Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Mount Sinai Union Free School District
Kevin A. Seaman, Esq., attorney for respondent
Petitioner appeals from the decision of an impartial hearing officer which found that respondent had met its obligation to provide her son with a free appropriate public education during the 1994-95 school year, and had adequately implemented the boy's individualized education program (IEP) for that school year during the next two school years as his "pendency" IEP during the hearing in this proceeding. The hearing officer dismissed petitioner's claim for reimbursement for her expenditures for private tutoring and speech/language therapy which she obtained for her son, and her request that respondent be ordered to provide compensatory education for at least three school years. He also dismissed petitioner's claim that respondent had violated her son's rights pursuant to Section 504 of the Rehabilitation Act of 1973 (29 USC 794). The appeal must be dismissed.
Respondent argues that the appeal must be dismissed as untimely because the petition was served upon it on or about October 29, 1998, approximately six months after the hearing officer rendered his decision on March 9, 1998. Petitioner acknowledges that her petition was served well in excess of the 40 day period prescribed by 8 NYCRR 279.2 (b), but she asserts that she served her notice of intention to seek review upon respondent within 30 days after receipt of the hearing officer's decision as required by the regulation, and that respondent was therefore on notice that the hearing officer's decision would be appealed. Petitioner also asserts that the hearing was conducted over a two-year period, resulting in a transcript of almost 6000 pages and 358 exhibits, and that the hearing officer took approximately five months to render his decision. She notes that she took this case over from her former attorney, and that she is employed on a full-time basis and had had surgery during the period when she was preparing the appeal. Respondent argues that petitioner's six-month delay was unreasonable, notwithstanding the other demands on her time. While the delay in filing the petition was extensive, I agree with petitioner that respondent was on notice that an appeal would be taken from the hearing officer's decision. Given all of the circumstances, including the fact that there is no evidence of harm to respondent as a result of petitioner's delay, I will excuse her delay and accept her petition.
Respondent also argues that each of the pertinent issues "as framed by the hearing" have become moot because petitioner unilaterally withdrew her son from respondent's schools without notice to its committee on special education (CSE) in September, 1997 (cf. 20 USC 1415 [b]), and because petitioner's son graduated from a private school in June, 1998. Petitioner contends that respondent failed to provide her with the procedural safeguards notice specified in 20 USC 1415 (d). The provisions of the Individuals with Disabilities Education Act (IDEA) upon which respondent relies were added June 4, 1997, approximately two years after this proceeding was commenced, and I find that they do not apply in this instance. Petitioner acknowledges that her son has graduated from high school, but she contends his graduation did not render her appeal moot.
The State Review Officer is not required to determine issues which are no longer in controversy, or to make a determination which would have no actual effect on the parties (Application of a Child with a Handicapping Condition, Appeal No. 91-45; Application of a Child Suspected of Having a Disability, Appeal No. 95-60). Although this proceeding was commenced to review the appropriateness of this boy's IEP for the 1994-95 school year, I find that there are issues which have not become moot because of the passage of time and the boy's graduation. Petitioner has raised due process claims concerning the hearing officer's appointment and his alleged bias against her during the hearing. Petitioner's due process claims must be considered, even if her claims about her son's educational program are moot (Heldman v. Sobol, 962 F. 2d 148 [2d Cir., 1992]; Hiller v. Bd. of Ed. Brunswick CSD, 687 F. Supp. 735 [N.D. N.Y., 1988]). In addition, petitioner seeks monetary reimbursement for certain expenditures. Her claim for reimbursement survives her son's graduation (University of Texas v. Camenisch, 451 U.S. 390 ), as does her claim for compensatory education.
