98-065

      Petitioner appeals from an impartial hearing officer's decision dismissing her claim for compensatory relief for her son because of respondent's failure to provide a computer for the boy's use during the 1995-96 school year. The impartial hearing officer dismissed petitioner's claim on the grounds that petitioner should have raised the claim while her son was still in high school, so that respondent could have rectified its mistake, and that petitioner had not demonstrated that respondent was guilty of a gross procedural violation of the Individuals with Disabilities Education Act (IDEA). The appeal must be dismissed.

        Petitioner's son, who is nineteen years old, graduated from the Seton Catholic Central High School (Seton) in June, 1998. The boy attended the private school at his parents' expense for four years. Petitioner initially referred her son to respondent's committee on special education (CSE) in September, 1995, as the boy was beginning the tenth grade. One of respondent's school psychologists reported that the boy's verbal reasoning skills were in the borderline range, and his nonverbal reasoning skills were in the average range. On a standardized achievement test the boy achieved standard scores of 70 for reading, 78 for mathematics, and 76 for spelling. The school psychologist recommended that the child be classified as learning disabled in the areas of reading and written expression.

        On November 21, 1995, the CSE recommended that petitioners' son be classified as learning disabled in the areas of reading decoding and comprehension, and written expression. The CSE recommended that the boy be educated in regular education tenth grade classes, but that he be exempted from the foreign language requirement for graduation, and that he have the benefit of certain testing modifications. The individualized education program (IEP) which the CSE prepared indicated that the CSE had considered recommending consultant teacher and resource room services, but had concluded that neither special education service was appropriate for the boy. The CSE also recommended that the child receive a vocational assessment, which was subsequently performed. The IEP included briefly worded and very general annual goals for improving the boy's reading decoding and comprehension skills, and his writing skills, as well as a series of goals related to his transition from high school to adult living.

        In accordance with the provisions of 8 NYCRR 200.4 (c)(2)(vii), the boy's IEP for the 1995-96 school year included a description of the specialized equipment and adaptive devices he would need. That portion of the IEP indicated that he should have the " ... use of a computer for written work" (Exhibit 10). The IEP did not include any annual goal or short-term objective for becoming proficient in using a computer for written work. I note that in a report to the CSE, one of the boy's teachers at Seton had indicated that written assignments were difficult for the boy, and suggested that he might benefit from using a word processor and a spelling checker (Exhibit 13). The teacher, who is Seton's special education director, provided instructional support to the boy throughout his four years at Seton. She appeared with petitioner at various CSE meetings and served as petitioner's advocate at the hearing. All references in this decision to the child's teacher are to that individual.

        At the hearing in this proceeding, respondent's then CSE chairperson testified that the CSE was aware that the boy did not have keyboarding skills, and that it had relied upon the recommendation by the Seton staff that the child's use of a computer could bolster his writing skills. He further testified that he and his fellow CSE members had assumed a computer was available for the child's use at Seton. In any event, respondent did not provide a computer or software to the child or to Seton during the 1995-96 school year. The chairperson also testified that petitioner had not complained about the lack of a computer until the CSE conducted its annual review of the child on June 11, 1996.

        In a letter to the CSE chairperson dated June 11, 1996, petitioner requested that her son be provided with a computer and printer for research papers and assignments, and computer software to help him in English, applied mathematics, U.S. history and government courses (Exhibit 29). At the annual review, the boy's teacher at Seton submitted a written report of the boy's educational program and performance, as well as samples of his written work. She asked why a computer and printer had not been provided to the child by respondent. The CSE chairperson testified that the CSE was surprised by the teacher's question, and wanted to learn more about the child's needs and what was already available to him at Seton. He also testified that the CSE wished to ascertain whether it could lawfully provide a computer to be used in a sectarian school, and whether other school districts had made such equipment available to students attending Seton, as the child's teacher had informed the CSE. The CSE meeting was adjourned until July 11, 1996. I note that at the hearing, the CSE chairperson acknowledged that the child's teacher had told him at the CSE meeting that the computers in Seton were unavailable for the child's use.

