97-070

       Petitioner appeals from the decision of an impartial hearing officer which found that respondent had provided her son, who was twenty years old at the time of the hearing, with appropriate transition services, and that the boy was not entitled to receive any additional services from respondent because he had met the requirements for a high school diploma in New Hampshire at the Crotched Mountain School (CMS), a school for children with disabilities approved by the New York State Education Department, in Greenfield, New Hampshire, in June 1996. The hearing officer denied petitioner's claim for compensatory educational services to be provided to her son. The appeal must be sustained in part.

        Preliminarily, I will address the procedural issues in this appeal. Respondent claims that petitioner's notice of intention to seek review was defective because it did not comply with Section 279.2 (a) of the Regulations of the Commissioner of Education and was inaccurate. The purpose of that regulation is to ensure that the record is provided to the State Review Officer. The record in this proceeding was provided. Any omission or misinformation in the notice had no impact on this proceeding. Respondent also claims that the notice of intention to seek review and the petition were untimely. Respondent asserts that the notice was served four days late. Additionally, respondent asserts that the notice with petition and verified petition were served less than 10 days after service of the notice of intention to seek review in violation of 8 NYCRR 279.2(b). Respondent, however, has failed to show that it was prejudiced by the alleged delays. In view of the circumstance, I will exercise my discretion and excuse any delay (Application of a Child with a Disability, Appeal No. 95-20; Application of a Child with a Disability, Appeal No. 97-37).

        Petitioner's son was born on January 27, 1976. He began to have a complex partial seizure disorder at the age of two or three. Petitioner's son attended school through the fifth grade in the Pine Plains Central School District, where he was initially classified as other health impaired. He was subsequently classified as emotionally disturbed in that school district. The boy first entered the Arlington Central School District in 1990, and was referred by petitioner to respondent's committee on special education (CSE). He was classified as other health impaired in March, 1990, and received resource room services and counseling for the 1990-91 school year. The boy was to have continued to receive resource room services and counseling while in the ninth grade at respondent's South Campus High School during the 1991-92 school year. In October, 1991, he was hospitalized in the psychiatric center of St. Francis Hospital. In the spring of 1992, he had surgery to remove a benign left frontal neoplasm from his brain. He reportedly has had no seizure activity since that time.

        Following surgery, the boy was hospitalized at Four Winds Rehabilitation Center (Four Winds) in Katonah, New York, for stabilization and assessment, where he remained for approximately one year. In an evaluation conducted while the boy was at Four Winds, he achieved a verbal IQ score of 73, a performance IQ score of 77, and a full scale IQ score of 77, placing him in the borderline range for cognitive functioning. While at Four Winds, the boy continued his ninth grade studies.

        In October 1992, respondent's CSE began exploring alternate placements for the boy because it did not believe that it had an appropriate placement to address the boy's medical needs. In the spring of 1993, the boy's classification was changed to traumatic brain injury and emotionally disturbed. The CSE recommended that he be placed at CMS in a 12-month residential program which included a class with a student to staff ratio of 6:1:1, individual counseling 60 minutes per week, and group counseling 60 minutes per week. The CSE arranged for the boy's transportation to and from CMS six times per year. In June 1993, the CSE recommended a change in the boy's class size to a class with a student to staff ratio of 12:1:4.

        In September, 1993, respondent's CSE requested that the staff of CMS assist in the development of a transition services statement for the boy (Exhibit SD-36). Both Federal and State regulations require that a statement of needed transition services be included in the IEP. In this instance, the documents prepared by CMS were entitled Individual Transition Plans. In this decision, "transition services statement" will be used. The transition services statement which the CMS staff developed was approved by respondent's CSE on November 4, 1993 (Exhibit SD-1). Neither the transition services statement nor the boy's individualized education program (IEP) is in the record before me. His vocational interests and skills were assessed at CMS during the 1993-94 school year. In February, 1994, a Wide-Range Interest Opinion Test was administered to the boy. In a vocational evaluation completed in April, 1994, the boy achieved a 97 on the Street Survival Skills Questionnaire, indicating that he had adequate knowledge in understanding community-related adaptive skills. This score, combined with the boy's results on the Behavior Rating Scale, suggested that he had the necessary knowledge and skills to function autonomously in the community. A relative weakness, a score in the low-average range, was noted in the boy's knowledge of Tools, Money and Measurement. In addition, the boy scored a 105 on the Emotional Behavior Checklist. The evaluator noted that individuals scoring above 70 rarely have emotional problems that produce significant social or work dysfunction. The boy's results on the McCarron Assessment of Neuromuscular Development (MAND) suggested that he had excellent gross motor functioning, average fine motor skills and a moderate disability coordinating two-handed fine motor tasks. The evaluator indicated that the boy's overall score on the MAND revealed motor abilities consistent with the requirements of many skilled jobs in the community. The boy's scores on the Haptic Visual Discrimination Test, a test that measures an individual's ability to discriminate objects by touch, indicated a low-average to slightly below average ability. However, the evaluator noted that individuals in that range have few problems with sensory discrimination, and most are in community employment. The evaluator concluded that the boy appeared to possess the necessary ability and aptitude structure to learn and perform various skilled jobs in the community, and that he could be expected to live autonomously in the community with minimal need for assistance.

