00-091& 01-018

        Petitioner, the Board of Education of the Rondout Valley Central School District, appeals from an impartial hearing officer's decision which found that petitioner's Committee on Special Education (CSE) did not provide an individualized education program (IEP) to respondent's son for the 1999-2000 school year. The hearing officer noted that respondent had not requested a specific remedy, and he declined to order any remedy. The appeal must be dismissed.

        The student’s mother has separately cross-appealed in an amended answer from the hearing officer’s decision, to the extent that the hearing officer did not order a remedy. She asks that the Board of Education be ordered to provide one year of compensatory education to her son. The cross-appeal must be dismissed.

        Respondent's son is 12 years old, and has been classified as autistic. There is no dispute about his classification. The student’s IEPs for the 1995-96 through the 1998-99 school years were briefly referred to in a prior decision, Application of a Child with a Disability, Appeal No. 00-049. A disagreement with regard to the 1995-96 IEP was resolved by an agreement pursuant to which the student received instruction using the applied behavioral analysis (ABA) technique in his home from a program identified as Bancroft CARES (Bancroft). Bancroft continued to provide ABA instruction to the student in his home during the 1996-97 school year. A local BOCES provided music therapy and speech therapy at the student’s home. The student reportedly received the same services during the 1997-98 school year.

        On July 23, 1998, petitioner’s CSE prepared a new IEP for the 1998-99 school year. The CSE recommended that the student continue to receive instruction at home while a flexible plan to integrate him into selected portions of a school setting was developed. It also recommended that he receive 30 minutes of 1:1 speech/language therapy three times per week, and 60 minutes of 1:1 music therapy twice per week. During the summer of 1998, the State Education Department advised the Board of Education that Bancroft had not been approved by the Department to provide instruction to children with disabilities. Under both federal and state law, a board of education may contract with a private school to instruct a child with a disability only if the private school has been approved by the state educational agency.

        A disagreement arose between the parties over the Board of Education’s attempts to employ trained personnel to assume the duties formerly performed by Bancroft. In August 1998, respondent requested an impartial hearing to challenge her son’s IEPs for the 1997-98 and 1998-99 school years, and to obtain compensatory education for her son. On January 27, 1999, respondent advised the CSE chairperson that she was refusing special education services for her son which were provided by either the Board of Education or Bancroft, but would continue to accept her son’s related services.

        The impartial hearing took place on various dates in late 1998 and much of 1999. On June 17, 1999, the parent’s advocate informed the hearing officer, who had previously denied the parent’s motion to recuse herself, that the parent was withdrawing her hearing request pending complaint to the Commissioner of Education about the hearing officer’s competence and an alleged federal court action to declare that any further administrative proceeding would be futile. The parent and her advocate then left the hearing. The hearing continued, but the hearing officer failed to render a written decision, despite having been ordered to do so by the Commissioner of Education (Appeal of the Board of Education of the Roundout Valley Central School District, 39 Ed. Dept. Rep. 707).

        In accordance with the Commissioner’s decision, the Board of Education appointed a new hearing officer to review the hearing record and issue a decision. The new hearing officer rendered his decision on June 12, 2000. He found that the Board of Education had provided an appropriate educational program to the student during the 1998-99 school year. The student’s parent appealed from that decision on the ground that the hearing officer had been divested of jurisdiction on her complaint when she withdrew her hearing request on June 17, 1999. In Application of a Child with a Disability, Appeal No. 00-049, I agreed with the parent and annulled the hearing officer’s determination.

        The present proceeding concerns the CSE’s attempts to prepare the student’s IEP for the 1999-2000 school year. On June 24, 1999, petitioner's CSE began its annual review. The student’s mother attended the June 24 meeting with a lay advocate, who asserted that the parent had not been notified of the meeting in sufficient time to prepare for an annual review. The advocate contended that the CSE meeting should be limited to developing a flexible plan for inclusion of the student in petitioner’s summer school program, and hearing pupil progress reports from the student’s speech and music therapists. He indicated that he and the mother would leave the meeting if other matters were discussed (Exhibit 4, p.8).

        The CSE listened to progress reports from the two therapists, and discussed the need for additional evaluative information. It agreed to the parent’s request for an assistive technology evaluation, and recommended that academic and psychological testing should be done. The CSE also discussed the speech/therapist’s proposed goals for the student, and reached a general understanding with the parent about a flexible plan for the student to attend the summer school program. After two and one-half hours, the meeting ended with an agreement to reconvene on July 22, 1999 to draft the student’s IEP.

        In a four-hour meeting held on July 22, 1999, the CSE reviewed the student’s progress with his private special education teacher and BOCES music therapist. It also discussed the need for additional evaluations involving play therapy and sensory integration. The remainder of the meeting was devoted to discussing an unsuccessful attempt to integrate the student into a summer program (Exhibit 5).

