS of 82; and a partial composite of 82 (id.).  The evaluator opined that the 2001 scores indicated that the student performed within the "[l]ow [a]verage range" (Dist. Ex. 2 at p. 2).

 

            The October 22, 2002 individualized education program (IEP) placed the student in a 15:1 special class for all of his academics and provided related services of counseling and speech/language therapy (Parent Ex. R at pp. 1, 10).  The IEP contained the student's most recent testing and evaluation results from 2001, noting instructional scores in reading, writing and math ranging from "below grade level" to a 3.9 grade level (Parent Ex. R at p. 3).  The IEP annual goals addressed the student's needs in counseling, math skills, reading skills, speech/language, receptive language skills, and writing skills (Parent Ex. R. at pp. 6-7).  According to the IEP, the student was 17 years old and attending 10th grade during the 2002-03 school year (Parent Ex. R at p. 1).  In addition, the IEP allowed for modified non-diploma criteria for promotion and anticipated the student's high school completion date as June 30, 2004 (Parent Ex. R at pp. 10, 11).

 

            At the student's October 21, 2003 annual review, respondent's CSE developed his 2003-04 IEP (Dist. Ex. 1).  The 2003-04 IEP continued annual goals to address the student's needs in counseling, math skills, reading skills, speech/language, receptive language skills, and writing skills (Dist. Ex. 1 at pp. 6-7, 13-14).  Respondent's CSE changed the promotion criteria from modified non-diploma to standard (compare Parent Ex. R with Dist. Ex. 1). 

 

            On October 22, 2004, respondent prepared an updated psychological report as part of the student's triennial evaluation (Dist. Ex. 2 at p. 1).  Respondent administered the Wechsler Individual Achievement Test-II (WIAT-II), conducted a student interview, reviewed teacher and provider reports, and performed a case review (Dist. Ex. 2 at p. 2).  The WIAT-II yielded the following standard scores (SS):  word reading, SS 56 (0.2 percentile); reading composite, SS 44 (<0.1 percentile); reading comprehension, SS 44 (<0.1 percentile); pseudoword decoding, SS 55 (0.1 percentile); mathematics composite, SS 62 (1st percentile); numerical operations, SS 69 (2nd percentile); and math reasoning, SS 64 (1st percentile) (Dist. Ex. 2 at p. 4).  The evaluator noted that the student exhibited severe deficits in reading and weaknesses in mathematics (Dist. Ex. pp. 2-3).  The report recommended terminating the student's speech/language services because he "had achieved fluency goals and does not want to attend speech for language deficits" (Dist. Ex. p. 3).  Teacher and service provider reports indicated that the student rarely attended classes, failed to do homework, and failed tests and quizzes (Dist. Ex. 3 at pp. 1-7).  

 

            The student's November 16, 2004 educational planning conference (EPC) resulted in his 2004-05 IEP, which added the updated WIAT-II scores, noting a K-3 instructional level in reading ability and a 4th grade instructional level in math ability (Dist. Ex. 4 at pp. 1, 3).  The 2004-05 IEP terminated speech/language therapy (Dist. Ex. 4 at p. 11).  The IEP continued and added annual goals to address the student's needs in counseling, math skills, reading skills, speech/language, receptive language skills, and writing skills (Dist. Ex. 4 at pp. 6-8. 14).  The 2004-05 IEP placed the student in a 15:1 special class and although it continued the standard criteria for promotion, the CSE changed the student's anticipated high school completion date from June 30, 2004, to June 30, 2006 (Dist. Ex. 4 at pp. 1, 12).

 

            Respondent offered petitioner's son the opportunity to participate in the Vocational Educational Services for Individuals with Disabilities (VESID) program as a transitional service   during the fall of 2004 (Tr. p. 30; Dist. Exs. 8; 22; 23).  In early 2005, respondent also provided petitioner's son with a questionnaire to complete regarding plans for his future (Dist. Ex. 24).  Respondent also requested permission to enroll the student in the Career Practice course (Dist. Ex. 25).

 

            By letter dated February 14, 2005, petitioner requested an impartial hearing alleging a denial of a free appropriate education (FAPE) for an undisclosed period (Parent Ex. N at pp. 1-2).  Petitioner proposed the following as a remedy:  (1) home instruction; (2) compensatory education in the form of Lindamood Bell individualized instruction; (3) compensatory education beyond the age of 21; and, (4) other relief deemed appropriate (see Parent Ex. N at p. 2).  At the impartial hearing on March 7, 2005, the parties reached an agreement, which directed respondent to provide petitioner's son with 360 hours of Lindamood-Bell private instruction and 12 months of home instruction, including during the 2005 summer months (Parent Ex. L at p. 3).  Respondent complied with the agreement as set forth in the impartial hearing officer's decision, dated April 5, 2006 (see Tr. p. 32; Parent Ex. L at pp. 3-4).

