Application of a CHILD WITH A DISABILITY, by his parents for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Half-Hollow Hills Central School District
Wasserman and Steen, Esqs., attorneys for petitioner, Lewis Wasserman, Esq., of counsel
Ehrlich, Frazier and Feldman, Esqs., attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel
Petitioners appeal from an impartial hearing officer's decision dismissing their claim that respondent had denied their son a free appropriate public education (FAPE) and denying their request for compensatory education. They contend that the hearing officer's decision lacks support in the record and is flawed by errors of law, and they request that respondent be ordered to provide up to five years of compensatory education to their son. The appeal must be dismissed.
Petitioners' son was 22 years old when the hearing in this proceeding concluded in the fall of 1999. He was awarded an IEP diploma (see 8 NYCRR 100.6) in June 1998, and one month later he had his 21st birthday. As a result, he was not eligible to receive services during the 1998-99 school year under the Individuals with Disabilities Education Act (IDEA) in New York State Law (see 20 USC § 1412[a][A]; §§ 4401 and 4402 of the Education Law; Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1998]). Although petitioners have asserted that their son was entitled to receive instruction from respondent during the 1998-99 school year, I find that their assertion is without merit. Pursuant to § 4402(5), the student would have been entitled at most to services during July and August 1998, "if otherwise eligible", i.e., if he were eligible for a twelve-month program, also known as extended school year (ESY). The student’s eligibility for ESY will be discussed below. In any event, their son’s age does not preclude petitioners from seeking an award of compensatory education (Burr by Burr v. Ambach, supra; Application of the Board of Education of the Sachem Central School District, Appeal No. 97-35).
The student had been diagnosed and classified as having autism. There is no dispute about his classification. The student’s educational history through the tenth grade during the 1993-94 school year was set forth in a prior decision of the State Review Officer, Application of a Child with a Disability, Appeal No. 94-12. One of the issues in the present proceeding is whether petitioners are barred from challenging the adequacy of their son’s individualized education programs (IEPs) for the school years prior to the 1994-95 school year because of the prior due process proceeding and appeal to the State Review Officer. The Board of Education asserts that petitioners are precluded from challenging those IEPs in this proceeding, and the hearing officer agreed with respondent. Petitioners are attempting to challenge the adequacy of each IEP from the 1990-91 school year through the 1998-99 school year.
A party to an administrative proceeding in which an issue has been determined may be precluded from re-litigating that issue in a subsequent proceeding (Application of a Child with a Disability, Appeal No. 93-40; Application of a Child with a Disability, Appeal No. 97-73; Application of a Child with a Disability, Appeal Nos. 98-81 and 99-9). In the prior proceeding which was initiated in November 1993, petitioners raised a number of issues about the implementation of their son’s educational program, but the issue of the appropriateness of the student’s educational program for the 1993-94 school year was not litigated, nor was the appropriateness of his IEPs for prior school years. I find that the doctrine of collateral estoppel, or issue preclusion, does not apply.
I must note however that one of the issues which petitioners initially raised in the prior proceeding was that respondent’s CSE had failed to prepare an appropriate plan of transitional services for their son, and that the issue was resolved on the first day of the hearing in the prior proceeding (see SRO’s decision, page 6). They now seek to raise that issue in this proceeding, going as far back as the 1990-91 school year. Under the circumstances, I find that it would not be equitable to allow them to do so (Phillips v. Board of Education, 949 F. Supp. 1108 [S.D. N.Y.,1997]). The due process system exists so that parents’ concerns about their child’s education can be promptly resolved and necessary corrections made in their child’s IEP (Application of a Child with a Disability, Appeal No. 98-5; Bernardsville Board of Education v. J.H., 42 F.3d 149 [3d Cir., 1994]; Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 ). Petitioners were clearly aware of their right to challenge the appropriateness of their son’s IEP for lack of an appropriate transition plan, or for any other reason, during the 1993-94 school year. I find that they should be precluded from challenging the appropriateness of their son’s IEPs for the 1993-94 and prior school years as a matter of equity. Petitioners’ failure to raise any objection to their son’s IEPs for the next four school years until shortly before he was to receive an IEP diploma and age out of the system is also questionable. However, I will consider those IEPs in determining petitioners’ claim for an award of compensatory education.
