93-034

Petitioner appeals from the decision of an impartial hearing officer which held that the individualized education program (IEP) which respondent's committee on special education (CSE) had prepared for petitioner's child did not set forth adequate information to develop an appropriate program and services, and which did not address petitioner's contention that respondent had failed to provide the services included in the child's IEP. The appeal must be sustained in part.

On March 8, 1991, petitioner's child, who was then in the ninth grade, was seriously injured in an automobile accident. The child incurred multiple traumas, including a severe closed head injury for which he has undergone left and right craniotomies. As a result of his head injury, the child has a severe cognitive impairment. He is reportedly unable to communicate with others and requires assistance for all aspects of his daily care. The child, who is a paraplegic, received a tracheostomy to assist him in breathing, and has required extensive medical care for recurrent pneumonia and fever spikes, as a result of a hypothalmic deregulation and recurrent micro-aspiration.

After his initial hospitalization, the child was transferred to a head injury rehabilitation center in Milford, Pennsylvania. He remained in the rehabilitation center until May 27, 1992, except for periods of hospitalization for pneumonia and fever spikes. On September 17, 1991, the child was referred to the CSE by his parents. The record does not reveal what, if any, action was taken by the CSE until March 20, 1992, when the parents consented to the child's evaluation by the CSE. On March 26, 1992, respondent's school psychologist, speech pathologist and occupational therapist evaluated the child in Pennsylvania.

On April 15, 1992, the CSE met with the child's parents and their attorney, to review the evaluation data and to prepare an IEP. However, the child's teacher did not attend the CSE meeting (cf. Application of a Child with a Disability, Appeal No. 93-28). The CSE recommended that the child be classified as other health impaired (8 NYCRR 200.1 [am][10]), and that the child receive a total of two hours per day of special services. The special services which the CSE recommended be provided on a twelve-month basis included speech/language therapy, physical therapy, occupational therapy and special education (described in the child's IEP as "educational related"). The minutes of the CSE meeting reveal that the CSE intended that such services be provided, only if they would not interfere with the child's medical care, and that respondent would contract for the provision of related services by therapists affiliated with the hospital in which the child was then placed. The child's parents accepted the proposed IEP. On May 13, 1992, respondent approved the IEP.

After respondent had approved the child's IEP, respondent's staff attempted to arrange for the delivery of the IEP services by contract with a Pennsylvania school district. However, on May 27, 1992, the child was transferred to a hospital in Syracuse, New York where he underwent a cranioplasty and had a shunt inserted. In June, 1992, following his recovery from surgery, the child was transferred to a rehabilitation facility in Syracuse. Respondent's then CSE chairperson sought and obtained from the child's physicians in Pennsylvania and New York approval to provide the services set forth in the child's IEP.

In July, 1992, a special education teacher employed by the Board of Cooperative Educational Services of Onondaga, Cortland and Madison Counties (BOCES) began providing special education to the child. The teacher recommended to her employer that respondent provide special education and speech/language therapy through the BOCES, but that occupational therapy and physical therapy be given by the staff of the rehabilitation facility. The record does not disclose what, if any, arrangement respondent made to provide speech/language therapy, occupational therapy and physical therapy during the 1992-93 school year. Indeed, the child's IEP for the 1992-93 school year is not included in the record. In a summary of the services which she had provided to the child during the Summer of 1992, the child's teacher noted that the child had been transferred back to the hospital in Syracuse because of his medical condition, but that he had begun to exhibit some responses to auditory stimuli and appeared at times to be capable of visually tracking people who spoke to him. The teacher recommended that the child receive a stimulation program with patterning exercises.

By letter dated November 19, 1992, petitioner requested that an impartial hearing be convened, because of respondent's alleged failure to provide the child with special educational services. On November 24, 1992, respondent appointed a hearing officer. Petitioner requested that the hearing be deferred for six or seven weeks to afford him an opportunity to review materials and prepare for the hearing. The hearing officer granted petitioner's request, and the hearing was thereafter deferred at respondent's request.

By letter dated December 10, 1992, a BOCES administrator informed the then chairperson of respondent's CSE that the BOCES would discontinue providing service to the child until the child's physician informed the BOCES about appropriate programming for the child and the child's current therapy needs, and until the hospital staff provided information about the child's medical condition, current medications, and necessary infection control procedures.