There is an another issue about the scope of this appeal which requires clarification, especially in light of a previous State Review Officer's decision regarding claims asserted pursuant to Section 504 of the Rehabilitation Act of 1973. In 1992, the State Review Officer noted that the U.S. Department of Education had opined that Section 504 issues could be decided in a hearing held under the IDEA, unless State law precluded that result (18 IDELR), and that New York law did not preclude that result (see Application of a Child Suspected of Having a Handicapping Condition, 30 Ed. Dept. Rep. 433). In that decision, which decided two appeals from an IDEA hearing officer's decision, the State Review Officer went on to review and uphold the hearing officer's determination about the child's rights under Section 504 (Applications of the Bd. of Ed. of the Ramapo CSD and a Child Suspected of Having a Handicapping Condition, Appeal Nos. 92-5 and 92-6). However, more recent decisions of the State Review Officer have held that an IDEA hearing may be used to resolve Section 504 claims, but that New York State law makes no provision for an administrative review of hearing officer decisions involving Section 504 claims (Application of a Child with a Disability, Appeal No. 96-37; Application of a Child with a Disability, Appeal No. 97-80; Application of the Bd. of Ed. of the Ramapo CSD, Appeal No. 98-36). I find that I lack jurisdiction to consider petitioner's Section 504 claims.
Petitioner's son is 19 years old. He was initially evaluated by a school psychologist and a speech/language therapist in 1988, when he was in the second grade. Although there is some confusion in the record about whether the child had been referred to the CSE at that time, I note that the school psychologist who evaluated the child testified that the boy had been referred to the CSE. In his report, he noted that the child's teacher had reported that the child did not follow directions and did not complete assignments, but had made considerable academic progress during the school year. The school psychologist reported that the child was of average intellectual ability and was academically achieving at a rate commensurate with his ability. He noted that respondent's speech/language therapist had reported that there was a weakness in the child's receptive language vocabulary skills, but the psychologist opined that the child did not have a learning disability. The school psychologist testified that the CSE determined that the child was ineligible to be classified as a child with a disability.
In September, 1990, as the boy was entering the fifth grade, his parents referred him to the CSE because he was reportedly having difficulty concentrating. He was seen by a psychiatrist who opined that the boy appeared to have an obsessive compulsive disorder (P-60). I note that the boy was subsequently diagnosed by another psychiatrist as having an Attention Deficit Disorder (ADD) in July, 1991 (Exhibit P-27). In November, 1990, a school psychologist reported that the boy had achieved a verbal IQ score of 106, a performance IQ score of 102, and a full scale IQ score of 104. On one test of his ability to retain and recall sequenced auditory events, the child scored in the borderline range. However, on a second test of that skill, his performance was much better. The school psychologist reported that the child's long-term memory skills were in the above average range. The child's visual motor/fine motor skills were slightly below his expected age level. Projective testing revealed that the child was anxious. The school psychologist noted that in October, 1990, the child had achieved grade equivalent scores of 4.9 for reading, 5.9 for mathematics, and 4.3 for written language, and recommended that the child not be classified as a child with a disability.
The CSE classified the boy as emotionally handicapped, and recommended that he receive three hours of resource room services per week and one session of counseling per week (Exhibit P-30). At the hearing, one of respondent's school psychologists explained that the boy had been classified as emotionally handicapped because he was perceived to be very anxious at times and over-involved in details, which interfered with his functioning (Transcript, page 1114).
During the 1991-92 school year, the boy remained classified as emotionally handicapped. His IEP for that school year indicated that his reading comprehension and mathematics skills were more than one year below grade level (Exhibit P-31). The boy was placed in a self-contained special education class with a 15:1 child to adult ratio for the sixth grade. The CSE recommended that he receive counseling once per week during that school year. On the Kaufman Test of Educational Achievement (KTEA) in the spring of 1992, the boy achieved percentile scores of 86 for reading decoding, 70 for reading comprehension, 34 for mathematical computation and 81 for mathematical application.
The boy remained in a self-contained class for the seventh and eighth grades during the 1992-93 and 1993-94 school years, respectively. He was mainstreamed for social studies and English, as well as for special subjects such as home and careers, during the seventh grade. He was also enrolled in a "skills" class for extra instruction in reading and writing. The boy's report card (Exhibit P-250) indicates that he received generally satisfactory grades during the 1992-93 school year, although he did not do well on his final exams in English and social studies. He was mainstreamed for English, social studies, Spanish, and special subjects in the eighth grade.