        During the 1993-94 school year, the boy was an active and enthusiastic participant in a horticulture on-the-job training class. In March, 1994, he was employed off-campus at a local nursery. In addition, the boy was placed in the school's apartment program which focused on the development of community living skills such as planning menus and grocery shopping, doing laundry in a laundromat, and budgeting a mock salary. The boy's case manager at CMS reported that the CMS staff were pleased with the way petitioner's son was taking responsibility for himself (Exhibit SD 26). From August, 1993 through March, 1994, the boy worked at the Crotched Mountain Rehabilitation Center (CMRC) kitchen. He reportedly exhibited satisfactory work skills, but he needed assistance with understanding multi-step instructions and developing his adaptive social skills. Further, in April, 1994, an Arlington Central School District Transition Questionnaire for the boy was completed. That document indicated his vocational interests, the areas of independent living in which he needed instruction, his leisure/recreation needs, and the information he would need to learn about financial support.

        The boy's IEP for the 1994-95 school year was developed by CMS in the spring of 1994. CMS recommended continuation of the same placement and related services as the previous school year. That IEP was approved by respondent's CSE. The IEP included a transition services statement which addressed the boy's employment, education, living options, personal family relationships, medical, legal, financial, transportation and recreation/leisure needs (Exhibit SD-31). The transition services statement indicated that he would be provided real work experience. The record reveals that he was employed at a convenience store nine hours per week during after school hours beginning March, 1995. In January, 1995, petitioner applied to the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) for vocational rehabilitation services for her son. Additionally, the boy was receiving case management services from the Taconic Developmental Disabilities Services Office.

        The boy was re-evaluated at CMS in May, 1995. He achieved a verbal IQ score of 89, a performance IQ score of 94, and a full scale IQ score of 91 on the Wechsler Adult Intelligence Scale (Revised), placing him in the average range of intellectual functioning. He was also tested with the Woodcock-Johnson Psychoeducational Battery (Revised). The test procedure was modified in that it was untimed, and on the dictation (spelling) and applied problems (mathematics) subtests questions were repeated several times due to the boy's difficulty in processing information. The evaluator reported that the boy appeared to excel in areas requiring strong visual skills, expressive language, and knowledge of science. Specific weaknesses were identified in skills that required mathematics and auditory processing. Based on the test results, the evaluator opined that the boy appeared to have the potential to continue his education after graduation in a training skills program. She recommended that the boy choose a vocation that did not require much mathematics because of his difficulty in mathematical computation.

        The psychologists who evaluated the boy reported that he exhibited a significant weakness in his general fund of information and that his visual motor integration skills were in the borderline range. It was noted that the boy was sensitive and somewhat socially withdrawn. The psychologists recommended that the boy continue to receive educational and vocational training. It also was recommended that he continue group therapy to practice assertiveness skills and to assist him to process social situations in a more effective and accurate manner.

        The boy's IEP for the 1995-96 school year was developed by CMS, and approved by respondent's CSE in August, 1995. The recommended educational program and placement were the same as for the previous school year, except that the boy's individual counseling was discontinued. The IEP included goals for developing vocational skills and community living skills, which were developed by the CMS staff. One of the goals indicated that he would participate in vocational skills curriculum to obtain the highest level of social skills and independence to prepare him for transition into the community and vocational settings. A second IEP goal was to develop independent living skills in an apartment setting. While no transition services statement was attached to the IEP approved by respondent's CSE, a transition services statement was included in the IEP developed by CMS.

        In January, 1996, CMS notified respondent's CSE that the boy had the necessary credits to graduate from high school in June, 1996. A transition services statement covering the period from April 1996 - June 1996 was completed by CMS. The transition services statement included goals, recommendations, and follow-up actions for continued education, temporary living arrangements pending availability of an apartment, assistance and supervision with bills, community resources, and organization and psychological support services. Respondent's CSE met in March, 1996, at which time it was agreed that a transition meeting would be scheduled for a date during the child's spring break, in April, 1996. Petitioner and her son attended the transition meeting held on April 24, 1996, during which a transition services planning worksheet was completed. A representative from VESID also was in attendance at the meeting. Petitioner was referred to several agencies for assistance with her son's residential, employment, and case management needs after graduation.