In June 1994, the CSE prepared the student’s IEP for the 1994-95 school year (Exhibit 115P). It recommended that he be enrolled on a ten-month basis in a self-contained special education class at respondent’s High School West, receive speech/language therapy, and have the assistance of a full-time aide. The IEP indicated that the student’s academic skills, as measured by standardized tests, were at the elementary school level, and that he had a number of needs, including the need to improve his attention and impulse control skills, his independent life skills, and personal skills necessary for career success. It identified his pre-vocational needs as including the need to develop work habits and behaviors required in the world of work, to identify options and establish realistic career goals, to identify vocational strengths, weaknesses and interests, and to participate in work experience. The IEP also indicated that a vocational assessment would be performed. In addition to goals for improving the student’s academic skills, the IEP included annual goals for improving his ability to focus and to control his impulses, as well as to demonstrate knowledge of life skills and to develop competency in pre-employment skills. The IEP indicated that the student would participate in a situational assessment to determine baseline performance as a chef’s assistant, with a long-term goal of developing skills for that occupation. There were also two annual goals for preparing him to transition to adult life, involving identifying his vocational strengths and interests and realistic career options. Petitioners did not challenge this IEP (Transcript pp. 1469, 3384).
During the 1994-95 school year, the student was enrolled in keyboarding, crafts, business math, introduction to occupations and principles of work courses (Exhibit 36 D). The CSE also explored a number of possible vocational placements for the student (Transcript pp. 486-488). However, the student’s father reportedly rejected the proposed sites (Transcript pp. 1672-1673, 504, 541-542). Although the student was supposed to have received a vocational assessment and training during the 1994-95 school year, the parties could not agree upon an assessment, or a facility to provide such training, for much of the school year (Transcript p. 1522; Exhibits 181D, 98D, 99D, and 97D). The Nassau County BOCES screened the student in September 1994 for its intensive culinary program, and determined that it would not be an appropriate program for him (Exhibit 100D). Respondent arranged for a consultant in the field of autism to assist in preparing the student’s transition plan and to provide parent and staff training. The consultant observed the student in school in November 1994, and recommended that he receive half-day job training with instruction in vocational and functional academics and job-related social skills training (Exhibit 178D). In March 1995, a chef was engaged to work with the student in a school kitchen to prepare him for entry into a BOCES culinary arts course (Exhibit 62D). The student reportedly made progress in developing appropriate vocational skills working with the chef (Exhibit 61D).
The CSE prepared the student’s IEP for the 1995-96 school year at its annual review on May 31, 1995. It included recent standardized test results on the IEP, and a statement of the student’s needs in terms of improving his reading, writing, and math skills, as well as his career needs (Exhibit 118P). The student’s IEP also included annual goals and short-term objectives which addressed those needs. A two-page vocational training plan was attached to the IEP. The plan listed 19 cooking related skills which the student could perform with prompts 75-80% of the time. It also included one generally stated long-term goal of developing the student’s competency in food preparation skills, with ten specific objectives, and a second long-term goal of reducing the student’s stereotypical behavior in the work place, with three objectives. At petitioners’ request, the CSE agreed not to include a proposed long-term goal for the student to develop needed interpersonal skills for kitchen work, notwithstanding the CSE’s belief that it was an appropriate goal (Exhibit 66 D). The CSE recommended that the student be placed in a 12:1 self-contained class at the High School West, where he was enrolled in English/computers, business math, and reading classes, with mainstreaming for lunch, assemblies and physical education. I note that the IEP included adaptive physical education goals. The CSE further recommended that the student participate in a half-day food preparation program, and continue to receive speech/language therapy and be assisted by a full-time aide. Petitioners reportedly did not challenge their son’s IEP (Transcript p. 1492).