The boy's triennial psychological evaluation was performed in December, 1993. The school psychologist noted that the boy was reportedly taking Ritalin for his ADD, and he reported that the boy was cooperative during testing but appeared to be anxious about failing to perform correctly (Exhibit P-9). The boy achieved a verbal IQ score of 97, a performance IQ score of 91, and a full scale IQ score of 93. The school psychologist reported that the boy's low scores on certain IQ subtests could have been affected by his attention span and distractibility. He noted that the boy was achieving academically in his special and regular education classes at a rate which was commensurate with his cognitive ability. The psychologist also reported that the boy's affect was within the normal range on projective testing, but that he did evidence signs of anxiety.
The boy's classification was changed from emotionally handicapped to other health impaired at a CSE meeting held on January 31, 1994 (Exhibit P-252). His placement did not change, but the CSE recommended that he be further evaluated. In April, 1994, petitioner's son was evaluated by a neuropsychologist, who described the boy as pleasant and cooperative but behaviorally immature. The neuropsychologist noted that the boy manifested anxiety and problems with his self-image, but he opined that this was secondary to his school performance. He reported that the boy had difficulty with his organization and problem solving skills, and with aspects of his memory, all of which are typical of children with ADD. The neuropsychologist opined that petitioner's son also had a phonological processing disorder which affected his ability to read phonetically and to spell. He also offered certain suggestions for the boy's instruction in a resource room program, and for his regular education teachers to use when they taught the boy (Exhibit P-12).
The California Achievement Tests were administered to the boy in April, 1994. He achieved grade equivalent scores of 7.6 for reading vocabulary, 10.5 for reading comprehension, 8.4 for language mechanics, 2.9 for expression, 9.3 for spelling, 8.5 for mathematical computation, 7.3 for mathematical applications, and 11.7 for study skills. According to the boy's eighth grade report card (Exhibit RR), he received final grades of 72 for English, 74 for social studies, 79 for Spanish, 83 for mathematics, and 90 for science.
The boy's IEP for the 1994-95 school year was prepared at an annual review held on June 22, 1994. At the hearing in this proceeding, the CSE chairperson testified that it was agreed that the boy should be mainstreamed, with resource room services, during the 1994-95 school year. The boy's IEP indicated that he would receive five 45-minute sessions of resource room services per week, as well as one 30-minute session of group counseling per week. An addendum to the IEP (page 2A) indicated that he would be trained to use a computer for word processing and to use spell checking software for spelling, and that he would have a note taker for every class and be given copies of overheads used by his teachers in class. In addition, the IEP provided that the boy's resource room teacher would meet with his parents on a monthly basis and that his teachers would communicate with the parents on a daily basis via a homework assignment book. The CSE chairperson testified that it was also agreed that the boy's parents, their attorney, and the boy's private tutors would draft some instructional objectives for the IEP, which he and the school psychologist member of the CSE subsequently reviewed and approved. The boy's parents and their attorney signed the IEP (Exhibit P-15).
On November 1, 1994, the boy's parents asked the CSE to provide after-school tutoring for their son, which the CSE unanimously declined to recommend for the boy. By letter dated February 21, 1995, petitioner's then attorney requested that an impartial hearing be held pursuant to the IDEA because petitioner's son had allegedly been denied a free appropriate public education (FAPE), as well as a Section 504 hearing because respondent had allegedly failed to make reasonable accommodations for the boy. The attorney suggested that the two hearings be held concurrently (Exhibit P-42). The two matters were consolidated into a single proceeding. However, the hearing did not begin until July 11, 1995. On July 29, 1995, the hearing officer recused himself on the ground that there was at least a perception that he had exhibited a bias in conducting the hearing.
The hearing resumed before another hearing officer on October 11, 1995. The parties attempted to reach a settlement of their differences through a proposed IEP for the remainder of the 1995-96 school year. The boy was in the tenth grade in respondent's high school during that school year. I note that the CSE had met with the boy's parents and their attorney on June 15, 1995 to prepare an IEP for the 1995-96 school year (Exhibit C), and that the IEP was not acceptable to the parents. In that IEP the CSE recommended that the boy receive resource room services five times per week, forty minute sessions, while enrolled in regular education classes. The parties' attempt to settle their dispute in the fall of 1995 produced a "conditional IEP" (Exhibit P-178), but the attempt was ultimately unsuccessful, as was another attempt which they made in August, 1996.
