Application of the BOARD OF EDUCATION OF THE WASHINGTONVILLE CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Shaw and Perelson, LLP, attorneys for petitioner, Lisa S. Rusk, Esq., of counsel
Family Advocates, Inc., attorney for respondents, RosaLee Charpentier, Esq., of counsel
Petitioner, the Board of Education of the Washingtonville Central School District, appeals from an impartial hearing officer's decision which found that the educational program provided to respondents' son during the 1998-99 school year was inappropriate, and which directed the Board of Education to place the student in a private school for the 1999-2000 and 2000-2001 school years. The appeal must be sustained in part.
At the outset, I note that in a separate proceeding brought to review the boy's individualized education program (IEP) for the 1999-2000 school year, the boy's parents, who are the respondents in this appeal, sought an interim order requiring the Board of Education to implement the hearing officer's decision which will be reviewed in this appeal. The hearing officer in the other proceeding denied the parents' request, and they appealed to the State Review Officer. In Application of a Child with a Disability, Appeal No. 00-011, I dismissed their appeal because the private school placement the parents sought was not their son's pendency placement.
Respondents' son is 20 years old. He has been classified as autistic. There is no dispute about his classification. He was reportedly initially identified as learning disabled when he entered public school in Michigan. While in the second grade, the child was identified as autistic, and he was reportedly enrolled in a special education program. In late 1988, respondents moved to Washingtonville and enrolled their children in petitioner's schools.
The boy was evaluated in January, 1989 by a school psychologist, who reported that the boy's full scale IQ score of 63 was in the mentally deficient range. His academic skills were in the first and second grade levels, and he was described as being easily frustrated and frequently distracted by extraneous noises. A speech therapist reported that the boy's receptive language skills were delayed by approximately three years, and that he was unable to present information in sentence form. The boy also perseverated words and utterances.
Respondents' son was enrolled in a self-contained special education class in petitioner's Round Hill Elementary School in January, 1989. The child also received speech/language therapy and counseling. He also had the assistance of a teacher assistant during his early elementary grades because he reportedly required constant adult supervision (Exhibit P-23). In March, 1993, he was described as having made a good adjustment to middle school, but he was experiencing difficulty in mainstream classes because other students made fun of him (Exhibit P-24). The child, who was in seventh grade, had fifth grade reading and third grade math skills.
In March, 1994, when the boy was in the eighth grade, he reportedly achieved grade equivalent scores of 5.1 for broad reading, and 3.2 for broad math on the Woodcock Johnson Tests of Achievement. The boy was then enrolled in a "life skills" program in petitioner's middle school, and was receiving speech/language therapy and counseling. The CSE recommended that he remain in that program and receive these services again during the 1994-95 school year. The boy reportedly remained a the middle school for the 1994-95 school year so that he would be appropriately grouped with the other members of his special class. When it reviewed the boy's program in the spring of 1995, the CSE reported that he had shown excellent growth in communication skills, and recommended that his speech/language therapy be discontinued. However, it recommended that he continue to receive counseling, while enrolled in special education classes for science and social studies and life skills classes for other academic subjects at the high school during the 1995-96 school year.
In September, 1995, the boy's parents expressed concern about their son's IEP for the 1995-96 school year because of the CSE's alleged failure to prepare a transition plan for the boy. They also requested that he be provided with job training which addressed workplace behaviors, skills and work ethics, and be trained in keyboarding to enhance his employment opportunities (Exhibit P-36). The boy did receive keyboarding instruction during the 1995-96 and 1996-97 school years (Exhibits P-45 and 48). In an Individualized Trait Analysis assessment completed in November, 1995, the boy was reported to be functioning at the prevocational training level (Exhibit D-HH). Additional assessments revealed that the boy was interested in food service and personal service jobs, as well as working with plants and animals, creative expression in the arts, and applying mechanical principles to practical situations (Exhibits D-II and JJ).