On November 2, 1995, the CSE modified the IEP to specify that the student’s half-day vocational program would be provided at "Wilson Tech", The Wilson Technological Center of the BOCES of Western Suffolk County, and to make certain changes in mastery criteria for achievement of goals and objectives at petitioners’ request (Exhibit 118 P [b]). The consultant in autism continued to provide assistance on 28 occasions during the school year (Exhibit 96 D). She testified that she coordinated the student’s academic instruction with his vocational program. The student’s speech therapist also coordinated her activities with the vocational program, and worked upon improving his social conversational skills (Transcript p. 2030). The student reportedly participated in intramural swimming and weight training to improve his social interaction skills (Exhibit 81 D). The student’s father reportedly opposed any attempt by the district’s transition coordinator to assess the student (Exhibit 75 D), but viewed the school year as "a success" (Exhibit 77 D).
In March 1996, the consultant reported that the student’s vocational training program had been highly effective, noting that he had gained extensive knowledge of necessary terminology, learned appropriate behavior for safety and cleanliness, and developed varied skills in food preparation (Exhibit 179 D). However, the student needed to improve his ability to function independently in the kitchen. For the 1996-97 school year, the consultant recommended that the student’s cooking instruction be increased from two hours per day to three hours per day at Wilson Tech, and that his IEP objectives for the 1995-96 school year be carried over with some additions provided by his chef instructor. In April 1996, the CSE received an update on the student’s performance and suggested IEP goals and objectives from his instructor (Exhibit 84 D). The first suggested goal involved improving the student’s social/interpersonal skills for the workplace. The second and third goals related to his cooking and baking skills, respectively.
In April 1996, the CSE prepared the student’s IEP for the 1996-97 school year (Exhibit 116 P). The IEP indicated that the student’s reading skills were at the fifth grade level and his math skills ranged from the fifth to the seventh grade. The CSE recommended that the student be enrolled in a 12:1 self-contained class at the High School West for two periods per day and receive 30 minutes of individual speech/language therapy five times per week. It also recommended that he attend the "tech" program on a half-day basis. The student’s IEP annual goals were related to his specific needs, but were broadly stated, e.g., will identify and use various forms of measurement and will increase focal attention. The goals and objectives suggested by the student’s chef instructor were incorporated into the IEP. The IEP also included a detailed description of the student’s speech/language performance and needs and appropriate goals and objectives. Petitioners, who were represented by an attorney at the CSE meeting (Transcript pp. 604-605), did not challenge the IEP (Transcript p.1503).
The autism consultant continued to work with the school district and the student’s parents during the 1996-97 school year. At their request, petitioners were advised by respondent’s Administrator for Pupil Personnel Services on November 26, 1996 that their son would continue to attend respondent’s schools through June 1998, when he was expected to receive an IEP diploma (Exhibit 88 D). Petitioners were originally notified that their son would age out of school after the 1997-98 school year by letter dated March 9, 1994. In that letter, they were asked to give their consent to the release of their son’s school records to certain state agencies so that the relevant agency could assist in planning for adult services for their son (Exhibit 17 D). Similar notices were sent to them in letters dated March 23, 1995 (Exhibit 18 D) and September 9, 1996 (Exhibit 19 D). I note that on June 18, 1997, the student’s father did consent to the release of certain records to the State Education Department’s Office of Vocational and Educational Services for Individuals with Disabilities (VESID) (Exhibit 103 D).
The CSE conducted its annual review on June 4 and 20, 1997. On the former date, the student’s father objected to the continued involvement of the autism consultant in his son’s case, on the grounds that the consultant was the school district’s "hired gun against us" (Exhibit 102 D). The consultant did not participate in the meeting on June 20. A VESID representative participated in the CSE meeting of June 20, at the CSE’s invitation (Transcript pp.276-277). The CSE recommended that the student be enrolled in a 12:1+1 self-contained class at the High School West for three periods per day for English, computer math and social psychology classes, and receive 40 minutes of individual speech/language therapy five times per week. It also recommended that he have the services of a full-time aide during the school day, and for an additional two hours to be with him in extracurricular activities (Exhibit 5 D). A social psychology class was intended to provide social skills training, make students familiar with bus and train schedules, and discuss recreation and leisure activities (Transcript pp.1820-1821). However, the student was reportedly removed from the class because it required too much verbalization (Transcript p. 1833). The CSE also recommended that the student continue his studies in Wilson Tech’s food program. As in previous years, it recommended that there be monthly team meetings to coordinate the activities of the student’s service providers at his two schools. The CSE projected that the student would have obtained 18 units of high school credit by July 1997.
