99-022

        Petitioner, the Board of Education of the City School District of the City of Kingston, appeals from an impartial hearing officer's decision awarding "compensatory" relief to respondent's son, based upon the hearing officer's prior decision. The Board of Education appeals on the ground that portions of the hearing officer's prior decision were annulled in Application of the Board of Education of the City School District of the City of Kingston, Appeal No. 98-30. The appeal must be sustained.

        I note at the outset that the hearing officer's decision which I am reviewing in the instant appeal is based upon the record which was before the hearing officer in Appeal No. 98-30. Therefore, I have considered that record in reaching my decision in this appeal.

        On August 14, 1997, respondent asked for an impartial hearing because she believed that her son had not received all of the services which she and petitioner's committee on special education (CSE) had agreed upon during the 1996-97 school year. Respondent also challenged the individualized education program (IEP) which the CSE had prepared for her son for the 1997-98 school year. She sought to have her son placed in the Kildonan School, a private school which has not been approved by the State Education Department to provide instruction to children with disabilities (Exhibit P-54).

        The impartial hearing began on October 21, 1997. Respondent was assisted by a lay advocate, who identified the issues to be determined as those which were stated in respondent's August 14, 1997 hearing request, plus a request that petitioner be ordered to pay for the boy's private math tutoring. The lay advocate asserted that respondent sought compensatory, restorative, and prospective relief. Petitioner's attorney moved to dismiss respondent's claim for prospective relief, i.e., an order placing respondent's son at the Kildonan School for the 1997-98 school year at petitioner's expense on the ground that the hearing officer could not, as a matter of law, place the boy at a private school which had not been approved by the State Education Department to provide instruction to children with disabilities (see Antkowiak v. Ambach, 838 F. 2d 635 [2d Cir., 1988]). Petitioner's attorney also moved to bar respondent's claim for any relief based upon events preceding the 1997-98 school year as untimely. The hearing officer reserved decision on petitioner's motions.

        Respondent met with petitioner's CSE on October 23, 1997 to revise the boy's IEP for the 1997-98 school year. Although the IEP was revised, the parties did not resolve their differences. The hearing resumed on November 12, 1997. The hearing officer ruled that she would hear evidence about the boy's educational program and placement for the 1997-98 school year. With respect to petitioner's motion for dismissal of respondent's compensatory claims on the ground of laches, the hearing officer indicated that she would allow background information in the record, but only for the purpose of trying to plan "what's going to be done in the future" (Transcript, page 167). After an off-the-record discussion, petitioner's attorney and respondent's advocate agreed that the latter would provide the former with a written statement including times as to respondent's "compensatory issues", and that either party's representatives would be free to argue the merits of those issues at the end of the proceeding (Transcript, page 173).

        The hearing continued on two days in December, 1997 and two days in January, 1998. On the last day of the hearing, it was agreed that the hearing officer would retain jurisdiction to decide respondent's claim for compensatory relief in the event she overruled the Board of Education's motion that respondent's claim be dismissed (Transcript, pages 883-885).

        The hearing officer rendered her decision on April 28, 1998. In that decision, she noted that she had received a "summation" of petitioner's response to respondent's claim for compensatory education, but had not received a written statement from respondent. Instead, respondent requested an opportunity for the hearing officer "to hear her request" for relief. The hearing officer indicated that she would not hold an additional hearing, but would afford the parties an opportunity to "submit additional information as a summation for the compensatory portion of this hearing". With respect to the boy's educational program and placement for the 1997-98 school year, the hearing officer found that petitioner's high school was not an appropriate placement, but she concluded that she lacked the authority to order the Board of Education to place the boy in the Kildonan School. The hearing officer remanded the matter back to the CSE to recommend an appropriate placement for the boy. She indicated that the Board of Education should pay for the cost of an evaluation done by a private educational consultant, and recommended that it also pay for the tutoring in mathematics which the consultant had provided to the boy during the 1996-97 school year. The hearing officer also recommended that the boy receive an assistive technology evaluation.

        On or about May 28, 1998, the parties' representatives conferred with the hearing officer by telephone conference call about resolving respondent's compensatory education claim. According to the hearing officer, the parties agreed that they would attempt to settle the matter privately, and that they would rely on written submissions to her if the matter could not be settled. The matter was not settled. The Board of Education reportedly provided its written summation to the hearing officer on August 3, 1998. That document is not in the record which is before me. The record does not reveal whether the parent submitted a written summation to the hearing officer.