In January, 1996, petitioner placed the boy in a half-day vocational exploratory component of the Vo-Tech program of the Orange-Ulster BOCES. In April, 1996, a BOCES representative informed petitioner's CSE chairperson that the boy appeared to be inappropriately placed in the Vo-Tech program, which is a regular education vocational training program, because of his inappropriate and unpredictable behavior (Exhibit P-40). One of the boy's high school teachers had also reported in January, 1996 that the boy's behavior was sometimes bizarre, while other teachers indicated that he was functioning successfully in their classes (Exhibit P-37).
In May, 1996, the boy achieved grade equivalent scores of 7.1 for reading, 4.7 for math, and 3.6 for writing on the Woodcock Johnson. When it prepared the boy's IEP for the 1996-97 school year in May, 1996, the CSE noted that the boy had been successful in the small classroom portion of the vocational exploratory program, but had not been successful in the "visitation" (hands-on) portion of the program. The CSE denied the parents' request for an individual aide to assist their son in the horticultural part of the BOCES program. It recommended that the boy continue with the vocational exploratory program in the fall of 1996, but that he not begin in the visitation part of the program without additional time to make a successful transition. During the remaining portion of the school day, respondents' son was to attend special education classes for English, social studies, and science, a life skills class for mathematics, and adaptive physical education (Exhibit P-41).
By letter dated May 24, 1996, petitioner's Director of Special Services notified respondents that their son would age out of the educational system on June 30, 2000, and that adult services planning assistance could be obtained from various agencies including the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (VESID). The Director included a consent form for respondents to complete which would authorize petitioner to release the boy's records to VESID. A similar notice and request was mailed to respondents on or about April 8, 1997 (Exhibit P-50).
The boy was observed in school on three occasions in the fall of 1996 by a consultant who was a specialist in autism. In her report to the school district and the boy's parents, dated December 12, 1996, the consultant described the boy as functioning at the higher end of the autistic continuum, but nevertheless having significant weaknesses in social behavior, executive function, generalization of skills, tangential expressions, and problem solving (Exhibit D-MM). She opined that while the boy's life skills program was not inappropriate per se, he did not appear to be appropriately grouped for instructional purposes because he functioned at a significantly higher level than did his classmates. The consultant recommended that there be an intense focus upon the development of the boy's social skills, while continuing to expand his functional academic skills. She also recommended that emphasis be placed upon teaching the boy to generalize his skills across people, settings, and activities, and to improve his ability to function independently.
Respondents' son did not participate in the BOCES program during the 1996-97 school year. Instead, he was involved in petitioner's school-to-work program. With the assistance of a job coach, the boy served as a food courier helping deliver food to one of petitioner's elementary schools. His job coach reported in January, 1997 that the boy occasionally failed to use good judgment, but his performance was generally satisfactory (Exhibit P-46). He indicated that he handled changes very well, but he was unable or unwilling to follow directions except under supervision (Exhibit P-48).
In March, 1997, the boy's guidance counselor completed a transition planning document, in which she indicated that he would probably complete the requirements for an IEP diploma (see 8 NYCRR 100.6) in June, 1999 (Exhibit P-49). The guidance counselor indicated that the boy's anticipated post-graduation outcomes included competitive employment with support, and independent living with support. Respondents completed a questionnaire for a career assessment report in April, 1997, in which they indicated that their son would enjoy and succeed in careers related to computers, plants and animals, cooking, and mechanical trades (Exhibit D-LL). In May, 1997, the boy's father consented to having his son's educational records released by the school district to the appropriate adult services agencies. After receiving the consent, petitioner's Director of Special Services sent a copy of the boy's IEP to the Centralized Service Needs Committee (Exhibit P-50). The Director of Special Services testified at the hearing that the Centralized Service Needs Committee of the Department of Mental Health includes VESID, and it provides assistance in housing and recreation as well as employment to persons with disabilities (Transcript, page 107).
In the spring of 1997, the boy attended an orientation for the BOCES Vo-Tech program during which his reading, writing, and mathematics skills were assessed to determine his eligibility to participate in the Vo-Tech program. On June 6, 1997, a BOCES guidance counselor reported that the boy's scores were below the BOCES requirements for the Vo-Tech program (Exhibit D-BB). The boy's guidance counselor reported that he had made progress towards achieving his IEP's goals, but continued to need assistance in controlling his impulsive reactions to directions and inappropriate conversations with his peers (Exhibit P-51). Petitioner's school psychologist reported that the boy had made progress in improving his ability to remain on-topic, maintain eye contact, and take turns in conversations (Exhibit P-52).
