97-035

       The Board of Education of the Sachem Central School District appeals from the decision of an impartial hearing officer which ordered it to pay for the cost of two years of vocational, social skills, and independent living skills training for respondent’s daughter, notwithstanding the fact that the girl had graduated with a local high school diploma from petitioner’s schools. The hearing officer premised his order upon a finding that the girl required the additional training as compensatory education because the Sachem committee on special education (CSE) had failed to do any formal transition planning for her while she was in high school. The board of education also appeals from the hearing officer’s sua sponte determination that the girl had been inappropriately classified as learning disabled. The hearing officer found that the girl should have been classified as mentally retarded. The appeal must be sustained in part.

        Respondent’s daughter, who is twenty years old, was reportedly born seven weeks prematurely. She reportedly achieved her developmental milestones at the appropriate times. At the time of her referral to the CSE in the fall of 1983, the girl reportedly had difficulty following directions and processing information, and was described as being very restless and manipulative. Although she was reported to be functioning in the borderline range of intelligence, with a verbal IQ of 85, a performance IQ of 63, and a full-scale IQ of 72, the child was found to be reading at a mid-second grade level. The psychologist who evaluated the child cautioned that her evaluation should not be considered to be an accurate assessment of the child’s cognitive ability because the child’s low motivation and high stress had depressed her test scores. The child’s mathematics skills were at a mid-kindergarten level. The girl was classified as learning disabled by respondent’s CSE. She retained that classification throughout elementary and secondary school.

        The child reportedly received resource room services in the second and third grades. She reportedly continued to receive resource room services for the fourth, fifth, and sixth grades while enrolled in the Patchogue Medford Union Free School District, where her mother lived. Shortly after beginning the seventh grade in that school district, the girl returned to her father’s house, and was re-enrolled in petitioner’s schools, where she was placed in a modified seventh grade program, and received resource room services five times per week. In a psychological evaluation which was performed in November, 1989, shortly after her return to petitioner’s schools, it was noted that the child had been receiving private psychotherapy to address issues arising from her parents’ divorce. The girl achieved a verbal IQ score of 82, a performance IQ score of 60, and a full-scale IQ score of 70. However, the psychologist who performed the evaluation opined that the child’s test scores did not accurately reflect her ability. The girl was reported to have weaknesses in visual perception, and difficulty performing tasks measuring social alertness and attention to detail, as well as difficulty applying logic and reasoning to spatial relationships. The school psychologist reported that the child had deficits in her visual motor integration and visual memory skills. The girl achieved grade equivalent scores of 6.7 for reading, 10.1 for spelling, and 5.4 for mathematics. Her expressive writing sample was described as being adequate, but too brief. On projective tests, the child revealed that she was anxious and somewhat fearful, and was frustrated with learning from time to time. The girl requested in-school counseling.

        During the 1990-91 school year, respondent’s daughter was enrolled in a modified eighth grade program in petitioner’s Sagamore Junior High School. Her individualized education program (IEP) indicated that she was to receive resource room services two-to-three times per week, and individual counseling once per week. The IEP also indicated that in November, 1989, the girl had achieved grade equivalent scores of 5.5 for total reading and 5.0 for total mathematics. At the hearing in this proceeding, respondent testified that he had hired tutors to work with his daughter for ninety minutes, three times per week, during the seventh and eighth grades.

        For the 1991-92 school year, the child was enrolled in the ninth grade in the Sachem High School, North, where she passed each of her regular education courses, and received resource room services. Her mathematics and sciences courses were modified regular education courses, while her English, Spanish and global studies were non-Regents track regular education courses. At the hearing, the girl’s resource room teacher testified that respondent’s daughter was an extremely diligent student, who had struggled with mathematics. Nevertheless, the record indicates that the girl passed the Regents Competency Tests in mathematics and science during the 1991-92 school year. In February, 1992, the girl achieved grade equivalent scores of 5.2 for reading, and 6.5 for mathematics. The child continued to receive private tutoring and counseling.