        On May 30, 1996, petitioner requested an impartial hearing alleging, that respondent's CSE failed to provide her son with a free appropriate public education (FAPE) as required by the Individuals with Disabilities Education Law (IDEA) because he was not provided with appropriate transition services. The boy was not awarded a diploma in June as anticipated, and continued his placement at CMS for the duration of the 1996-97 school year.

        The hearing commenced on October 1, 1997 and continued for four days over the next several months, concluding on June 26, 1997. The hearing officer rendered his decision on August 12, 1997. The hearing officer found that the child met the requirements to receive a New Hampshire diploma in June, 1996, and that the district had provided appropriate transition services. He rejected petitioner's claim for compensatory education.

        Petitioner challenges the hearing officer's decision on a number of grounds. She contends that respondent failed to provide to her son adequate transition planning thereby depriving him of a FAPE. Specifically, she argues that there is no transition services statement in the record for the 1993-94 school year, and that there was no coordinated set of activities designed to assist her son to achieve his intended outcome in the 1994-95 IEP. With respect to the child's 1995-96 IEP, petitioner asserts that it was developed without her or her son's participation and that it does not include a transition services statement. Petitioner further challenges the transition meetings held in the spring of 1996. She asserts that her son should have been provided transition services in the community in which he planned to live. Additionally, petitioner asserts that there was no determination made with respect to her son's readiness to graduate. She claims that her son should have the opportunity to achieve a New York State diploma.

        State regulation require that the IEP of a child who is at least 15 year old include a statement of the needed transition services (8 NYCRR 200.4[c][2][v]. 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]).

        The record shows that the boy became 15 years of age during the middle of the 1990-91 school year, approximately eight months after the CSE had prepared his first IEP. I note that petitioner has not challenged the adequacy of her son's transition services statement prior to the 1993-94 school year. With respect to the 1993-94 school year, petitioner contends that neither the boy's IEP nor a transition services statement were entered into evidence at the hearing. While that is true, petitioner has not rebutted the testimony by the former CSE chairperson that the transition services statement developed by CMS was approved by respondent's CSE in November, 1993. The record also shows that from August, 1993 through March, 1994, the boy worked stocking shelves and mopping floors in the CMRC kitchen. Additionally, he was enrolled in a horticulture on-the-job training class during that school year. Further, in January, 1994, the boy was placed in the school's apartment program. Although there is no transition services statement for the 1993-94 school year in the record, based on the information before me, I find that the boy participated in activities that were designed to promote independent living and movement from school to post-school activities.

        Petitioner also challenges the transition services statement for her son's 1994-95 school year. She claims that "there was no coordinated set of activities designed to assist the boy achieve his outcome." She also asserts that there is no evidence in the record demonstrating that the CSE adopted the transition services statement developed by CMS for the 1994-95 school year. Although there in no indication in the record that respondent's CSE adopted the transition services statement developed by CMS, the record does show that CMS developed the boy's 1994-95 IEP, which included a transition services statement. That transition services statement identified the boy's interests and included services in the areas of vocational training, community living , and "real work experience". Additionally, the record shows that the boy was employed at a convenience store during that school year, and that contacts were made to adult services agencies during that year. The boy's annual review for the 1994-95 school year was conducted in March 1994, and notes from that meeting indicate that the CSE reviewed reports from CMS. Based on the information before me, I find that the boy received appropriate transition services for the 1994-95 school year, even if the CSE failed to include a transition services statement in his IEP.

        Additionally, petitioner claims that there is no transition services statement in the boy's 1995-96 IEP. The boy's IEP for the 1995-96 school year prepared by CMS included a transition services statement and is in the record. The boy's 1995-96 IEP prepared by respondent's CSE also is in the record. While that IEP does not include the transition services statement, it does include the goals and objectives developed by CMS. The IEP approved by respondent's CSE included goals in art and woodworking, areas in which the boy had an expressed interest. Additionally, there are goals for the boy's transition into the community and vocational settings. Based on the record before me, I find that the boy was provided appropriate transition services for the 1995-96 school year.

        Petitioner also challenges respondent's CSE's transition services planning meeting that took place in the April, 1996. She claims that none of the boy's teachers were present at that meeting, that no transition services were scheduled to be provided in her son's local community, and that the transition services statement developed at that meeting does not meet the minimum requirements of IDEA. Neither Federal nor State law or regulation require that the student's teachers be present at the transition meeting or that the transition services be provided in the student's local community. With respect to petitioner's allegation that the transition services statement developed at the April, 1996 meeting does not meet the minimum requirements of IDEA, I found, as noted above, that appropriate transition services were provided to the boy during the 1995-96 school year.

