99-089

          Petitioner, the Board of Education of the Corning-Painted Post Area School District, appeals from an impartial hearing officer's decision which directed petitioner to place respondent's son in an out-of-state post-secondary educational institution for the 1999-2000 and 2000-2001 school years as a remedy for petitioner's violation of the terms of a settlement agreement it had entered into with respondent. The appeal must be dismissed.

        Respondent's son is 22 years old. He has been diagnosed as having a generalized anxiety disorder, depressive disorder, and a non-verbal learning disability. The student has been classified as multiply disabled by petitioner's committee on special education (CSE). His classification is not in dispute.

        The record contains little information about the education which the young man received in the years prior to the present dispute. He has reportedly received instruction at home for some time. An individualized education program (IEP) dated May 28, 1998 indicated that he was auditing two high school courses, and being tutored in a third course (Exhibit P-1). As of the date of the hearing in this proceeding, he had earned 14.75 high school credits (Exhibit D-1). A total of 28 credits are required to graduate from petitioner's high school.

        During the spring of 1998, respondent asked the CSE to recommend a residential placement for her son. On May 28, 1998, the CSE recommended a residential placement. After the recommendation was made, petitioner's Director of Pupil Personnel Services (Director) contacted the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (VESID) to obtain assistance in placing the student in an approved residential school (Transcript, page 52). On June 3, 1998, the Director applied to VESID for approval of a residential placement (Exhibit P-12). She was reportedly orally advised by a VESID representative that VESID could not locate a placement, and that the CSE should consider transition services and/or placement in a local community college (Exhibit P-21). I note that in its petition, the Board of Education asserts that VESID referred the Director to two out-of-state private schools, neither of which subsequently accepted the boy's application for admission. Petitioner did not accept the CSE's recommendation for a residential placement, and sent it back to the CSE (see 8 NYCRR 200.5 [a][6]).

        On July 14, 1998, the CSE again recommended a residential placement (Exhibit P-1), which was again rejected by the Board of Education. On the boy's IEP prepared at that meeting, there was a notation which read, in part, "explore local college opportunities such as CCFL computer offered programs". The Director testified at the hearing in this proceeding that the local BOCES offered an opportunity through the Corning Community College for high school seniors and students with disabilities to do a work study program (Transcript, page 57). On August 11, 1998, respondent requested that an impartial hearing be held to review petitioner's alleged failure to provide a free appropriate public education (FAPE) to her son during the 1994-95, 1995-96, 1996-97, and 1997-98 school years, as well as its alleged failure to implement the CSE's recommendation for a residential placement (Exhibit P-14).

        The parties entered into a written agreement to settle their differences on December 18, 1998 (Exhibit P-15). The Board of Education agreed to search for an appropriate residential placement " … through the New York State Education Department as well as in consultation with George Posner, Educational Consultant", including putting the boy's name on a waiting list for placement as late as September 30, 1999. The Board of Education also agreed to provide an appropriate educational program for the student during the "1998-99, 1999-2000, and 2000-2001 school years or such time as [the student] receives a high school diploma, whichever occurs first". It was also agreed that petitioner would reimburse the parents for their out-of-pocket expense of $3,063.68 in searching for a residential placement for the student. Respondent's hearing request was withdrawn as a result of the agreement.

        On January 20, 1999, respondent discussed the possibility of placing her son in Mitchell College (Mitchell), a two-year college which is located in New London, Connecticut, with petitioner's Director of Pupil Personnel Services. The Director indicated that respondent and her son could visit Mitchell at petitioner's expense (Transcript, page 29; Exhibit P-19). Respondent and her son visited Mitchell, and they were subsequently reimbursed for their travel expenses. After discussing their visit with the Director, respondent and her son applied for the latter's admission to Mitchell. The Board of Education paid for the boy's application for admission (Transcript, page 24).