In October, 1996, petitioner's then attorney sought to have the hearing officer decide whether respondent and its agents had acted in bad faith with regard to the negotiations to settle the matter, and to have him order that the negotiated but still conditional IEP be implemented. By interim order dated October 17, 1996, the hearing officer rejected the attorney's request to proceed with an investigation of the motives of the respondent and its agents, and he ruled that the boy's pendency placement during this proceeding would be dictated by the boy's 1994-95 IEP which had been the last mutually agreed upon IEP. Petitioner appealed from that determination. In Application of a Child with a Disability, Appeal No. 96-86, the hearing officer's pendency determination was upheld.
The hearing in this proceeding continued until July 24, 1997. In his decision which was rendered on March 9, 1998, the hearing officer held that his earlier pendency determination was the law of the case and would not be reopened. He upheld the appropriateness of the boy's IEP for the 1994-95 school year, and rejected petitioner's claims that her son required some one-on-one instruction and should have received speech/language therapy. Noting that the IEP had also been used for the next two school years, he found that it was also appropriate for those years. The hearing officer dismissed petitioner's claim that her son's grades from the seventh through the eleventh grade did not accurately reflect his achievement and that the boy had been socially promoted. He found that respondent had met its burden of proving that it had provided a FAPE to the boy because the record demonstrated that the boy had passed his courses and earned high school credit in a manner which was consistent with his cognitive potential. In doing so, the hearing officer rejected petitioner's claims that her son's IEP had not been implemented properly because there had been more than five students in the boy's resource room class and tutoring had not been provided. The hearing officer did find that there had been minor lapses in complying with the IEP, such as providing notes for each class.
The hearing officer denied petitioner's request for reimbursement for the cost of private tutoring which she had obtained for her son because respondent had proven that it had provided an appropriate educational program to the boy. Similarly, the hearing officer dismissed her claim for an award of compensatory education because there had been no gross violation of her son's rights under the IDEA, as well as her request that respondent be ordered to place the boy in a school outside the school district. He summarily rejected petitioner's claim that respondent had violated Section 504 of the Rehabilitation Act of 1993.
Petitioner challenges the manner in which the hearing officer was appointed. She asserts that respondent's list of approved hearing officers consisted of only three names in July, 1994, and only two names at respondent's next annual organizational meeting in July, 1995. A board of education's rotational list of hearing officers should include the names of all certified hearing officers who were available to serve in the district (8 NYCRR 200.2 [e]). However, a challenge to a hearing officer's appointment should be raised promptly at the beginning of the proceeding. The record reveals that the hearing officer asked whether there was any objection to his serving as the hearing officer on October 11, 1995. Petitioner, through her attorney, did not object, and she did not present evidence of respondent's rotational lists until July 10, 1997. I find that her challenge to the appointment of the hearing officer is untimely (Application of a Child with a Disability, Appeal No. 98-33).
Petitioner asserts that there may have been inappropriate ex parte communication between respondent's Deputy Superintendent of Schools, who is also the CSE chairperson, and the hearing officer. At the hearing on July 10, 1997, petitioner's attorney questioned the Deputy Superintendent about the manner in which the hearing officer had been appointed subsequent to the recusal of the first hearing officer assigned to the proceeding. The Deputy Superintendent explained that "...we went to the next person on the list...[and] We asked him if he was interested." (Transcript, page 5183). When asked who was "we", the Deputy Superintendent explained that either he or the Superintendent of Schools had contacted the hearing officer, but he could not remember who had made the contact. As petitioner points out, individuals whose acts will be reviewed or who will testify at a hearing should not participate in the selection of a hearing officer because the school employee and the hearing officer could discuss substantive issues in their ex parte conversation about the appointment of the hearing officer (Application of a Child with a Disability, Appeal No. 95-44). While I will remind respondent to avoid even the appearance of impropriety in the selection of future hearing officers, I cannot conclude on the basis of the record which is before me that the Deputy Superintendent did in fact have an ex parte conversation with the hearing officer prior to the hearing.
