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02-004

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York

Appearances: 

Legal Services for Children, attorney for petitioner, Marilyn Mazur, Esq., of counsel

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondents, Blanche Greenfield, Esq., of counsel

Decision

         Petitioner appeals from an impartial hearing officer’s decision which denied her request for compensatory education on the grounds that her request is premature. The appeal must be dismissed.

        Respondent asks that I excuse its delay in serving an answer to the petition, which it received on January 4, 2002. Respondent served its answer on March 21, 2002, well in excess of the ten-day period required by 8 NYCRR §279.5. Respondent’s attorney asserts that there is good cause for its delay because of the high volume of cases assigned to the General Litigation Division of the New York City Law Department. Although I might excuse a brief delay (Application of a Child with a Disability, Appeal No. 01-034; Application of a Child with a Disability, Appeal No. 00-006). I cannot excuse such an extensive delay for that reason (Application of a Child with a Disability, Appeal No. 01-028). Therefore, I have not considered respondent’s answer.

        Petitioner’s son was 15 years old at the time of the hearing of this matter, and was enrolled in a ninth grade modified instructional services-I (MIS-I) class in respondent’s Dewitt Clinton High School. He has been classified as learning disabled since he entered respondent’s school in the fifth grade during the 1996-97 school year. His triennial evaluation in 1999 revealed that there was a significant discrepancy between his verbal and performance IQ scores, he was reading at the second grade level, and his math skills were at the fourth grade level (Exhibits 3, 4). An August 2000 speech/language evaluation indicated that the student had a moderate to severe expressive and receptive language disorder (Exhibit A).

        At the hearing in this proceeding, the parties stipulated that petitioner’s son had not had a valid individualized education program (IEP) since he entered respondent’s schools in the 1996-97 school year, because his IEPs for the years prior to the 2000-01 school year had not been prepared by a Committee on Special Education (CSE) with each of its required members, and he had not received any IEP for the 2000-01 school year (Transcript pp. 9-10). It was also stipulated that the student had not received appropriate educational services, although the limited record does not reveal the nature of the deficiency in such services. The parties agreed that the student should receive 12 months of additional services at respondent’s expense.

        On April 6, 2001, the impartial hearing officer ordered respondent to pay for five hours per week of independent, one-to-one resource room instruction in reading and math from March 30, 2001 until the end of June 2002. She also ordered the CSE to evaluate the student immediately and convene to review evaluation results not later than 30 days after the hearing. These matters are not at issue in the present appeal.

        At the hearing, petitioner’s attorney asked the hearing officer to award compensatory education to the student to be provided following his graduation from high school. The hearing officer expressed doubt about her authority to grant such relief. It was agreed that the parties would provide memoranda of law on this issue to the hearing officer, which they did on April 18, 2001, and April 30, 2001, respectively. Thereafter, petitioner submitted a reply memorandum of law dated May 2, 2001, that the hearing officer accepted over respondent’s objection. She allowed respondent to submit a reply memorandum of law, dated August 31, 2001.

        In a decision dated November 21, 2001, the impartial hearing officer determined that petitioner’s request for an award of compensatory education was premature, finding that it was too soon to know whether the student would still require educational services when he becomes 21years of age. She denied petitioner’s request, without prejudice to renewing the request when it could be determined that the student would require compensatory education at the age of 21. In doing so, she noted that petitioner’s claim for compensatory education was subject to equitable considerations, but she declined to rule upon respondent’s assertion that the claim was barred by laches.

        Petitioner contends that the hearing officer erred in finding that her request for compensatory education was premature. She asks that the matter be remanded for a determination that the student is entitled to an award of compensatory education when he graduates from high school or reaches the age of 21, with the nature and amount of services to be determined at that time. She argues that her request for compensatory education is not premature.

        Compensatory education, i.e., special education services provided to a student after he or she is no longer eligible because of age to receive such services, is a permissible remedy under the Individuals with Disabilities Education Act (IDEA) when the student has been excluded from school or denied appropriate educational 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]; 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 that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F, Supp. 147 [N.D. N.Y. 1997]).

        While I do not condone respondent’s apparent failure to prepare a valid IEP for the student for each of the years in question, I note that the student was reportedly enrolled in a self-contained special education class in respondent’s MIS-I program during those years. The record does not afford a basis for determining what, if any, services the student should have received but did not receive during those years. It also does not afford a basis for either the hearing officer or me to determine what, if any, special education services petitioner’s son might require at the age of 21. At the time of the hearing, the student was still eligible under the IDEA to receive special education services for approximately six years. The hearing officer directed respondent to begin providing additional services through June 2002, when the student’s needs were to be assessed. She also reminded the CSE of its obligation to see that the student received a free appropriate public education (FAPE) through the age of 21. I concur with her determination.

THE APPEAL IS DISMISSED.

Topical Index

Parent Appeal
Preliminary MattersPleadingsService of Pleadings
ReliefCompensatory EducationAdditional Services