The student’s IEP included an "academic component" in which 11 needs were described. Two of his needs were identified as a need to improve his ability to remain on task and a need to work in a highly structured class environment with firm consistent limits. The IEP goals for his academic studies during the 1997-98 school year were very broadly stated, such as "Will improve his skills by [a list of specific objectives with mastery criteria ranging from 50 to 100 percent]". The student’s father reportedly wanted a mastery criterion of 100 percent for all of his son’s goals and objectives (Transcript pp. 807-808). Some of the math objectives involved independent living skills, such writing checks and balancing a checkbook, completing deposits and withdrawals, budgeting, and computing gross pay. A second portion of the IEP was devoted to the student’s vocational training plan, which contained six goals and 17 objectives directly related to his stated level of functioning in the culinary arts program he was taking at Wilson Tech.
Some transition planning information appeared on page 4 of the IEP, including an indication that he would be referred to VESID and that colleges and/or vocational schools for further culinary instruction would be explored. The CSE did not refer to competitive integrated employment for the student because it did not believe he was ready for it (Transcript p. 1506). At the appropriate place on the IEP, a box was checked indicating that the recommended placement was to be for 12 months. Respondent contends that the check mark was a clerical error. The CSE also recommended that petitioners’ son be transported to a local restaurant during the summer of 1997 to work with his chef instructor, an arrangement made privately by the parents. However, that project could not be implemented because of the chef’s hospitalization. Petitioners reportedly did not object to their son’s IEP for the 1997-98 school year (Transcript pp. 266-267).
At a monthly team meeting on March 18, 1998, the student’s father reported that a VESID counselor would conduct a situational assessment of the student, and that the Developmental Disabilities Institute (DDI) and the Office of Mental Retardation and Developmental Disabilities (OMRDD) were being investigated to provide post-secondary school services to his son. He also reported that OMRDD would provide a job coach. The student’s supervising chef agreed that the student would need a job coach. The team discussed the student’s current academic and social needs. The student’s father expressed concern about his son’s failure to achieve all of his IEP goals, and asserted that he would not be graduating in June (Exhibit 14 D).
In May 1998, the student’s speech/language therapist reported that the student’s on-task behavior continued to be highly inconsistent, but that he could on occasion remain on task for ten-minute segments. She also reported that he had made progress in developing his pragmatic language skills. The student was generally able to make himself understood, and had a general vocabulary at the nine to twelve year old level. The therapist noted that behavioral issues had interfered with the student’s instructional progress during the first half of the school year, and reported that he functioned best in a highly structured system which provided both rewards and consequences for his on-task and off-task behavior (Exhibit 161 D).
At the hearing, the student’s math teacher testified that the student had mastered most of his math goals and objectives (Transcript p. 2335). The student’s English teacher testified that the student had mastered his objectives for spelling, sight words, and oral vocabulary, and had done well with other objectives, (Transcript pp. 82-87). However, he did not master objectives relating to organizing his notes and writing essays. At the hearing, the English teacher expressed doubt about the appropriateness of either objective for the student (Transcript p.82). On standardized tests administered to him in the spring of 1998, the student achieved grade equivalent scores 6.1 for word identification, 4.9 for word comprehension, 3.7 for passage comprehension, 3.0 for math application, and 6.4 for math computation (Exhibit 123P).