Petitioner challenges the impartial hearing officer's impartiality on the ground that he failed to disclose an alleged personal or professional relationship with respondent's Deputy Superintendent of Schools and its Assistant Superintendent of Schools. Both of these individuals were at one time employed by the William Floyd Union Free School District, in which the hearing officer had been an Assistant Superintendent of Schools. When he began presiding as the hearing officer in this proceeding in October, 1995, the hearing officer acknowledged that he knew respondent's Deputy Superintendent, but he did not volunteer information, nor was he questioned about the nature of his relationship with the Deputy Superintendent. Almost two years later on July 22, 1998, petitioner's attorney questioned the Deputy Superintendent about his employment in the William Floyd district when the hearing officer was also employed by that district. The Deputy Superintendent testified that he had not directly reported to the then Assistant Superintendent of William Floyd, and that he had left the William Floyd district in 1984. There was no evidence of any ongoing personal or professional relationship between the hearing officer and either respondent's Deputy Superintendent or Assistant Superintendent. Although I find that the hearing officer should have more fully disclosed his past association with respondent's Deputy Superintendent, I am not persuaded on the facts of this record that he would have been obligated to recuse himself. Therefore, I will not annul his decision because he failed to make that disclosure (Application of a Child with a Disability, Appeal No. 98-51).
Petitioner also challenges the hearing officer's impartiality because of certain acrimonious exchanges between the hearing officer and petitioner's attorney, see e.g., Transcript pages 911, 963, 1012, 1172, 1587-1598, 1747, 1944, 2044-2045, 2300, 2902-2903, 2944, 2968-2969, 4766. A hearing officer must avoid even the appearance of impropriety, and must render a decision which is based on the record (Application of a Child with a Disability, Appeal No. 94-32). A hearing officer, like a judge, must be patient, dignified, and courteous in dealing with litigants and others with whom he or she deals in an official capacity (Application of a Child with a Handicapping Condition, Appeal No. 91-40). I find that the hearing officer's remarks to petitioner's attorney about her advocacy of petitioner's case were unfortunate, but absent evidence of actual bias against petitioner those remarks do not, in my judgment, afford a basis for annulling the hearing officer's decision.
In reaching that conclusion, I have considered the hearing officer's evidentiary rulings about which petitioner also complains, as well as his questions to the witnesses. A hearing officer has the power and the duty to restrict the record before him or her to evidence which is relevant to the issues which he or she must decide, and may exclude irrelevant or unduly repetitious evidence and testimony (Application of a Child with a Disability, Appeal No. 96-51). It is the hearing officer's responsibility to ensure that there is adequate information in the record to support a determination, which may include questioning the witnesses (Application of a Child with a Disability, Appeal No. 96-72). I find that the hearing officer did not abuse his power, or evidence any bias against petitioner by his evidentiary rulings. The extensive record in this case belies any claim that petitioner was not afforded a fair opportunity to present her case. I note that petitioner asserts that the hearing officer should have signed the subpoenas which her attorney prepared to require various employees and school board members to testify about the circumstances leading to respondent's rejection of a proposed settlement in August, 1996. Petitioner's attorney was authorized by Section 2302(a) of the Civil Practice Law and Rules to issue her own subpoenas. While a settlement is always desirable, I must agree with the hearing officer that the reasons why a settlement was not concluded are tangential to the issues he was appointed to decide. I have considered petitioner's other arguments about the hearing officer's alleged bias against her which I find to be without merit.
Petitioner challenges the hearing officer's determination that respondent had met its obligation to provide a free appropriate public education to her son during the 1994-95 school year. The board of education bears the burden of demonstrating the appropriateness of the educational program which its CSE has recommended (Matter of a Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v.Rowley, 458 U.S. 176 ), and that the recommended program is the least restrictive environment for the child (34 CFR 200.6 [a] ). An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
As noted above, the boy's IEP for the 1994-95 school year was agreed to by the boy's parents and their attorney at that time. Nevertheless, petitioner, through her attorney for the hearing, appeared to challenge the boy's 1994-95 IEP on the ground that the IEP had not been developed in accordance with Federal regulatory standards (Transcript, p. 360). During the course of the hearing, petitioner's attorney questioned respondent's staff about the criteria used to ascertain whether the boy's short-term instructional objectives were being achieved, as required by 34 CFR 300.346 (a) (5). The boy's IEP annual goals and short-term objectives, while understandable, lacked quantifiable benchmarks, such as grade equivalents. Instead, the IEP provided that the "mastery criteria for all goals and objectives will be 80%." Although I agree with petitioner that the goals and objectives could have been more precisely drafted, I do not find that the IEP was fatally flawed by the language used for the boy's annual goals and short-term objectives.