The record does not reveal when the CSE conducted its annual review of the boy's educational program. I note that the parties entered into a stipulation on September 8, 1997 agreeing upon the boy's IEP for the 1997-98 school year, and settling the parents' claims against the school district up to that point in time (Exhibit VV). The CSE chairperson testified that the boy entered the BOCES Vo-Tech program, where he received remedial instruction during the summer of 1997 to prepare him for the regular education Vo-Tech program in the fall of that year. During the 1997-98 school year, the boy received an award (Exhibit D-CC), and his name was placed on the BOCES honor roll (Exhibit D-DD). An IEP prepared by the CSE on November 4, 1997 indicates that respondents' son attended the Washingtonville High School for life skills classes in English/language arts, mathematics, and science, as well as an adaptive physical education class (Exhibit D-E). He also received 30 minutes of group speech/language therapy twice per week and 30 minutes of individual counseling per week. His IEP included the notation that:
"Student does not always understand social interactions. Needs to be instructed in appropriate ways to handle problematic situations. Verbal and visual cueing and direct instruction in social skills is improving his interactions with peers and adults"
The CSE recommended that the boy have an individual teaching assistant assigned to him while attending the Vo-Tech program. The IEP also indicated that the boy's father was satisfied with his son's progress in the Vo-Tech program. The boy was enrolled in an exploratory business computer technology course, in which his keyboarding skills improved to approximately 30 words per minute. He was taught various word processing and business concepts. His teacher reported that the boy had a basic understanding of the many concepts which she introduced to him, but he did not achieve a "mastery level" (Exhibit D-V).
In a letter dated December 24, 1997, a VESID rehabilitation counselor indicated that the student was eligible to receive vocational rehabilitation services from VESID (Exhibit YY). At the hearing in this proceeding, another VESID rehabilitation counselor testified that an individualized written rehabilitation plan (IWRP) had been prepared for the boy within three months after he was determined to be eligible for VESID services. In March, 1998, the boy's father questioned VESID about his son's IWRP, and asked it to sponsor a summer program for the boy. The counselor who testified indicated that pursuant to its policy, VESID does not fund services for a student who is attending school until six months before the student's graduation. In December, 1998, the boy's case was assigned to her. She testified that she met with respondents, their son, and school representatives on April 16, 1999.
In March, 1998, the boy's life skills English teacher reported that respondents' son could write sentences, paragraphs, and compositions. He could also complete various forms, write checks, and order from a catalogue, as well as interpret information on a label. The boy was reported to interact socially with his classmates (Exhibit P-55). His special education teacher for social skills, health and math reported that a great deal of time had been spent helping the boy learn to generalize skills across several areas. She noted that the boy had made significant gains in math application, organization, handwriting, syntax, grammar, social situations, acceptance of constructive criticism and advice, and problem solving, although there was still much room for improvement. The teacher also noted that he appeared to be happier, and she credited the BOCES program with improving his self-esteem and motivation (Exhibit D-F). The school psychologist who was assigned to counsel the boy reported that he had made excellent progress towards achieving his social and communication skill goals for the year, and had made progress in his relationship with peers and adults (Exhibit D-H).
On March 30, 1998, petitioner's CSE reviewed the boy's progress, and prepared his IEP for the 1998-99 school year (Exhibit D-D). The CSE recommended that he attend functional living skills, life skills English, life skills math, and physical education classes in the Washingtonville High School, and that he continue in the regular education Vo-Tech program at BOCES. The CSE also recommended that the boy's individual teaching assistant at the BOCES be phased out during the remainder of the 1997-98 school year to determine if that service should be continued in the 1998-99 school year. The 1998-99 IEP provided that the boy would receive 30 minutes of individual counseling per week, and 30 minutes of group speech/language twice per week. It also included a notation that the school-to-work program would look into possible work sites for the boy during the 1998-99 school year. The boy's parents did not object to the IEP.
