92-040

Petitioners appeal from the determination of an impartial hearing officer rejecting petitioners' claim that their child should receive compensatory educational services as the result of alleged procedural and substantive violations by respondent in providing educational services to the child during the 1991-92 school year. The appeal must be sustained in part.

Petitioners' seven year old child has been diagnosed as having neuro-fibromatosis, a genetic disorder which has impaired her hearing. In an audiological evaluation performed at the State University of New York Health Center in Syracuse, New York on August 7, 1991, the child was found to have a mild to severe, mixed bilateral hearing loss, which was consistent with the results of prior evaluations. The child had relatively mild loss of hearing in the lower frequencies, but a significant hearing loss in the high frequencies. The evaluator recommended that the child use an auditory trainer, i.e. a FM amplification system, in the classroom, and be seated within ten feet of her teacher. The parties do not dispute the child's classification as hard of hearing (8 NYCRR 200.1 [ff][6]).

The child attended a special education preschool program. During the 1990-91 school year, the child was classified as hard of hearing, and attended respondent's Peterboro Street School, where she was placed in an "Option 1 Primary 1" special education class, consisting of 12 children, a teacher, and an aide. By letter dated May 31, 1991, respondent's pupil personnel services director advised petitioners that respondent's committee on special education (CSE) would meet on June 10, 1991, to recommend that for the 1991-92 school year the child be classified as speech impaired and remain in her Option 1 class for first grade and receive speech therapy as a related service. The director's reference to the child's classification was erroneous. At its June 10, 1991 meeting, the CSE recommended that the child remain classified as hard of hearing, and continue in the Option 1 class for all instruction, except mathematics, art, music, physical education, and library. The CSE recommended that the child receive speech therapy within and outside the classroom for a total of eight sessions per week. The CSE further recommended that the child use FM auditory equipment to enhance her ability to hear in the classroom. The child's individualized education program (IEP) provided that signing, i.e. sign language, would be used with the child for visual prompting and clarification, as necessary. Petitioners accepted the child's IEP for the 1991-92 school year, and the child remained in the Option 1 Primary 1 special education class for such year.

Petitioners obtained private audiological and speech evaluations of the child. In the private speech evaluation completed on October 28, 1991, the evaluator found that the child responded appropriately to oral questions when visual clues were given, but did not always respond appropriately in the absence of visual clues. The speech evaluator reported that the child knew 65 signs used in sign language. The evaluator, who was not aware that the child used signing in the classroom, recommended that a certified teacher of the deaf and hearing impaired be employed to provide instruction through the total communication method, or in the alternative, that the child be provided with the services of a sign language interpreter. The evaluator further recommended that a psychological evaluation employing non-verbal test techniques be performed, and that the child receive daily speech/language therapy. The evaluator also recommended that a speech therapist assist the child's teacher with language development techniques.

Respondent invited specialists, including a school psychologist and a special therapist, from the New York State School for the Deaf at Rome, New York (NYSSD) to observe the child and offer recommendations for respondent's program for the child. In a January 13, 1992 letter, a NYSSD administrator recommended that the child continue using a FM auditory system in class to reinforce her residual hearing, and that she receive instruction to remediate gaps in her language. While noting that the total communication methodology could provide the child with an additional mode of learning, the NYSSD administrator cautioned against permitting the child to become reliant upon visual clues to the detriment of her auditory skills. The administrator further recommended that respondent consider contracting with a board of cooperative educational services (BOCES) or NYSSD for the consultant services of a teacher of the deaf and hearing impaired. For the future, the administrator recommended that respondent prepare for an additional loss in the child's hearing ability, and prepare to provide the child with more content-oriented instruction as she progresses to secondary school education. The administrator suggested that petitioners and respondent should explore program options which could include the use of an interpreter and/or tutor, and to contrast such program options with a program designed for the hearing impaired.

The NYSSD staff opined that respondent's school psychologist could adequately evaluate the child, because the child did not rely primarily on signing for communication. In an evaluation completed on January 15, 1992, the school psychologist found that the child functioned within the average range of cognitive ability. The school psychologist's evaluation of the child's academic skills revealed that the child was functioning at the appropriate grade level in all areas, except mathematical applications. Although the child displayed some manipulative and avoidant behavior, the school psychologist opined that the child was appropriately placed and might be able to achieve future success in a full-time regular education program with appropriate supportive services.

