Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent , Isaac Kaufman, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision which held that respondent should have notified petitioner that the purpose of a committee on special education (CSE) meeting held on May 27, 1999 was to consider his daughter's need for transition services as she "aged out" of the educational system, i.e., became ineligible because of age to receive educational services under Federal and State law, and that the CSE should have prepared a more complete statement of transition services on the student's individualized education program (IEP), but which denied petitioner's request for an award of compensatory education. The appeal must be dismissed.
Respondent was served with the petition in this appeal on September 3, 1999, but it did not serve its answer until November 12, 1999 (cf. 8 NYCRR 279.5). It requests that I excuse its delay in serving the answer, and accept the answer. Respondent's attorney asserts that he spoke to petitioner about extending respondent's time to answer the petition, and was advised that petitioner would agree if a place could be obtained for his daughter in a day habilitation program which had previously been offered to the girl. The attorney explored that possibility, but discovered that there was no vacancy in the program. Petitioner opposes respondent's request in his reply to the answer. I must note that my decision has not been delayed because of respondent's delay. Furthermore, petitioner's reply does not conform to the provisions of 8 NYCRR 279.6 because it is not limited to respondent's procedural defenses and additional documentary evidence. He also raises new matters such as the CSE's alleged refusal to allow him to tape record its meeting. In the interest of fairness, I will excuse respondent's delay and accept its answer, as well as the reply, but I will limit the latter to the issues which were before the hearing officer.
Petitioner's daughter is 21 years old. She is bilingual, using both English and Yiddish. During the 1998-99 school year, she was classified as mentally retarded and emotionally disturbed. Her classification is not disputed, and I therefore do not review its appropriateness (see Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]). In any event, the girl's IEP for the 1998-99 school year indicates that she was working on developing functional reading and mathematics skills, as well as activities of daily living (ADL) skills. During the 1998-99 school year, the student was enrolled, upon the CSE's recommendation, on a twelve-month basis in the Hebrew Academy for Special Children (HASC) in Brooklyn, where she received an educational program which included 30 minutes of individual speech/language therapy in Yiddish twice per week and 30 minutes of individual occupational therapy twice per week. She had been enrolled in the HASC program for the preceding four school years.
Petitioner's daughter became 21 years old in December, 1998. At the hearing in this proceeding, a HASC social worker testified that she and the girl's classroom teacher met with the girl's mother in January, 1999 to discuss the girl's placement after she left the HASC program. The social worker further testified that she and the teacher had recommended that the girl be enrolled in a HASC day habilitation program, which would be funded by the New York State Office of Mental Retardation and Developmental Disabilities, and that the girl's parents had indicated that they would consider that program. In a brief written report dated February, 1999, the HASC transition coordinator, who was also the girl's pre-vocational training teacher, indicated that the girl would not usually join in class activities, but would at times do work given to her by her teacher. The report also included a brief "Statement of Adult Transitional Outcomes" which indicated that upon graduation, the girl would " … explore the possibility of residing in a group home. She will be best suited for a day habilitation program and explore community resource available to her" (Exhibit 2).
The CSE of Community School District 20 reportedly met with petitioner on April 27, 1999. According to petitioner, the subject of his daughter's transition was first raised at that CSE meeting, which was adjourned until May 27, 1999. Prior to the May meeting, petitioner's daughter moved into a HASC residential facility, and continued to attend the HASC day educational program. On May 25, 1999, petitioner requested an impartial hearing to challenge respondent's intention to cease providing educational services to his daughter on June 20, 1999.
Petitioner met with the CSE on May 27, 1999, in what the CSE representative at the hearing testified was an "aging out" meeting. The CSE representative acknowledged that petitioner had not been formally notified of the purpose of the CSE meeting, i.e., to identify transition services (cf. 8 NYCRR 200.5 [a][xii]). There is very little evidence of what, if anything, the CSE did at its May 27, 1999 meeting. Respondent's practice is to have its CSE's amend a child's IEP by annotating and/or replacing pages of the IEP. The girl's IEP for the 1998-99 school year is Exhibit 3 in the record which is before me. However, it is not possible to ascertain from that document what the CSE did at the meeting. I note that there is an annotation dated February, 1999 on page 4 of the IEP which indicates that the student would age out in June, 1999, and that there are other annotations with the same date. However, there is no evidence that the CSE met in February, 1999. In any event, the record includes an interim service plan for the girl, which was apparently reviewed by the CSE at its May meeting and which provided that she would attend a HASC summer program at Parksville (Exhibit 4).