In June, 1998, the BOCES reported that the boy's distractibility and inappropriate behavior had increased markedly as the services of the boy's individual teaching assistant were decreased. On September 8, 1998, the CSE amended the boy's IEP to include the services of an individual teaching assistant. The boy was reportedly displeased with his teaching assistant during the fall of 1998. However, his BOCES teacher testified that the boy and the teaching assistant got along better as the school year progressed.
The boy's triennial evaluation was conducted in December, 1998. On the Wechsler Adult Intelligence Scale - Revised, he achieved a verbal IQ score of 81, a performance IQ score of 86, and a full scale IQ score of 82. His scores on that test in 1995 had been 78, 82, and 78, respectively. The school psychologist reported that the boy's verbal comprehension, freedom from distractibility, spatial ability, sequential ability and acquired knowledge were all in the low average range of development (Exhibit D-J). On the Woodcock Johnson Tests of Achievement, the boy achieved grade equivalent (and standard) scores of 8.8 (90) for broad reading, 5.9 (78) for broad mathematics, and 7.1 (86) for broad written language. The school psychologist reported that the boy had demonstrated significant growth in his social and communication skills, but he at times still made inappropriate comments to others. He recommended that the boy be referred to VESID to determine his post-graduation need for services.
On February 4, 1999, the CSE reviewed the boy's educational program, in part because his parents had requested that he be reassigned from an afternoon to a morning BOCES class so that he would have a different teacher. The CSE denied their request because of scheduling problems with the boy's other courses (Transcript, page 42). The IEP prepared at the February 4 meeting indicated that there might be a work based opportunity for the boy at the Orange County Infirmary, and that the boy would be referred to VESID to plan for services next year (Exhibit D-D).
By letter dated March 8, 1999, the boy's parents requested that an impartial hearing be held to consider their objections to the CSE's alleged failure to add related vocational experience to their son's educational program, and to petitioner's intention to have their son graduate in June, 1999 without having evaluated him (Exhibit P-1). Respondents expanded upon their reasons for requesting the hearing in a subsequent communication which petitioner received on March 26, 1999. Respondents objected to their son's IEP annual goals and objectives, and to the adequacy of the transition services provided by the Board of Education. They asserted that their son had not made adequate progress, and that he should have received computer related on-the-job training, as well as social skills training (Exhibit P-2). They waived their right to mediation, and requested that their son have an acceptable social skills training program and a vocational plan which would lead to his future employment. Respondents asked petitioner to obtain the assistance of an outside consultant to help prepare their son's IEP, and to provide their son with two years of compensatory education (Exhibit P-3).
On April 21, 1999, the CSE reviewed the boy's educational program. It amended his IEP for the 1998-99 school year to correct some printing errors, such as an omission of the boy's exemption from State academic testing and the foreign language requirement (Exhibit D-P). The CSE discussed respondents' request that their son receive on-the-job training, as well as respondents' meeting with a VESID rehabilitation counselor during the preceding week. The amended IEP implied that the boy would remain in school for the 1999-2000 school year. The CSE also prepared a separate IEP for the 1999-2000 school year. I note that the appropriateness of that IEP is not an issue which I am to determine in this proceeding.
The hearing in this proceeding began on April 29, 1999. After seven additional days of hearing, the hearing ended on August 19, 1999. During the course of the hearing, the boy participated in graduation ceremonies at petitioner's high school, and he received an IEP diploma. The hearing officer rendered his decision on October 19, 1999. He held that the Board of Education had failed to meet its burden of establishing the appropriateness of the educational program and placement which it provided to respondents' son during the 1998-99 school year. The hearing officer acknowledged that the boy's reading and mathematics skills had improved by three and four years, respectively, over a five-year period, and that he had attained at least some of his IEP goals. He further found that there was credible testimony attesting to the boy's progress in the social and life skill goals which were in the boy's IEP. However, he questioned whether the boy's IEP was individualized or comprehensive enough to meet the standard imposed by the Individuals with Disabilities Education Act (IDEA), as interpreted by the U.S. Supreme Court in Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 (1982), i.e., was the boy's educational program reasonably calculated to allow the child to receive educational benefits.