At a January 27, 1992 meeting, the CSE reviewed the NYSSD recommendations and the results of the child's psychological evaluation. The CSE also began to plan for the possibility that the child's educational needs might change if her hearing disability became more severe. Although the private speech evaluator testified that the child's hearing loss had increased during the period from February, 1991 to August, 1991, there is no evidence in the record of any subsequent loss of the child's hearing. The CSE recommended that the child be provided with three sessions of direct and two sessions of indirect consultant teacher services per week by a teacher of the deaf and hearing impaired, and that the child's speech therapy program focus upon increasing the child's ability to use signs in class. On February 11, 1992, respondent approved the CSE's recommendation.

Respondent's director of pupil personnel services attempted to obtain the services of a consultant teacher of the deaf and hearing impaired through two BOCES and NYSSD. However, the director testified at the hearing that he ultimately engaged the services of a teacher of the deaf and hearing impaired who was on family leave from her regular employment in another school district and who could not provide services on a consistent basis. The consultant teacher observed the child in her special education and regular classes, in February and March, 1992. In March, 1992, the consultant teacher provided in-service instruction to respondent's staff, for whom the consultant explained how deafness affects the development of a child's language skills and provided the staff with information about how to communicate with hearing impaired children. The consultant met once per month during April through June, 1992 with the child and her teachers.

After observing the child twice, the consultant teacher prepared a report in which she noted that the child successfully used a variety of techniques to acquire information, and that the child's speech was intelligible. While opining that the child's program for the 1991-92 school year was appropriate, the consultant teacher recommended that the child's sign language vocabulary be increased, to prepare for the possible future loss of her hearing. The consultant teacher opined that, in any event, the child would have difficulty learning solely by speechreading and listening as her academic demands increased in the upper elementary grades. The consultant recommended that the child's teachers and petitioners be given instruction in the use of sign language, and that respondent's staff receive in-service education concerning hearing impairment and the effect of hearing loss upon speech development. The consultant further recommended that speechreading and auditory training be gradually added to the child's program. On March 16, 1992, the consultant teacher and the child's speech therapist prepared an addendum to the child's IEP which set forth goals to be achieved through the use of consultant teacher services.

At petitioners' request, a CSE meeting was scheduled to be held on March 31, 1992, for the purpose of discussing the consultant teacher services. However, the chairperson of the CSE, who was also respondent's director of pupil personnel services, canceled the meeting because respondent had not hired a consultant teacher for the child. On April 13, 1992, petitioners requested that an impartial hearing be held.

At the hearing which was held on July 17 and 31, 1992, petitioners asserted that the process by which the child's IEP had been prepared was flawed, and that the IEP was inadequate with regard to improving the child's signing skills, instruction for the hearing impaired and the provision of an interpreter. Petitioner further asserted that respondent had not properly implemented the provisions of the child's IEP.

In a decision dated September 12, 1992, the hearing officer found that no parent member of the CSE had participated in the June 10, 1991 CSE meeting at which the child's IEP for the 1991-92 school year had been prepared. The hearing officer further found that the child's level of functioning in socialization, the social sciences and auditory skills had been improperly omitted from the child's IEP. The hearing officer noted that the IEP inexplicably set forth objectives for the child's instruction in subjects for which the child was mainstreamed. However, the hearing officer found that petitioners had received adequate notice of the CSE's recommendations, and that respondent had not denied the child a free appropriate public education (20 USC 1401 [a][18]), notwithstanding respondent's inability and/or failure to provide the amount of consultant teacher services recommended by the CSE.

Petitioners challenge the manner in which the child's IEP for the 1991-92 school year was amended, the contents of the child's IEP, and the alleged failure of respondent to implement the amended IEP. Before reaching the issue of the January, 1992 amendment of the IEP, I find that the preparation of the 1991-92 IEP was flawed because the CSE meeting at which the IEP was prepared did not include all of the required members. Section 4402 (1)(b)(1) of the Education Law requires each board of education to establish a CSE composed of at least a school psychologist, a teacher or administrator of special education, a school physician and a parent of a child with a handicapping condition. The presence of the physician member at a meeting of the CSE is not mandatory, unless requested by a child's parents. However, a board of education may not dispense with the attendance of the other members of a CSE. Although the IEP prepared at the June 10, 1991 CSE meeting does not list either a school psychologist or a parent member of the CSE as participants at the meeting, the chairperson of the CSE testified at the hearing that the school psychologist was present at the meeting. However, there is no evidence in the record that a parent member of the CSE attended the June 10, 1991 meeting. The usual remedy for a failure to have a validly composed CSE would be to remand the matter to the CSE to prepare a new IEP (Application of a Child with a Handicapping Condition, Appeal No. 91-41). In this instance there is no purpose in doing so because the 1991-92 school year has concluded.