 

            As a result of the March 7, 2005 impartial hearing, respondent's CSE re-convened on March 18, 2005 and prepared an IEP that placed the student on home instruction (Dist. Ex. 12 at p. 1).

 

            By letter dated March 29, 2006, petitioner requested an impartial hearing alleging a denial of FAPE1,2 for an undisclosed period of time (Parent Ex. A).  Petitioner requested the impartial hearing in order to address the issue of compensatory education beyond age 21 (Parent Ex. A at p. A-2).  Petitioner's letter noted that the parties agreed at the March 7, 2005 impartial hearing to address the issue of compensatory education beyond age 21 after the student completed the 360 hours of Lindamood-Bell instruction (id.; see Tr. p. 15).  Petitioner's letter indicated that the student had completed the Lindamood-Bell instruction, and petitioner now sought two years of home instruction as compensatory education beyond age 21 in an effort to allow the student to obtain his high school diploma (Parent Ex. A at p. A-2).

 

            The impartial hearing occurred on May 9, 2006 (Tr. p. 1).  Petitioner presented testimonial evidence through petitioner--the student's mother--and the student (Tr. pp. 20-47).  Petitioner also presented documentary evidence (Parent Exs. A-R).  Respondent produced the student's home instructor, respondent's guidance counselor, and respondent's assistant principal of special education as witnesses (Tr. pp. 48-114).  Respondent presented documentary evidence (Dist. Exs. 1-25).

 

            Petitioner testified that during elementary and middle school, her son attended a small self-contained special education class (Tr. pp. 20-21).  When her son started high school at respondent's Hillcrest High School in September 2000, petitioner testified that respondent's CSE placed him in the Academy Program, which she described as "a program below a Special Education program" (Tr. p. 21).  She stated that he was placed in the Academy Program "because when they tested him, he wouldn't be able to achieve in Special Ed. and he would only earn half a credit" (Tr. p. 21).  Petitioner testified that she objected to this placement at the IEP meeting when it was recommended, but respondent advised her that her son "wouldn't be able to succeed in Special Education programs" and there were no other options (Tr. pp. 22-23).  The student attended the Academy Program until approximately the conclusion of the 2003-04 school year, when respondent discontinued the program (Tr. pp. 24-28).  Petitioner testified that respondent then placed her son in a regular special education program (Tr. p. 27).

 

            Petitioner emphasized during her testimony that her son wanted to obtain a local high school diploma and she did not want him to earn an IEP diploma (Tr. pp. 23, 28-30, 33-35).  Petitioner testified that respondent advised her that her son could earn a diploma by passing the reading and math Regents Competency Tests (RCT) (Tr. pp. 28-30).  She further testified that since her son had received the 360 hours of Lindamood-Bell individualized instruction, her son could now read newspapers and magazines (Tr. p. 32).

 

            The student attended the regular special education program during the 2004-05 school year, until he was placed on home instruction pursuant to the impartial hearing in March 2005 (Tr. p. 31; Parent Ex. L; Dist. Ex. 12).

 

            The student's home instructor testified on behalf of respondent (Tr. pp. 48-64).  The instructor testified that he began providing services to the student in July 2005 and had continued to provide home instruction through the time of the impartial hearing in 2006 (Tr. p. 49).  He testified that he has seen "very little improvement" in the student since he began instructing him in July 2005 (Tr. pp. 59, 63).  In addition, the instructor testified that the student has continuously failed the RCT exams on three or four different occasions, and therefore, he opined that the student would not pass those exams in the future (Tr. p. 62).

 

            Respondent's guidance counselor testified that she provided counseling to the student during high school and the student rarely attended counseling (Tr. pp. 69, 73).  She noted that neither the student, nor the student's mother, followed through with the vocational evaluation offered through VESID (Tr. p. 75).  The guidance counselor also testified about the career practice course offered to the student and the student's lack of attendance in the program (Tr. pp. 79-81). 