On June 24, 1998, a final transition meeting was held with representatives of three adult agencies and the student’s father. Written reports from the student’s teachers and service providers were available. A transition summary prepared by respondent’s transition coordinator noted that the student had access to community resources such as VESID and OMRDD, and that he was eligible to receive services from VESID. It also noted that the student had received instruction in functional academics, and that community recreation/leisure programs had been explored for him. The summary indicated that he would receive an IEP diploma in June, and that his "post-secondary outcome" was in supported employment (Exhibit 123 P). Although the transition coordinator would normally have been involved in contacting other agencies and making transition arrangements, the student’s father reportedly did not want her to be involved (Transcript pp. 345-346).
An IEP diploma was issued in June (Exhibit 109 D). The student’s permanent record card indicated that he had earned 29.50 high school credits (Exhibit 108 D). In a letter to the superintendent which was delivered on June 24, 1998, the student’s father announced that he would not let his son receive a diploma, and he requested an impartial hearing (Exhibit 3 J). The hearing did not begin until March 4, 1999. At that time, the hearing officer indicated that a number of adjournments had been granted for health reasons and pending litigation (Transcript p. 10).
Petitioners’ attorney contended that the IEP diploma could not be issued without their consent because their son reportedly had one more year of eligibility to attend respondent’s schools, and it should not have been issued because the student had not substantially achieved his IEP goals. The second issue the attorney raised was respondent’s alleged failure to provide transition services to the student, or to notify him of his right to receive those services, over an extended period of time. He also asserted that petitioners were not informed of their right to a determination their son’s eligibility for summer services. In addition, he asserted that the student had been discriminated against on the basis of his disability because his instructional services were allegedly halted in early June of each school year so that he received fewer days of instruction than other students.
After two days of hearings, the hearing officer withdrew from the case because of illness. On June 30, 1999, petitioners agreed to abide by respondent’s selection of a replacement hearing officer (Exhibit 8 J). The hearing resumed on that day, and it continued for 18 more days, ending on November 29, 1999. The resulting record consisted of more than 3600 pages of transcript and 1100 pages of exhibits. The hearing officer rendered his decision on March 4, 2000. Although he found that the issue of the adequacy of the student's IEPs from 1990 to 1994 was time barred, and that the equitable doctrine of laches precluding his consideration of the student’s 1994-95, 1995-96, and 1996-97 IEPs, the hearing officer nevertheless concluded that the student had received a FAPE during each of those school years. He did so, notwithstanding a finding that the IEPs were flawed because they lacked appropriate goals and objectives. The hearing officer also found that petitioners had been actively involved with the CSE in planning for their son’s education, to the point of disrupting the district’s attempt to develop transition plans and post-education programs for the student. He dismissed petitioners’ claims that their son was entitled to receive a twelve-month educational program, and that his IEP diploma had been improperly issued. The hearing officer also found that there was no merit to their contention that the student had received fewer days of instruction than other students received in the district. In the absence of any evidence that the student had been denied a FAPE, the hearing officer dismissed petitioners’ claim for compensatory education.
Petitioners have not only challenged the hearing officer’s findings of fact and conclusions of law, but have also raised the issue of the hearing officer’s alleged bias based upon an incident which occurred after the hearing had ended (see affidavit of Lewis Wasserman, Esq., attached to the petition). Respondent has addressed this issue with an affidavit by its Assistant Superintendent for Pupil Personnel Services, hereinafter "Assistant Superintendent" (see affidavit of Renee Wagenberg attached to answer). An impartial hearing officer must avoid even the appearance of impropriety (Application of the Board of Education of the North Rose-WolcottCentral School District, Appeal No. 97-1). Having considered both affidavits, I am not persuaded that the hearing officer was biased in favor of the Board of Education.