The hearing in this proceeding was held on June 21, 1999. As noted above, the CSE representative briefly testified about the purpose of the May CSE meeting, and he explained why respondent was no longer responsible for providing an educational program to the girl after June 30, 1999 (see Section 4402  of the Education Law). The HASC social worker testified about her discussions with the girl's parents, classroom teacher, and pre-vocational teacher about enrolling the girl in the HASC day habilitation program. She could not recall whether the transition coordinator's February, 1999 report (Exhibit 2) was discussed at the May CSE meeting. Petitioner asserted that his daughter was entitled to stay in the HASC day educational program through August, 1999. He testified that HASC had done "a beautiful job" with respect to his daughter's educational program, but respondent had failed to provide timely notice to him that she would age out of her educational program and had failed to plan for or provide transitional services for her. Petitioner asserted that his daughter's IEP pre-vocational annual goals were unrealistic, and that they didn't address her ADL skill needs. The girl's pre-vocational skills teacher (the HASC transition coordinator) testified that she had not had any contact with the girl's parents about her transition needs, but she had spoken about the girl to the director of the HASC day habilitation program. She acknowledged that she had not met with the CSE to plan for the girl's transition from school. The pre-vocational teacher testified that the girl lacked vocational skills necessary for placement in a sheltered workshop, and that she needed to work on her ADL skills, and could benefit from more training in self-help skills, hygiene, and socialization. The hearing officer orally ruled at the hearing that petitioner's daughter could attend the HASC summer program at Parksville in accordance with her interim service plan.
The hearing officer's written decision was rendered on July 28, 1999. She found that there was no genuine dispute about the appropriateness of the girl's educational program at HASC during the 1998-99 school year, and indicated that the central issue was whether respondent had complied with the regulatory requirement to provide appropriate transition services to petitioner's daughter. She noted that the record before her was limited, but it did afford a basis for her to find that respondent had provided transition services through the HASC to petitioner's daughter. However, the hearing officer also found that the transition statement on the girl's IEP did not comply with the regulatory requirement because it did not include a description of the services which the girl needed to reach the desired outcome of the transition process. She further found that the CSE had not provided the requisite notice about its meeting to petitioner. The hearing officer determined that the CSE's procedural violations should be remedied by requiring the CSE to reconvene on or before August 16, 1999, after proper notice to petitioner, to prepare a written statement of the transition services which the girl had received in the HASC day education program and those services, if any, which she still needed. She indicated that the CSE need not prepare a new IEP for the girl because she was ineligible to receive educational services as a result of aging out of the educational system. The hearing officer denied petitioner's request for compensatory education, upon a finding that respondent's omission with respect to the girl's transition services did not amount to a denial of a free appropriate public education to the girl over an extended period of time, which is the predicate for an award of compensatory education. She also dismissed petitioner's contention about his daughter's right to receive educational services during the summer of 1999 as moot.
Petitioner raises certain questions about the manner in which the hearing was conducted. He challenges the accuracy of the written evidence submitted by the CSE because certain documents, such as his daughter's IEP, have dates crossed out and written over. Objections to any document should be raised at the hearing. While I have considered petitioner's objection in this appeal, I am not persuaded that the contents of the challenged documents are unreliable and should be disregarded. Petitioner asserts that he was hindered in examining the witnesses from the HASC because they testified by telephone, and they relied upon documents which he could not examine. Each party to an impartial hearing has the right to present evidence and to confront and question all witnesses at the hearing (8 NYCRR 200.5 [c]). It is within a hearing officer's discretion to allow a witness to testify by telephone. There is no indication in the hearing transcript that petitioner objected to any witness testifying by telephone.
Petitioner asserts that prior to the August 11, 1999 CSE meeting, he had never been notified by the CSE that it intended to do transition planning for his daughter, and that the CSE has never conducted any meeting at which such planning was done. I must note that no evidence was adduced at the hearing about the girl's IEPs for the school years prior to the 1998-99 school year, or the notices which petitioner may, or may not, have received about the CSE meetings at which his daughter's IEPs were prepared or amended. While I do not condone any omissions which may have occurred in prior school years, I must limit my decision to the facts and issues which were presented at the hearing.
As noted above, the State regulation pertaining to the notice about a CSE meeting which a parent must be given has a special provision regarding planning for a child's transition from school to post-school or adult programs. 8 NYCRR 200.5 (a)(1)(xii) provides that:
"if the purpose of the meeting is to consider transition services, the notice must also:
(a) indicate this purpose;
(b) indicate that the district will invite the student; and
(c) identify any other agency, that will be invited to send a representative."
For each child with a disability who is at least 15 years old, the CSE must include a statement of the needed transition services on the child's IEP, including, if applicable, a statement of the responsibilities of the school district and participating agency for providing services and activities which promote the child's movement from school to post school activities before the child leaves the school setting (8 NYCRR 200.4 [c][viii]). The CSE must invite the child and a representative of the agencies likely to be responsible for paying for transition services (8 NYCRR 200.4 [c]).