        By letter dated June 19, 1996, the CSE chairperson asked the child's teacher how many computers and printers were available for instructional purposes at Seton, and the number of students who used them. He also asked how the computers had been obtained by the school, and sought certain information about books which had been requested for the child's use during the 1996-97 school year. The principal of Seton responded with a letter indicating that none of Seton's computers had been provided by respondent, and that the CSE had already received sufficient information about petitioner's request for equipment and instructional material for her son.

        The CSE reconvened on July 11, 1996. At that meeting, the child's teacher suggested that the child be provided with a laptop computer and a printer, as well as certain computer software (Exhibit 52). The minutes of that meeting (Exhibit 35) indicate that the CSE questioned the child's teacher about the availability of computers in Seton for the child's use, and that the members of the CSE, except for the child's teacher, believed that they had insufficient information to decide upon petitioner's request for a computer and printer. The child's IEP from that meeting (Exhibit 38) indicated that: "The use of a computer for this student should be explored during September and reviewed at the CSE by the end of September." The IEP also indicated that the child would be educated in regular education classes for the eleventh grade during the 1996-97 school year, and specified various test modifications which should be employed for his benefit. Although the CSE had not recommended that a computer and printer be provided, two objectives for an IEP annual goal to improve the child's writing skills were to develop effective keyboarding skills and word processing skills. The CSE chairperson testified at the hearing that he believed that the child was to take a keyboarding course, which included word processing skills, at Seton.

        The CSE met with petitioner, the child's teacher, and the child's guidance counselor on September 24, 1996. On the preceding day, the CSE chairperson had written to the child's teacher indicating that " ... our difficulties about the use of computers have come from a misunderstanding. The IEP indicates that [the child] use a computer for written work. In our daily use of the IEP, that means that the student uses available computers, already in existence in the school. When it was developed, the IEP did not mean to the Committee that [the child] be given a computer for his personal use" (Exhibit 49). The child's teacher submitted a written rationale for the child's use of a computer to improve his writing skills (Exhibit 50). The CSE meeting minutes (Exhibit 53) indicate that the CSE considered petitioner's request for a computer, and concluded that provision of a personal laptop computer was not appropriate at that time. The child's IEP for the 1996-97 school year continued to indicate that he should develop effective keyboarding skills as well as word processing skills. Respondent approved the CSE's recommendation on October 10, 1996. Petitioner did not challenge the CSE's recommendation by requesting an impartial hearing.

        In preparation for the CSE's next annual review of the boy at the end of the 1996-97 school year, his teacher at Seton prepared a progress report in which she indicated that the boy still experienced difficulty with writing, especially spelling, and that he could benefit from a word processor (Exhibit 62). She also noted that the boy had passed the Regents Competency Test in Reading and Writing in January, 1997. On June 3, 1997, the CSE conducted its annual review and prepared the boy's IEP for the 1997-98 school year (Exhibit 63). The CSE recommended that the child continue to be classified as learning disabled in reading decoding and comprehension and written expression. It recommended that he be educated in regular education classes, without any special education or related services, but that various testing modifications be used with him. The IEP included the statement that: " The use of a Personal Laptop Computer was explored and its provision not considered appropriate at this time." Once again, the boy's IEP indicated that he should increase his skills in the use of a computer as a means of improving his written expression skills, and that he should develop effective keyboarding skills and word processing skills.

        A copy of the boy's IEP together with a notification of due process rights was sent to the boy's parents on or about July 11, 1997. Petitioner did not request a hearing to review the CSE's recommendation. However, she apparently corresponded with respondent about the provision of a computer to her son. In a letter to petitioner dated December 23, 1997 (Exhibit 67) respondent's new CSE chairperson briefly summarized the meetings which had been held since the boy was classified as learning disabled in November, 1995, and she opined that the boy did not appear to need the use of a computer in order to receive a free appropriate public education because of his success on the Regents Competency Test in Writing. I note that the boy's report card for the 1997-98 school year indicated that he completed a year-long keyboarding course at Seton.

        On February 26, 1998, the boy was re-evaluated by a school psychologist, who reported that the boy was functioning in the average intellectual range, with a relative weakness in processing verbal and visual information. He indicated that the boy learned best through repetition and long-term exposure to the material. The boy achieved standard scores of 92 for reading, 92 for mathematics, and 96 for spelling. On a test of the boy's visual motor organization skills, the boy achieved a standard score which was three standard deviations below the mean for his age group. The school psychologist recommended that the child remain classified as learning disabled, and that he receive personal counseling to help him develop a realistic assessment of his own ability.