The courts have concluded that compensatory education, i.e., special education services to be provided to a child after the child is no longer eligible because of age to receive such services, is a permissible remedy under the Individuals with Disabilities Education Act, when the child has been excluded from school, or denied appropriate educational services for an extended period of time (Burr by Burr v. Ambach,,supra; Mrs. C. v. Wheaton, 916 F. 2d 69 [2d Cir., 1990]; Lester H. v. Gilhool, 916 F. 2d 865 [3d Cir., 1990]; Miener v. State of Missouri, 800 F. 2d 749 [8th Cir., 1986]). Compensatory education is an equitable remedy for the failure of a school district to provide that which it was obligated to provide, but failed to provide (Miener v. State of Missouri, supra). Compensatory education may be awarded when a child has been denied the FAPE which he or she is entitled to receive. The term FAPE has been defined as special education and related services which are provided without charge to the child's parents, and meet with standards of the state educational agency, and which are provided in conformity with the child's IEP (20 USC 1401 [a]).
Petitioners have raised a number of issues with regard to respondent’s alleged denial of a FAPE to their son during the 1994-95 through 1997-98 school years. They assert that the CSE failed to adequately evaluate their son because his last physical examination was performed on July 15, 1994, and because it allegedly failed to perform "Level II" and "Level III" vocational evaluations. Although physical exams were at one time required at least every three years, there was no such requirement in the relevant state regulation at the times in question (8 NYCRR 200.4[e]).
The terms Level II and Level III come from the State Education Department’s guideline for "The Vocational Assessment of Students with Handicapping Conditions" (Exhibit 165P). Level II involves the use of specialized vocational evaluation instruments to produce an interest inventory and information about the student’s perception, motor skills, spatial discrimination, verbal and numerical skills, comprehension, ability to remain on task, and learning styles. Level III is more comprehensive and uses real or simulated work to assess and counsel the student. According to the Department’s pamphlet, a situational vocational assessment may be used to supplement, or as an alternative to Level II and Level III assessments. I note that a Level I assessment was done during the 1993-94 school year (Exhibits 145 D-148 D). At the hearing, respondent’s Assistant Superintendent conceded that there was no formal report of a Level II assessment (transcript p. 1575). She testified that a Level III assessment was performed in the spring of 1996 or 1997, which was the earliest the boy’s father would permit the district to perform the assessment (Transcript p. 1577; see also Exhibit 164 D). The Department’s guidelines suggest that these assessments be done to provide the CSE with adequate information to make appropriate occupational education decisions. In this instance, petitioners have insisted, and respondent has agreed, that the student would be trained in the culinary arts. I also find that their claim that no triennial evaluation was performed was not raised at the hearing, and cannot be considered in this appeal (Application of a Child with a Disability, Appeal No. 98-14).
Petitioners contend that respondent’s CSE failed to notify them that their son’s need for transition services would be considered at each annual review, or to indicate that their son would be invited to the review, as required by 8 NYCRR 200.5(a)(1)(xii). I find that the written notices inviting petitioners to attend various annual reviews did not include the information in question (Exhibits 163 P, 82 D, and 120 P). Petitioners also contend that the CSE failed to adequately plan for and provide transition services. Transition services means:
(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
(ii) Community experiences;
(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 C.F.R. § 300.18).
State regulation provides that beginning at the age of 14, a student’s IEP must include a statement of transition service needs which focuses upon the student’s courses of study and is updated annually (8 NYCRR 200.4[c][vii]). In addition, beginning at age 15, the student’s IEP must include a statement of needed transition services, including, if applicable, a statement of the responsibilities of the school district and participating agency for the provision of such services and activities that promote movement from school to post-school opportunities before the student leaves school. Activities must be provided in instruction, related services, community experiences, development of employment and other post-school adult living objectives, and if appropriate, the acquisition of daily living skills and functional vocational evaluation. If services are not to be provided to a student, the CSE’s recommendation shall explain why it determined they were not needed (8 NYCRR 200.4[c][viii]).