        On June 4, 1998, the Board of Education appealed from the April 28, 1998 decision of the hearing officer. I rendered my decision in that appeal on November 25, 1998. I found that the boy's IEP for the 1997-98 school year, as amended, was appropriate, and that he did not require full-day primary special education in a school for learning disabled children, as the hearing officer had suggested in remanding the matter to the CSE. In doing so, I observed that the boy had made academic progress while placed in regular education classes and receiving supplementary special education, i.e., resource room services, in the years prior to the 1997-98 school year. I annulled the hearing officer's decision, to the extent that she had found that the Board of Education had not met its burden of proving that it provided an appropriate educational program to respondent's son during the 1997-98 school year, and to the extent that she ordered the Board of Education to pay for a December, 1996 evaluation by the private educational consultant. Other parts of the hearing officer's decision, such as her order requiring the Board of Education to pay for the mathematics tutoring which the consultant had provided, and requiring it to have an assistive technology evaluation, were affirmed.

        On February 17, 1999, approximately three months after my decision in Appeal No. 98-30, the hearing officer rendered her decision regarding respondent's claim for compensatory relief. She indicated that she was unaware of the disposition of her previous decision. The hearing officer noted that the parties had "…never presented to the IHO the exact agreement they reached privately during the hearing and this applied to how they would deal with [the boy's] past history and the number of years they would focus on." Nevertheless, the hearing officer reviewed the hearing transcript and exhibits, beginning with a psychological evaluation which was performed in June, 1994, when the boy was in the seventh grade. She continued her review of the boy's academic performance in the eighth, ninth, tenth grades in the school years prior to the 1997-98 school year, which was the school year in question in her first decision. However, she also discussed the boy's educational program during the 1997-98 school year, and the fact that she had found in her first decision that the Board of Education's program for that school year was inappropriate. She dealt with the "compensatory issue" by determining that no "compensatory settlement" would be required, if the CSE had recommended and the Board of Education had approved an "appropriate school" with a program to address his dyslexia, or the CSE was in the process of locating such a school. If not, the hearing officer ordered that the boy be compensated, "in an amount that will equal the costs of one full year, including the summer, of tuition for the type of school which addresses [the boy's] learning style as a dyslexic."

        The Board of Education challenges the hearing officer's decision as being without a legal basis, given my decision in Appeal No. 98-30. Petitioner asserts that the hearing officer erred by not applying the correct standard for an award of compensatory education. It further argues that respondent's claim for compensatory relief is untimely with respect to events prior to the 1997-98 school year because respondent was aware of her due process rights but chose not to exercise them prior to the beginning of the 1997-98 school year.

        Respondent opposes the petition. She asserts that the hearing officer correctly considered her claims which arose prior to the 1997-98 school year because she was unable to obtain free or low cost legal services to pursue a hearing for those claims. Respondent points out that the parties agreed to "bifurcate" the hearing into prospective and compensatory relief issues. She contends that she is entitled to an award of compensatory education because of petitioner's allegedly gross procedural errors (see Garro v. Connecticut, 23 F. 3d 737 [2d Cir., 1994]). I note that respondent's claim of procedural errors appears to be based primarily on her assertion that her son did not receive appropriate educational services.

        I will first consider the Board of Education's procedural objection to the hearing officer's decision. The Board of Education contends that the hearing officer determined that it had not addressed the boy's learning needs since the seventh grade without considering any of petitioner's evidence, because of the agreement to focus upon the 1997-98 school year at the hearing. Having looked at the hearing transcripts and written evidence, I find that the Board of Education did limit the presentation of its case to the issue of the 1997-98 school year. However, I also find there is nothing in the record before me to indicate that petitioner sought to reopen, or resume, the hearing after the hearing officer had rendered her decision with respect to the boy's program and placement for the 1997-98 school year. The record does reveal that both parties explicitly agreed to have the hearing officer retain jurisdiction over respondent's claim for compensatory relief (Transcript, page 885). In any event, it is a hearing officer's responsibility to ensure that there is an adequate record upon which to premise his or her decision (Application of a Child with a Disability, Appeal No. 97-62; Application of a Child with a Disability, Appeal No. 98-66). Respondent's son was initially classified as learning disabled in the spring of 1995, while he was in the eighth grade. The earliest IEP for the boy which is in the record is for the 1996-97 school year, when he was in the tenth grade. Although copies of psychological evaluations performed in 1994 and 1996, speech/language evaluations performed in 1994 and 1997, and an educational evaluation performed in 1996 are in the record, as is a copy of the boy's high school transcript, I am not persuaded that the hearing officer had an adequate basis upon which to premise her decision.

        I must also disagree with the hearing officer's conclusion awarding respondent's son 12 months of compensatory education based upon the evidence which was in the record before her. In essence, the hearing officer found that respondent's son did not make satisfactory progress in his reading and writing skills. However, the boy did make progress in those skills, and had earned six units of credit, exclusive of physical education, in his first two years of high school. Compensatory education may be awarded when a 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]). I find that there is no basis for such an award in this case.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the impartial hearing officer is hereby annulled.