The hearing was scheduled to begin on February 24, 1993, but on that date the parties entered into a stipulation pursuant to which the child's parents agreed to withdraw their request for a hearing and respondent agreed to use its best efforts to implement the IEP which had been developed on April 15, 1992 and to provide the parents with certain information about the child. By letter dated March 19, 1993, petitioner asked the hearing officer to reschedule the hearing. On April 23, 1993, the hearing was held. Respondent offered evidence of the steps which had been taken since the parties entered into the February 24, 1993 stipulation. Respondent's present CSE chairperson testified that the child was not receiving services pursuant to his IEP because the BOCES needed to receive information about the child's medical condition from the child's physician.

In a decision dated June 15, 1993, the hearing officer held that the child's IEP of April 15, 1992 was not prepared with sufficient information to allow the individuals who were to provide services to plan appropriate programs and activities for the child. The hearing officer directed the CSE to prepare an IEP for the 1993-94 school year.

In his reply to respondent's answer, petitioner asserts that respondent's answer and memorandum of law are untimely and should not be considered in this appeal. The record reveals that the petition was served on July 28, 1993. The answer should have been served no later than 10 days thereafter, or August 7, 1993 (8 NYCRR 279.5). The answer was served on August 16, 1993. In a transmittal letter which accompanied the answer and memorandum of law, respondent's attorney asserted that the CSE chairperson was on vacation and unavailable during the preceding week to review and verify the answer. However, an answer of a board of education may be verified by anyone who is familiar with the facts of the underlying appeal (8 NYCRR 275.5). Although respondent's delay in filing its answer and memorandum has not delayed the disposition of this appeal, I find that respondent has not established good cause for its delay. Accordingly, the answer and memorandum will not be considered (Application of a Child with a Handicapping Condition, Appeal No. 92-43).

One other issue must be addressed before reaching the merits of petitioner's appeal. Only 9 of the 88 exhibits annexed to the petition were introduced at the hearing. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer's decision if such evidence was unavailable at the time of the hearing or the record would be incomplete without such evidence (Application of a Child with a Disability, Appeal No. 93-14). Exhibits 1 through 65 to the petition relate to the issue which was before the hearing officer and predate the hearing. Although petitioner has not explained why those exhibits which are not copies of the exhibits in the hearing record were not introduced at the hearing, I find that the record would be incomplete without these exhibits. The record before the hearing officer was extremely limited. Petitioner's exhibits, which are copies of documents in respondent's records, provide useful information about the child's disability and the efforts by respondent to provide services to the child.

The remaining exhibits are redundant, or relate to matters beyond the scope of this appeal, including an educational evaluation of the child in May, 1993, the preparation of the child's IEP for the 1993-94 school year, and petitioner's administrative complaint to the State Education Department about the delay in providing services to the child. Petitioner has requested that an impartial hearing be held to review respondent's action in conducting the May, 1993 educational evaluation. He asks that I consider everything that has happened since the April 23, 1993 hearing, because respondent has allegedly failed to provide a timely hearing with respect to the child's evaluation and his new IEP. However, the appropriate remedy in such instance is an appeal to the Commissioner of Education pursuant to Section 310 of the Education Law (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 64; Application of a Child with a Handicapping Condition, 28 id. 285). Consequently, I have not accepted exhibits 66 through 88, and I do not reach the issues which petitioner raises with respect to the matters which have occurred subsequent to the April 23, 1993 hearing in this appeal.

While not disagreeing with the hearing officer's finding about the inadequacy of the child's IEP, I must nevertheless find that the hearing officer's decision did not address the primary issue in this matter. The central issue in this appeal is whether respondent has met its burden of proving that it has provided a free appropriate public education to the child, i.e., special education and related services which are provided in conformity with the child's IEP (20 USC 1401 [a][18]). Neither party disputes the appropriateness of the services which the CSE included in the child's IEP. Instead, the issue is whether respondent has provided the services set forth in the child's IEP. A board of education must list all of the services to be provided to the child in the child's IEP and must provide those services, either directly or indirectly through contracts with other agencies (34 CFR 300, Appendix C, Questions 44-46).