        During the 1992-93 school year, respondent’s daughter was again enrolled in regular education courses, two of which, global studies and biology, were modified courses. She passed each of her courses. Although she failed the Regents Competency Test in global studies in June, 1993, she passed that examination in August, 1993. In April, 1993, the child’s triennial psychological evaluation was performed. She achieved a verbal IQ score of 73, a performance IQ score of 54, and a full scale IQ of 61, which was within the mentally deficient range of intellectual functioning. The psychologist who evaluated the child attributed the child’s lower IQ scores to the fact that a different test with new norms had been used. Unlike the girl’s prior evaluators, the psychologist did not opine that the IQ results were an inaccurate assessment of her cognitive skills. As in her prior evaluations, the child evidenced perceptual deficits. The child’s evaluator reported that the girl had evidenced an extreme deficit in verbal and non-verbal measures of social comprehension. On the PIAT-R, the child achieved grade equivalent scores of 8.5 for total reading, and beginning seventh grade for mathematics. It should be noted that on the Stanford Diagnostic Reading Test which was administered to her in February, 1993, the girl had achieved a grade equivalent score of 5.2, while her grade equivalent score on the Stanford Diagnostic Math Test had been 6.5. Projective psychological testing revealed that the girl was emotionally immature, and was experiencing overwhelming anxiety, related to male-female relationships, trust of others, her keen awareness of academic demands. Although she desired to have social contact with others, the girl had not developed adequate social skills. The child’s resource room teacher for the 1991-92 and 1992-93 school years reported that the child had done well academically, and had benefited from receiving resource room services. She recommended that the girl continue to receive resource room services five times per week.

        For the eleventh and twelfth grades, the child attended the Sachem High School, South. She was enrolled in regular education English 11, general algebra, Spanish 3, and health classes, as well as modified regular education history, and chemistry classes during the 1993-94 school year. She received resource room services five times per week, as well as private tutoring at respondent’s expense. In February, 1994, the girl received grade equivalent scores for reading which ranged from 2.9 for literal and inferential comprehension to 7.9 for vocabulary. Her grade equivalent score for total mathematics was 5.4. Respondent’s daughter passed each of her courses, as well as the Regents Competency Tests in reading and writing. She failed the Regents Competency Test in U.S. History in June, 1994, but passed it in August, 1994.

        For her senior year during the 1994-95 school year, respondent’s daughter was initially enrolled in regular education classes, with supplemental instruction provided in a resource room five times per week. Her IEP indicated that she was to receive either individual or group counseling twice per month. As in previous school years, her IEP provided that she was to have extended time limits and separate testing locations, and could use a calculator for tests. It also provided that all test questions/directions on reading tests, and the entire test in non-reading exams, would be read to her. In the late fall of 1994, respondent was summoned to school because his daughter was reportedly wandering the hall, crying, and hearing voices. The girl was admitted to the Adolescent Unit of the John T. Mather Memorial Hospital in Fort Jefferson, New York, where she remained for approximately one month.

        In December, 1994, the child was reassigned from regular education mathematics, English, and history classes to petitioner’s "skills", i.e., special education, classes for those subjects. She received academic credit for her work in the skills classes, and was awarded a local high school diploma in June, 1995, because she had reportedly earned 28 units of high school credit. That figure apparently included three credits for the resource room services which she had received during her first three years of high school. However, even without those credits, respondent’s daughter had earned sufficient credits, and had passed the requisite Regents Competency Tests, to be awarded a local high school diploma (see 8 NYCRR 100.5 [a]).

        On June 20, 1995, notwithstanding the girl’s impending graduation from high school, the CSE recommended that respondent’s daughter be enrolled in the Vocational Independence Program (VIP) of the New York Institute of Technology (NYIT) during the 1995-96 school year. NYIT is a post-secondary educational institution. VIP students must have completed their secondary education, and must have learning disabilities (Exhibit 8). Students in the VIP reportedly receive academic, vocational, and independent living training, and students in the second and third year of VIP have work experience in which they are assisted by job coaches. The IEP which the CSE prepared indicated that the girl would be fully mainstreamed, but receive resource room services five times per week, and counseling five times per week. Her IEP indicated that the girl needed remediation in mathematics and needed to prepare for the Regents Competency Tests. It also indicated that she had to develop social relationships, learn to communicate with peers and adults, and learn appropriate social behavior. For the first time, the IEP included a proposed transition plan to prepare her for life after her schooling was completed.

        Petitioner approved the CSE’s recommendation, and it reportedly paid the NYIT the sum of $18,741.40 for the child’s instruction in the VIP at NYIT. Respondent paid for the girl’s room and board during the 1995-96 school year, and for the cost of summer programs at NYIT in 1995 and 1996. On July 1, 1996, petitioner’s newly appointed Coordinator of Student Services and CSE chairperson notified respondent that petitioner would not fund any more of the child's VIP at NYIT, because it had no legal obligation to do so after she had received a high school diploma. On July 23, 1996, respondent, through his attorney, requested that an impartial hearing be held to review the CSE's failure to prepare the girl's IEP for the 1996-97 school year.