        On March 25, 1998, the CSE met with petitioner, the boy's teacher, and the boy's guidance counselor. The boy's teacher reported that the boy was at risk of dropping out of school, and that his parents wanted respondent to provide a special education teacher to assist him at Seton. He was reportedly at risk of failing one of his 12^th grade subjects, and continued to have difficulty preparing accurate notes, maintaining an assignment book, and taking tests (Exhibit 77). Petitioner wrote a letter to the CSE chairperson on March 25, 1998 formally requesting the assignment of a special education teacher to her son. She indicated that she had not received a response from respondent about why it had denied her prior request for a computer for her son (Ibid.). The CSE recommended that the child attend a resource room program in respondent's high school before his first class in the morning at Seton.

        By letter dated April 1, 1998, an attorney representing petitioner asked respondent for an impartial hearing because petitioner believed that her son should receive support services from respondent at Seton, and because he should have received "technological support services" which had been denied him at a prior CSE meeting. Five days thereafter, the CSE chairperson notified the boy's parents that a certified special education instructor could begin providing resource room support to their son at Seton on April 20, 1998 (Exhibit 83). One of respondent's school psychologists, who is also a certified special education teacher, provided resource room services to the boy at Seton from April 20, 1998 until June 9, 1998. In a letter to the CSE chairperson dated May 5, 1998, petitioner's attorney indicated that petitioner had withdrawn her request for a hearing with regard to the issue of providing instructional support to the boy, but that she wished to pursue the issue of respondent's alleged neglect in failing to provide the boy with appropriate technical assistance. The attorney indicated that she would no longer be representing petitioner in that matter. Petitioner wrote to the CSE chairperson on May 26, 1998 asking for a hearing with regard to respondent's failure to provide her son with assistive technology.

        On May 28, 1998, respondent appointed an impartial hearing officer in this proceeding. The hearing was held on July 20, 1998. In her opening statement, petitioner's lay advocate asserted that respondent's failure to provide appropriate assistive technology to petitioner's son had impeded the boy's ability to achieve his IEP goals. When asked by the hearing officer what remedy petitioner sought, the advocate indicated uncertainty about whether an immediate return to school would be appropriate for the boy. However, she suggested that the hearing officer could require respondent to pay a sum of money which would be sufficient to enable the boy to enroll in a technical school at some point in the future. She also suggested that the boy be "given assistive technology" to prepare him to communicate in the future. Respondent contended that the boy had never needed assistive technology as a special education service, and that in any event, petitioner's claim for such service was untimely.

        In his decision which was dated September 10, 1998, the impartial hearing officer found that there was no legal requirement for a school district to furnish a computer to a private school for the use of a student whose parents had chosen to place him in that school (see Russman by Russman v. Mills, 150 F. 3d 219 [2d Cir., 1998]). However, he noted that respondent had chosen to rely on the defense that petitioner's claim for compensatory relief was not supported by equitable considerations because of petitioner's delay in asserting her claim. The hearing officer agreed that if the use of a computer had been necessary for the boy to receive an appropriate education, equity required that petitioner assert her claim while her son was still in school, in order to afford respondent an opportunity to rectify its mistake in not providing a computer to the child. He also held that a claim for compensatory education could be sustained only upon a showing of gross procedural violations of the IDEA by respondent, and he found that there were no such violations in this case.

        Petitioner contends that her claim for relief should not be barred for equitable reasons because she had exhausted every administrative remedy she was aware of prior to requesting an impartial hearing. She asserts that respondent was aware of her dissatisfaction with its failure to provide a computer for her son's use, and asks that I find that respondent committed gross procedural violations of the IDEA. Petitioner also asserts that respondent's negligence in failing to meet her son's needs was the proximate cause of foreseeable harm to the boy because his career options have been restricted.