At the hearing in this appeal, the CSE chairperson asserted that speech/language therapy, physical therapy and occupational therapy may have been provided to the child by the hospitals and rehabilitation facilities in which he has received care. However, the chairperson conceded in her testimony that the CSE had no record of the extent to which the services had been provided and could not establish whether such services had been provided to address the child's medical needs or his IEP goals and objectives. The service described in the child's IEP as "educational related" was intended to increase the child's environmental and visual stimulation and his responsiveness and level of arousal to stimulation, and the provider of the service was given the responsibility of coordinating the efforts of other service providers and providing progress reports approximately once per month to the CSE. Respondent presented evidence that it had provided this service through the BOCES teacher, from July to December, 1992, although it failed to demonstrate the frequency with which the service had been provided and conceded that the service had been unilaterally discontinued by the BOCES.

State regulation requires that a CSE must provide its recommendation within 30 days after receipt of parental consent to the initial evaluation of a child or 40 days after receipt of a referral, whichever period ends earlier (8 NYCRR 200.4 [c]). If parental consent is not promptly received, State regulation requires that the CSE initiate an impartial hearing to determine whether the child should be evaluated without parental consent (8 NYCRR 200.5 [b][2]). A board of education must provide appropriate programs and services within 30 days after receipt of the CSE's recommendation, or within 60 days if an in-state or out-of-state private school is recommended. Upon the record before me, I must find that the CSE failed to make a timely recommendation. The child was referred to it in September, 1991, and the CSE did not make a recommendation until April, 1992.

When the CSE did make its recommendation, the child was receiving care in Pennsylvania, and the record reveals that respondent did take steps to arrange for the delivery of services to the child in Pennsylvania. Upon the child's return to New York for surgery, I find that it was reasonable for the CSE to ascertain from the child's new physicians whether the child's IEP services should be provided. The child's subsequent hospitalization and change of primary physicians during the Summer of 1992 may well have afforded a basis for further inquiry by the CSE about the appropriateness of providing IEP services. However, the record reveals that on October 7, 1992, respondent received a written statement from the child's physician that respondent should deliver the educational services set forth in the child's IEP. The BOCES was respondent's agent in providing the child's IEP services (Application of a Child with a Handicapping Condition, 20 Ed. Dept. Rep. 300). The BOCES' unilateral termination of the services of the child's special education teacher did not absolve respondent of its responsibility to provide services to the child.

Petitioner requests that respondent be directed to provide either additional services during the 1993-94 school year or compensatory education beyond the child's twenty-first birthday. Compensatory education is a permissible remedy under the Individuals with Disabilities Education Act (20 USC 1400 et seq.) 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. 2d 1071 [2nd Cir., 1988]; Mrs. C. v. Wheaton, 916 F. 2d 69 [2nd Cir., 1990]; Lester H. v. Gilhool, 916 F. 2d 865 [3rd Cir., 1990]; Miener v. State of Missouri, 800 F. 2d 749 [8th Cir., 1986]). The child will remain eligible to receive services from respondent through the 1996-97 school year. In view of his continuing eligibility to receive services and the impossibility of predicting whether the child will be able to achieve his educational goals by age 21, I find that petitioner's request for compensatory education must be denied (Application of a Child with a Handicapping Condition, Appeal No.91-12; Application of a Child with a Handicapping Condition, Appeal No. 91-38).

Petitioner's request for additional services during the 1993-94 school year may be an appropriate equitable remedy for respondent's failure to provide the services which the CSE recommended and respondent approved (Application of a Child with a Handicapping Condition, Appeal No. 91-12; Application of a Child with a Handicapping Condition, Appeal No. 92-40). However, there is no basis in the record for me to ascertain either the harm which 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 would receive pursuant to his IEP for the 1993-94 school year. I shall direct respondent to immediately provide the child with the four services listed on the child's April 15, 1992 IEP, and I shall also direct the CSE to review the child's program and recommend additional amounts of services to enable the child to address any deficiency caused by respondent's failure to provide services, as found in this decision.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that within 15 days after the date of this decision, respondent shall provide the child with each of the four special services set forth in the child's IEP dated April 15, 1992, and shall continue to provide such services until such IEP is superseded by the implementation of an IEP for the 1993-94 school year,

IT IS FURTHER ORDERED that within 30 days after the date of this decision the CSE shall recommend appropriate services to be provided to the child consistent with the tenor of this decision.