Petitioners assert that the CSE abdicated its responsibility to prepare amendments to the child's IEP, because amendments to the IEP adding goals to improve the child's ability to use signing and goals to be achieved through the addition of a consultant teacher were not prepared at a CSE meeting. The child's speech therapist testified at the hearing that the improvement of the child's signing ability was discussed at the January 27, 1992 CSE meeting, but that she prepared two additional goals for the child's IEP, within a few days after the January 27, 1992 meeting. The speech therapist and the consultant teacher testified that, on or about March 16, 1992, they met with the child's special education teacher for the purpose of amending the child's IEP to reflect the services to be provided by the consultant teacher. At the hearing, the CSE chairperson testified that the CSE had discussed providing the child with three periods of direct consultant teacher service and two periods of indirect consultant teacher services, but that the CSE members believed that they lacked the expertise to prepare an IEP amendment to provide such services. The chairperson acknowledged that the March 16, 1992 IEP amendment had not been prepared at, or reviewed during, a CSE meeting.

Federal and State regulations require that a child's IEP be prepared by a CSE, with the participation of the child's parents (34 CFR 300.415[a]; 8 NYCRR 200.4[c][3]). The official interpretation of the Federal regulations states in material part, that:

"The IEP meeting serves as a communication vehicle between parents and school personnel, and enables them, as equal participants, to jointly decide what the child's needs are, what services will be provided to meet those needs, and what the anticipated outcomes may be." (34 CFR 300, Appendix C, I. a. Purpose of the IEP)

Although a board of education may make minor scheduling changes in a child's program without additional CSE meetings (34 CFR 300, Appendix C, Question 51), short term IEP objectives cannot be changed without holding additional CSE meetings (Id., Question 43). I find that the January and March 1992 amendments to the child's IEP were invalidly added to the child's IEP. I further find that the CSE erred in not honoring petitioners' request to meet with the CSE in March, 1992. Although CSE meetings to prepare or amend a child's IEP are initiated and conducted at the discretion of the CSE, no reasonable parental request for a meeting should be denied (Id., Question 11).

Petitioners assert that the January and March 1992 amendments of the child's IEP are defective because they do not set forth all required information, including the dates upon which the services will be initiated, the duration of the services, and the amount of services to be provided. Although new goals were written to provide for the child's use of signing, no new special education service was added by the January, 1992 amendment. Therefore, no initiation date, duration or amount of service was required for the January IEP amendment. The addition of consultant teacher services to the child's IEP was noted on the IEP as a March 31, 1992 update, adding: "Teacher - Hrg. Imp. 3/92 - 6/92 (5 sessions/week)". The child's IEP does not define the length of a "session". I hold that the IEP was defective because the notation "5 sessions/week" does not comply with the requirement that an IEP specify the amount of time per day that a child will receive a special education service (8 NYCRR 200.4 [c][2][v]).

Petitioners further assert that the IEP annual goals relating to the child's use of signing and the services to be provided by the consultant teacher are too general to address the specific needs of the child, and that the IEP short term objectives are so vague that they do not provide a reliable mechanism for assessing the child's progress towards her goals. The IEP annual goal for signing states that the child ..."will improve expressive/receptive signing skills." There are two annual goals listed for the use of consultant teacher services: "to increase staff knowledge of hearing impairment and related needs of the hearing impaired...and..[the child] will increase her expressive and receptive communication skills." Annual goals must be consistent with a child's needs and abilities in all areas in which the child requires special education, and must be sufficiently specific to provide direction to the child's teachers concerning the expectation of the CSE (Application of a Child with a Handicapping Condition, Appeal No. 92-21; Application of a Child with a Handicapping Condition, Appeal No. 91-25). I find that the annual goals are too general and do not meet this standard with respect to the child's instruction in signing and in the direct consultant teacher services to be provided to the child. The IEP amendments also do not specify the present level of the child's ability to use signing (cf. 34 CFR 300.346 [a][1]). Such information is necessary in order to establish a frame of reference for measuring the child's future performance through annual goals and short term objectives.