The hearing officer indicated that the evidence "suggests" that the boy had not progressed sufficiently in meeting the goals which addressed the boy's difficulty applying skills and generalizing information, and his engaging in inappropriate behavior, especially during unstructured activities. He faulted petitioner for not including a functional behavioral assessment in the boy's IEP until March, 1999, and for failing to ensure VESID's cooperation in planning to address the boy's vocational needs prior to his graduation from high school. The hearing officer also found that petitioner had violated 8 NYCRR 200.13 (a)(6) by not employing a special education teacher with a background in teaching students with autism to provide transitional support service to respondents' son. He also appears to have agreed with respondents that their son's IEP goals and objectives lacked precision, and that the IEP did not include appropriate objective criteria and evaluation procedures. The hearing officer also found that the boy had not been suitably grouped for instructional purposes in the life skills classes.
The hearing officer granted the parents' request for an order requiring the Board of Education to place the boy in a private school for the 1999-2000 school year. He noted that there was no dispute that the boy was eligible to receive educational services from petitioner during that school year notwithstanding the boy's receipt of an IEP diploma in June, 1999, since the boy's 21stbirthday would not occur prior to September 1, 1999 (see 8 NYCRR 200.1 [mm]). However, the hearing officer found that petitioner had "effectively closed the door" on the boy by issuing an IEP diploma, because he was reportedly unwilling to return to school. The hearing officer also directed the Board of Education to continue the boy's private school placement during the 2000-2001 school year as compensatory education, i.e., as additional education after the boy's 21st birthday.
The Board of Education asserts that the educational program which it provided to respondents' son was consistent with its obligation under the IDEA to offer him a free appropriate public education (FAPE) during the 1998-99 school year. It contends that the hearing officer erred in according more weight to the testimony of the parents' expert witness, who was the consultant who had observed and reported on the boy in 1996, than to that of its employees who had much more experience working with the boy. Petitioner asserts that the boy's IEP for the 1998-99 school year was appropriate, and that respondents' son made significant progress, both academically and socially, during the school year.
The Board of Education bears the burden of demonstrating the appropriateness of the educational program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, provides for the use of appropriate special education services to address his or her special education needs, and establishes annual goals and short-term instructional objectives which are related to the student'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).
This boy's IEP for the 1998-99 school year was initially prepared on March 30, 1998, and subsequently revised on September 10, 1998, February 4, 1999, and April 21, 1999. For the purpose of this decision, I will examine the IEP which was in effect shortly after the beginning of the school year (Exhibit I). The IEP reported the boy's IQ scores from his last triennial evaluation in November, 1996 and his Woodcock Johnson Tests of Achievement scores for broad reading and math from May, 1996. An IEP must describe a student's present levels of performance and individual needs (34 CFR 300.346 [a] ; 8 NYCRR 200.4 [c][i]). Petitioner contends that it complied with this requirement, while respondents assert that their son's IEP lacked sufficient information to provide a basis for determining his individual abilities and needs. In addition to the IQ and achievement test data, the boy's IEP described his present levels of performance and needs with a series of short statements regarding his academic, social, and physical development, as well as his management needs. Those statements, e.g., "is prone to distractibility and off task behavior," were not specific as to the frequency of such behavior. However, it does not follow that they were not adequate to enable the CSE to draft appropriate goals and objectives, or to provide the boy's teachers with useful information about him. I find that the IEP does describe his cognitive ability, academic achievement, and his learning style with sufficient precision.
An IEP's annual goals are statements which describe what the student can reasonably be expected to accomplish within a 12-month period in his or her special education program (former 34 CFR Part 300, Appendix C, Question 38). Each goal is to be accompanied by short-term instructional objectives, which are measurable, intermediate steps between the student's present levels of performance and the student's annual goal (Ibid, Question 39). The goals and objectives should focus upon offsetting or reducing the problems resulting from the student's disability which interfere with learning and educational performance in school (Ibid, Question 40). An IEP must also include appropriate objective criteria and evaluation procedures and schedules for determining whether the student's objectives are being achieved (former 34 CFR 300.346 [a]; 8NYCRR 200.4 [c][iii]).