        The record reflects that the boy's IEPs included his interests, abilities, and possibilities for future employment. The record also shows that referrals were made to outside agencies to ease the boy's transition into the community. I find that respondent's failure to include statements of transition services in the boy's IEPs is a technical defect that does not result in a violation of the IDEA. The boy received appropriate transition services and there was no substantive deprivation of a FAPE ( See Chuhran v. Waled Lake Consolidated Schools, et al., 22 IDELR 450 [U.S. Ct. of Appeals, 6^th Cir. 1995]; Max M.v. Illinois State Board of Education, 629 F. Supp. 504 [N.D. Ill., 1986]). Having found that there was no substantive violation of a FAPE because of a lack of statements of transition services, I find that petitioner is not entitled to an order awarding compensatory education to her son.

        In addition to claiming that the boy's 1995-96 IEP was deficient because it lacked a transition services statement, petitioner asserts that it was developed without her participation or that of her son or his teachers. CMS prepared the boy's IEP for the 1995-96 school year. The record shows that the boy's special education teacher was a participant in the development of that IEP. The record also shows that petitioner was invited to the meeting to discuss the proposed IEP, but she did not attend. However, a signature page was submitted into evidence which indicates her acceptance of the program. Further, the record shows that the boy was invited to the meetings at CMS, but often chose not to participate. Additionally, the record shows that petitioner was invited to the respondent's CSE meeting during which the boy's 1995-96 IEP was developed. Therefore, I find that petitioner and her son were given the opportunity to participate in the development of the 1995-96 IEP.

        Petitioner also claims that her son did not meet the requirements for graduation. She further argues that her son was denied access to a New York State diploma. She asserts that her son's post-high school plan required him to have skills at a level commensurate with his New York State peers and she alleges that the requirements for a New Hampshire diploma are not as rigorous as the requirements for a New York diploma. Before a private school is approved by the New York State Education Department as a school for children with disabilities, it must meet the criteria set forth in the Regulations of the Commissioner of Education to ensure that its programs are consistent with New York State standards. CMS is a school for children with disabilities approved by the New York State Education Department. The record shows that the boy completed the requirements for a Crotched Mountain High School diploma by achieving 20 units of credits as of June, 1996. I note that in New York, a local high school diploma may be awarded upon receipt of 18.5 units of credit, exclusive of physical education (8 NYCRR 100.5 [a][2]). Petitioner did not submit any documentation to support her allegation that the requirements for a New Hampshire diploma are not as rigorous as the requirements for a New York diploma. Petitioner's concerns about the academic standards required by the State of New York or the State of New Hampshire for receipt of a regular education high school diploma are not matters that either the hearing officer or I could address in a proceeding of this nature, which must be limited to the program and services provided by respondent. Upon the record which is before me, I concur with the hearing officer's determination that petitioner's son had earned sufficient credits to receive a high school diploma as of June, 1996.

        Petitioner asserts that she has begun to receive demands from CMS for payment of her son's tuition during the 1996-97 school year. As part of her request for relief, petitioner seeks an order declaring that CMS was the "stay-put" placement throughout these proceedings. The stay-put provision of the IDEA, formerly 20 U.S.C. §1415(e)(3), now 20 U.S.C. §1415 (j) provides that during the pendency of any proceeding conducted pursuant to section 1415, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of the child. The stay-put provision is intended to keep a child in his current educational placement during the pendency of administrative proceeding and judicial action brought under IDEA, or its State counterpart, Article 89 of the Education Law. It exists as a safeguard in all cases to ensure that crucial services are not denied while the substantive issues are being resolved. In Cronin v. East Ramapo Central School District, 689 F. Supp. 197 (S.D. N.Y. 1988), the court found that during the pendency of proceedings that address whether a handicapped student has met the requirements for graduation, the student should remain in his or her present educational placement unless the public agency and the parents of the child agree otherwise. In this proceeding, petitioner has raised several issues concerning the requirements for graduation and whether they were met by her son. Therefore, I find that the boy was entitled to remain at CMS during the 1996-97 school year, and I will sustain petitioner's appeal to the extent of directing respondent to pay for the boy's placement at CMS during the 1996-97 school year.

        I have considered petitioner's other assertions, including her assertion that she received inadequate notice that her son would graduate in June, 1996, which I find to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent shall pay for the cost of the boy's tuition at the CMS for the 1996-97 school year.