        On or about April 5, 1999, respondent's son received a letter from Mitchell's Dean of Admissions and Financial Aid indicating that he had been accepted for admission in the fall of 1999 (Exhibit P-3). Respondent's son was awarded two scholarships in a total amount of $3,500 (Ibid.). The boy's admission was contingent upon his participation in Mitchell's Learning Resource Center (LRC) program. The LRC is an academic support program designed for students with specific learning disabilities and/or an attention deficit disorder (Exhibit P-7). Its staff of learning specialists are trained to work with students who have difficulty with reading, mathematics, writing, and organization. The specialists work with individual students, or with small groups of students, and also consult with college faculty about accommodations or modifications which LRC students require in the classroom or for testing.

        Through VESID, the Board of Education sought the Commissioner of Education's approval of the boy's placement at district expense in Mitchell pursuant to Section 4402 (2)(b)(2) of the Education Law. That statute provides that contracts between a board of education and a private school for the education of a child with a disability are subject to the approval of the Commissioner of Education, and that no child may be placed in a residential school unless there is no appropriate non-residential school available "consistent with the needs of the child". The statute also provides that the private schools with boards of education may contract must have been approved by the Commissioner of Education (see Section 4401 [2][e][f], [g], and [h] of the Education Law).

        In a memo dated April 26, 1999, a VESID representative described VESID's emergency interim placement (EIP) process to petitioner's Director of Pupil Personnel Services (Exhibit P-10). The representative noted that a board of education must "exhaust all in-state/out-state approved special education schools appropriate to the student's disability and IEP" before the EIP process could be used. The representative advised the Director that an EIP placement could not be made to a post-secondary school placement, or in a school which has not been approved in the state in which it is located as a special education school for elementary or secondary grades. He indicated that Mitchell College did not appear on the list of special education private schools which had been approved by the Connecticut Department of Education. The VESID representative wrote to the Director again on June 7, 1999 (Exhibit P-9). He again noted that Mitchell College offered a post-secondary school program, and that it was not currently listed as an approved special education school for grades kindergarten through 12 by Connecticut. The representative indicated that he was in the process of obtaining additional information from the Connecticut State Education Department.

        During the 1998-99 school year, the boy continued to be tutored at home in biology. However, the school district reportedly did not provide any other instruction to the boy. On May 20, 1999, respondent's attorney requested that an impartial hearing be held because of the Board of Education's alleged failure to implement the December, 1998 settlement agreement with regard to searching for a residential placement, its alleged denial of FAPE to the boy during the 1998-99 school year subsequent to the agreement, and its failure to place the boy at Mitchell (Exhibit P-2).

        The hearing began on August 12, 1999. In his opening statement, the Board's attorney indicated that the Board couldn't find a FAPE for respondent's son (Transcript, page 13). The Board of Education acknowledged that it had paid for the boy's visit, and subsequent application for admission, to Mitchell. It asserted that it had applied to VESID for approval of the boy's placement at Mitchell, but that it could not legally contract with Mitchell without VESID's approval. The Director of Pupil Personnel Services acknowledged that the CSE had not prepared an IEP for the 1999-2000 school year (Transcript, page 64). Respondent urged the hearing officer to find that she had the authority to order the Board of Education to place her son at Mitchell, and to require it to provide the boy with compensatory education.

        In her decision which was dated September 24, 1999, the hearing officer noted that the Board of Education had conceded that neither it nor VESID had located an appropriate educational program for respondent's son. She found that the State Education Department had refused to approve a contract between petitioner and Mitchell for the instruction of respondent's son, and that in essence, petitioner had refused to place the boy in Mitchell without the approval of the Commissioner of Education. The hearing officer further found that the boy's placement in Mitchell was authorized by the Individuals with Disabilities Education Act (20 USC 1400 et seq., hereinafter IDEA), in view of the U.S. Supreme Court's holding in Florence County School District Four et al.v. Carter by Carter, 510 U.S. 7 (1993). In that decision, the Court held that a court may order a school district which had failed to provide a FAPE to a child to reimburse the child's parents for their expenditures in unilaterally placing the child in a private school which does not meet the standards of the State Education Department. The hearing officer found that petitioner had failed to prove that it had provided a FAPE to respondent's son during the 1998-99 and 1999-2000 school years. She reviewed the testimony by the Director of Mitchell College's LRC, who testified about the LRC and the college's Wellness Center. The hearing officer found that Mitchell's courses could be used by respondent's son to earn credit towards his high school diploma, and that Mitchell's program could meet the boy's educational and psychological needs. Therefore, she found that respondent had met her burden of proving that Mitchell was an appropriate placement for the boy under the IDEA. The hearing officer held that she was authorized by the IDEA to award compensatory education to respondent's son, and that equity compelled the Board of Education to place the boy at Mitchell in accordance with the parties' written agreement dated December 18, 1998. She ordered petitioner to place the boy at Mitchell for the 1999-2000 and 2000-2001 school years.