        On July 23, 1999, respondent asked for an impartial hearing because the school district did not have an IEP in place for her son. She indicated that the purpose of the requested hearing was to obtain reimbursement for "monies that I have laid out and must lay out in order to maintain my son’s placement" (Exhibit IHO 1).

        The hearing began on November 19, 1999. The CSE chairperson testified that data from the June 24 and July 22 CSE meetings were entered into a computer to prepare an IEP for the 1999-2000 school year (Exhibit 6). There was reportedly a delay in preparing the IEP because the CSE chairperson waited for a copy of the transcript of the July CSE meeting (Transcript p. 114). The CSE’s recommendations were approved by the Board of Education on August 10, 1999 (Transcript pp. 27-29, Exhibit P). However, as the result of a printing delay, a copy of the IEP was not sent to the student’s parent until October 19, 1999 (Transcript pp. 28-29).

        At the conclusion of the chairperson’s testimony, the Board of Education rested its case with regard to the issue of whether an educational program for respondent’s son had been in place for the 1999-2000 school year. It was agreed to adjourn the hearing to allow the hearing officer to consider the parent’s motion for summary judgment (IHO Exhibit 2) and similar motion by the Board of Education that there was no basis for continuing to hold a hearing (Transcript p.136).

        In a decision dated December 8, 1999, the hearing officer denied the parent’s motion for summary judgment. However, he found that the "1999-2000 program was not provided consistently with Federal and State due process protections provided the student" (IHO Exhibit 11). Having reviewed the transcriptions of the June and July CSE meetings as well as the demeanor of the parties at the hearing, the hearing officer noted that "all will be better served by forgoing any remand to a CSE meeting." Although it was unnecessary for the school district to proceed with its case, the hearing officer suggested that the district present evidence about the appropriateness of the October 18, 1999 IEP to assist him in evaluating the appropriateness of the services privately provided by the parent and the equities of the situation.

        In February and July 2000, the parent sought orders from the hearing officer regarding the pendency effect of the decisions by two hearing officers in the prior proceeding about the 1998-99 school year (IHO Exhibit 30 and 49). Her first request was denied (IHO Exhibit 29). The July request also raised the issue of whether the hearing officer in this proceeding had been properly appointed. On July 31, 2000, the hearing resumed for the purpose of adducing evidence about the hearing officer’s appointment. In a letter dated August 17, 2000, parent’s advocate withdrew his application for the hearing officer’s removal because of the manner in which he had been appointed (IHO Exhibit 59).

        The hearing continued on August 23, 2000. The Board of Education once again rested its case. The parent’s advocate advised the hearing officer that the parent would not go forward with her case to demonstrate the appropriateness of the educational services she had privately obtained for her son, or that equitable considerations favored her claim for reimbursement. However, he requested that the record be developed to document the extent of the Board of Education’s alleged violation of the Individuals with Disabilities Education Act. The hearing officer agreed with the Board’s attorney that the hearing should be closed

        In September 2000, the parent’s advocate asked the hearing officer to clarify his December 8, 1999 decision (Exhibit IHO 65). On October 29, 2000, the hearing officer issued a corrected decision and order (Exhibit IHO 74). In that decision, the hearing officer noted that the parent had not asked him to issue a remedy, and he reaffirmed "the substance of my interim decision dated December 8, 1999 and find that the District failed to provide [the student] with an I.E.P. for the 1998-99 [sic] school year." On November 9, 2000, the hearing officer issued a second corrected order reaffirming the December 8, 1999 decision, and correcting his erroneous reference to the 1998-99 school year in his October 29, 2000 decision.

        The Board of Education asserts that the student’s IEP for the 1998-99 school year was reviewed at the June and July 1999 CSE meetings and that an IEP for the 1999-2000 school year was delivered to the parent on October 18, 1999. It further asserts that the parent did not challenge the content of the IEP that she received on October 18, 1999. The Board of Education contends that the issue before the hearing officer was whether an IEP was in place for the student during the period between the July 22, 1999 CSE meeting and October 18, 1999. It argues that the hearing officer erroneously concluded that there was no IEP in place during that period of time.

        Petitioner premises its argument upon the fact that the parent received transcripts of the June and July CSE meetings at which her son’s IEP for the 1998-99 school year was discussed. Respondent has not expressly denied that she received the transcripts of the two CSE meetings, but she does not concede that those transcripts plus her son’s IEP for the previous school year were the equivalent of an IEP for any part of the 1999-2000 school year.

        A board of education must have an IEP in effect for each child with a disability at the beginning of each school year (34 CFR 300.342). An IEP must include a statement of the student’s present levels of educational performance, measurable annual goals, and a statement of the special education and related services, as well as supplementary aids and services, to be provided to the student, and a statement of the program modifications or supports for school personnel that will be provided for the student (34 CFR 300.347[a]).