Having reviewed this boy's annual goals and short-term objectives, I find that they lack sufficient precision to enable the boy's teachers to know where to start working with him, or to allow the CSE, and the boy's parents to measure his progress in objective terms during the course of the school year. Goals such as "will develop an understanding of literature … will develop listening/speaking skills, and… will improve [math] application skills" provide little or no guidance to the child's teachers about the CSE's expectations. Although some of the short-term objectives provided more detail, and the IEP included a generic statement for each goal that "all objectives for this annual goal will be completed with 90% accuracy," I find that the boy's IEP lacked sufficient detail to serve as a blueprint for his education.
One of the major issues separating the parties is the amount of progress which the boy made during the 1998-99 and preceding school years. While I agree with petitioner that respondents are precluded by the settlement agreement from litigating the appropriateness of the boy's previous IEP's, I must point out that the lack of precision in drafting goals and objectives makes it difficult to determine whether the boy did make a reasonable amount of progress during the 1998-99 school year. I do not dismiss the testimony by his teachers, or their written reports, nor do I necessarily credit the testimony by the parents' expert witness that the boy should have made more progress, given her lack of knowledge about the boy's educational program. In this instance, the nature of the boy's disability makes it somewhat difficult to assess his rate of progress. Both sides agree that he has fairly good rote memory skills, and can be taught many things. The difficulty comes when he is asked to apply his knowledge. That is precisely where the nature of his disability affects his performance. The record is not clear how well he can generalize, or what petitioner did to specifically address that issue. Petitioner's witnesses insisted that the boy had acquired various skills, but respondents asserted that their son simply could not demonstrate his mastery of those skills in everyday situations with them. The educational program which petitioner provided relied almost exclusively on simulation of real life situations. Since there were virtually no community experiences as part of that program, it is very difficult to determine whether petitioner's program has been effective (see Application of a Child with a Disability, Appeal No. 94-32).
An IEP for a student who is at least 16 years of age must include a statement of transition services to assist the student in moving from school to post-school opportunities (former 34 CFR 300.346 [b]; 8 NYCRR 200.4 [c][viii]). Transition services are defined by Federal regulation 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." (former 34 CFR 300.18 [a]+[b])
The boy's IEP did not include any statement of transition services. However, petitioner asserts that the hearing officer erred in finding that it had not met its obligation to provide transition services because the boy's IEP refers to the fact that he is attending BOCES classes. I disagree with petitioner. While petitioner cannot be the guarantor of a particular level of self-sufficiency or employability for respondents' son when he leaves school, it does have the responsibility to ensure that adequate planning has occurred to make a smooth transition from school to adult life. Respondents' son was 19 years old when the 1998-99 school year began. It is abundantly clear from the record that respondents' son has a life long disability which will seriously affect his ability to live as a self-sufficient adult. The CSE chairperson testified that he will probably require support to live in a setting apart from his parents, and will also require support, at least initially, to be employed.
A statement of needed transition services should be the result of a collaborative process involving the student, his parents, the CSE, and appropriate adult service providing agencies. An agency like VESID should have been involved in that process, even though it may not in fact provide services until shortly before the student leaves school (8 NYCRR 200.4 [c] ). The record reveals that petitioner's staff referred respondents to other agencies such as VESID, the Centralized Service Needs Committee, and the Social Security Administration. However, there is no evidence that any of these agencies participated with the CSE, the boy, and his parents in planning for his transition from school.
The hearing officer also found that the special education services which the Board of Education provided to the boy during the 1998-99 school year were inappropriate. Among other things, he found that the Board of Education should have assigned a teacher with a background in autism to provide transitional support services to the boy in his BOCES Vo Tech program pursuant to 8 NYCRR 200.13 (a) (6). Petitioner points out that transitional support services are defined as temporary services provided to a regular education or special education teacher to assist in providing appropriate services to a student with a disability who is "transferring" to a regular program or to a program or service in a less restrictive environment (8 NYCRR 200.1 [qq]), and that the boy had in fact previously attended the Vo Tech program during the 1997-98 school year. While I agree with petitioner that the provisions of 8 NYCRR 200.13 (a) (6) may not have literally applied, I must note that indirect consultant teacher services would have been entirely appropriate to help the BOCES teacher understand the boy's needs and provide helpful advice about lesson planning and instruction.