        The hearing began on September 12, 1996, and it concluded on January 30, 1997. At the hearing, the board of education acknowledged that its CSE had failed to include transition planning in the child's IEPs, as it was required to do by Federal and State regulations (34 CFR 300.346 [b]; 8 NYCRR 200.4 [c] [2] [v]). However, it contended that the child had been compensated for any omission by the CSE because she had received one year of service in the VIP of NYIT, at petitioner's expense. Respondent argued that the CSE's failure to do any transition planning for the child in her sophomore, junior, or senior years, required a more significant remedy than the one year of post-graduate services which the board of education had paid for at the NYIT.

        In his decision which was dated April 21, 1997, the hearing officer found that the information contained in the child's evaluations indicated that she was not learning disabled, but was instead mildly to moderately mentally retarded. He further found that respondent was aware that his daughter was mildly to moderately mentally retarded from certain private reports and assessments which he had not shared with the CSE. The hearing officer held that the child had been classified, and as a consequence, she had not been provided with an educational program which met her educational needs. He noted that the child, through her strenuous effort, was able to benefit academically from her educational program, but found that her intense effort to succeed academically had been at the expense of her emotional and social development. The hearing officer further noted that State regulation required that transition planning and services be provided to children with disabilities by the age of fifteen, but that the CSE had failed to provide the child with any written plan for transition services until she was eighteen and about to enter the VIP at NYIT. He found that the CSE was obligated to do transition planning for the child, regardless of her father's seeming disinterest in the matter. With regard to the 1995-96 school year, the hearing officer found that the academic and academic counseling/tutoring services which the child had received in the VIP were unnecessary because of her previous academic performance in petitioner's high school. He rejected respondent's argument that petitioner had agreed to pay for three years of services in the VIP, but held that the one year of compensatory services which the board of education had paid for in the VIP was inadequate, in light of the fact that the child should have received transition services for a three-year period. The hearing officer concluded that petitioner was obligated to provide two additional years of funding for vocational, social skills, and independent living skills training for respondent's daughter, subject to a financial credit for the cost of the child's academic and academic/tutoring services during the 1995-96 school year.

        The board of education contends that the hearing officer's determination was erroneous, in light of all the circumstances. Petitioner asserts that the hearing officer should not have addressed the issue of the child's classification, in light of the fact that her father had not challenged the classification, and indeed, did not want her to be classified as mentally retarded. I note that respondent's attorney did not raise the issue of the child's classification in her opening statement. When questioned by the hearing officer, respondent's attorney indicated that the girl's classification had never been challenged (Transcript, page 124). Nevertheless, respondent, through his attorney, indirectly raised the issue with frequent references to the results of the girl's IQ tests, and the validity of the high school diploma which she had received. Although I share the hearing officer's misgivings about the appropriateness of the girl's classification as learning disabled, I must point out that the classification of a student as mentally retarded for educational purposes cannot be made solely upon the results of IQ tests. To be classified as mentally retarded, the child must have concurrent deficits in adaptive behavior (34 CFR 300.7 [a] [5]; 8 NYCRR 200.1 [mm] [7]). The record which is before me supports an inference that respondent's daughter had concurrent deficits in her adaptive behavior. However, there does not appear to have been any formal assessment of her adaptive behavior. For that reason, I will set aside the hearing officer's determination with regard to the appropriateness of the child's classification. In doing so, I must note that I am unpersuaded by petitioner's argument that it was inequitable for the hearing officer to address the child's classification. Petitioner's CSE had an affirmative obligation to appropriately classify the child, regardless of her parent's preference.

        With regard to the issue of compensatory education for respondent's daughter, I must first note that she was entitled to receive educational services from the board of education until the age of twenty-one, unless she received a high school diploma (see Sections 3202 [1] and 4401 [1] of the Education Law). The hearing officer found that the girl had validly earned a local high school diploma, based upon his review of her high school transcript, and the testimony by the child's guidance counselor that the "skills" courses which the girl took in her senior year were creditable towards earning a high school diploma. Although respondent expressed doubt about the validity of the grades which his child achieved, I find that there is no basis to inquire into petitioner's academic standards, or the standards which the Board of Regents have imposed for graduating from high school with a local diploma (Application of a Child with a Disability, Appeal No. 94-31). However, that is not dispositive of the matter.