 

            Finally, respondent's assistant principal of special education testified (Tr. pp. 98-114).  She described respondent's Academy Program as a specially designed program to specifically address students with demonstrated needs in the areas of reading, math and writing (Tr. pp. 101-02).  She explained that the Academy Program maintained a 15:1 class ratio, and that the distinct difference between the Academy Program and a 15:1 special class "spoke to instruction" and not the size of the class (Tr. p. 102).  The Academy Program used "Direct Instruction," which involved a "specific routine" to teach students phonics, encoding skills, and decoding skills (Tr. pp. 110-11).  She also testified that multi-sensory instructional techniques and cooperative learning techniques are also used for all students (Tr. pp. 113-14).  The assistant principal also discussed the differences between different diplomas and the requirements for each type of diploma (Tr. pp. 104-07, 108-09).

 

            The impartial hearing officer rendered her decision on May 26, 2006 (IHO Decision, p. 5).  The impartial hearing officer denied petitioner's request for two years of compensatory education in the form of home instruction based upon petitioner's failure to prove that there had been a "gross prolonged violation" of a FAPE (IHO Decision, pp. 4-5).  The impartial hearing officer opined that while she accepted petitioner's argument that the student "did not receive proper services so as to enable him to make progress in basic skills[,]" "other circumstances" precluded the award of compensatory education beyond the age of 21 (IHO Decision, pp. 4-5).

 

            On appeal, petitioner alleges that the impartial hearing officer committed several errors, including the following:  in holding that petitioner had the burden of production at the impartial hearing; in failing to use the correct standard to analyze petitioner's claim; in finding that the student was not entitled to compensatory education beyond the age of 21; in failing to properly analyze the student's compensatory education claim; in finding that home instruction was not an appropriate remedy; and in holding that the impartial hearing officer was bound by petitioner's requested remedy.  Petitioner seeks a reversal of the impartial hearing officer's decision in all respects and requests that respondent provide two years of compensatory education in the form of home instruction.

 

            In response, respondent asserts that the student continuously received educational services throughout high school; that petitioner has not, and cannot, present facts to demonstrate a "gross, flagrant, and prolonged violation" of the student's right to a FAPE; and that the standard for an award of compensatory education includes the exclusion from, or denial of educational services for an extended period of time.  Respondent argues that petitioner's appeal should be dismissed, and the impartial hearing officer's decision should be affirmed in all respects.

 

            One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 - 1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; see Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., ___ F.3d ___, ___, 2006 WL 2077009, at * 13 [2d Cir. July 27, 2006]).  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[9][d]; 34 C.F.R. 300.13; see 20 U.S.C. 1414[d]; 34 C.F.R. 300.347).  A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) 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. at 206-07).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. 1412[a][5][A]; 34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]).  The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537).  Both the Supreme Court and the Second Circuit have noted that the IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP (Rowley, 458 U.S. at 189; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 122, 130 [2d Cir. 1998]), although the Supreme Court has specifically rejected the contention that the "appropriate education" mandated by IDEA requires states to maximize the potential of handicapped children (Rowley, 458 U.S. at 197 n.21, 189).  Thus, a school satisfies the FAPE standard "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (Rowley, 458 U.S. at 203).  The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression' and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak, 142 F.3d at 130 [2d Cir. 1998]), in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see also Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]). 

 

            The IDEA applies to children between the ages of 3 and 21 (20 U.S.C. 1412[a][1][A]), subject to the limitation that it does not apply to children ages 18 through 21 where it is inconsistent with state law or practice on the provision of a public education (20 U.S.C. 1412[a][1][B][i]; see St. Johnsbury Academy v. D.H., 240 F.3d 163, 169 [2d Cir. 2001]).  New York Education Law specifically provides IDEA eligibility to children through the end of the school year in which they turn 21 (N.Y. Educ. Law 4402[5][b]; see 8 NYCRR 100.9[e]; see also Application of a Child with a Disability, Appeal No. 02-016; Application of a Child with a Disability, Appeal No. 00-024).  Generally, under the IDEA, "a [child with a disability] does not have a right to demand a public education beyond the age of twenty-one" (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990] [internal citation omitted]).  Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA]" (Honig v. Doe, 484 U.S. 305, 318 [1988]; see Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No. 04-100). 

 

            According to the standard established by the Second Circuit of the United States Court of Appeal, compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction.  It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]).  Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 151 [N.D.N.Y. 1997], aff'd, 208 F.3d 204 [2000], cert. denied 531 U.S. 1019 [2000]; Application of a Child with a Disability, Appeal No. 06-086; Application of the Bd. of Educ., Appeal No. 02-033; Application of a Child with a Disability, Appeal No. 02-019).  Compensatory education is a judicially-crafted remedy; it is not an extension of the protections and benefits of the IDEA itself (see Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 388 [N.D.N.Y. 2001] [noting that "the relief arises from equity and is not a legislative authorization to extend the reaches of the statute"]; see also Burr, 863 F.2d at 1078).