Petitioner also challenges the IEP on the ground that it allegedly failed to reflect the results of the boy's triennial evaluation with regard to his difficulty completing homework assignments. In his triennial psychological evaluation (Exhibits P-9), the district's school psychologist briefly noted that the boy's teachers had indicated that homework completion was one problem which the boy had. In its description of the boy's management needs, the IEP indicated that he needed additional assistance in order to function in the educational setting and that he needed to develop responsibility for completing class and homework assignments. I find that the IEP did identify the boy's difficulty completing homework assignments.
Petitioner contends that her son's educational program during the 1994-95 school year was inadequate because her son did not receive enough assistance to remediate his skill deficits in reading, writing, memory and organization. As noted above, the boy's primary disability was his ADD, which manifested itself in difficulty processing information orally, taking notes in class, and completing homework assignments. While his reading decoding skills lagged behind his reading comprehension skills, the boy's total reading score on the two different standardized tests listed on his 1994-95 IEP were within the average range. His mathematics scores, while lower than his reading scores, were nevertheless at the 43rd percentile on both tests. The boy's greatest weakness was in written expression. His IEP included annual goals to improve his reading, writing, mathematics and organizational skills, which were to be achieved in a mainstreamed setting with the assistance of five periods per week of resource room services. Counseling was to be provided once per week. The boy's IEP indicated that he was to have a note taker for every class, and would receive photocopies of overheads used by his teachers in their classrooms in advance of their lessons. One of the boy's annual goals for resource room services indicated that he would be able to perform in a mainstreamed setting "... with resource room supports and with other supports as required in subject area classes including, but not limited to tutoring." Petitioner asserts that respondent failed to provide tutoring to her son in accordance with his IEP, while respondent takes the position that the after-school tutoring which petitioner requested at the CSE's November 1, 1994 meeting was not required in order for the boy to be adequately supported in his subject area classes.
I note that the boy's resource room teacher for most of the ninth grade was unavailable to testify at the hearing in this proceeding, and there does not appear to be any written description of her activities with petitioner's son during the 1994-95 school year. The format of the IEP which the CSE prepared for the 1995-96 school year in June, 1995 differs significantly from that of the 1994-95 IEP, making it difficult to assess his growth during 1994-95 school year. There are, however, other indicia of the efficacy of his educational program during that school year.
The boy's ninth grade report card for the 1994-95 school year (Exhibit DD) indicates that he completed a Regents level English class with a final average of 76, and a Regents level global studies course with a final average of 79. He also achieved final grades of 92 for general mathematics and 71 for general earth science, and passed the Regents Competency Test in Mathematics. The boy earned six and one-half credits towards high school graduation. On the Kaufman Test of Educational Achievement (KTEA) which was administered to him in the spring of 1995, petitioner' s son achieved percentile scores of 84 for reading decoding, 70 for reading comprehension, 27 for mathematical computation, and 55 for mathematical applications (Exhibit P-11). In an educational evaluation which was completed in June, 1995, the boy achieved percentile (grade equivalent) scores of fifty eight (10.6) for reading comprehension, on the Stanford Diagnostic Rating Test, and 31 (7.7) for total mathematics on the Stanford Diagnostic Math Test. On the Woodcock-Johnson Psycho-Educational Battery, he achieved grade equivalent scores of 8.9 for the humanities, 8.1 for science, 8.5 for social studies, and 8.9 writing samples, and 4.9 for dictation (Exhibit E).