Petitioners assert that respondent failed to provide them with adequate notice of the CSE's January 27, 1992 recommendation, because the CSE chairman's letter of February 12, 1992, to them did not describe what other options had been considered and rejected by the CSE. Federal regulation requires that the written notice which a local education agency gives to a parent concerning a change in, or a refusal to change, a child's educational program include an explanation of why the agency proposes or refuses to act, and a description of any options which the agency considered and the reasons why those options were rejected (34 CFR 300.505[a][2]). In this instance, the child's private speech evaluator had recommended in October, 1991 that the child be taught by a certified teacher of the deaf and hearing impaired, or that she have the services of a sign language interpreter on a full-time basis. Members of the CSE testified at the hearing that the evaluator's recommendation had been considered by the CSE at its January 27, 1992 meeting, but not adopted by the CSE. I find that respondent did not comply with the Federal regulatory notice requirement (Application of a Child with a Handicapping Condition, Appeal No. 92-3).

Petitioners assert that the hearing officer erred by not finding that respondent had denied the child a free appropriate public education (20 USC 1401[a][18]), as a result of its procedural violations in preparing and amending the child's IEP and its conceded failure to provide the five sessions per week of consultant teacher services pursuant to the January 27, 1992 recommendation. Petitioners' assertion that their child was deprived of a free appropriate public education is intended to provide a basis for the relief they seek, which they have denominated as compensatory education. The courts have concluded that compensatory education, i.e., special education services to be provided to a child after the child is no longer eligible because of his or her age to receive such services, is a permissible remedy under the Individuals with Disabilities Education Act, when a child has been excluded from school or denied appropriate services for an extended period of time (Burr by Burr v. Ambach, 863 F.2nd 1071 [2nd Cir.,1988]; Mrs. C. v. Wheaton, 916 F.2nd 69 [2nd Cir.,1990]); Lester H. v. Gilhool, 916 F.2nd 865 [3rd Cir. 1990]; Meiner v. State of Missouri, 800 F2nd 749 [8th Cir., 1986]). Compensatory education, like tuition reimbursement, is an equitable remedy for the failure of a school district to provide that which it was obligated, but failed, to provide (Miener v. State of Missouri, supra).

In this appeal, petitioners do not seek additional services for the child after she has become twenty-one. Instead, they request that respondent be ordered to provide both direct and indirect consultant teacher services from a teacher of the deaf and hearing impaired in an amount equal to that which the child would have received if respondent had fully implemented the CSE's recommendation during the Spring of 1992, and that such services be provided in addition to the special educational services which the child is receiving while in a regular education first grade class during the 1992-93 school year. Although the requested remedy is not literally compensatory education, as that term has been used by the courts, I nevertheless hold that equitable considerations compel the conclusion that there should be a remedy for the failure to provide the services which the CSE recommended and respondent approved (Application of a Child with a Handicapping Condition, Appeal No. 91-12).

By petitioner's calculations, the child should have received 45 direct and 30 indirect sessions of consultant teacher services, between March 12, 1992, which was 30 days after respondent approved the CSE recommendation, and the end of school on June 25, 1992. They assert that the consultant teacher temporarily employed by respondent provided no more than 3 direct and 6 indirect sessions of service during that time period, and request an order requiring respondent to provide the remaining 42 direct and 24 indirect sessions of consultant teaching services. However, the requested approach fails to be an appropriate remedy because the degree of injury or harm is indeed undecipherable from this record. Indeed, there is no basis in the record for me to ascertain either the harm or damage that has resulted from respondent's failure to provide services, or to determine whether the requested services would be meaningful or compatible with the services which the child is presently receiving. Therefore, instead of merely ordering a specific amount of consultant teacher services be provided, I shall direct respondent to convene its CSE with the assistance of an independent evaluator who is certified as a teacher of the deaf and hearing impaired, for the purpose of reviewing the child's performance in her present program. The CSE shall recommend such additional services as will enable the child to address any deficiency resulting from the failure of respondent to provide past services, and to successfully complete the regular first grade curriculum in the 1992-93 school year. The CSE should consider the use of an interpreter and/or tutor, as recommended by the NYSSD, as well as a more consistent use of a program of total communication for the child. The CSE's recommendation shall be developed at a meeting conducted in accordance with the requirements of Federal and State regulations, and shall result in an IEP which meets the requirements of such regulations.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is annulled, and that within 30 days of the date of this decision, respondent's CSE shall have the child independently evaluated by a certified teacher of the deaf and hearing impaired and shall recommend such additional services as will enable the child to address any deficiency resulting from the failure of respondent to provide past services, and to successfully complete the regular first grade curriculum during the 1992-93 school year.