        Respondent is not precluded from seeking an award of compensatory education because his daughter has graduated from high school. 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 age to receive such services, is a permissible remedy under the Individuals with Disabilities Education Act, when the child has been excluded from school, or denied appropriate educational services for an extended period of time (Burr by Burr v. Ambach, 863 F. 2d 1071 [2d Cir., 1988]; Mrs. C. v. Wheaton, 916 F. 2d 69 [2d Cir., 1990]; Lester H. v. Gilhool, 916 F. 2d 865 [3d Cir., 1990]; Miener v. State of Missouri, 800 F. 2d 749 [8th Cir., 1986]). Compensatory education is an equitable remedy for the failure of a school district to provide that which it was obligated to provide, but failed to provide (Miener v. State of Missouri, supra). Compensatory education may be awarded when a child has been denied a free appropriate public education (FAPE) which he or she is entitled to receive. The term FAPE has been defined as special education and related services which are provided without charge to the child's parents, and meet with standards of the state educational agency, and which are provided in conformity with the child's IEP (20 USC 1401 [a][18]).

        While acknowledging that its CSE failed to develop a transition plan for respondent's daughter while she was in high school, petitioner asserts that the girl should not have been awarded the relief of compensatory education by the hearing officer, because she was not denied appropriate educational services over an extended period of time. However, a transitional plan and the services which may have been related to that plan should have been a part of the FAPE which petitioner was obligated to provide to this youngster, who clearly had significant needs with respect to her vocational skills, social skills, and her independent living skills, during her last three years in high school. Transition services are defined by Federal regulation as:

" (a) ... a coordinated set of activities for a student, designed with an outcome-oriented process, that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.

(b) The coordinated set of activities described in paragraph (a) of this section must...

(1) Be based on the individual student's needs, taking into account the student's preferences and interests; and,

(2) Include needed activities in the areas of:

(i)    Instruction;

(ii)    Community experience;

(iii)    The development of employment and other post-school adult living objectives; and

(iv)    If appropriate, acquisition of daily living skills and functional vocational evaluation (34 CFR 300.18 [a]+[b]).

        Although the CSE failed to do transition planning, or to provide transaction planning, or to provide transition services, for a three-year period, it does not follow that the child is necessarily entitled to receive three years of compensatory education (Parents of Student W. v. Puyallup School District, 31 F. 3d 1489 [9^th Cir., 1994]). Instead, I will consider all of the circumstances. With regard to the girl’s vocational training needs, I note that her resource room teacher for the ninth and tenth grades testified that the child would have been more appropriately placed in a BOCES vocational training program, than the college preparatory program she pursued in high school. The girl’s guidance counselor for the eleventh and twelfth grades briefly testified about one vocational exploration class in which the child had participated. However, the Director of VIP testified that the girl’s vocational skills were almost non-existent when she entered VIP. He further testified that the girl required additional years of training, after which she still might not be ready for competitive employment. Instead, she might have to be placed in a structured work place, with the assistance of a job coach. I note that the record indicates that VIP provides that type of experience to its students in the second and third years of the program (Exhibit 10).

        The child’s social needs were known to the Sachem CSE for some time. Having compared the description of her social needs in her tenth grade IEP (Exhibit 1) with the description of those needs in her IEP for the 1995-96 school year in VIP (Exhibit 14), I must note that there appears to have been little progress in addressing those needs. Her social needs, such as learning appropriate social behavior, communicating with peers and adults, and building satisfactory interpersonal relationships, were essential in order for her to function successfully after she graduated from high school. The girl’s ninth and tenth grade resource room teacher testified that the girl was immature, and would be vulnerable when out on her own. When she entered VIP, the girl’s social skills were still very poor, according to the testimony of the Director of VIP. The written report by the girl’s social counselor at VIP (Exhibit 26) indicated that the girl’s social functioning had improved during the 1995-96 school year, but she needed to enhance her skills to become an autonomous individual.

        The girl’s independent living skills were apparently not assessed while she was in high school. The Director of VIP testified that respondent’s daughter functioned fairly well in terms of meeting her basic daily needs, but she continued to need assistance in getting around the community, banking and budgeting, and she had just begun to receive instruction in cooking. Respondent also testified about his daughter’s extensive independent living skill deficits.

        Upon the record which is before me, I find that the child continued to have a significant need for vocational skills, social skills and independent living skills training, notwithstanding the one year of training which she received in VIP during the 1995-96 school year. The extent of her need is a reflection of the fact that petitioner failed to provide appropriate special education services to her over an extended period of time while the girl was in high school. Consequently, I concur with the hearing officer’s determination that respondent’s daughter should receive an additional two years of training to develop her vocational skills, social skills, and independent living skills, at petitioner’s expense, subject to a credit for its payment for her academic training during the 1995-96 school year in VIP.

        I have considered petitioner’s other arguments, which I find to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that it determined that respondent’s daughter should have been classified as mentally retarded.