 

            Initially, I must note that while I disagree with portions of the impartial hearing officer's analysis and determination of petitioner's claim, I concur with the impartial hearing officer's ultimate determination that petitioner's claim for compensatory beyond the age of 21 must necessarily fail. 

 

            With respect to the impartial hearing officer's decision, I disagree with her conclusion to accept petitioner's argument that the student "did not receive proper services so as to enable him to make progress in basic skills" without adequate clarification or support from the record.  The regulations of the Commissioner of Education require that an impartial hearing officer's decision "shall set forth the reasons and the factual basis for the determination" and further, that the decision "shall reference the hearing record to support the findings of fact" (8 NYCRR 200.5[j][v]).  The impartial hearing officer's decision did not set forth the underlying reasons or factual basis within the hearing record to support her acceptance of petitioner's argument.  In addition, I also disagree with the impartial hearing officer's reliance upon "other circumstances" as relevant or sufficient reasons to deny petitioner's claim for compensatory education beyond the age of 21 years.

 

            Petitioner's evidence failed to meet her burden to prove a gross violation of the IDEA that resulted in the denial of, or exclusion from, educational services for an extended period of time.3  Petitioner appears to heavily rely upon her son's re-testing results following the Lindamood-Bell instruction as evidence that respondent grossly violated the IDEA and denied her son a FAPE since 2000, when he entered respondent's high school (see Parent Ex. D).  While the re-testing results may demonstrate that petitioner's son improved in his some of his basic reading skills after the Lindamood-Bell instruction, the results do not implicitly support the claim that respondent failed to offer a FAPE to petitioner's son or that respondent committed a gross violation of the IDEA (Parent Ex. D at pp. 1-3).  Furthermore, the re-testing results remain consistent with earlier testing conducted by respondent, which found that petitioner's son is a student with a history of cognitive delays and academic deficits partially attributable to his significant learning disability (compare Dist. Ex. 2 with Parent Ex. D).

 

            Testimony presented on behalf of petitioner also fails to demonstrate that respondent committed a gross violation of the IDEA that resulted in the denial of, or exclusion from, educational services for an extended period.  Petitioner's own testimony indicates that her son received special education services continuously since kindergarten (Tr. p. 20).  Moreover, she did not demonstrate how respondent's programs and services were not appropriate ( see  Rowley, 458 U.S. at 201).

 

            To the contrary, respondent's evidence supports their position that they provided the student with multi-sensory and direct instruction, with an emphasis on addressing the student's identified needs in reading, math and writing, as well as addressing his need for phonics, encoding skills, and decoding skills.

 

            In addition, when presented with the opportunity to participate in transitional vocational services through VESID, neither petitioner, nor her son, took advantage of that service.  I urge petitioner and petitioner's son to reconsider services offered through VESID.

 

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

 

            THE APPEAL IS DISMISSED.

 

 

Dated:

Albany, New York

 

__________________________

 

September 8, 2006

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

 

1 A FAPE includes special education and related services designed to meet a student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. 1401[9]; 34 C.F.R. 300.13; see 20 U.S.C. 1414[d]). 

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[9]; see also 34 C.F.R. 300.13; 20 U.S.C. 1414[d]).

 

2 On December 3, 2004, Congress amended the IDEA, and the amendments became effective on July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [2004], Pub. L. No. 108-446, 118 Stat. 2647).  The relevant events in this appeal occurred subsequent to that date, thus, all references to the IDEA refer to the newly amended provisions of the IDEA 2004, unless otherwise specified.

 

3 I note that the impartial hearing occurred after the United States Supreme Court issued its Schaffer v. Weast decision in which the Court held that the "[t]he burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief" (Schaffer v. Weast, 126 S. Ct. 528, 537 [2005]).  Petitioner argued at the impartial hearing, and in her petition on appeal, that the impartial hearing officer improperly placed the burden of production on her as the party seeking relief and that the Supreme Court decision resulted only in placing the burden of persuasion upon the party seeking relief at the impartial hearing.  Based upon a thorough review of the record and independent consideration of the same, it is irrelevant to my determination of the instant appeal which party the impartial hearing officer assigned the burden of production.