The Board of Education also challenges the hearing officer's finding that respondents' son had been inappropriately grouped for instructional purposes in his life skills classes because the other students did not meet "the same functional profile" as respondents' son. The Regulations of the Commissioner of Education require that students with disabilities be grouped by similarity of needs with respect to academic achievement and learning characteristics, social development, physical development, and management needs (8 NYCRR 200.6 [a] ). At the hearing, petitioner introduced profiles of the students in the boy's life skills English and math classes, and his functional living skills class (Exhibit D-W). The reading skills of respondents' son were four years above three of his English classmates, and even more above those of the other students in the class. His math skills were approximately one year below one of his life skills math classmates, and equal to those of two of his classmates. The skills of the other students were below those of respondents' son. At the hearing, petitioner's school psychologist and the boy's functional living skills teacher each testified that the boy was appropriately grouped for instructional purposes. Having reviewed their testimony, as well as the profiles, I cannot agree with the hearing officer's conclusion with respect to the life skills math and functional living skills classes. I do find the disparity between this boy's English skills and those of his life skills English classmates to be troubling, and I concur in the hearing officer's determination with respect to the instructional grouping for that class.
In determining the appropriateness of the boy's educational program, I have considered his IEP, the testimony of the witnesses, and a written assessment of his progress towards achieving his IEP goals and objectives (Exhibit D-U). The written assessment, which reflects the first three quarters of the school year, indicates that he had not mastered any of his annual goals, and had mastered only two of the 39 short-term objectives (reading the price of items and interpreting menus). I find that this is not evidence of reasonable progress.
In view of the defects in the boy's IEP, as well as the lack of evidence of the boy's progress, I must find that the Board of Education has failed to demonstrate that it had offered an appropriate educational program to respondents' son. The next question which I have to determine is whether the hearing officer exceeded his jurisdiction or abused his discretion in ordering the Board of Education to place the boy in a private school for a period of two school years.
Upon finding that a student's educational program was inappropriate, a hearing officer would typically order a CSE to prepare an appropriate IEP for the student. The resulting IEP might or might not require that the student be placed in a private school. In this instance, the hearing officer found that respondents' son could not return to petitioner's high school because, in the student's mind, one did not return to school after having graduated from it. In reaching that finding, the hearing officer relied upon the testimony of the boy's parents and that of their expert witness, who had discussed the matter with the boy (Transcript, page 865). The CSE chairperson testified that at least three of the boy's life skills classmates had also participated in the June, 1999 high school graduation ceremonies, and had returned to school in September, 1999. The school psychologist testified that respondents' son was aware that some of his classmates were coming back to school after graduation, and that it didn't appear to be a problem for the boy to also come back. Given the nature of the boy's disability and its manifestations, I am not persuaded that the hearing officer abused his discretion by ordering petitioner to contract with a private school for the boy's education.
Petitioner does not dispute that the boy was entitled to receive one more year of educational services from the school district under Federal and State law. It does, however, object to the hearing officer's award of one year of compensatory education during the 2000-2001 school year. The Board of Education contends that the boy is not entitled to an award of compensatory education as a matter of law. It points out that compensatory education is an appropriate remedy where a child 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]; Garro v. Connecticut, 23 F. 3d 734 [2d Cir., 1994]). Petitioner contends that there is no evidence of respondents' son having been excluded from school or being denied appropriate services for an extended period of time. Although I have found that there were defects in the educational program which petitioner offered to the boy during the 1998-99 school year, I find that he did receive some benefit from his educational program both socially and vocationally during that school year. Under the circumstances, including the fact that the boy was entitled to receive one more year of services under the IDEA prior to aging out of school, I find that he was not entitled to an award of compensatory education.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that he awarded one year of compensatory education to respondents' son.