I note that the boy was privately tutored approximately once per week during the 1994-1995 school year. His tutor testified that she had used her time with the boy to help him complete his homework and to do some remediation. However, her testimony regarding the boy's ability to do a number of the things she had worked with him on, such as note taking, choosing the main idea in reading passages, and understanding cause and effect relationships, suggested the he had made only slight progress with her. Consequently, I'm not persuaded that the boy's tutoring was necessary for him to have achieved the results which he did in his school courses and on his standardized achievement tests, or that respondent's program was inadequate because respondent did not offer tutoring to the boy.
Petitioner also contends that respondent failed to ensure that its staff complied with the terms of her son's IEP during the 1994-95 school year. In particular, she points to the testimony of one of the boy's academic teachers who acknowledged that he had not communicated with petitioner on a daily basis by means of an assignment notebook which the boy carried. The IEP indicated that the boy's teachers would communicate with petitioner and her husband on a daily basis via the assignment notebook. I must note that the teacher in question was the only one of the boy's ninth grade teachers to testify, except for his resource room teacher for the first two months of the school year. I am unable to conclude from the record that the boy's teachers generally ignored this, or any portion of the boy's IEP.
Petitioner also challenges the adequacy of the educational program which her son received during the 1995-96 and 1996-97 school years. I note that at the hearing on October 7, 1996, the hearing officer questioned petitioner's attorney about whether hearing requests had been filed for the 1995-96 and 1996-97 school years, and the attorney indicated that no requests had been filed. In a footnote to his decision, the hearing officer indicated that he had accepted jurisdiction over petitioner's claim that her son's IEP for the 1994-95 school year had not been properly implemented as boy's "pendency" IEP during the next two years, because respondent had not objected to his assumption of jurisdiction. However, the hearing officer indicated that he would not accept jurisdiction to review the appropriateness of IEPs which were prepared subsequent to February, 1995, when petitioner initiated this proceeding. During the course of the hearing, at least four subsequent IEPs were introduced into evidence. One of those IEPs was the so-called "conditional IEP" (P-178) which was prepared in October, 1995 as part of a proposed settlement.
Petitioner's contentions with regard to the educational services which her son received during the 1995-96 school year relate to the conditional IEP. Notwithstanding prior determination by the State Review Officer in Appeal No. 96-86 that the boy's IEP for the 1994-95 school year was his pendency IEP during the hearing, petitioner argues that the conditional IEP for 1995-96 was operative for that year, and that respondent failed to meet the terms of the conditional IEP. I find that petitioner's position is without merit. The State Review Officer's decision was not appealed to a court, and it is therefore final (34 CFR 300.510 [d]). In any event, respondent did provide the additional services which were included in the conditional IEP.
During the 1995-96 school year, petitioner's son was in the tenth grade at respondent' s high school. He was mainstreamed for Regents level global studies, sequential math, biology and English, as well as elected subjects. He continued to receive resource services five times per week during the school day, and he also received an additional three periods of resource room services and two periods of speech/language therapy per week after school. The boy reportedly had the use of a handheld spellchecker and a school computer, and received class notes and overheads. He had the benefit of various testing modifications.
In April, 1996, respondent's speech/language therapist reported that petitioner's son had achieved a score in the average range on the Peabody Picture Vocabulary Test, and that his scores on the Test of Language Competence-Level 2 were in the low average range. On the Clinical Evaluation of Language Fundamentals-3, the boy's scores ranged from a low of the 1st percentile for word classes to a high of the 84th percentile for formulated sentences. She opined that the boy did not have a language disorder, despite certain weaknesses in his language skills, and suggested that his weaknesses could be addressed within the resource room and with classroom and testing modifications (Exhibit P-169).
The boy's tenth grade report card indicates that he achieved final grades of 78 in Regents English, 79 in Regents global studies, 95 in sequential mathematics I-A, and 75 in Regents biology. He also received satisfactory grades for his elective subjects (Exhibit EE). On the KTEA, the boy achieved percentile scores of 68 for reading decoding, 74 reading comprehension, 70 for mathematical computation, and 82 for mathematical application (Exhibit FF). The boy's two resource room teachers for the 1995-96 were extensively questioned about the services which they had provided to him. One of the resource room teachers acknowledged that she had not worked with the boy on certain of his IEP objectives because she believed that they were inappropriate for a tenth grade student. While I am troubled by the teacher's unilateral determination not to work on those objectives, I must note that she also testified that she had addressed most of the objectives and that the boy's performance on those objectives had improved (Transcript, pages 2102-2127). In view of the objective evidence of the boy's performance during the 1995-96 school year and the testimony of his teachers with regard to the progress which he made, I am persuaded that respondent met its obligation to provide the boy with a free appropriate public education during the 1995-96 school year.