        Even if I were to accept petitioner’s assertion that there is no single mandatory format for an IEP, I cannot agree with its contention that the student’s 1998-99 IEP and the two CSE meeting transcripts were the equivalent of an IEP for the 1999-2000 school year. The information which must be set forth in an IEP cannot be ascertained even with a close reading of the CSE meeting transcripts. As noted above, both CSE meetings centered upon efforts to introduce respondent’s son to a regular school environment for at least a portion of the school day during the month of July 1999. The CSE did receive reports about the student’s performance from some of his service providers, but it decided that it needed additional psychological and educational test results, as well as other evaluations. Although proposed goals for speech/language therapy were discussed by the CSE, the CSE did not specifically adopt any goals and objectives for the 1999-2000 school year. I can find no evidence in the record of a specific recommendation by the CSE at either meeting for a complete program of special education and related services to be provided to the student during the 1999-2000 school year. Therefore, I find that petitioner’s argument about an IEP being in place at the beginning of the school year is without merit.

        The Board of Education argues that the hearing officer also erred in determining that it had failed to provide an IEP for the student during the 1999-2000 school year because he ignored the IEP that was delivered to respondent on October 18, 1999. I have reviewed the IEP (Exhibit 6), and am unable to conclude that it reflects the results of the CSE meetings of June and July 1999. As noted above, both CSE meetings were about the student’s summer program and other matters. The CSE did not explicitly recommend any services for the 1999-2000 school year. Therefore, the October 18, 1999 IEP cannot be fairly said to be the student’s IEP for the 1999-2000 school year.

        In reaching my determination about the CSE’s failure to prepare an IEP for the 1999-2000 school year, I am aware that the contentious relationship between the parent and the school district made it extremely difficult for the CSE to perform its responsibilities. The transcripts of both CSE meetings reveal that the parent and her advocate had a deep distrust of the district’s attempts to replace the unapproved provider of ABA instruction. The advocate’s gratuitous remarks at the second CSE meeting did nothing to foster the cooperative relationship which is necessary to develop an IEP (Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2d Cir. 1989]). Nevertheless, it was the CSE’s duty to develop an IEP for the 1999-2000 school year.

        The student’s parent abandoned her request for relief in the form of reimbursement at the hearing, and did not request any other relief. In her initial answer to the Board of Education’s petition in Appeal No. 00-091, the parent did not seek any relief. In Appeal 01-018, the parent initially submitted what she described as an amended answer in which she cross-appealed from the hearing officer’s decision. She subsequently submitted a "Verified Cross-Appeal" requesting the same relief. The parent requests that the Board of Education be ordered to provide one year of compensatory education to her son as a remedy for its failure to provide an IEP for him.

        The Board of Education opposes the parent’s application on both procedural and substantive grounds. It argues that the parent’s belated request for relief is untimely because it was made well after the time limit for directing appealing from the hearing officer’s decision or cross-appealing in her answer to the Board of Education’s petition. A parent must appeal from a hearing officer’s decision within 40 days after receipt of the decision, or may cross-appeal in an answer within 10 days after being served with a petition by a board of education (8 NYCRR 279.2 [b], 279.4 [b]).

        The parent’s cross-appeal was initially asserted in an amended answer verified on January 17, 2001, or 42 days after the petition in Appeal No. 00-091 was served upon her. Her subsequent "Verified Cross-Appeal" was served upon the Board of Education on February 12, 2001. The parent acknowledges that her cross-appeal is late, but she asks me to excuse her delay because she lost the services of her advocate and her mother was ill. She also asserts that the Board of Education has not been prejudiced by her delay, and that what relief, other than simply declaratory, had simply not occurred to her, and that she was unaware that she could have formally demanded relief other than reimbursement at the hearing.

        As noted above, the parent sought an award of compensatory education in the prior proceeding with regard to the 1998-99 school year (Application of a Child with a Disability, Appeal No. 00-049). The parent was assisted at the hearing in this proceeding by an experienced advocate. The issue of compensatory education was never raised at the hearing. I am not persuaded that there is a good reason for excusing the parent’s delay in requesting such relief.

        Even if I excused the parent’s delay, I would be compelled to find that her son is not entitled to an award of compensatory 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.

        The student in this proceeding continues to be eligible to receive services under the Individuals with Disabilities Education Act. He was not excluded from school. Indeed, the records in this and the prior proceeding reveal that the parent had serious reservations about any program of special education instruction provided by district employees. While I do not condone the CSE’s failure to follow through in developing an IEP for this student, I cannot conclude on the record before me that the student is entitled to an award of compensatory education.

THE APPEALS ARE DISMISSED.