Transition services were defined by the applicable Federal regulation at the time of the CSE meeting 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:
(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])
At the hearing, the CSE representative acknowledged that the requisite notice of the CSE meeting had not been given to petitioner. A representative of HASC, which was the agency expected to provide post school services to petitioner's daughter, participated in May 27, 1999 CSE meeting which is at issue. I note that HASC was also represented at the March 26, 1998 CSE meeting. As noted above, the girl's IEP has one annotation about her transition, dated February 1999. It reads as follows:
"Student will be attending HASC Day/HAB program beginning July 99 and is awaiting placement in a new HASC residence."
The hearing officer found that the CSE had not complied with the regulatory requirement that the girl's IEP include a statement of needed transition services. Respondent does not dispute the hearing officer's finding. It does contend that its CSE has complied with the hearing officer's directive to reconvene to prepare a written statement of the necessary transition services for petitioner's daughter. Petitioner objects to the manner in which the CSE conducted a meeting on August 11, 1999 at which the girl's transition needs were reportedly considered. He contends that the CSE violated his daughter's privacy rights pursuant to the Family Educational Rights and Privacy Act, and that the CSE failed to do what the hearing officer had ordered it to do. He also asserts that there is no longer an opening in the HASC day program for his daughter. I must point out that the parties' contentions are beyond the scope of my jurisdiction because they involve events which took place after the hearing officer's decision which I am reviewing, and have not been considered by a hearing officer.
In essence, petitioner asserts that the remedy which the hearing officer ordered is inadequate because of respondent's alleged failure to adequately prepare his daughter to transition from the HASC day educational program to an adult services program, such as the HASC day habilitation program which the HASC staff had recommended for her. Petitioner asserts that respondent through its agent, HASC, failed to provide his daughter with appropriate ADL and pre-vocational skills. At the hearing, petitioner questioned his daughter's pre-vocational teacher at HASC about the instruction which she had provided to the girl. In response to petitioner's questions, the teacher testified that the girl could use more training in self-help skills, hygiene, socialization, and safety training. However, it does not follow from the teacher's responses that petitioner's daughter was inadequately prepared to transition to a day habilitation program. The pre-vocational teacher testified that a day habilitation program was more appropriate for petitioner's daughter than a day treatment program because the latter program was intended for lower functioning persons. She further testified that petitioner's daughter would be stimulated and supervised in developing her ADL skills in a day habilitation program. As noted above, the HASC social worker testified that she and the child's teacher had recommended that the girl be enrolled in a day habilitation program. I have looked at the IEP description of the girl's abilities and needs which, in my opinion, indicate that she would be suitable for a day habilitation program.
Petitioner points out that the HASC pre-vocational teacher did not begin to teach his daughter until December, 1998. From this, he asks that I infer that she was deprived of a significant part of her educational program because she did not receive adequate ADL and pre-vocational training. However, I note that the written report by the child's classroom teacher at HASC dated February, 1999 which is annexed to petitioner's reply as Exhibit L reveals that the classroom teacher was working with the girl on her ADL and community skills. The classroom teacher also reported on the girl's pre-vocational skills. At the hearing, the pre-vocational teacher testified that the girl often completed tasks given to her by the classroom teacher during the pre-vocational class, but she had also done some pre-vocational work in the pre-vocational class (Transcript, page 73). However, the nature of the child's disability made it difficult for her to follow through with activities. The pre-vocational teacher's testimony was consistent with the classroom teacher's description of the girl in Exhibit L. Although petitioner's daughter continued to need instruction in ADL and pre-vocational skills, it does not follow that the training she received at HASC was either inadequate or inappropriate. I agree with the hearing officer that the remedy of compensatory education would not be appropriate in this case because there is no evidence that the girl was 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]).
Petitioner also challenges the hearing officer's determination that the 1998-99 school year ended on June 30, 1999, and he insists that the point is not moot even though his daughter did receive services under respondent's aegis at the HASC summer program during the Summer of 1999. I disagree with petitioner. The term "school year" is defined by Section 2 (15) of the Education Law to mean the period between the first of July and the succeeding thirtieth day of June. In the context of the right of a child with a disability who is aging out of the school system to receive instruction, Section 4402 (5) of the Education Law provides that a child who reaches the age of 21 during the period between the first day of September and the next June thirtieth shall be entitled to continue in his or her educational program until June thirtieth or until the termination of the school year, whichever shall occur first.
I have considered petitioner's other arguments, including his argument about a pendency placement for his child, but I must point out that pendency does not attach to a pupil who has aged out of the school system (Board of Education of Oak Park and River Forest High School District 200 v. Illinois State Board of Education and Todd A., 79 F. 3d 654 [7th Cir., 1996]).
THE APPEAL IS DISMISSED.