Petitioner contends that respondent's CSE chairperson attempted to unilaterally alter her son's pendency IEP during the 1996-97 school year. The record reveals that the CSE chairperson attempted to schedule the CSE meeting to be held on September 3, 1996 for the purpose of updating the boy's IEP (Exhibit II). That date was not convenient for the boy's parents, and the meeting was rescheduled for October 1, 1996 (Exhibit JJ). On October 1, 1996, the CSE drafted an updated IEP for the boy (Exhibit P-175). Neither of his parents attended meeting, nor apparently did either of his resource room teachers for the 1994-95 school year. However, the CSE met with the boy's parents on December 6, 1996 and January 6, 1997 in a further attempt to update the boy's IEP which was amended on the latter date (Exhibit TT). I find that petitioner's claim of procedural unfairness regarding the initial attempt to update her son's IEP is moot.
Petitioner also challenges the implementation of her son's IEP during the 1996-97 school year. I have reviewed the testimony of the boy's teachers during the 1996-97 school year. In addition to his resource room teacher, the boy's English, social studies, mathematics, and science teachers testified. I find that their testimony established that they generally adhered to the terms of the boy's IEP, and that he made meaningful educational progress in the eleventh grade during the 1996-97 school year. The boy's report card for the 1996-97 school year indicates that he achieved final grades of 79 in Regents level English, 85 in Regents level U.S. history, 79 in Regents level sequential mathematics-II, and 76 in Regents level earth science (Exhibit XX). As of the end of the eleventh grade, petitioner had earned 19.5 credits towards high school graduation, and appeared to be a likely candidate for graduation with his peers in June, 1998. I therefore find that respondent adhered to the boy's IEP, and it offered the boy a free appropriate public education during the 1996-97 school year.
Petitioner contends that the hearing officer applied and erroneous legal standard in denying her claims for reimbursement for the services which she obtained for her son. I disagree with that contention. A Board of Education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ). Since the hearing officer and I have found that respondent offered appropriate educational services to the boy, petitioner is not entitled to an order requiring respondent to reimburse her for the cost of her son's private tutoring during the 1994-95, 1995-96, and 1996-97 school years, and for his private speech/language therapy during the 1996-97 school year. Additionally, I must point out that petitioner failed to meet her burden of proof with respect to the second Burlington criterion, i.e., the appropriateness of the private tutoring and speech/language therapy. Indeed, petitioner's witness with regard to private speech/language therapy could not describe what specific forms of remediation had been provided to the boy.
Petitioner argues that the hearing officer failed to address the issues which she raised with respect to the educational services which her son received prior to the 1994-95 school year. Although petitioner had never requested a hearing to review the adequacy of the educational services which her son had received prior to the ninth grade in the 1994-95 school year, the hearing officer allowed both parties to introduce testimonial and documentary evidence concerning the prior school years into the record. One of the purposes for doing so was to afford petitioner an opportunity to establish a basis for her claim for compensatory education. The courts of held that compensatory education, i.e. special education services which are provided to the student after he or she is no longer eligible because of age, or receipt of a high school diploma, to receive such services, is a permissible remedy under the Individuals with Disabilities Education Act (20 USC 1400 et. seq.), when the student has been excluded from school or denied appropriate services for an extended period of time (Burr by Burr v. Ambach, 863F. 2d 1071 [2d Cir., 1990]: Lester H. v. Gilhool, 916F. 2d 865 [3d Cir., 1990]; Meiner v. State of Missouri, 800F. 2d 749 [8th Cir., 1986]). In this instance, petitioner's son was still eligible to receive special education. Moreover, I find that the record does not establish that the boy was denied appropriate services for an extended period of time.
I have considered petitioner' s other contentions which I find to be without merit.
THE APPEAL IS DISMISSED.