        Although petitioner applied to VESID to obtain the Commissioner's approval for a residential placement, I must note for the record that I do not have the authority to review any action taken by VESID, or any employee of the State Education Department (8 NYCRR 279.1 [c][2]). However, it is not necessary for me to do so. This proceeding is brought under Federal and State law which requires me to conduct an independent review of the hearing officer's decision concerning the Board of Education's obligation to provide a FAPE to respondent's son (34 CFR 300.510 [b][2][v]). In doing so, I must base my decision on the record which is before me and my analysis of the applicable statutes, regulations, and decisional law (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-76; Application of a Child with a Disability, Appeal No. 95-81).

        Before I address the parties' legal issues, I must first note that the Board of Education asserts in its memorandum that there is no evidence that respondent's son required a residential placement, while conceding that its CSE had recommended such a placement for the boy. Since the CSE recommended a residential placement and the boy's parents agreed with that recommendation, that issue was not raised at the hearing. I find that I am precluded from reaching it in this appeal (Hiller v. Bd. of Ed. Brunswick CSD, 674 F. Supp. 73 [N.D. N.Y., 1987]; Application of a Child with a Disability, Appeal No. 98-14; Application of the Bd. of Ed. of the Onteora CSD, Appeal No. 98-83). For the purposes of this appeal, I find that respondent's son required a residential placement under the IDEA and Article 89 of the New York State Education Law.

        I further find that this boy was eligible to receive a FAPE from petitioner during the 1998-99 school year because he did not become 21 years old until February, 1999. The young man would not have been eligible to receive a FAPE from the Board of Education during the 1999-2000 and 2000-2001 school years because of his age (20 USC 1412 [a][1][A] and [B]; Section 4401 [1] of the Education in Law). However, petitioner expressly agreed on December 18, 1998 to provide an appropriate educational program to respondent's son during the remainder of the 1998-99 school year, as well as the 1999-2000 and 2000-2001 school years if the boy had not obtained a high school diploma. Respondent's son had not received a high school diploma when the hearing was held.

        The Board of Education does not dispute that it was obligated to provide the boy with a FAPE during the 1998-99 school year, nor does it allege that it had offered to provide a specific placement to the boy for the 1999-2000 school year. It concedes that it has a continuing obligation to provide special education services to respondent's son. However, it argues that it was unable as a matter of law to contract with a school which had not been approved by the Commissioner of Education for the instruction of children with disabilities (Section 4402 [2][a] of the Education Law), and that the Commissioner must approve a child's placement in a private residential school (Section 4401 [2][g][h] of the Education Law. While I do not disagree with petitioner (see 20 USC 1412 [a][11][A][ii][II]), its argument is not dispositive of this matter. Regardless of what petitioner could or could not do on its own initiative, it has been ordered by an impartial hearing officer to place a student in an unapproved school which in fact provides a post-secondary educational program. The question which I must determine is whether the hearing officer was authorized to order petitioner to place respondent's son at Mitchell for two school years.