Having looked at all four IEPs in question (Exhibits 115 P, 118 P, 116 P, and 5 D), I find that they did not literally comply with the regulatory requirements, especially with regard to community experiences and post-school adult living objectives. However, it does not follow that the student was denied a FAPE simply because various elements of a transition plan were not listed on his IEPs (Chuhran v. Walled Lake Consolidated Schools et al., 51 F. 3d 271 [6th Cir, 1995]; Urban v Jefferson County School District, 24 IDELR 465 [10th Cir, 1996]; Application of a Child with a Disability, Appeal No. 97-70; Application of a Child with a Disability, Appeal No. 96-67). I note that some services such as leisure and recreational activities were reportedly omitted from the IEP at the father’s request (Transcript p.144). He also reportedly told the CSE not to be concerned about his son’s independent living skills (Transcript p. 1434). In their memorandum of law, petitioners suggest that respondent violated federal and state law by not instituting procedures to override their refusal to consent to certain evaluations which might have enabled the CSE to better plan sooner for their son’s transition. In any event, it is clear from the record that they must bear some of the responsibility for the lack of a complete transition plan for their son.
As noted above, compensatory education is an equitable remedy which is available when a student with a disability has been excluded from school, or denied appropriate educational services for an extended period of time. The record indicates that respondent provided this student with a useful program of functional academics and speech/language therapy which addressed the major needs arising from his disability. Standardized test results, teacher reports, and the testimony of his teachers, as well as that by respondent’s educational consultant, reveal that the student derived significant benefit from the program. I have considered the written report and testimony by petitioners’ expert witness. While he identified a number of needs to be addressed, I must point out that those needs were typical of individuals with autism and not proof that respondent had provided an inadequate program for the student. In addition to an academic program, the student received a vocational program which included individual instruction by a chef over an extended period of time. The reports by his vocational instructors indicate that the student achieved significant benefit from being in the program. While the student’s IEPs lacked a formal statement of transition service needs, I note that they identify important skills which would be needed for success in school and post-school employment, as well as independent living as an adult. His IEPs included more that just academic and specific vocational objectives, they also included objectives to improve his ability to interact with others and develop work habits which would make him employable. I find that defects in the IEPs noted by the hearing officer and in this decision do not afford a basis for concluding that petitioners’ son was denied a FAPE by respondent.
Petitioners also challenge the hearing officer’s finding that their son was not entitled to receive an ESY. In order to be eligible for ESY, petitioners’ son would have had to meet the criterion set forth in 8 NYCRR 200.6(j)(1)(v), i.e., to have a need for such services in order to prevent substantial regression as determined by the CSE. The relevant regulation at the time in question defined the term "substantial regression" to mean "an inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year".
Petitioners contend that the hearing officer ignored the testimony by five witnesses who had worked with their son about the extent of review and teaching required in September of each school year to enable the student to regain the proficiencies he had displayed at the ends of the preceding school years. The student’s private speech/language therapist testified that it took approximately three months each fall for the student to regain the proficiency he had in June (Transcript p. 3650). However, respondent’s speech/language therapist who had worked with the student for nine years testified that he regained his academic and behavior skills within one to two weeks in the fall (Transcript p.2055). The student’s individual aide testified that the student adapted fairly quickly each fall to his academic program, but did not regain his cooking skills until mid-October in 1996 and 1997 (Transcript pp. 2924, 2926). The student’s culinary arts instructor testified that the student did not regain his cooking skills until mid-October in 1996 (Transcript p. 3464), and mid-December in 1997 (Transcript p. 3461). Although the student had more difficulty than usual in the fall of 1997, there is evidence that his difficulty was attributable to the fact that his long-time speech/language therapist was on maternity leave and to certain events in his household during the summer (Transcript pp. 96, 180, 307-308, 837-841). However, his behavioral difficulties were addressed at a series of monthly team meetings during the 1997-98 school year. I concur with the hearing officer’s determination that the student was not eligible for ESY during the school years in question.
Petitioners also challenge the hearing officer’s dismissal of their claim that respondent illegally shortened their son’s academic year by not providing instruction to him after early June each year, while other students continued to come to school for examinations. I must note that there is no evidence that the other students received instruction during that part of June. To the extent that petitioners' claim is premised upon the provisions of Section 504 of the Rehabilitation Act of 1973, I must also point out that their claim is beyond my jurisdiction (Application of a Child Suspected of Having a Disability, Appeal No. 99-69).
I have considered petitioners’ other contentions which I find to be without merit.
THE APPEAL IS DISMISSED.