        I must note that claims of negligence and/or educational malpractice are outside the scope of a proceeding pursuant to IDEA and its State counterpart, Article 89 of the Education Law. Although petitioner has not explicitly requested an award of compensatory monetary damages as the relief which she seeks in this appeal, I must point out that such relief is not available in this kind of a proceeding (Stellato v. Bd. of Ed. Ellenville Central Sch. Dist., 842 F. Supp. 1512 [N.D. N.Y., 1994]; Wenger v. Canastota Central Sch. Dist., 979 F. Supp. 147 [N.D. N.Y., 1997]). This is not an instance in which a parent of a child with a disability is seeking reimbursement for the cost of appropriate special education and related services which the parent obtained for the child after a school district failed to provide appropriate services.

        Petitioner's son graduated from high school shortly after petitioner requested that an impartial hearing be held. Respondent is not obligated to provide post-graduate instruction pursuant to the IDEA (Wexler v. Westfall Board of Education. 784 F. 2d 176 [3d Cir., 1986]; Gorsky v. Lynchburg School Board, 875 F. 2d 315 [4^th Cir., 1989]), or Article 89 of the New York State Education Law (Matter of a Handicapped Child, 20 Ed. Dept. Rep. 368; Application of a Child with a Disability, Appeal No. 94-31). However, the boy's receipt of a high school diploma does not affect his right to receive an award of compensatory education, i.e., special education services to be provided to a student after he or she is no longer eligible because of age or receipt of a high school diploma to receive services from a school district. Compensatory education is a permissible remedy under the IDEA, if the student has been excluded from school or denied appropriate 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 [8^th Cir., 1986]), or the school district has committed gross procedural violations (Garro v. State of Connecticut, 23 F. 3d 734 [2d Cir., 1994]).

        I find that respondent's CSE recommended that petitioner's son have the use of a computer for doing his written school work during the period from November 21, 1995 through the end of the 1995-96 school year. A board of education is responsible for providing the special education and related services which its CSE has specified on a child's IEP as necessary for the child to receive a free appropriate public education (34 CFR Part 300, Appendix C, Question 45). Assistive technology, including the training necessary to use a specific device, may be a part of a child's free appropriate public education. Although there is an interesting question presented by the fact that the boy had been placed in a sectarian school by his parents for the year in question, I do not reach that issue since respondent has chosen to rely upon the equitable defenses of waiver and laches.

        Respondent contends, and the hearing officer so found that it would be inequitable to award relief to petitioner's son because petitioner did not request a hearing about the issue until May, 1998, almost two years after the end of the 1995-96 school year. Respondent relies upon certain decisions of the State Review Officer citing Bernardsville Board of Education v. J.H., 42 F. 3d 149 (3d Cir., 1994) and Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 (1990) for the proposition that a parent should give a school district prompt notice of his or her dissatisfaction with the services which have been offered or provided to a child so that the district has an opportunity to rectify its mistake. As noted above, petitioner contends that respondent was well aware of her dissatisfaction with its failure to provide a computer for her son to use.

        Having examined the record which is before me, I note that there is no written evidence of any expression of dissatisfaction until June 11, 1996, when petitioner wrote a letter to the CSE chairperson requesting that a computer and software be provided for the 1996-97 school year, and observing that it had not been provided by respondent during the 1995-96 school year (Exhibit 29). At the hearing, petitioner admitted she had received the notification of her due process rights, which respondent had mailed to her after the CSE's initial recommendation on November 21, 1995 that the boy be classified and that he have the use of a computer for written school work. The boy's teacher at Seton testified that she had discussed the issue of respondent providing a computer with the then CSE chairperson on a number of decisions during the 1995-96 school year. Those discussions reportedly began in December, 1995. The CSE chairperson for the 1995-96 school year did not dispute the teacher's testimony that discussions had taken place, but he testified that the CSE had not received any complaint about the failure to provide a computer until shortly before the CSE's annual review in June, 1996. At that time, it was too late to do anything to rectify respondent's omission.

        Although the CSE promised to look into the matter at its June and July, 1996 CSE meetings, it was clear by the time of the CSE's September, 1996 meeting that respondent was not going to do anything about its error during the 1995-96 school year. However, petitioner did not invoke the due process procedures until shortly before her son graduated in June, 1998. While I do not condone respondent's failure to provide the assistive technology which its CSE had recommended, I find that this proceeding should have been commenced more promptly so that some meaningful relief could have been provided to the boy before his graduation from high school.

THE APPEAL IS DISMISSED.