        Petitioner argues that the hearing officer had no authority to require it to place the boy at Mitchell. It concedes that a court may fashion appropriate equitable relief under the IDEA, but it contends that Section 4404 of the New York State Education Law does not authorize an impartial hearing officer or the State Review Officer to award equitable relief. Petitioner's argument appears to ignore the fact that hearing officers and the State Review Officer awarded the equitable relief of tuition reimbursement pursuant to the IDEA before that statute was amended in 1997 to explicitly provide for awards of tuition reimbursement (see e.g., Application of Bd. of Ed. City School District of City of New York, Appeal No. 95-69; Application of a Child with a Disability, Appeal No. 95-8). It is also well established that administrative officers may award compensatory education when a child with a disability 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]). In Burr, the court upheld an impartial hearing officer's award of 18 months of compensatory education to be provided after the student's 21^st birthday (see also Harris v. District of Columbia, 19 IDELR 105 [D.C. D.C., 1992]; Application of the Board of Education of the Sachem Central School District, Appeal No. 97-35).

        Compensatory education is an equitable remedy for a school district's failure to provide that which it was obligated to provide (Miener v. State of Missouri, 800 F. 2d 749 [8^th Cir., 1986]). It is available as an alternative to an award of tuition reimbursement (see School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]), so that parents are not required to "front" the cost of providing the special education services which school districts failed to provide (Burr by Burr v. Ambach, supra). In this instance, there is no dispute that petitioner should have provided an appropriate residential placement for the boy, nor is there evidence that an alternative placement in a school which had been approved by the Commissioner of Education was available for respondent's son. The fact that Mitchell had not been approved by the Commissioner of Education should not preclude the hearing officer from directing petitioner to place the boy at the school, any more than it would have barred her from ordering an award of tuition reimbursement for an unapproved school as she was authorized to do (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]). Therefore, I find that the hearing officer did not exceed her authority by ordering petitioner to provide the boy with compensatory education in an unapproved educational institution.

        The Board of Education also argues that the hearing officer's decision should be annulled because Mitchell is a post-secondary educational institution, and because respondent failed to demonstrate how Mitchell's educational program would have met her son's special education needs. While I agree that a board of education's responsibility to educate children under the IDEA does not extend to post-secondary education, the fact that Mitchell is a post-secondary institution does not per se establish that it could not provide an appropriate secondary school education to the boy which was consistent with his unique needs. I note that petitioner's CSE had recommended that the boy explore local college opportunities (Transcript, page 51). The Director of Mitchell's LRC, who is a former secondary school special education teacher and a school psychologist, acknowledged at the hearing that she was unaware of the specific New York State curriculum requirements, but she was familiar with general high school requirements. She testified that the content of Mitchell's college-level courses was similar to that of typical high school courses (Transcript, page 94). The LRC Director further testified that Mitchell's first year English course included many high school components, e.g., a review of grammar.

        The boy's IEP for the 1999-2000 school year did not include a description of his present levels of performance, as required by both Federal and State regulations (34 CFR 300.347 [a][1]; 8 NYCRR 200.4 [c][2][i]). The IEP did provide some information about the boy's special education needs. According to the IEP, respondent's son had difficulty performing independently, returning to routine after absence, and "tolerating unknown". His anxiety was manifested in cycles of overwork with perfectionism, followed by poor attendance. The record also included an assistive technology assessment which reveals that the boy had difficulty organizing written material, taking notes, comprehending what he read, and managing the stress related to not being able to keep up with those academic tasks (Exhibit P-13). In its application for State approval of a residential placement, petitioner indicated that the boy had trouble concentrating in an atmosphere with background noise (Exhibit P-12).

        From the limited information about the boy which is the record before me, I find that the boy is capable of pursuing a regular education curriculum, with appropriate support and modifications. I have considered the LRC Director's testimony about the LRC and Mitchell's C.A.R.E.S. program which is designed to provide support to students in their dormitories. I have also considered a written description of the LRC (Exhibit P-7). That description indicates the LRC addresses student weaknesses in reading comprehension, note-taking, and organizing, which are germane to this boy's needs. Mitchell also has a "Wellness Center" staffed with a full-time counselor and subordinate who live in the student dormitories. The Wellness Center reportedly provides comprehensive mental health support to students (Exhibit P-8). I note that the boy's private psychologist opined at the hearing that Mitchell would be "perfect" for the boy (Transcript, page 41). In the absence of any evidence to the contrary, I find that a placement at Mitchell would be appropriate for respondent's son.

THE APPEAL IS DISMISSED.